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Daily Archives: August 25, 2022
How Isabel Paterson Helped Ayn Rand Find Atlantis – The Objective Standard
Posted: August 25, 2022 at 1:50 pm
Editors note: This is a lightly edited version of a speech delivered at TOS-Con 2022, which was adapted from Timothy Sandefurs forthcoming book, Freedoms Furies: How Isabel Paterson, Rose Wilder Lane, and Ayn Rand Found Liberty in an Age of Darkness (Cato Institute, November). The article contains spoilers of Ayn Rands novels The Fountainhead and Atlas Shrugged.
Those of you who have read Ayn Rands Atlas Shrugged may remember that the first time the word Atlantis is mentioned is in chapter six. Dagny Taggart is at a cocktail party and overhears someone utter the books catchphrase, Who is John Galt? She turns to walk away but is stopped by one of the guests, an unnamed woman who says in a conspiratorial tone, I know who is John Galt.
Who? Dagny asks.
I knew a man who knew John Galt in person, the woman answers. This man is an old friend of a great-aunt of mine. . . . Do you know the legend of Atlantis, Miss Taggart?
Vaguely, Dagny replies.
The Isles of the Blessed, the woman says. That is what the Greeks called it. . . . They said Atlantis was a place . . . only the spirits of heroes could enter . . . because they carried the secret of life within them. . . . A radiant island in the Western Ocean. Perhaps what they were thinking of was America.
The woman explains that John Galt actually found Atlantisand Dagny loses interest, thinking the woman must be crazywhereupon the woman becomes belligerent. My friend saw it with his own eyes, she says. You dont have to believe it. When Francisco dAnconia interrupts them, the woman brusquely walks away.1
The incident is so brief that its easy to miss the fact that this brusque and belligerent woman who knew about Atlantis was actually a real person. Just as Ayn Rand famously included herself in a cameo in the novelas the character of the fishwifeso the woman at the cocktail party is a cameo of a real persona woman who helped inspire Atlas ShruggedRands onetime friend and mentor, Isabel Paterson.
In 1943, Rand, Paterson, and a third writerRose Wilder Lanepublished books that would jump-start the libertarian or free-market conservative movement. These were Rands The Fountainhead, Lanes The Discovery of Freedom, and Patersons The God of the Machine. At the time, both Rand and Lane acknowledged Paterson as their teacher and intellectual mentor. Although shes largely forgotten today, Paterson was then one of the countrys most important literary intellectuals, a pioneering journalist, novelist, and scholarand the woman who gave Ayn Rand the image of America as Atlantis.
Paterson was born on an island on the Canadian side of Lake Huron in 1886.2 She was named Mary Isabel Bowler. Her family was poor, and she had only a year or two of formal schooling, which ended when she was eleven. Little is known about her early life, except that her family moved to Michigan, then Utah, then the Northwest Territories of Canada. In other words, she was a product of the American West, and she grew up witnessing Indian ceremonies, living in log houses, seeing covered wagons on the plains, and watching as railroads stretched across the frontier. She saw her first lightbulb at the age of sixteenshe was too afraid to tinker with it, so she left it on all night. A year later, the Wright Brothers took their first flight at Kitty Hawk.
In 1910, she married a man named Kenneth Paterson, but the marriage lasted only a few weeks before they separated. Despite their breakup, they never officially divorced, and Paterson kept his name. Months after the marriage failed, she moved to Spokane, Washington, where she got a job writing editorials and short stories for a newspaper. She signed her column I.M.P. for Isabel Mary Paterson. She would make these initials famous, but her closest friends called her Pat.
In 1912, she moved to New York, where she worked as a journalist and novelist. On one occasion, she rode along with pioneer aviator Harry Bingham Brown to set what was then a world altitude record of five thousand feet. Aviation was a lot more fun in the early days, she wrote years later: You sat on a six-inch strip of matchboard and held onto a wire strut, and looked down past your toes at nothing but the earth.3 That was why Paterson came to speak of herself as a member of the Airplane Generation.
By 1920, she had moved to Connecticut and was working for the opinionated, iconoclastic, bold, and vehemently American sculptor Gutzon Borglum, best known today for carving Mount Rushmore. Borglum had been recruited five years earlier to create a monument to the Confederate Army generals near Atlanta. A decade of tedious and bitter infighting with the Stone Mountain Memorial Association ensued.
Sketches and models leaned up against one wall, Paterson remembered, and every while or two he would drop whatever else he was doing and dash down to Washington to get a bill passed in favor of the Memorial, or to Atlanta to rally the home guard.4 At last, Borglum became so fed up with the political bickering and meddling with his work that he dramatically shattered his plaster miniatures, and threw the pieces from the top of the mountain. (The work was completed by another sculptor.)5
Paterson admired Borglums defiance and his commitment to his artistic vision. Long afterward, she would fondly recount stories of her time with him and lament the disappearance of that kind of bold masculinity. After her death, an acquaintance recalled that she often said she grew up . . . in an age when men were men.6
Why she left Borglums studio is not known, but in 1922, she embarked on a career at the New York Herald Tribune, which, two years later, gave her a weekly column called Turns with a Bookworm. She would write it every week for the next quarter century. It was not a book review column, although she did write hundreds of book reviews and other items. Instead, it was a news, gossip, and opinion column about the publishing industry, and it contained everything from her thoughts on new best sellers to reports about upcoming events and answers to letters from readers. She had a wry sense of humor, often quoting poetry or comparing different authors techniques, and wrote in a clipped, editorial style that gave the sense of reading a news bulletin. Heres a sample, from her July 7, 1934, column (the ellipses are hers):
The best new book on the Virgin Queen is Milton Waldmans Englands Elizabeth; but here is still another, J.E. Neales Queen Elizabeth, which has solid merit. . . . Yes, there is too such a place as Humptulips. . . . Weve been there. . . . You might prefer Snoqualmie, Kitsumcallum, or Supzzum.7
That column went on to discuss a new play by Edward Hope, a novel called You Cant Be Served, a box of chocolates a writer had sent her, and her views on the gold standard.
Patersons extraordinary breadth of reading and friendship with leading intellectuals made her a brilliant raconteur, and her column became a must-read for the literary world. One writer said in 1937 that she probably has more to say than any other critic in New York today as to which book shall be popular and which shall be passed by.8 She could be brilliantly wittybut also unapproachable, even misanthropic. She was the Goddess of Common Sense, wrote one colleague, who thought she contemplate[d] the world with a mild impatience that people can make such a stupid mess of things.9 But others did not find her impatience mild. One writer said she had a wit so searing that no rubber plant ever grows again in a room through which she has trod.10 Regularly described with words such as acidulous, caustic, and waspish, she was sometimes ferociously stubborn, even when she was obviously wronga habit that worsened as she grew older.11
In 1929, the America shed grown up with began to transform. First, the Depression wiped out much of her savings. There had been depressions before, notably in 1893, but in those cases, the government had let buyers and sellers, investors and producers, resolve economic downturns through private negotiationsthus enabling markets to right themselves and grow stronger. But this time, the Progressive president Herbert Hoover took a different route.
Convinced that the cure for the Depression lay in keeping wages high, he implemented policies designed to reduce productivity and increase government spending. His administration paid farmers to keep produce off the market and urged cotton and wool producers to destroy their crops to prevent prices (and corresponding wages) from falling. He approved severe restrictions on immigration and the infamous Smoot-Hawley Tariff, which raised the cost of imports and encouraged other countries to retaliate by imposing their own tariffs, destroying foreign markets for American farmers. He browbeat industries into keeping wages upwhich meant companies spent much-needed capital, thus hastening their bankruptcy. And he vastly expanded government building projects to keep people workingbut because these were government jobs funded by taxes extracted from the market, that was the economic equivalent of scooping water out of one end of a pool and pouring it in at the other.
Hoovers belief that expert bureaucrats could manage the economy was shared by many intellectuals worldwide. The revolutions of Lenin and Mussolini were greeted by many as the dawn of a new era, in which expert planners could organize production and trade to serve everybodys needs and eliminate inequality. Many thought that individualism had been superseded by a new, modern age of collectivism. In fact, as the 1930s began, the idea that America should become a dictatorship became frighteningly popular.
On inauguration day 1933, the new president, Franklin Roosevelt, told Americans that he had two priorities: to put people to work through direct recruiting by the Government and to redistribute land to those best fitted to own it. And although he planned to recommend these proposals to Congress, he was also prepared, in the event that the Congress shall fail to take one of these two courses, to demand broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe. The American people were looking for discipline and direction under leadership, he said, and he would make sure they got it.12
To anyone familiar with communism or fascism, these words were alarming. It seemed there was much more to fear than just fear itself. But, as Ive said, intellectuals of the time largely embraced authoritarian politics. Only weeks before Roosevelts speech, Barrons magazine published an editorial advocating a mild species of dictatorship, and Walter Lippmann advised Roosevelt in his column, You have no alternative but to assume dictatorial powers.13 In May, a New York Times journalist proclaimed that Americans had given Roosevelt the authority of a dictator as a free gift, a sort of unanimous power of attorney. . . . America today literally asks for orders.14
Paterson did not think Americans wanted orders, or a planned economy, or any of the transformations proposed by Roosevelts Brain Trust. What everyone yearns for, she wrote, a day after the inauguration, is to return to private property, to get out from under the heavy load of taxes and too much government.15 But Roosevelt had little respect for the Constitution or individual liberty. Among his first acts was to end the gold standard and declare that the government would no longer honor contracts that required it to pay people in gold. These so-called gold clauses were a protection against inflation, because they stipulated that if the government engaged in inflationary policies, people could demand payment in gold instead. By refusing to honor these promises, Roosevelt sought to make the dollar worth whatever he said it was worth.
Paterson was indignant. She began devoting her columns to bitter and brilliant lectures on the meaning of money. Currency, she explained, is not a mere social construct but a tangible representation of production. For government to manufacture money by fiatto, essentially, engage in counterfeitis a form of theft, because it diminishes the value of dollars held by people who earned them. And that cheating was the prime object of inflation, she wrote. Roosevelts policies were intended to operate as a hidden tax, which would wipe out the savings of the smallish people who have the deplorable habit of paying their debts, in order to transfer their wealth to the government.16
When Walter Lippmann wrote that debates about inflation and the gold standard gave him a headache, Paterson shot back that if he found monetary policy hard to understand, he should go home and take an aspirin.17 Ridiculing the idea that the administrations gold measures were a form of theft, Lippmann argued that gold, like an umbrella, is the property of the man who holds it. No, Paterson replied, all gold in the U.S. Treasury belonged to whoever had gold certificates, and by nullifying those certificates, Roosevelt was forcing people to accept a risk of inflation that they had tried to avoid. Gold was indeed like an umbrella in that the owners were keeping it for a rainy day and it was stolen, seized by main force.18
In the years that followed, Roosevelt imposed federal control on virtually every aspect of the nations economy, and Paterson became one of the most eloquent and insightful of the few media figures who opposed these New Deal policies. Government economic planning was foolish arrogance, she thought, because planners would have to know absolutely all the factors of present and past out of which the future must proceed, and to anticipate inerrantly all the possible new discoveries which may be made. Lacking such omniscience, their efforts to organize society would only put it in a straitjacketand encourage cronyism by using government power to serve private interests. Government and business can be entwined only in the same way as Laocon and the python, she wrote. It doesnt do either of them any good and its very hard to untangle them again.19
Paterson thought Roosevelts advisers were a bunch of young men who went to college on an allowance, and then came out in nice white collars to jobs on politely radical magazines supported by kind wealthy ladies, and whose political ideal was a mothers boy economic program with a kind maternal government taking care of everybody out of an inexhaustible income drawn from mysterious sources.20 And she thought the New Deals basic fallacy lay in ignoring the role that individual personality traits play in generating productivity. Roosevelts Brain Trust never ask themselves how wealth comes to exist in the first place, she wrote. They just take it as a fact of nature and go about redistributing it.21
But Paterson thought wealth creatorswhom she called self-starterspractice a specific set of virtues: thrift, industry, diligence, foresight, and independence. Self-starters were the people who manage to plow and sow and reap, to build and make . . . against the tempest, though all bureaucrats stand massed against them.22 Critiquing a book by a socialist in December 1933, Paterson objected that the author
assumes as his set-up a self-existent economy of plenty. There is no such thing. That potential plenty depends entirely upon a minority being allowed to function. We do not mean a class, but a certain type of mind. It exists in various degrees and formsbusiness men and farmers and foremen and housewives, the people who will always somehow get things done. . . . They are self-starters . . . and their particular function is to hold everything together. One cant always see how they do it. A business may be so admirably organized that it looks as if it would run itself, but if you take out one or two men who keep it running and put in some bureaucrat who knows all the graphs and charts the business will go to pieces . . . And in an effort to regulate everything those people may easily be eliminated. They have been very nearly exterminated in Russia.23
While she was writing these columns, Paterson was also working on her novels. Never Ask the End was published in 1933, The Golden Vanity a year later. Never Ask the End, which became a best seller, was an introspective, naturalistic novel with almost no plot centered around the life and thoughts of a character named Martaobviously a stand-in for Paterson herselfwho feels her youth vanishing under the onslaught of modernity and bureaucracy. Marta frequently contrasts the present day with the America she knew when she was young. Weve come so far, she thinks. Starting in a prairie schooner and covering the last lap by aeroplane. There and back. . . . To experience all the stages of civilization in one lifetime, from the nomad to the machine age, demands the utmost.24
Yet, in the Roosevelt Age, that vibrant sense of opportunity seemed to have vanished under the mandates of bureaucracy and government compulsion. And that theme of lost innocence was a frequent subject of Patersons writing. In The Golden Vanityher novel about the Great Depressionone character, named Mysieagain, a stand-in for Patersonvisits Washington State, to see the place where she grew up, and is mortified to see her neighborhood has been demolished.
She was gazing at an open square of naked and infertile sand, with not a stick nor a stone nor a blade of herbage on its arid surface. A new concrete pavement bounded it rectangularly, one city block in an extensive grid of dismal blocks, of which the others were meagerly built over with new bleak small buildings. . . . Whoever was responsible, I hope theyre dead broke, [she thought]. Thats what the planners are going to do for us everywhere.25
In one of her columns, Paterson wrote that the Wright Brothers were lucky to have lived before the New Deal, because otherwise they would never have invented the airplanethey would have been forced instead to join a cooperative social group to study leadership and fill out reams of paperwork.26 The airplane was invented in the United States precisely because this was the only country on earth, the only country that ever existed in which people had a right to be let alone and to mind their own business, she said. New Dealers should ask themselves what would happen if innovators and inventorswhom Paterson called the Intelligence Section of societywere put out of action by a system of economic controls, rationing, political restriction, and a devouring plague of bureaucrats throughout the world.27
That was not an idle question. In 1937, the American economy fell into a second collapse, in some ways worse than the 1929 crash. It was caused by Roosevelts massive new taxes on businesses, such as Social Security, as well as his new pro-union legislation, such as the National Labor Relations Act. Wages fell by 35 percent, and four million people (the equivalent of ten million people today) lost their jobs.
Refusing to admit that his programs had failed, Roosevelt instead blamed this depression-within-a-depression on what he called the strike of capital. He claimed that it was the result of a concentrated effort by big business and concentrated wealth to drive the market down just to create a situation unfavorable to me, and he ordered the FBI to begin investigating bankers and business leaders.28 Attorney General Robert Jackson told an audience that business owners were trying to liquidate the New Deal and establish a new manifestation of aristocratic anarchy by refusing to invest or hire. Four days later, Interior Secretary Harold Ickes gave a radio address claiming that the nations sixty richest families were engaged in a general sit-down strikenot of labor . . . [but] of capital.29
In truth, there was no such conspiracy; business owners and investors were simply reacting to the administrations policies, which punished economic growth and seized earnings. But Roosevelts scapegoating sounded all too familiar. After all, leaders in Russia and Germany were also blaming their own economic catastrophes on saboteurs and secretive counter-revolutionary forces.30
The following May, Paterson pointed out why the whole idea of a capital strike was fallacious. If there are sound opportunities which the banks pettishly refuse to take advantage of, she wrote, will the capital strike theorists name even onesome person or firm who has without reason been refused a loan, for proper and profitable use? The recession was no conspiracyit was caused by the fact that any form of investment may be clubbed over the head by arbitrary rate fixing, or by property seizures . . . or by punitive investigations . . . or by taxes piled on taxes.31
A month later, former New Dealer Hugh Johnsonwho had left the White House and become a Roosevelt criticrevealed that after the Supreme Court struck down some major parts of the New Deal in 1936, Roosevelt had told him, Business has bucked me, and when business wants to play with me again, it will be on its hands and knees.32 Paterson was astounded that nobody seemed outraged by this grave and repulsive language. Industry on its hands and knees is not a pretty idea, she wrote. What can be the state of mind which could anticipate that condition as something to play with? But instead of speaking up in their own defense, acquiescent businessmen chose to remain silent. If they dont resent [such treatment], she said, they may come near deserving it.33
It was in this environment that Roosevelt decided to run for a third term. His decision did not surprise Patersonshe had predicted four years before that he would be the permanent nominee of the Democratic Party.34 There was little hope that Republicans could unseat him, because so much employment now depended on his funding and favoritism that he was essentially buying votes with taxpayer money. But Republicans made a surprise decision in 1940 by nominating a virtual unknowna businessman named Wendell Willkieto run against him.
Willkie happened to be known personally to Paterson, because he was carrying on an extramarital affair with her boss at the Herald Tribune, editor Irene Van Doren. Willkie even attended some of Patersons private get-togethers at the Herald Tribune offices.
One of the many Americans who volunteered for Willkies campaign was a Russian immigrant and author named Ayn Rand. After escaping the Soviet Union, she had published a novel and written a successful Broadway play. Now she was at work on a new book, centering on a brilliant young architect. But convinced that Roosevelts campaign for a third term meant it was now or never for capitalism, she laid aside her manuscript to work for Willkies campaign.35
She was quickly disappointed by his lack of intellectual coherence. He had seemed like a principled defender of individualism and freedom, but on the campaign trail, he descended into a weak, me too style that left voters unenthusiastic. We received letters by the thousands, begging us for information, she later said.36 But the campaign had no intellectual ammunition to offer, and Willkie was easily defeated.
That experience persuaded Rand that America needed a strong, intellectual voice for individualism. She began trying to organize a group of thinkers to take up that work, and among those she invited to join was Isabel Paterson.
Paterson said no. She never joined groups. But she invited Rand to visit her at the Tribune offices, and it was there, probably in the spring of 1941, that the two first met. They hit it off right away. Rand was awed by Patersons historical and literary knowledge, and Paterson was fascinated by Rands intellectualism and personal history. They began meeting weekly at the Tribune offices, and Rand loved the experience. When Pat is in a good mood, she is like quicksand, she told a friendcompletely irresistible.37
Paterson invited Rand to visit her Connecticut home, and soon the young writer was a regular guest, joining Paterson for weekends during which they stayed up late discussing literature, history, and philosophy. Other times, Paterson spent evenings at Rands Manhattan apartment, talking until sunrise about philosophy or joking about books and politics. Rand particularly treasured the memory of one late-night conversation about consciousness, during which the two tried to figure out what goes on inside the mind of a beaver. Rand even worked a reference to this into The Fountainhead. In one passage, newspaper magnate Gail Wynand recalls how, when he was young and poor, he sometimes escaped his unhappy surroundings by thinking about his pet kitten, which was cleanclean in the absolute sense, because it had no capacity to conceive of the worlds ugliness. I cant tell you what relief there was in trying to imagine the state of consciousness inside that little brain, trying to share it, a living consciousness, but clean and free.38
In fact, the friendship between Wynand and Howard Roark owes much to the feelings that developed between Paterson and Rand. Around this time, Patersonwho took to calling Rand her sisterinscribed a copy of her novel, If It Prove Fair Weather, to Rand, with a touching quotation from the French essayist Michel de Montaigne: Because he was himself; because I was myself.39 It was a line Montaigne used to describe his relationship with Etienne de La Botie, which Montaigne called the ideal companionshipone in which souls are mingled and confounded in so universal a blending that they efface the seam which joins them together. Rand reciprocated with a copy of The Fountainhead in which she wrote, You have been the one encounter in my life that can never be repeateda line that in the novel Roark speaks to Wynand as an expression of the deepest possible rapport.40
Of all the aspects of Rands philosophy of Objectivism, the element that would prove most controversial was her rejection of the morality of sacrifice. Rand viewed herself as challenging the cultural tradition of two and a half thousand years.41 But she was not alone in this: Paterson, too, thought a morality of rational self-interest is proper for human beings, who are inherently individuals responsible for their own lives. Its also the only sound basis for political freedom. Sacrifice and unselfishness seem to be the motives causing wholesale destruction, devoted to death, Paterson wrote in her column. When men relapse into selfish and unsacrificial motives they create a living human worldgrow food, build houses, invent and construct and produce, strictly for themselves.42
Freedom must mean freedom for each person to pursue his or her own life for its own sakean inherently self-interested proposition. After all, Paterson continued,
wasnt it selfish of the slaves to want to be free? Why werent they satisfied to live for their masters and die for them too . . . [?] The masters said it was for the good of society that they kept slaves, and their argument was quite as sound as any other argument for the good of society.43
Modern intellectuals were drawn to altruism precisely because it call[s] for the antecedent need or misery of its objects and therefore gives politicians grounds to demand power over others.44
Thus, in her 1943 book The God of the Machine, Paterson would condemn what she called the purest altruism of the communal cult, because it stood opposed to the principle that every person is born with a right to a life of his own.45
That books general thesis is that economic exchange is a kind of circuit whereby individuals, acting on their own local knowledge and circumstances, can cooperate to create and exchange wealth while respecting each persons freedom to run his or her own life. This distinguishes it from centralized, command-and-control economies in which people are forced to pursue a single, unified goal and occupy social positions determined by authorities. Patersons book represented an intellectual breakthrough, partly because it offered an explanation of economics in terms of the transfer of energyan innovative way of understanding how markets operate. But it was equally notable for the connection it drew between the morality of self-sacrifice and the politics of collectivism. In a passage that strikingly echoes the theme of The Fountainhead, Paterson distinguished between two different conceptions of power: power directed toward the mastery of nature and power over other men.46 The latter is the essential characteristic of collectivism and is most easily disguised under humanitarian or philanthropic motives.47 Such a focus on power over people leads to a society that is frozen and changeless, as opposed to the fluid, ever-evolving society of freedom created by a culture that focuses on mastering nature. Static societies cannot invent or innovate, because creative processes do not function to order.48 To live, people must think; and to think, they must be free. This explains why collectivist countries such as the Soviet Union stagnate or are forced to borrow or steal technology from freer societies.
Rand called The God of the Machine the greatest defense of capitalism I have ever read.49 It could literally save the world, she told one businessman, if enough people knew of it and read it.50
But she and Paterson did not agree on everything. They differed about religionPaterson thought there must be a supernatural or immaterial essence in the human spirit to explain free will; what some philosophers have called an lan vitaland they differed in their literary views, too. As an advocate of romanticism, Rand did not admire the plotless, stream-of-consciousness quality of Patersons novels. Paterson, by contrast, respected the romantic approach but was committed to naturalism.
In fact, Rands fiction shows little evidence of any debt to Patersonwith three exceptions. First, Rand originally intended for Howard Roark to mention Hitler and Stalin in his climactic courtroom speech, but when Paterson saw the outline, she urged Rand to remove these references, because they would date the novel and reduce its impact in years to come. That was good advice, and Rand followed it.
Second, when Rand was working on Atlas Shrugged, Paterson urged her to omit unnecessary descriptive passages that slowed down her prose. I have been engaged in a wild orgy of weeding, Rand replied, not of devils grass, but of adjectives.51 Rand was probably familiar with this age-old writing advice before encountering Paterson, but the reminder may have been helpful.
And the third influence was the legend of Atlantis.
That legend was destined to play a prominent role in Atlas Shrugged, which Rand started writing shortly after The Fountainhead was published. In October 1943, Paterson wrote her a letter enclosing a quotation from the Medieval Islamic scholar Averros, who had urged his fellow philosophers not to bother debating the mystics who claimed the truth was revealed to them directly by God. Reasonable people, Averros wrote, should stay silent and simply content themselves with a solitary possession of rational truth.52
Didnt that attitude of intellectual retreat, Paterson asked, explain how the Muslim world had lost its position as the worlds intellectual leader in the 12th century? Intellectuals such as Averros had withdrawn from the world, and civilization had collapsed.
Rand enjoyed the quotation. I know that I will now have to write [Atlas Shrugged], she wrote back. Youll push me into it.53 By that time, Rand was living in southern California, having moved there to work on the film version of The Fountainhead. That project took much longer than expected, because World War II rationing slowed film production, so in the interim, Rand got a job as a screenwriter for producer Hal Wallis, who in 1945 released the film Love Letters, for which Rand wrote the script. She managed to include a sly reference to Paterson in that film: In one scene, a character holds up a toy boat he played with as a child and mentions that its called The Golden Vanitythe title of Patersons 1934 novel.
Rand would occasionally take a break from working on screenplays and Atlas Shrugged to write Paterson about her progress on the novel.54 In February 1948, she traveled to New York and Chicago to research railroads and steel mills, and she wrote Paterson a long, enthusiastic letter describing the trip. She had even been allowed to operate the locomotive. Believe it or not, she beamed, I have now driven the Twentieth Century Limited.55
She was by then far enough into the manuscript that she shared part of it with Paterson, who offered some suggestions on what became part 1, chapter 8.
In this part of the story, Dagny Taggart and steel magnate Hank Rearden ride on a train over a new bridge built of Rearden Metal. Reading Rands description of the characters sensations on the train sparked Patersons joyful memories of watching and riding railroads on the prairie in her youth. A train streaming across the landscape, she told Rand, was not quite like any other visual impression of things in motion. It was
not exactly a feeling of speed in the obvious way, as with a bird flying or a stone thrown or a creature runningnot exactly that it is going fast, but that it cuts space, it gets there so positively that the relative quality of speed becomes unnoticeable; its on another scale. Almost an effect of planetary motion.56
Rand wrote back to say that she loved Patersons way of putting it, and the final version of this passage captured some of what Paterson was trying to describe:
[Dagny] felt no wheels under the floor. The motion was a smooth flight on a sustained impulse, as if the engine hung above the rails, riding a current. She felt no speed. . . . She had barely grasped the sparkle of a lake aheadand in the next instant she was beside it, then past. It was a strange foreshortening between sight and touch, she thought, between wish and fulfillment.57
Paterson also passed along other helpful tidbits for the novel. In 1943, she sent Rand an advance copy of Boot Straps, a memoir by Tom Girdler, president of Republic Steel. Five years earlier, Girdler had refused to negotiate with the militantly left-wing Steel Workers Organizing Committee, leading to violent protests at Republic Steels Chicago plants, which left ten people dead. Rand admired Girdler for his refusal to cave in to the unions demands, and she based the character of Rearden partly on Girdler.
One reason was Girdlers philosophical naivete. She and Paterson found his memoir disappointing because he failed to understand that the reason why he was demonized in the press was not economic but moral. Paterson wrote in her column that the books most remarkable feature was the contrast between Girdlers enormous practical ability and his utter absence of general ideas.58 Girdler was bewildered that although everyone agreed that workers had a right to strike, nobody spoke up for the much more venerable and important right to work.59 And he complained that the rotten core in all of the New Deal thinking was the presumption that a man with payroll responsibilities is necessarily less of a humanitarian than people of prominence without such responsibility.60
That is not true, Rand told Girdler in a long and patient letter. The real reason socialism was growing in popularity was because we accepted altruism as an ideal. That allowed self-professed humanitarians to claim a moral high ground they did not deserve. In principle and in fact, Rand wrote, socialists are parasites, because
they are primarily concerned with distribution, not with production, that is, with distributing what they have not produced. Parasites are neither honorable nor kindly. So it shocked me to read you, a great industrialist, saying in self-justification that you are just as good as a social worker. You are not. You are much better.61
She closed by urging him to read The Fountainhead and The God of the Machine.
But the most significant of Patersons contributions to Atlas Shrugged was the Atlantis metaphor. Paterson had been fascinated all her life by this ancient myth, and she invoked it often in her column. In spite of [my]self, [I] have always believed in Lost Atlantis, she wrote in one. She speculated that perhaps the myth had its origins in some prehistoric discovery of North Americathat there had been an Island of Atlantis and that it was the New World. Even if that was not literally true, Atlantis symbolized for Paterson the America she had known before the Depressiona land of possibilities in which bold men were free to accomplish great things. Commenting on a book about the history of the American Westthe land of her childhoodshe called it a strange sunken world, a real lost Atlantis, which is the element in the American mind that Europeans do not understand. And in Never Ask the End, she wrote that [Marta] could remember reading of the Wrights first flight. . . . So she could also remember before that. It left one gasping, to think of belonging to both agesto have seen the world swing out in space, and nothing to steer by but one far-off nameless star.62
As a child, she thought about how the American West was a wild land . . . [that] has never been plowed or fenced. . . . One used to come to the end of a board sidewalk and step off upon virgin sod. But now Marta thinks that the people of her generation belong[ed] to a sunken continent; lost Atlantis, submerged under the westward tide of the peoples of the world. . . . After us, nobody will know what it was like.63
Simply put, Atlantis represented the world the Airplane Generation had grown up ina prewar, pre-Depression, pre-New Deal country full of boundless possibilities and brilliant innovators.
In Atlas Shrugged, the worlds great industrialists have disappeared into a refuge they call Galts Gulchand also call Atlantis. Atlantis, says John Galt,
exists, not in the past of the [human] race, but in the past of every man . . . somewhere in the starting years of your childhood, before you had learned to submit. . . . The independence of a rational consciousness facing an open universe. That is the paradise.64
The Atlantis myth that Rand and Paterson had discussed in their late-night conversations became in Rands metaphor a spiritual place of possibility, opportunity, freedom, and devotion to ones highest valuesa place like the American West of legend. It might seem ironic that Rand, who always considered New York City her spiritual home, would invoke the spirit of the West as the salvation of American liberty. But she did, in large part thanks to her Western friend, Isabel Paterson.
Patersons own book, The God of the Machine, did not sell well, and by 1948, Patersons violent temper was getting out of hand. Rand once told a friend that she had never approved of Pats incredibly offensive manner toward people but couldnt figure out how to react when she witnessed it, because she had so much admiration for Patersons fierce intellectual honesty [and] her strict devotion to ideas.65
When the wealthy philanthropist Jasper Cranewho they were both hoping would fund a new magazine devoted to free-market ideastold Paterson that he thought God of the Machine was too hard for average readers, Paterson exploded in a letter that called Crane stupid and cowardly and likened herself to Newton and Euclid. She then proudly forwarded a copy of the letter to Rand, who was startled by its ferocity. Another time, Paterson chewed out a businessman so savagely for failing to support free-market ideas that he replied that he now understood how the Germans must have felt after being firebombed. That is nothing, Paterson told Rand. Ill give him Hiroshima yet.66
Paterson knew how off-putting she could be. Slowly but surely I am fixing it so that I wont speak to anyone but you, she told Rand, and if you then wont speak to me Ill be all set for peace and quiet.67 Rand mused in her journal about Patersons rage, wondering why she alternated between uncontrollable fury and a clingy need for attention. It seemed as though Paterson had been wrecked by a fierce sense of injusticean indignation toward cruelty and irrationalitywhich erupted into exaggerated pride as well as an insane arbitrarinessa tendency to say I am right because Im right. This habit had become so extreme that it turned to hurting those whom she likes.68
Rand wrote to Rose Wilder Lane to ask if she had observed Paterson losing control. Among Rands papers is a fragment of Lanes reply, detailing examples of Patersons angry stubbornness. Yes, Lane said. She told Rand about a time when she got into an argument with Paterson over whether rosebushes could grow in the shade beneath trees. Paterson insisted they could not. But the two were then sitting together on Lanes patio, beside a maple under which a rosebush had flourished for years. When Lane pointed this out, Paterson still angrily maintained that it was impossible. It was an irresistible force meeting the immovable rosebush-under-the-tree, Lane said. An idea once in her head cannot be dislodged.69 Rand decided her mentor was a tragic case, someone who might have become a great rational thinker but was instead succumbing to a bitterness that handicapped her ability to speak in defense of freedom.70
In May 1948, Paterson flew to visit Rand in Los Angeles, in hopes of interesting California investors in her idea of starting a new magazine. But the visit proved disastrous. Paterson treated Rands friends rudely and offended businessmen who might have been able to fund the proposed magazine. Then, toward the end of her visit, Paterson told Rand that she had been offered the chance to review The Fountainhead five years earlier and had declined. As a result, the Herald Tribune had published one of the few negative reviews the book receivedwhich would never have happened if Paterson had chosen to review it.71
Rand felt betrayed. After a tense ride to the airport, Rand bid her good-bye, saying, I hope youll be happier than you are.72 They remained cordial and continued to correspond about a new magazine, but their friendship was essentially over.
Rand was now forty-five, an accomplished writer with a best seller, a major film, and a growing circle of admirers. She felt no further obligation to make excuses for Patersons behavior. Yet she could never betray her appreciation and admiration for her former mentor. Consequently, just as she included herself in a Hitchcock-like cameo in Atlas Shrugged, she included Paterson in the book, as the character who first speaks of Atlantis and stubbornly insists that it existedbefore angrily storming away.
Despite the end of their friendship, Paterson was thrilled by Atlas Shrugged when it was published. It was far more complex than War and Peace, she told a friend, and cram-jammed . . . with action. She was delighted by its defense of capitalism. The great fraternity of eggheads and deadheads, Liberals and Commies and bureaucrats, are carrying on a deliberate campaign to kill the book, if they can, she wrote.73
Indeed, reviewers were almost uniformly hostile, denouncing its unwavering individualism. Left-wing reviewers hated it, and conservatives were equally hostile. The National Review published a review that claimed Rand wanted to murder her ideological opponents. Paterson, who had written for the National Review, was furious. She complained to the editor, William F. Buckley, calling the article libelous, but Buckley dismissed her complaints. That, combined with Buckleys refusal to publish an article of her own in which she denounced businessmen who failed to defend capitalism, led her to sever ties with the National Review. She spent the rest of her life living on a modest pension and seeking a publisher for her last novel. She died in January 1961 and was buried in an unmarked grave in New Jersey. Even Buckley, who found her intolerably impolite and impossibly arrogant, had to admit in the obituary he wrote that she was a great woman.74
Patersons biographer Stephen Cox said that she provided an intellectual link between a frustrated and alienated older generation of anti-collectivist Americans and an aggressive and optimistic younger generation.75 Certainly, as a member of the Airplane Generationof the vanished America of opportunity created by 19th-century capitalism, which she thought of as the island of AtlantisIsabel Paterson considered herself the last survivor of a golden age. But she helped bequeath to us a vision of that free worldand not just a vision, but something more precious: a rational intellectual argument for it. It would be nice to think that she was not the last of Atlantiss inhabitants, but the first of their return.
Timothy Sandefur holds the Duncan Chair in Constitutional Government at the Goldwater Institute and is a contributing editor of The Objective Standard.
1. Ayn Rand, Atlas Shrugged (New York: Random House, 1957), 15354.
2. The only biography of Isabel Paterson available is Stephen Cox, The Woman and the Dynamo (New Brunswick, NJ: Transaction, 2004).
3. Isabel Paterson, Turns with a Bookworm, New York Herald Tribune, August 8, 1943.
4. Paterson, Turns with a Bookworm, February 27, 1927.
5. Howard Shaff and Audrey Karl Shaff, Six Wars at a Time: The Life and Times of Gutzon Borglum, Sculptor of Mount Rushmore (Sioux Falls, SD: Center for Western Studies, 1985), 21415.
6. Whittaker Chambers, Odyssey of a Friend: Whittaker Chambers Letters to William F. Buckley, Jr. (New York: Putnam, 1970), 94.
7. Paterson, Turns with a Bookworm, July 7, 1934.
8. Irene and Allen Cleaton, Books and Battles: American Literature 19201930 (Boston: Houghton Mifflin, 1937), 130.
9. Basil Davenport, The Apostle of Common Sense, Saturday Review of Literature, October 27, 1934, 237.
10. Cox, Woman and the Dynamo, 84.
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Where Is ‘The Anarchists’ Star Jason Henza Today? – Newsweek
Posted: at 1:50 pm
One person's nightmare is another's wake-up call.
"My mind got really really clear when I was injured," Jason Henza, who appears in the six-part HBO docuseries The Anarchists, told Newsweek on August 24. "I was able to think far ahead and know the exact steps I wanted to take."
He's talking about being ambushed by gunfire in 2019 at the Acapulco, Mexico, home his friend, John Galton, shared with his girlfriend, Lily Forester. Henza was shot three times and Galton was killed.
"I lost my right arm for about six months," Henza says. "It wasn't fully working. These two fingers are still numb. I still have a bullet up in my nerve cluster in my shoulder. It cut through my pectoral muscle and went upward."
When I ask how he's doing emotionally, he says, "I was pretty angry at myself for allowing myself to let my life fall apart the way it was. I was blowing off police checkpoints, going on police chases, and just kind of just generally reckless behavior, so the shooting overall I would have to say kind of...it was tragic to lose John and that was really hard, but overall as far as emotionally being shot, it doesn't affect me as much as you think it would."
When I push him on thishow could getting shot not be traumatic?he says, "I like violence. I watch football on Sundays. To come through on the other side of that makes me happy. I like action-adventure movies. It's just my personality type; that's why it's so easy for me to get over it."
The centerpiece of The Anarchists is Acapulco, which became a haven for the liberty set thanks to the presence of Anarchapulco, a conference for libertarian anti-state idealists founded by Canadian Jeff Berwick in 2015 that eventually grew into a sort of Coachella for crytobros. John and Lily (real names Shane Cress and Miranda Webb), whose connection to the conference was tangential, were also fugitives, hiding out in Mexico thanks to looming drug charges in the U.S. (Many people featured in the doc go by aliases somehow related to John Galt, of Ayn Rand's objectivist tome Atlas Shrugged, which has come to be something of a sacred libertarian text.)
When the shooting happened, according to the series, the wheels were already coming off Anarchapulco, and getting shot somehow gave Henza clarity.
"I felt like I was the only sane person in the room. Calm, collected, knew what I wanted to do, I was talking to people on the phone, trying to get Lily in a safe spot and then get everybody ready to go up there and get John's body to get it cremated. Obviously we're freedom people. We didn't want to do anything according to law. We just wanted to go about our business and live with the failure that we created....My mind got really clear. I got really evolved in that moment. Most of the time my mind isn't that clear."
Of the documentary itself, Henza says, "I thought Todd and [sound mixer Kym Kylland] did a very fair job. They were really kind and nice to everybody. They showed that they cared about us all, they didn't just move in and use us. They were with us for about six years. Unfortunately what you guys get to see is just a tiny pinhole of our lives, these small moments. There was so much more. It wasn't so awful and tragic as the documentary was showing."
By the end of the series, three people were dead: Galton, veteran Paul Propert and self-proclaimed Anarchapulco "cat herder" Nathan Freeman.
There are just two things that bug Henza about the doc: that the audience didn't get to see more of his beloved dog, Sammie, who died after filming, and the title of the series.
"I would love that everybody out there to know that we didn't choose the name of the documentary. We all identify under the large umbrella of anarchist. We are not the political movement that has struggled over hundreds of years trying to create their ideal of a society and all that kind of stuff, and I feel kind of bad for all the people that have worked for that cause, and I admire them in a way because they're extremely charitable people."
For Henza, though, the lines are a bit more blurry.
"I wish that they didn't have such hard lines when they were communicating with a person like me who just wants to learn. I don't read at all. So normally when somebody throws a book at me, I just laugh them off because I don't read. And they expect me to understand their values and I would prefer to live it in practice. So, overall, I just wish, I think that was the hardest one for me to deal with, all the anger over the name and to have everyone say these aren't real anarchists. Because we definitely want to live voluntarily, we definitely want to avoid coercion, we don't want that in our lives anymore.
"We don't want the corruption that comes with the big system that's currently going. We just kind of want to get out of its way and do our own thing. Some people want to challenge it just because they're crusading, which I think is just foolish. Just start building. There's no reason to crusade. There's a lot of people who depend on the system; you can't just pull it out from under them."
That's where Lily ends up at the end of the documentary, too: that freedom works for her but that she has friends who are "statist" and the two can coexist. Says Henza, "That's how we get along in society, or on the outskirts of society. We don't always participate in their welfare programs and their health care system. When I was shot I went to a private hospital instead. A lot of us don't put anything into that system, so we shouldn't get anything out. I don't think it's fair. It's why I never asked for the COVID checks.
In our community, it's relatively small. It's a freedom community itself. I don't want to go out and keep hammering on the word anarchist. It does mean "without ruler" and it does upset a lot of the anarcho-communists. I care about anarcho-communists a lot. I'm a vonuan voluntarist. I prefer voluntary interactions among people. no coercion. I want to learn what they have to offer. I never want to reject the communist side."
In freedom circles, "vonuan" signifies "one who is impervious to coercion"; "voluntarism" is the idea of relying on voluntary action (in layman's terms, the opposite would be "statist," a more typical form of government that relies on centralized organizations and control over citizens).
Says Henza, "My whole premise is to subvert the state or coercions that may come after me. I just sidestep things I don't want to do....That was one of John's major objections [to Anarchapulco]. There was just like, People aren't doing enough freedom. All they're doing is talking about blockchain and a party and they want to change the world? I agreed with him: Let's decentralize, let's build a fork, let's do something cool and wonderful and do something for the community."
Today, Henza is happily living in Puerto Vallarta, Mexico, sleeping in a small apartment with a hammock for a bed. He and Lily are, he says, best friends who talk every day, and he's even dating.
Newsweek reached out to Lily Forester for comment.
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Why Darwin Eclipsed Wallace: Darwin and the English Class System – Discovery Institute
Posted: at 1:49 pm
Photo: George Romanes, by Elliott & Fry, Public domain, via Wikimedia Commons.
The theory of natural selection was the co-discovery of two men, but by the mid 1860s one of its progenitors began to reject his own theory, scarcely more than a half decade after first announcing it to the world. Towards the end of his life Alfred Russel Wallace would resolve the conceptual confusion surrounding the curious half-and-half dualism which initially prompted him to claim that it was only mankindsmentalfaculties which had been designed, natural selection having fashioned our bodies. That improbable thesis was later to be replaced by his contention that the totality of (wo)man body and mind had arisen from what today would be called intelligent design, and, moreover, that the same applied to the whole sentient universe. This was indeed a root-and-branch apostasy from his prior convictions.
Why have people not registered this rejection of the theory by its co-author more strongly? Why is it Charles Darwins view which has persisted while Wallaces has been airbrushed out of history? Predictably, the quintessentially English subject of class has been invoked to answer this question. Sociologists of science often point to the fact that the progress of scientific ideas advances in part as a form of social process, and Darwin, unlike the impoverished and socially less well-placed Wallace, was fortunate to have an upper-middle-class support group to promulgate his ideas.
How convincing is this thesis as an explanation for Darwins greater success? I have argued elsewhere that the major role in the acceptance of Darwinism depended not so much on social factors but on the truly seismic changes in attitudes to religion experienced by all classes of society by the middle of the 19th century. But this does not mean that social factors played no part at all. How might those factors be characterized?
There are indications that Darwin over time gained something of the de facto status of a cult leader (in an unexceptionably benign sense). There cannot be many natural scientists who have inspired a follower to write a fulsome, 50-page poem in their memory, but after Darwins death in 1882 this is precisely what occurred. A younger acolyte, the naturalist George Romanes (pictured above), venerated Darwin so greatly this side idolatry seems the entirely appropriate phrase that he chose this form of laudation for a commemorative poem titled with lapidary simplicity, Charles Darwin: A Memorial Poem.1 There is ample evidence in Darwins voluminous correspondence with both indigenous and overseas scholars continued without interruption even when chronic illness kept him house-bound and in the pilgrimages to Down House he inspired from his old boys network of former college friends and tutors, that he had an enviable gift for friendship, even to the point of being able to inspire forms of fraternal love.
Only on the assumption of such personal magnetism can we understand such things as his limitlessly supportive inner circle meeting regularly to discuss matters of personal and professional interest with him. The severe-looking photographs of the bearded patriarch that have come down to us clearly give few hints of the sheer charisma he must have projected to inspire such admiration and affection. Romaness poem, which set off the high honour already accorded to Darwin in his burial in the north aisle of the nave of Westminster Abbey, near toSir Isaac Newton,might have suggested to some an aura close to sanctity or at the very least a symbolic assumption into a form of scientific empyrean.
To those acquainted with modern Britain, a place which frowns on nepotism and cronyism (at least officially), and which has opened itself up to meritocratic selection procedures and the importation of foreign talent, it is rather surprising that the same cast of characters keep popping up again and again in the drama of Darwins life.2Clergyman and botanist Professor John Stevens Henslow (1796-1861)3would regularly hold soires at his home, attended by Darwin and Darwins Cambridge tutors, William Whewell and Adam Sedgwick, the latter having been Darwins companion on a number of geological field trips when Darwin was younger and in better health. Henslows daughter was later to marry one of Darwins closest friends, the botanist Joseph Dalton Hooker. It was Henslow who recommended Darwin for theBeagleexpedition in the early 1830s and again Henslow who chaired the famous Oxford debate in 1860 where Bishop Wilberforce squared off against Darwins bulldog, Thomas Henry Huxley. Despite his reservations about Darwins ideas, Henslows avuncular relationship with Darwin bade him always do his best to protect Darwin from harsh criticism.4The same was the case with Adam Sedgwick. Sedgwick disagreed with Darwins ideas in theOriginso radically that, far more in sorrow than in anger, he once described Darwins ideas in a confidential letter to palaeontologist Richard Owen as being at one and the same time saddening and risible. For him, his erstwhile protg was a teacher of error instead of the apostle of truth.5Notwithstanding these reservations, he remained on commendably friendly terms with Darwin for the remainder of his life.
The recipient of this amount of indulgence from his friends clearly had every reason to feel secure in the knowledge that he commanded a supportive in-group whose loyalty he could depend on absolutely. So it was that in 1856, at a hush-hush meeting at Down House convened by Darwin, he took soundings with Hooker and Huxley as to how best to proceed with his heretofore secret ideas concerning evolution. Huxley, despite the fact that he had condemned ideas similar to those of Darwin when they had been presented in Robert ChamberssVestiges of the Natural History of Creation(1844), and that he wouldnever reconcile himself with Darwins special theory of natural selection, immediately volunteered to defend Darwins ideas, being more than willing to take Darwins corner against the high authority of Richard Owen. In the words of Iain McCalman, alluding to the fact that so many of Darwins intimates were part of an old sea-dog confraternity who had made voyages of scientific discovery of their own, Huxley had come aboard and joined Darwins fleet.6Huxley might have been, in Peter Bowlers phrase, a pseudo-Darwinian (that is, a believer in evolution but not natural selection), yet he would not hear a word said against Darwinism in any of its facets.
There is no getting away from the socially parochial aspect of English life at this time. The same names recur in the Darwin story simply because debate about matters of high import at the time were debated and largely decided by an upper crust of ex public7school boys and Oxbridge graduates. These persons would typically not even meet, let alone converse with members of lower social classes (except in trading transactions) because it was tacitly accepted that it was only the views of the social elite whichcounted.
Tomorrow, Why Darwin Eclipsed Wallace: Darwin Comes to America.
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Michael Behe Debates Evolution and Catholicism – Discovery Institute
Posted: at 1:49 pm
Photo: Vatican, by Luc Mercelis, via Flickr (cropped).
A new episode ofID the Futurebrings the first part of a friendly debate/discussion between Lehigh University biologist and intelligent design proponent Michael Behe and Catholic theologian Matthew Ramage. The discussion is led by Philosophy for the People podcast host Pat Flynn. Behe notes that he is a lifelong Catholic who accepted from childhood that, as he was taught in school, if God wanted to work through the secondary causes of Darwinian evolutionary mechanisms to generate the diversity of life, who were we to tell him he shouldnt or couldnt do it that way? Behe says that his skepticism toward neo-Darwinism arose many years later and stemmed purely from his scientific research.
Ramage, who specializes in the thought of Pope Benedict XVI, sees God as indispensable to creation but also embraces universal common descent and emphasizes Gods ability to work through secondary causation. Ramage asks Behe if he agrees with common descent. Behe explains why he finds the issue trivial and says the crucial issue is what Behe argued for inDarwins Black Box, namely that mindless Darwinian mechanisms lack the creative power to have generated lifes diversity, and that we have compelling positive reasons to conclude that the purposeful arrangement of parts, such as we find in mousetraps and molecular biological machines, is the work of intelligent design. Ramage urges Behe to spend more of his rhetorical energy distinguishing himself from creationists who reject evolution in toto. Behe again pushes back, saying he doesnt care two hoots for the issue of common descent, and that the important thing to focus on is how the science has turned against modern Darwinism and its emphasis on random changes and natural selection.
Behe acknowledges that Darwinian evolution nicely explains things like the emergence of wooly mammoths from elephants, or polar bears from grizzly bears, but he says these are examples of life filling various evolutionary niches via devolution. It doesnt get you the evolution of all living things through mindless evolutionary mechanisms. There are many other elements and nuances in this lively conversation between a Catholic scientist and a Catholic theologian. Download the podcast or listen to it here.
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Morrison White: Gun rights activists misinterpret the Second Amendment – Valley Breeze
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Morrison White: Gun rights activists misinterpret the Second Amendment - Valley Breeze
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Letter to the Editor Rierson 8/26/2022 | Opinion | carrollspaper.com – Carroll Daily Times Herald
Posted: at 1:48 pm
What if I told you that there was a way to reduce the chance of a school shooting by 75%?
After reading the article in this paper a few weeks ago titled Community Leaders Weigh In on Gun Violence, I noticed a key fact was missing. Did you know that three-fourths of school shooters got their gun from the home of a parent or close relative (National Threat Assessment Center, Protecting Americas Schools, 2019)?
When my husband and I started a family, we made sure our guns were all in a safe with a combination code that only we know. We also asked my family to lock up their guns.
I have struggled to ask our childrens friends families if their guns are locked up, but have recently reconsidered my hesitancy. I believe my discomfort with this question stems from the fact that we consider guns a sensitive subject, but when you think about it, we can be pro Second Amendment and pro-gun safety! I have resolved to do better and make this a more common conversation.
We all invest incredible amounts of money to keep our children safe, both at school and at home, but are we locking up guns for safety? Are your neighbors and extended family locking them up?
As a community, this is a conversation we should be having with each other. However you interpret the Second Amendment (and this letter is in no way refuting the Second Amendment), we can all be pro-gun safety by taking simple but effective steps to keep guns out of the hands of our schoolchildren.
Read the rest here:
Letter to the Editor Rierson 8/26/2022 | Opinion | carrollspaper.com - Carroll Daily Times Herald
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Ninth Circuit Sends the Hawaii Concealed Carry Challenge Back Down to District Court – Reason
Posted: at 1:48 pm
Judge Diarmuid O'Scannlain, joined by Judges Consuelo Callahan, Sandra Ikuta, and Ryan Nelson, dissented, arguing that the Ninth Circuit should have resolved the question itself:
I respectfully dissent from our failure to resolve the straightforward legal issues presented by this case. The Supreme Court has vacated the judgment of this Court and remanded this case to us "for further consideration in light of New York State Rifle & Pistol Association v. Bruen, 597 U.S. __ (2022)." But today, we decline to give further consideration to the question presented to us and we decline even to deal with it.
This case presents the following question: in light of the Supreme Court's decision in Bruen, does Hawaii's "may-issue" permitting scheme violate the Second Amendment right of a responsible law-abiding citizen to carry a firearm for self-defense outside of the home? Bruen held unconstitutional a "may-issue" permitting scheme for public carry of handguns, much like the law challenged in this case. So, after Bruen, the question before us is simple. Nevertheless, our Court today declines to answer it. In refusing to do so, our Court delays the resolution of this case, wastes judicial resources, and fails to provide guidance to the lower courts of our Circuit. As a judge of this Court, I feel obliged to offer such guidance, even if a majority of my colleagues does not.
George Young wishes to carry a firearm for personal self-defense in the State of Hawaii. He twice in 2011 applied for a license to carry a handgun, either concealed or openly. His application was denied each time by the County of Hawaii's Chief of Police, Harry Kubojiri, because Young failed to satisfy the requirements set forth in section 134-9 of the Hawaii Revised Statutes ("H.R.S.").
Section 134-9 acts as a limited exception to the State of Hawaii's "Place[s] to Keep" statutes, which generally require that gun owners keep their firearms at their "place of business, residence, or sojourn." The exception allows citizens to obtain a license to carry a loaded handgun in public, either concealed or openly, under certain circumstances. Respecting concealed carry, section 134-9 provides that "[i]n an exceptional case, when an applicant shows reason to fear injury to the applicant's person or property, the chief of police may grant a license to an applicant to carry a pistol or revolver and ammunition therefor concealed on the person." The chief of police may, under section 134-9, grant a license for the open carry of a loaded handgun only "[w]here the urgency or the need has been sufficiently indicated" and the applicant "is engaged in the protection of life and property." The County of Hawaii has promulgated regulations to clarify that open carry is proper only when the license-holder is "in the actual performance of his duties or within the area of his assignment."
Absent a license under section 134-9, a person may only transport an unloaded firearm, in an enclosed container, to and from a place of repair, a target range, a licensed dealer, a firearms exhibit, a hunting ground, or a police station, H.R.S. 134-23, 134-24, 134-25, 134-26, 134-27, and may use those firearms only while "actually engaged" in hunting or target shooting.
Ten years ago, on June 12, 2012, Young filed this suit . In 2018, a three-judge panel of our Court reversed the district court's dismissal of Young's Second Amendment claim against the County, holding that he "has indeed stated a claim that section 134-9's limitations on the issuance of open carry licenses violate the Second Amendment." In 2021, sitting en banc, we reached a conclusion different from that of the three-judge panel. Following its decision in Bruen, the Supreme Court granted Young's petition, vacated our en banc decision, and remanded the case to us for further consideration in light of its opinion.
The Supreme Court in Bruen explicitly overruled the lower courts' two-step test which would apply means-end scrutiny to the Second Amendment. Because "the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority," we are "bound by the later and controlling authority" of the Supreme Court, and therefore we must "reject the prior circuit opinion[s] as having been effectively overruled." As the Supreme Court just instructed us, "the standard for applying the Second Amendment is as follows: When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'"
In a Second Amendment case, we must "assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding." However, although "[h]istorical analysis can be difficult" and, at times, it requires "nuanced judgments about which evidence to consult and how to interpret it," the analysis in this case is simple under the binding precedent set forth in Bruen. In Bruen, the Court considered the constitutionality of "proper-cause" statutes such as that enacted by Hawaii. Accordingly, the Supreme Court parsed the text of the Second Amendment and evaluated at great length "whether 'historical precedent' from before, during, and after the founding evinces a comparable tradition of regulation" to "proper-cause" laws. After thorough review, the Court concluded that neither text nor historical precedent support "proper-cause" language restrictions.
As with the petitioners in Bruen, Young is an "ordinary, law-abiding, adult citizen[ ]," and is therefore unequivocally "part of 'the people' whom the Second Amendment protects." As the Court observed in Bruen, "handguns are weapons 'in common use' today for self-defense." And the plain text of the Second Amendment contemplates not just the "keeping" of arms in the home, but also the "bear[ing] of arms" beyond it. Therefore, as with the petitioners in Bruen, "[t]he Second Amendment's plain text thus presumptively guarantees" to Young "a right to 'bear' arms in public for self-defense."
Because "the Constitution presumptively protects" Young's right to carry arms in public for self-defense, Hawaii "must justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." Put differently: since the Second Amendment guarantees to the people "a general right to public carry," the constitutionality of section 134-9 hinges on whether there was at the time of the ratification of the Second Amendment or the Fourteenth Amendment "a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense." The government has the burden to show such a tradition.
But Hawaii cannot meet its burden, because, as the Supreme Court held in Bruen, there was no such tradition. Nor was there a "historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense." Historical restrictions on public carry may have "limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms." But such valid historical exceptions are quite the opposite of section 134-9, which flips the presumption by limiting public carry licenses to "an exceptional case."
A law-abiding citizen need not demonstrate a special need to exercise his or her right to carry arms in public for self-defense. But like the New York law at issue in Bruen, section 134-9 requires ordinary citizens like Young to demonstrate an exceptional reason to obtain a public carry permit. Thus, section 134-9 violates the Fourteenth Amendment by "prevent[ing] law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms." Bruen admits of no other conclusion.
The Second Amendment "'elevates above all other interests the right of law-abiding, responsible citizens to use arms' for self-defense." The Supreme Court has thus admonished the lower courts that this right "demands our unqualified deference." But "may-issue" permitting schemes violate this Second Amendment right. Like all such schemes, Hawaii's "may-issue" permitting law, section 134-9, infringes the right of Young, a law-abiding responsible citizen, to carry a handgun in public for the purpose of self-defense. Young has indeed stated a claim that section 134-9 violates the Fourteenth Amendment by depriving him of the right protected by the Second Amendment.
Our Court should say so. We are bound, now, by Bruen, so there is no good reason why we could not issue a narrow, unanimous opinion in this case. The traditional justifications for remand are absent here. The issue before us is purely legal, and not one that requires further factual development. The majority does not explain, nor can it justify, its decision to remand this case to the district court without any guidance. Yet in its terse order and unwritten opinion, the majority seems to reveal a hidden rule in our Circuit: Second Amendment claims are not to be taken seriously. I would prefer to apply the binding decisions of the Supreme Court to the case at hand.
Instead of remanding without explanation or justification, we should reverse the district court in an opinion holding that Young has stated a claim upon which relief may be granted, that section 134-9 is unconstitutional, and that the case must proceed accordingly in district court. If we issued such an opinion, we would ensure that Bruen is applied uniformly in our Circuit in future cases. And in this case, we would save the parties and the district court the time and expense of continuing to litigate issues that we could resolve easily.
Today we shy away from our obligations to answer the straightforward legal questions presented on appeal and to provide guidance to the lower courts in our Circuit. And in doing so, we waste judicial resources by sending the parties back to square one at the district court. The parties have waited a decade to resolve this litigation, and Young has waited over ten years to exercise his constitutional right to carry a handgun in public for self-defense. Because we opt not to decide this simple case, we force Young to wait even longer.
Someday, Young will finally be vindicated. Someday, our Court must issue an opinion that respects the rights enshrined in the Second Amendment.
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Ninth Circuit Sends the Hawaii Concealed Carry Challenge Back Down to District Court - Reason
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General election campaign is about to heat up – Carroll Daily Times Herald
Posted: at 1:48 pm
Were only about 1 weeks shy of Labor Day, the unofficial starting point of the general election campaign. Of course, candidates and their teams have been campaigning for many months now. But we voters start paying more attention to election matters in early September, just a couple of months before Election Day---the first Tuesday after the first Monday in November.
Since party organizations and candidate campaigns have been hard at it for so long, laying the groundwork to convince voters and then turn them out to vote, we can assume theyve been covering their bases, shoring up the weak spots in their messages.
Its no secret what those weak spots are. Public opinion polls show clearly what voters consider the important issues and how they feel about them. And where they lay blame for aspects of their lives that make them unhappy.
And yet at this late date---only 75 days before the 2022 general election---neither of the two major parties has come up with ways to resolve some of the major issues that voters have laid at their doorsteps.
For instance, voters blame Democrats especially for failing to solve three issues: inflation (rising prices), illegal immigration at the southern border, and a rise in crime.
Republicans hammer away at all three.
To take them one at a time:
INFLATION. While price increases appear to have been leveling off in the past couple of months, the year-to-year numbers remain higher than theyve been for decades, in the range of eight or nine percent. Gas prices are coming down but remain well above where they were a year ago. And food, rent, housing, health care, and other key categories continue well above voters comfort levels.
The Biden administration and the Democratic Congress took recent steps to reduce some of those costs with the Inflation Reduction Act. But most of the primary benefits of that bill wont kick in before the November election.
Democrats need to develop a response to high prices that people will understand and believe. That hasnt happened yet, and the clocks ticking.
IMMIGRATION. For whatever reason, crossings at the Mexican border by undocumented migrants have risen sharply in recent months. The United States has procedures to deal with that flow, including turning many of the migrants back to await the handling of their requests for asylum, refugee status, and other justifications for coming here. But the sheer numbers of border crossings alarm many Americans, particularly when illegal drug smuggling, human trafficking, gang infiltration, and potential terrorism come to light as part of the problem.
Democrats appear, at least to many Americans, strangely silent on the issue. The party and its candidates need to craft credible answers that show they can lawfully handle the situation. That obviously has not been done.
CRIME. Violent crimes, car thefts, and other serious unlawful activities are on the upswing in the United States. Law enforcement agencies credit gang activity and the craving of young men for guns for much of the crime growth. Other reasons probably include the COVID-19 pandemic, inflation, and drug abuse. Todays crime level still remains below what it was 30 years ago.
But regardless of the actual causes, Democrats are getting the blame for their apparent inability to beat back the growth in crime. Republicans eagerly slap them as the cause of the brief spate of looting and burning that followed the murder of George Floyd by four Minneapolis police officers and other cases of police misconduct against people of color. A few leftists called for defunding the police, a phrase that some Republicans promptly labeled a Democratic Party hallmark.
Democrats need to point out that policing is a local responsibility, not a federal one, and that Congress has increased its financial aid to state and local police departments across the nation.
As for Republicans, they face similar weaknesses in the eyes of most Americans. There are at least four areas where theyve stuttered rather than respond with credible answers: gun violence, climate change, abortion, and threats to democracy.
GUN VIOLENCE. After the rash of killings in schools, churches, shopping malls, and elsewhere this spring and summer, gun safety rose sharply as an issue of concern in public polling. Democrats seized the initiative, sponsored several bills in Congress and state legislatures, and spoke loudly about the need for rational steps to reduce the likelihood of mass shootings.
A large majority of Americans favors those steps. But Republicans, backed by the National Rifle Association, blocked them, claiming they threatened Second Amendment freedoms. For most people that dog wont hunt anymore. Republicans need to explain exactly how the recent calls for gun safety would violate the Second Amendment, and develop alternative answers other than arming teachers, something that frightens most parents.
CLIMATE CHANGE. Public polling finds most Americans now believe that human actions are heating the earths atmosphere, with only a few decades left to halt the steady temperature climb before its too late. Climate deniers are fading into irrelevance. Biden and most Democrats are in step with public opinion on this issue.
Republicans need to craft a response that doesnt make them look like apologists bought by the fossil fuel industry. There are valuable opportunities for lawmakers who can show how the nation can steadily wean itself off coal, gas, and oil while steadily shifting energy production to renewables. Thats a course most Republicans have been unwilling to consider.
ABORTION. Republicans bear responsibility for the shift in Supreme Court membership that this summer led to the overturning of the Roe v. Wade decision after 50 years in force. Public opinion polling finds most Americans favor the right to abortion in most cases, yet most Republican lawmakers strongly oppose that position. Some of them now find themselves backed into a corner by their past statements on the subject, and are trying unsuccessfully to find a way out.
Its hard to conceive what such a path might be. Almost everyone has by now developed an opinion on abortion, and can spot a hypocrite from afar. Republicans who are genuinely anti-choice and dont want to equivocate may be best off just admitting it, and outlining their positions on other issues with which voters might be more comfortable.
THREATS TO DEMOCRACY. According to public opinion polling, while most Republicans approve of Donald Trump, most voters disapprove of him personally. They also react strongly to what they perceive as his threats to democracy, like the Jan. 6 mob attack on the Capitol, attempts to declare the 2020 presidential election invalid (The Big Lie), state legislation that threatens a valid count of ballots, gerrymandering, and other such activity.
Republicans who support one or more of those threats may find themselves vulnerable to a number of voters with such fears. The Republican Party itself, including the Republican National Committee and other organizations, continues through its silence to condone Trumps claims about 2020. Some Republican elected officials and party leaders go so far as to call for action against the FBI, the IRS, and other government agencies and employees.
Few Republicans have the courage to counter those positions of their party. That was especially true during the primary elections this year, when most of the party faithful gave their support to the more extreme GOP candidates.
But now the general election is upon us, and Republicans, like Democrats, compose less than half of the electorate. Independents will decide the general election. Unless a Republican candidate is running in a deep red state or district, it may be wise for him or her to speak truth on the campaign trail.
Thats what most voters want to hear.
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General election campaign is about to heat up - Carroll Daily Times Herald
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The En Banc Fifth Circuit Sharply Divides On Personal Jurisdiction and the Fifth Amendment – Reason
Posted: at 1:48 pm
After the Supreme Court, the Fifth Circuit is the most fascinating court in the land. The Fifth Circuit gets lots of bad publicity for its conservative bent, but as I explained my address, the conservatives are not monolithically conservative. Case in point Stephen Douglass (no, not that Stephen Douglas)v. Nippon Yusen Kabushiki Kaishai. This dispute arose from a collision in foreign waters. A foreign corporation was sued for violating federal law in federal court. The question presented is whether the same rules that govern personal jurisdiction under the Due Process Clause of the Fourteenth Amendment apply to personal jurisdiction under the Due Process Clause of the Fifth Amendment.
The en banc court split 12-5. The majority opinion was written by Judge Jones, and was joined by Chief Judge Richman and Judges Smith, Stewart, Dennis, Southwick, Haynes, Costa, Ho, Duncan, Engelhardt, and Wilson. In dissent were Judges Elrod, Graves, Higginson, Willett, and Oldham. This case does not fall along ideological lines. Not at all. At least on the Fifth Circuit, the views on personal jurisdiction are heterodox. But beyond these right-left divides, the court's prominent originalists disagreed over how to interpret the Fifth Amendment.
The majority opinion by Judge Jones states the issue:
The Fifth Amendment due process standard governs the personal jurisdiction inquiry in this lawsuit raising federal claims in federal court. The en banc dispute centers on whether the Fifth Amendment standard mirrors the "minimum contacts" and "fair play and substantial justice" principles underlying the Fourteenth Amendment personal jurisdiction inquiry.
The majority opinion by Judge Jones followed precedent governing the Due Process Clause of the Fourteenth Amendment, and held that the foreign corporation was not "at home" in the United States. Specifically, the majority held that the same test applies for both the Fifth and Fourteenth Amendments:
We reject the plaintiffs' theory and hold that the Fifth Amendment due process test for personal jurisdiction requires the same "minimum contacts" with the United States as the Fourteenth Amendment requires with a state. Both Due Process Clauses use the same language and serve the same purpose, protecting individual liberty by guaranteeing limits on personal jurisdiction. Every court that has considered this point agrees that the standards mirror each other. The plaintiffs' rule-centric argument, that importing the Fourteenth Amendment standards into the Fifth Amendment context renders Rule 4(k)(2) a nullity, is unpersuasive and wrong.
Judge Elrod wrote the principal dissent, which was joined by Judges Graves and Willet in full, and by Judges Higginson and Oldham in part (starting at p. 39). Judge Elrod writes that the Supreme Court has "reserved" the question of whether the Due Process Clause of the Fifth Amendment may have a different meaning that the Due Process Clause of the Fourteenth Amendment with respect to personal jurisdiction.
Elrod posits that the meaning of "due process of law" is different in the Fifth and Fourteenth Amendments. That is, there was "linguistic drift" between 1791 and 1868. Here, she cites citing recent scholarship from Max Crema and Larry Solum, Steve Sachs, and others.
The relationship between the amendments' Due Process Clauses and the limits of federal courts' personal jurisdiction clearly merits "considerable elaboration." Ante at 27. Far from frivolous, this thorny topic has launched more than a few law review articles.2 Indeed, the latest originalist scholarship strongly suggests that "'due process of law' has undergone linguistic drift." Max Crema & Lawrence B. Solum, The Original Meaning of "Due Process of Law" in the Fifth Amendment, 108 Va. L. Rev. 447, 453 (2022). That is, "its meaning has changed since the First Congress proposed [the Fifth Amendment] for ratification" in 1789, and before the 39th Congress proposed the Fourteenth Amendment in 1866. Id. at 453, 461524 (examining a wide array of primary sources and conducting rigorous historical and corpus-linguistics analysis). Thus, it is quite reasonable to think that the original public meaning of the Fifth Amendment's Due Process Clause diverges from the Fourteenth Amendment's as it bears upon personal jurisdictionparticularly given the interstate-federalism principles baked into the Fourteenth Amendment.3
FN2: For just a small sampling, see generally, e.g., Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703 (2020); Jonathan Remy Nash, National Personal Jurisdiction, 68 Emory L.J. 509 (2019); Wendy Perdue, Aliens, the Internet, and "Purposeful Availment": A Reassessment of Fifth Amendment Limits on Personal Jurisdiction, 98 Nw. U. L. Rev. 455 (2004); see also Stephen E. Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249 (2017).
Elrod thought it proper for the lower courts to percolate this question, on which the Supreme Court has not yet brewed:
In my view, it is precisely our duty as an inferior court to percolate the arguments raised by this novel constitutional issue for eventual Supreme Court review. Cf. Dep't of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring in grant of stay) (noting that the percolation "process that permits the airing of competing views . . . aids this Court's own decisionmaking process"); Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1784 (2019) (Thomas, J., concurring) ("[F]urther percolation may assist our review of [an] issue of first impression . . . ."). We are asked in this case to interpret the Fifth Amendment's Due Process Clause with respect to federal court personal jurisdictiona question of first impression that the Supreme Court has repeatedly declined to answer. And when we are called to interpret a constitutional provision without on-point Supreme Court guidance, we should look first to the Constitution's text, history, and structure before we borrow freely from adjacent Supreme Court jurisprudence.
The opinion addresses the dissent, briefly, in a footnote:
This majority opinion addresses the exact arguments raised by the plaintiffs consistently throughout the litigation. But for one point, we will not address the dissents' wholly novel arguments, which pointedly divorce themselves from the parties' theory of the case. Post at 47 n.5 ("I disagree with both approaches because both start not with the Fifth Amendment but with inapplicable Fourteenth Amendment case law."). By standing up for the law as it has been accepted unanimously among the circuit courts, we decline to consider adversarially untested propositions. Moreover, the principal dissent's criticism that NYK bore some burdento anticipate and analyze personal jurisdiction without any reference to well-settled case lawis simply wrong. At the very least, it is the plaintiffs' burden to establish the court's jurisdiction in response to a Rule 12(b)(2) personal jurisdiction challenge by a defendant. Johnson v. Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th Cir. 2008). If we were to address the merits of the principal dissent's theory, however, we would note its repeated insistence that, consistent with the Fifth Amendment, Congress could pass a law to subject foreign defendants to American federal court jurisdiction for any injuries inflicted on American citizens or claims arising abroad. Whether this is correct or not, we do not assay. Moreover, we cannot analyze this theory because the dissent posits no rule or limits flowing from the Fifth Amendment. And finally, no court has adopted the dissent's view that Rule 4(k)(2) alone suffices to extend substantive personal jurisdiction to the constitutional limit, and the Rule's language alone suggests otherwise.
Judge Elrod addresses Judge Jones's footnote with another footnote that stretches more than a page. It begins:
The majority opinion's footnoted response to this dissent is unresponsive on this score: Lacking Supreme Court case law restricting federal courts' exercise of personal jurisdiction under the Fifth Amendment, NYK must convince us, as a matter of text, history, and structure, that the Fifth Amendment's Due Process Clause merely mimes the Fourteenth's as to personal jurisdiction. But NYK has made no such argument, and nor has the majority opinion.
In fact, the majority opinion expressly refuses to engage with the contrary arguments presented in this dissent, declining to address anything but "the exact arguments raised by the plaintiffs." Id. (emphasis added). Respectfully, I do not think our approach should be so blinkered. Of course we take cases as they are presented to us, but that does not mean that we must parrot parties' "exact" views in our opinions. Our duty is to resolve the appeal correctly and offer our independent explanation of the bases for our decision.
I can't do justice to Judge Elrod's extensive dissent here. It engages with all of the leading scholarship on the Due Process Clause of the Fifth Amendment. Read Part II. And in Part III, Elrod concludes that the Process Clause of the Fifth Amendment allows the district court to exercise jurisdiction:
What does the original understanding of the Fifth Amendment's Due Process Clause mean for these cases before us? The answer is really quite simple: the plaintiffs' cases should go forward. Because the Fifth Amendment's Due Process Clause, as originally understood, poses no extrinsic limit on Congress's ability to authorize expansive personal jurisdiction in federal courts, the district court had personal jurisdiction over NYK pursuant to Rule 4(k)(2).
And here is the dissent's conclusion:
The Supreme Court has never interpreted the Fifth Amendment's Due Process Clause with respect to personal jurisdiction. The Court has expressly left the question open. It is our duty to offer an answer. But the majority opinion simply copies and pastes inapplicable modern Supreme Court case law expounding on the Fourteenth Amendment, as if the Fourteenth Amendment imbues the Fifth Amendment with new meaning. In my view, we should not put new wine in an old wineskin. There is no substitute for a diligent inquiry into the original public meaning of the Fifth Amendment's Due Process Clause. As originally understood and applied (or rather, not applied), the Fifth Amendment imposed no significant restriction on Congress's ability to authorize service of process abroad, and hence, to expand federal courts' personal jurisdiction.
Judge Ho wrote a concurring opinion joined by Judge Costa that responded to the dissents by Judge Elrod (p. 28). Ho explains that reading the Due Process Clause to have different meanings in the Fifth and Fourteenth Amendments cannot be squared with the Court's incorporation doctrine:
Under the doctrine of incorporation, the Supreme Court has repeatedly instructed that we must interpret the Due Process Clause of the Fourteenth Amendment coextensively with various provisions of the Bill of Rights. And therein lies the logical challenge I see with the dissent's proposed framework. For if we accept the dissenters' theory of linguistic drift when it comes to due process, logic would presumably require that we entertain the possibility of linguistic drift in every aspect of due process. For example, what does the First Amendment require when it comes to the states? Well, we know the First Amendment might have meant one thing in 1791, but something quite different in 1868. And so too with the Second Amendment, the Fourth Amendment, the Eighth Amendment, and so on. So presumably the dissenters would apply a different body of First Amendment law, Second Amendment law, and so on, to the states as opposed to the federal government, in recognition of the possibility of linguistic drift between 1791 and 1868. But we don't do that. Because the Supreme Court has told us we can't do thatmost recently, in N.Y. State Rifle. And that's the logical problem I see with the dissent's approach. If Supreme Court precedent requires us to apply the same standard of "due process" to the states and the federal government when it comes to other constitutional rights like the First and Second Amendments, what's the logic in applying different standards when it comes to due process itself? If we're being principled about linguistic drift, we presumably wouldn't limit it to just the Fifth Amendmentor just the Due Process Clause of the Fifth Amendment. We would either allow for linguistic drift with respect to every provision of the Bill of Rightsor to none of them. To my mind, logical fidelity to Supreme Court precedent would seem to suggest that the answer must be none.
Judge Ho finds that fidelity to Supreme Court precedent, even for an originalist judge, compels this ruling:
But the members of this court all agree that fidelity to Supreme Court precedent must trump fidelity to text and original public meaning. And that means reading precedent faithfully. "Lower court judges don't have license to adopt a cramped reading of a case in order to functionally overrule it." NLRB v. Int'l Ass'n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (quotations omitted). See also Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 NYU J.L. & Liberty 44, 51 (2019) ("Of course, judges can always draw razorthin distinctions and contend that a particular issue is not governed by a nonoriginalist precedent. But judges should resist this temptation."). "[L]ogic [may] demand[] that we extend an [allegedly] atextual body of precedent in order to preserve rationality or consistency in the law." Williams, 18 F.4th at 821 (Ho, J., concurring).
Perhaps the Supreme Court will adopt the two-tier approach in the future. But for now, Judge Ho will stick with precedent:
Perhaps the Supreme Court will someday switch gears and embrace the dissent's view that due process under the Fifth Amendment is indeed different from due process under the Fourteenth Amendment. Perhaps the Court will one day hold that fidelity to text and original public meaning necessitates the complexity of developing two distinct bodies of federal constitutional rightsone against the feds and one against the states. But until then, I will stick with the simplicity of the approach adopted by the majority of my colleaguesnot to mention all of the circuits that have previously addressed the issue.
Judge Oldham wrote a solo dissent. He does not follow the "linguistic drift" argument advanced by Judge Elrod. Rather, he made yet another claim about the original meaning of the Fifth Amendment:
This case should be resolved by two propositions. First, the Supreme Court has never answeredin fact, it has expressly left "open""the question whether the Fifth Amendment imposes the same restrictions [as the Fourteenth] on the exercise of personal jurisdiction by a federal court." Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S. Ct. 1773, 1784 (2017); see also J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 885 (2011) (plurality op.); Omni Cap. Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987). Second, as originally understood, the Fifth Amendment did not impose any limits on the personal jurisdiction of the federal courts. Instead, it was up to Congress to impose such limits by statute. See, e.g., Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703, 171727 (2020); Picquet v. Swan, 19 F. Cas. 609, 615 (C.C.D. Mass. 1828) (No. 11,134) (Story, J.); see also ante, at 5461 (Elrod, J., dissenting). That should've been the end of the case. With all respect for my esteemed colleagues, I do not understand how this case implicates (1) "linguistic drift." See ante, at 4344, 63 (Elrod, J., dissenting). Nor do I see how the Supreme Court's (2) "longstanding incorporation jurisprudence" or (3) unenumerated-rights precedents prevent us from adopting the originalist answer here. See ante, at 3132 (Ho, J., concurring).
Judge Ho also responds to Judge Oldham's dissent:
So we agree that there is one body of due process law, not two. Here's where we part company, then: If we're agreed that there's only a single body of due process law, then I don't see how we can ignore Supreme Court precedent under Fourteenth Amendment due process in a case involving Fifth Amendment due process. And that's where my reference to the doctrine of incorporation comes in. Judge Oldham dismisses my invocation of the incorporation doctrine on the ground that that is a doctrine of substantive due processwhereas this is a personal jurisdiction case, which implicates procedural due process. See id. at 102. He makes the same observation about the judicially-created right to abortion examined in Carhart. See id. at 103. He's of course entirely right that both the incorporation doctrine generally, and abortion in particular, are creatures of substantive due process. But I don't see why the substantive/procedural due process distinction should make any difference here.
On the Fifth Circuit, three prominent originalists (Elrod, Oldham, and Ho) offer differing accounts of the Due Process Clause of the Fifth Amendment. What a fascinating court.
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The En Banc Fifth Circuit Sharply Divides On Personal Jurisdiction and the Fifth Amendment - Reason
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Founding Fathers already rejected attacks on Constitution, calls to ‘pack the Court’ – Fox News
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It appears that we may finally to be coming out of the campaign on the left to "pack the court" with a liberal majority. That is good news. The problem is that many on the left have turned their ire on the Constitution itself as the root of all evil in our country.
In a New York Times essay, law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale are calling for the Constitution to be "radically altered" to "reclaim America from Constitutionalism." In order to accomplish this dubious objective, they call for shifting from the "Pack the Court" to "Pack the States." The attack on "constitutionalism" is chilling but these professors are not the first to lash out at our Constitution as the scourge of social justice.
The New York Times column called for citizens to view the Constitution as the real enemy and to push to "radically alter the basic rules of the game." The attack on our Constitution has become something of an article of faith for the far left in recent years.
Recently, Georgetown University Law School Professor Rosa Brooks drew accolades for her appearance on MSNBCs "The ReidOut" after declaring that Americans are "slaves" to the U.S. Constitution and that the Constitution itself is now the problem for the country.
NEW YORK TIMES GUEST ESSAY CALLS FOR LIBERALS TO BYPASS BROKEN CONSTITUTION
CBS recently featured Boston University Professor Ibram X. Kendi, who proclaimed that the Second Amendment was little more than "the right to enslave."
MSNBC commentator and the Nations Justice Correspondent Elie Mystal has called the U.S. Constitution "trash" and argued that we should ideally just dump it. Mystal, who also writes for Above the Law, previously stated that white, non-college-educated voters supported Republicans because they care about "using their guns on Black people and getting away with it."
Doerfler and Moyn make the same case with a twist in seeking to pack the states. They insist that "The real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism." Rather than recognize that this document has produced the longest standing and most stable democratic system in history, professors denounced it as a "some centuries-old text" because it stands as a barrier to their social and political agenda. The problem, they suggest, is that many liberals still believe in constitutionalism as opposed to raw majority power.
Some are calling for "popular democracy" as an alternative approach to governance. The term is often associated with "direct democracy" where citizens have unfiltered and direct say in government decisions. It was the model expressly rejected by the Framers in favor of our system of representative democracy.
In Federalist 10, Madison wrote:
Pure democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.
Instead, he created a system by which public passions could be filtered or expressed through a smaller group of representatives, to temper and refine popular impulse.
In addition to our system of representative democracy, we have institutions designed to resist popular impulse or demands. The United States Supreme Court is the principal example in using elements like life tenure to stand against majoritarian demands and what Madison called "the tyranny of the majority."
That system has served us well. It was the counter-majoritarian role that allowed the Court to strike down bans on interracial marriage, decriminalize homosexuality, and protect the rights of the accused.
However, the constitutional process strives for consensus and compromise, key elements in the success and stability of our system through decades of political and social upheaval. Yet, these professors complain that the left has "agonizingly little to show for it" and should now "radically alter the basic rules of the game." After all, they noted, "It would be far better if liberal legislators could simply make a case for abortion and labor rights on their own merits without having to bother with the Constitution." That is certainly correct. Without constitutionalism, everything then becomes a majoritarian muscle way with little need to compromise or even to consider the views of the minority.
The solution, therefore, is not to "pack the court" but "to pack the Union with new states" to change the Constitution and "reinvent" society.
They are at least open and honest about their motivations and means. The essay confirms the view of critics that the push of Democrats to create new states in Puerto Rico and D.C. are meant to secure an insurmountable majority in the push for radical changes.
It is similar to the remarks of Harvard professor Michael Klarman two years ago for court packing and insisted that Democrats can change the system to guarantee Republicans "will never win another election," at least not without abandoning their values. However, Klarman warned "the Supreme Court could strike down everything I just described" so the court must be packed in advance to allow these changes to occur.
Democratic leaders have echoed these sentiments by calling for court packing and questioning core institutions. Sen. Elizabeth Warren has declared the Supreme Court illegitimate and has called to pack the Court for rending opinions against "widely held public opinion."
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Rep. Alexandria Ocasio-Cortez even questioned the institutions value: "How much does the current structure benefit us? And I dont think it does."
The attack on "constitutionalism" says all that one needs to know about this campaign. The Constitution has long been the very thing that defined us. It is a shared covenant of faith, not with the government but with each other. Untethered from such constitutional rules, these professors seek to be freed from constitutional restraints in pursuing radical changes. It is so liberating that these professors can write that Congress should "openly defy" the Constitution to "get a more democratic order." Such Orwellian doublespeak does not little to shield the true purpose of this campaign to accumulate powers, which Madison declared "justly be pronounced the very definition of tyranny."
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For those trying to stay ahead of the mob, we are now moving beyond the Constitution. Now we must "pack the states" to liberate ourselves from that pesky Constitution. After that, our "reinvention" can begin. Ironically, however, we will be reinventing ourselves into the type of system that the Framers rejected roughly 250 years ago.
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Jonathan Turley is the Shapiro professor of public interest law at George Washington University and a practicing criminal defense attorney. He is a Fox News contributor.
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Founding Fathers already rejected attacks on Constitution, calls to 'pack the Court' - Fox News
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