The Ben Shapiro Show - George Will | The Ben Shapiro Show Sunday Special Ep. 76

00:00:00.000 Politics is dangerous.

00:00:02.000 There's no safe harbor.

00:00:04.000 Police could become gestaltos.

00:00:06.000 Taxation could become confiscation.

00:00:09.000 But we need police and we need taxation.

00:00:11.000 There is no safety in politics.

00:00:13.000 Life is lived on a slippery slope.

00:00:15.000 Get over. Get over. Get over. Get over. Get over. Get over. Get over. Get over.

00:00:23.000 Hey, hey, welcome to the show.

00:00:25.000 This is the Ben Shapiro Show Sunday Special.

00:00:27.000 I am overjoyed to welcome to the set George Will, who requires no introduction.

00:00:30.000 His brand new book is The Conservative Sensibility.

00:00:32.000 Mr. Will, thanks so much for stopping by.

00:00:34.000 Glad to be with you.

00:00:35.000 So how did you become George Will?

00:00:36.000 So everybody knows your name, obviously.

00:00:37.000 You're probably the most prominent conservative thinker of the last 30 to 40 years.

00:00:41.000 So how did you become George Will?

00:00:43.000 How did you get to where you are?

00:00:44.000 Grew up in Central Illinois.

00:00:46.000 The son of a college professor at the University of Illinois.

00:00:50.000 Went to Trinity College as an undergraduate.

00:00:52.000 Went to Oxford.

00:00:53.000 When I left Oxford, I applied to a distinguished law school and to Princeton in philosophy.

00:00:58.000 I couldn't decide whether to be a lawyer or a professor of political philosophy.

00:01:03.000 I went to Princeton because it was midway between two National League cities, baseball being the center of my life at all times.

00:01:10.000 Taught for a few years.

00:01:11.000 Everett Dirksen died, a Republican senator who'd led the Republicans.

00:01:15.000 They shuffled the Republican leadership.

00:01:18.000 A Colorado senator of whom I'd never heard.

00:01:22.000 Got elected third-ranking Republican, said, I want to hire a Republican academic to write for me.

00:01:27.000 There were no Republican academics, except me, and I was in Canada at the University of Toronto.

00:01:32.000 We got together.

00:01:33.000 I worked on the Senate staff for three years.

00:01:36.000 Then I called Bill Buckley, for whom I'd written a few pieces, and said, you need a Washington editor of a National Review.

00:01:43.000 There hadn't been one.

00:01:44.000 Bill essentially said, you're right, I do, and you're it.

00:01:47.000 Bill had this habit of sort of collecting young people who he took a shine to.

00:01:52.000 At about that time, Spiro Agnew, for your audience, he was a Vice President of the United States under Richard Nixon, was running around the country saying there are too few conservative columnists.

00:02:03.000 So the Washington Post said, we'll syndicate Will as someone who will defend Richard Nixon.

00:02:11.000 So I became a columnist in January 1973, just as Judge Sareka was imposing the sentences that caused the Watergate cover-up to unravel.

00:02:22.000 And I instantly decided Nixon was guilty and was probably going to leave and probably should leave.

00:02:26.000 So that marketing plan for my column didn't work out.

00:02:31.000 But anyway, that's how I got to become a columnist.

00:02:34.000 And in a second, I want to ask you how you decide on the topics of what you write, because you are famously not writing very much about Donald Trump, who's apparently the center and lodestar of all political talk these days.

00:02:44.000 I'm going to ask you about that in just one second.

00:02:45.000 First, if you can't trust certain elements in Silicon Valley to treat conservatives fairly, Why would you trust them to handle your privacy and personal online data?

00:02:52.000 And why would you trust Silicon Valley to do all of that?

00:02:54.000 I mean, the fact is that you got big companies like Twitter that are overtly attempting to ban ads that they don't like on the basis of political viewpoint.

00:03:02.000 And then they're working hand-in-glove with Elizabeth Warren.

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00:03:58.000 Okay, so let's talk about how you decide what to write about.

00:04:00.000 So everybody is obsessed with President Trump.

00:04:02.000 Every column is on President Trump.

00:04:03.000 Every spoken word, it seems, is about President Trump.

00:04:06.000 It doesn't matter where you are.

00:04:07.000 You can go to the hairdressers and everybody's talking about President Trump.

00:04:10.000 But you don't write about President Trump all that much, so how do you decide what you do write?

00:04:13.000 Well, I once asked Bill Buckley, when I first started this, the question that I now know is the most common question asked of a columnist.

00:04:20.000 How do you come up with things to write about?

00:04:23.000 And Bill said the world irritates me three times a week.

00:04:26.000 I would just modify that to say the world prompts my curiosity, amuses me, annoys me, something three times a week.

00:04:34.000 I have in my pocket at all times, in my wallet, a little card with topics I want to get to next.

00:04:40.000 I write a lot about court cases, Supreme Court cases, and others.

00:04:44.000 I write about foreign policy.

00:04:45.000 I've recently been in Korea, Taiwan, and Hong Kong.

00:04:50.000 The world is so interesting, and the 45th president is so boring, exquisitely boring.

00:04:56.000 He has one pedal on the organ, that's all he works.

00:05:00.000 There are journalists who write about him twice a week, columnists, and you scream in your head, tell me something I don't already know.

00:05:09.000 They say twice a week he's a bore, he's a lout, he's uninformed, etc.

00:05:14.000 Know that.

00:05:15.000 Tell me something interesting.

00:05:17.000 Well, we'll get to Trump talk a little bit later because, frankly, I agree with you and I think that, you know, all of the talk about President Trump tends to revolve around one of two notes.

00:05:25.000 Either he is the greatest person who has ever lived in the universe or he is the worst person ever to have lived in the universe and none of it seems to be reflective of reality.

00:05:32.000 But we'll get to that in a little bit.

00:05:33.000 I want to ask you a lot about your book because your book really is a primer for people who don't understand conservatism or don't know much about conservatism and what conservatism should be.

00:05:42.000 So it's called, first of all, The Conservative Sensibility.

00:05:45.000 For folks who haven't read it, it is A terrific book.

00:05:48.000 But why did you call it The Conservative Sensibility as opposed to, say, The Conservative Agenda, the sort of first conservative principles?

00:05:56.000 There's this great divide in sort of conservative thinking over whether conservatism is in fact a sensibility and an outlook on the world, or whether it is a series of principles for which you are supposed to stand, or is it both?

00:06:07.000 So why The Sensibility?

00:06:08.000 Well, the title The Conservative Mind was taken by Russell Kirk about 60 years ago.

00:06:13.000 By sensibility, I mean more than an attitude, but less than an agenda.

00:06:17.000 I didn't want to give ten legislative measures to make America great again, or anything else.

00:06:25.000 I think a conservative sensibility is sort of a Michael Oakeshott, great political philosopher, approach, which is that there's a way of responding to the given of life, the flux, the uncertainty, the exhilarating openness of the future.

00:06:41.000 It has been well said, I think, by Virginia Postel, that the story of the Bible, reduced to one sentence, is God created man and woman and lost control of events.

00:06:51.000 The conservative sensibility says, terrific!

00:06:54.000 We want uncontrolled events.

00:06:56.000 We want the exhilaration of an open future and an open society to make the future open.

00:07:02.000 You either welcome that, in which case you're a good American conservative, or You want to bring events to heel.

00:07:10.000 You want to organize things, plan them, direct them from above, in which case you're a good progressive, which I've just framed, I think, the American political argument for the last at least 120 years.

00:07:24.000 And in the book, you boil that down to a couple of different ways of thinking, the Madisonian way of thinking, the Wilsonian way of thinking.

00:07:30.000 And I was wondering if you could elucidate, explicate on that a little bit.

00:07:33.000 What exactly do you mean by that distinction?

00:07:34.000 James Madison of the great Princeton class of 1771 gave us three thoughts, basically.

00:07:42.000 He didn't give them to us, but he incorporated them.

00:07:44.000 Natural rights. 0.80

00:07:46.000 Rights precede government. 0.90

00:07:48.000 The first great word in the Declaration of Independence is secure.

00:07:52.000 All men are created equal, endowed by their Creator with certain inalienable rights, and governments are instituted to secure those rights.

00:08:00.000 As Randy Barnett, the great constitutional lawyer, says, first comes rights, then comes government.

00:08:06.000 That inherently limits the role of government to being strong enough to protect our rights and not so strong to threaten our rights.

00:08:14.000 Second, that presupposes there is a fixed human nature, that we are not just creatures that acquire whatever culture we're surrounded by.

00:08:24.000 Once you deny that, as the great progressive thinkers at the beginning of the 20th century did, Once you deny a settled human nature, that man is plastic to the touch of culture, you emancipate government for the most dangerous of its 20th century projects, to create new Soviet man, new German man, to modify human beings.

00:08:49.000 That's when government really becomes at its most sinister.

00:08:53.000 Third, the Madisonian Project says, because of the first two, fixed human nature, human rights, essential to the flourishing of creatures like us, we need a government that is checked and balanced, a separation of powers, so that it will be effective, but slow and modified, because it is the nature of human beings to be passionate creatures, and passions are problems.

00:09:22.000 And therefore we want majority rule, But majority opinion should be filtered and refined and reflected through institutions and slowed down.

00:09:33.000 Long comes Woodrow Wilson from the great Princeton class of 1879 and says, that was fine long ago, but it's an anachronism.

00:09:41.000 When there were 4 million Americans, 80% of them living within 20 miles of Atlantic tidewater.

00:09:48.000 When we were a simple rural country, that was fine.

00:09:51.000 But now we are a great country, united by steel rails and copper wires.

00:09:56.000 We need a strong, organizing government.

00:09:58.000 We need to bring expertise to bear on the affairs of the common people.

00:10:04.000 We need to concentrate more power in Washington, more Washington power in the executive branch, more executive branch power in the president, and in such administrative agencies as he creates.

00:10:15.000 Therefore, we should marginalize Congress.

00:10:19.000 And we should understand that rights are granted by the government for our own good, and the government will tell us what rights we ought to have, and it will be advised in this by experts.

00:10:32.000 The great text of progressivism is Herbert Crowley's The Promise of American Life.

00:10:39.000 Published in 1909, never out of print since then.

00:10:42.000 An amazing text.

00:10:44.000 Louis Brandeis gave a copy to Teddy Roosevelt, who took it on a safari, went off to assassinate large animals, which he thought was great fun, and he read it out there, and we've been suffering from it ever since.

00:10:58.000 But Crowley says that Americans, by and large, are unregenerate citizens, and he had a plan to regenerate us.

00:11:07.000 Through government.

00:11:08.000 So when it comes to the Madisonian vision, it seems like there's a fair bit of conflict inside the conservative movement even about what the Madisonian vision encompasses.

00:11:16.000 To start with a few of those premises.

00:11:18.000 Let's start with the natural rights premise.

00:11:20.000 So there's an argument that's now made inside the conservative movement that we are a movement that is too much focused on rights and not enough focused on duties.

00:11:28.000 And this has led to a small government conservatism that is Unsustainable for the future.

00:11:32.000 It's an argument made by some people, you know, for example, Tucker Carlson has made this sort of argument that basically we are so focused on individual rights that we've forgotten that we have to take care of each other and you need government to come in and help take care of us in that way.

00:11:44.000 You've heard that argument from, frankly, George W. Bush in sort of his compassionate conservative days.

00:11:48.000 So what do you make of that argument?

00:11:50.000 How do we define what indeed is a natural right?

00:11:53.000 Well, we define them, I think, ultimately, we're rural utilitarians.

00:11:58.000 We look through history, we look through contemporary experience, and we say, what constitutes human flourishing?

00:12:05.000 People argue about this.

00:12:07.000 What rights are essential to that?

00:12:09.000 We argue about that.

00:12:10.000 If you don't like arguing, you picked the wrong country, because Americans argue.

00:12:14.000 We're condemned to that.

00:12:15.000 Some of us like that.

00:12:19.000 The kind of conservatism you're talking about—some of them call themselves national conservatives and all the rest—there is a rebellion against individualism.

00:12:28.000 Now, they begin with the obvious point, which I make much of in my book.

00:12:34.000 Of course human beings are all situated, but that does not mean that they are mere creatures of their culture.

00:12:43.000 The revolt against individualism is driven nowadays in no small measure by religious conservatives, and particularly Catholic conservatives, who I think are understandably distraught that their congregations are getting smaller and that Christianity's hold on the American public has weakened.

00:13:10.000 And their solution is the weaker it gets, the stronger it ought to be through politics.

00:13:14.000 And I think that's non sequitur.

00:13:17.000 And it's unrealistic.

00:13:19.000 I mean, I tend to agree.

00:13:20.000 I've always made the argument, you know, frequently and strongly that we do need more and stronger religious communities to back the sort of preservation of rights.

00:13:29.000 But that doesn't mean that it can be done from top down by the government, because that would be precisely the opposite of the sort of freedom of religion that you need to flourish.

00:13:35.000 In order to preserve rights, that if rights rely on our ability to take care of each other in a dutiful way and rely on a community, you don't want the government doing that job.

00:13:43.000 It actually tends to quash religious freedom over time.

00:13:46.000 I guess the kind of follow-up question to the definition of natural rights is you could easily see that perverted by the wide definition of natural rights.

00:13:54.000 What I mean by that is that if we don't define natural rights either specifically or To a certain point, narrowly, you could see a government that is designed to secure those rights, securing rights that may not in fact be rights, and using the power of government to do so.

00:14:10.000 Absolutely.

00:14:11.000 Madison and others, although Madison really wrote the Bill of Rights more than anyone else, when the founders, framers of the Constitution left Philadelphia, they didn't think they needed a Bill of Rights.

00:14:23.000 Turns out they needed it to get the Constitution ratified.

00:14:25.000 So they promptly said, fine, ratify it, we'll amend it with a Bill of Rights.

00:14:30.000 One of the reasons the framers were opposed to that, they said the structure of the Constitution is itself a Bill of Rights.

00:14:37.000 It is sufficient to defend freedom.

00:14:40.000 Second, once you start enumerating rights, where do you stop?

00:14:44.000 What if you leave some out?

00:14:45.000 Hence the Ninth Amendment, saying the fact that we've enumerated some rights does not disparage or denigrate the possibility of unenumerated rights.

00:14:54.000 But the government should also protect.

00:14:56.000 Now, people say, but how do you decide?

00:14:58.000 Isn't this dangerous?

00:14:59.000 The answer is yes.

00:15:00.000 Politics is dangerous.

00:15:02.000 There's no safe harbor.

00:15:04.000 Police could become Gestapos.

00:15:06.000 Taxation could become confiscation.

00:15:09.000 But we need police and we need taxation.

00:15:11.000 There is no safety in politics.

00:15:13.000 Life is lived on a slippery slope.

00:15:16.000 Get over it.

00:15:17.000 So I want to ask you in a second about those checks and balances, about the structural constitution.

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00:16:24.000 Okay, so let's talk about the structural constitution.

00:16:26.000 So, one of the points in your book where I found myself a little bit taken aback, actually, was your argument for the strength of the judiciary.

00:16:33.000 So, I've always been an advocate of the position that judiciary is, at the very least, the third most powerful branch of the government, that judicial review under Marbury v. Madison is, at best, a stretch assumed by the Supreme Court.

00:16:45.000 I sort of agree with the Alexander Bickel argument that this is an assumption of power by the Supreme Court that was not actually justified by these structural checks and balances.

00:16:53.000 You rely pretty heavily on the judiciary to defend rights, and I tend to think, having watched the progression of the judiciary over the last 50 years, that that's an exceedingly dangerous position, and actually avoids some of the sort of conflicts that you've been talking about, the embrace of the chaotic nature of back-and-forth democracy, having a judiciary that simply says, here's a right, cramming it down, we're done here.

00:17:15.000 Why do you rely so heavily on the judiciary?

00:17:18.000 Conservatives for many years, and I among them, Bob Bork was a close personal friend, believed that, partly prompted by the excesses of the Warren court, that in fact the judiciary should defer more.

00:17:34.000 Judicial restraint meant judicial deference to the elected branches.

00:17:39.000 And I believed that until I quit believing it.

00:17:43.000 It's the biggest change of my life and it's now very interesting.

00:17:47.000 The most interesting political arguments in the United States are not between conservatives and progressives, they're among conservatives right now.

00:17:54.000 One of which is those of us among conservatives who now argue for what's called judicial engagement.

00:18:02.000 Clark Neely, with the Cato Institute, wrote a book of that title.

00:18:08.000 Let me go back to central Illinois, where I grew up.

00:18:10.000 According to local lore, it was in the Champaign County Courthouse that Abraham Lincoln heard about the passage of the Kansas-Nebraska Act in 1854 by another Illinoisan, Stephen A. Douglas.

00:18:25.000 Douglas said, we're going to solve the problem of Whether to expand slavery into the territories by popular sovereignty in the territories.

00:18:34.000 Vote it up, vote it down.

00:18:36.000 It's a matter of indifference, because the important thing about America is majority rule. 0.51

00:18:42.000 Lincoln's ascent to greatness, to the greatest career in the history of world politics, in my judgment, began with his recoil against the Kansas-Nebraska Act.

00:18:53.000 Where he said, America's not about majority rule, it's about liberty.

00:18:57.000 We're for majority rule whenever, and to the extent that it is, as it usually is, a bulwark of liberty, but it is not always.

00:19:07.000 Therefore, I mean, the Bill of Rights is a tissue of prohibitions.

00:19:11.000 If the majority wants to abridge free speech, or to establish religion, or to abridge the right to petition, too bad, majorities can't have it.

00:19:22.000 Majorities can't do lots of things.

00:19:26.000 That's the question.

00:19:28.000 I wrote my doctoral dissertation's title was Beyond the Reach of Majorities.

00:19:33.000 It was in the second flag salute case to West Virginia v. Barnett.

00:19:38.000 Justice Robert Jackson said, the very purpose of a Bill of Rights was to place certain things beyond the reach of majorities above the vicissitudes of politics.

00:19:48.000 I think judicial deference often is dereliction of the judicial duty to make sure that what majoritarian institutions do, be it a city council, be it a state legislature that says you have to salute a flag even if you're a Jehovah's Witness and that offends your deepest beliefs, that courts ought to be more actively engaged than they have been, particularly in defending economic rights

00:20:17.000 In laying what the majoritarian institutions do next to the Constitution and next to the Constitution as construed in the bright light cast by the Declaration of Independence.

00:20:29.000 That's the second side of this.

00:20:31.000 Timothy Sandefur, tremendous young lawyer and scholar.

00:20:36.000 He's written a book called The Conscience of the Constitution, which I recommend to all your viewers.

00:20:41.000 And he says, first comes the Declaration of, and then comes the Constitution.

00:20:47.000 In Lincoln's famous formulation, the Declaration of Independence is the apple of gold that is framed by the frame of silver that is the Constitution.

00:20:58.000 We are not about majority rule.

00:21:01.000 We are about liberty.

00:21:03.000 I agree with the central premise, but I do wonder, again, kind of linking the two questions that I've asked already, if you broadly construe rights, and then you broadly construe the ability of courts to implement those rights, don't you end up with almost a Wilsonian perspective on government just from the judiciary, not the executive?

00:21:17.000 It becomes dangerous.

00:21:18.000 But again, go back to what I said earlier, there is no safe spot in politics.

00:21:23.000 Anything we do is going to—life lived on the slippery slope.

00:21:27.000 Yes, you could have the irrigation of essentially democratic decisions by legislatures, minting new rights, I mean, by judicial people, minting new rights that reflect their policy preferences.

00:21:45.000 That is a danger.

00:21:46.000 And nationalizing perceptions of rights, meaning that the founders were also very much concerned with the Montesquieu point that localism mattered when it came to definition of particular rights.

00:21:54.000 And so defining sort of levels of rights, there were obviously rights to be protected by the federal government, but the federal government is really, the Bill of Rights abridges the powers of the federal government.

00:22:04.000 It's really not meant to enable the federal government to cram things down on states so much.

00:22:08.000 I mean, the First Amendment is designed to stop Congress from legislating against the First Amendment, not to give the federal government power to encroach on the rights of states per se.

00:22:17.000 But I think conservatives should welcome, should embrace, in fact, the incorporation of the Bill of Rights by the 14th Amendment.

00:22:17.000 Correct.

00:22:27.000 that now the Bill of Rights now applies to the states.

00:22:30.000 I think we should go back and relitigate the slaughterhouse cases of 1873 when the The court gave a ridiculously truncated understanding of the privileges or immunities of an American citizen.

00:22:43.000 I think the purpose of the 14th Amendment was to define rights of national citizenship that superseded those of the states.

00:22:50.000 I think it is fair to say that the Civil War amendments were, in a way, completing the American founding.

00:22:57.000 Now, about localism.

00:23:00.000 Madison called First, the Annapolis Convention, leading to the Philadelphia Convention, in order to strengthen the central government, because Madison was appalled by the results of localism during what historians rightly call the critical period of American history, the period under the Articles of Confederation.

00:23:22.000 What were local people doing?

00:23:24.000 They were responding to local majorities, they were canceling debts, They were running roughshod over due process.

00:23:36.000 Remember, Madison's great revolution in democratic theory was not friendly to localism.

00:23:43.000 It was this.

00:23:44.000 Before Madison, the very few people who thought democracy was possible at all said it had to be In a small face-to-face society, Pericles, Athens, Rousseau's Geneva, a place you could walk across in a day because, they said, the enemy of freedom and democracy is factions.

00:24:04.000 So you want to have a small, homogenous polity without factions.

00:24:09.000 Madison said that is exactly wrong.

00:24:12.000 What we need is to understand this.

00:24:14.000 The factions are sown in the nature of man, he said.

00:24:18.000 We're going to have factions.

00:24:20.000 Therefore, we need a saving multiplicity of factions.

00:24:23.000 He had a catechism.

00:24:25.000 What is the worst outcome of politics?

00:24:28.000 Tyranny.

00:24:29.000 To what form of tyranny are democracies preyed?

00:24:31.000 Tyranny of the majority.

00:24:33.000 Don't have majorities.

00:24:33.000 Solution?

00:24:35.000 Going to have majorities, but they're going to be unstable majorities, shifting coalitions of factions.

00:24:43.000 Therefore, we need an extensive republic so that you will have government's first task being, Madison said in 10 and 51, the protection of the different and unequal capacities of acquiring property, because that will produce different factions, and a saving multiplicity of factions will produce freedom.

00:25:04.000 So, remember the Constitution was written by people from Madison to Alexander Hamilton.

00:25:12.000 Immediately after the Constitution became enemies and rivals, but there they understood the first thing was to pull government up from localism so that we could have an effective national government.

00:25:24.000 But the federalization of politics, the removal of rights from the state level to the enforcement mechanism of the federal government, well, obviously everyone agrees that with regard to slavery and with regard to Jim Crow, that that's a very good thing and very positive for the country.

00:25:37.000 It does result in a deep-seated Rage that I think a lot of people are feeling in the country right now Which is the loss of local control a belief that you're now your life is now being controlled either by judges on the one hand or by regulators in the executive branch on the other and By legislators who basically kick their task over to both the regulators and the judges I recall during the campaign finance reform debates George W Bush signing into law campaign finance reform and suggesting that he thought it was unconstitutional But that it was the job of the Supreme Court to weigh in on that.

00:26:04.000 Yeah, it's interesting because Before the Iowa caucuses in 2000 Yeah, early 2000.

00:26:11.000 He was on our program on ABC, and I asked him, I told him before the show, I was going to ask you about McCain-Feingold.

00:26:21.000 And I said, is this unconstitutional?

00:26:23.000 The government with campaign finance laws, which I think are all unconstitutional.

00:26:29.000 It's the government stipulating the quantity, content, and timing of political speech about government.

00:26:35.000 I said, is that unconstitutional?

00:26:36.000 Yes, he said.

00:26:37.000 Would you veto it if it came to you?

00:26:39.000 He said, yes.

00:26:40.000 Of course, he signed it in secret, doing just what you said, hoping the courts would rescue him from making an independent judgment about constitutionality.

00:26:48.000 But remember, Jim Crow was majority rule. 0.75

00:26:52.000 Jim Crow reflected local values.

00:26:56.000 And I think local values and majority rule are not all they're cracked up to be.

00:27:01.000 But this is a perfect example of where Individuals get oppressed by local majorities.

00:27:11.000 Right, and the basic idea of a federal government stepping in and doing something about the enforcement of particular rights that are specifically defined, I think is important.

00:27:22.000 I think that the Civil Rights Act, I tend to agree with the argument that the Civil Rights Act is effectively what ended segregation, not the ruling in Brown v. Board, which I feel actually didn't do very much.

00:27:30.000 Desegregation didn't actually accomplish anything via Brown v. Board.

00:27:32.000 The Voting Rights Act did.

00:27:34.000 Right, the Voting Rights Act did. 0.63

00:27:35.000 All of a sudden, black people could vote and Strom Thurmond said, hire a black person for my staff.

00:27:43.000 I mean, he immediately got the picture.

00:27:45.000 So that's the power of the legislature, not the power of the judiciary.

00:27:49.000 And I guess the point where that struck me was you make a very strong argument in favor of the ruling in Lawrence versus Texas and against Justice Scalia's dissent in Lawrence versus Texas.

00:27:57.000 And you say, well, you know, the basic notion of rights is a sort of John Stuart Mill version of rights that I get to wave my hand in the air so long as I don't hit you in the face.

00:28:05.000 So what exactly does the government have to do with regulating private bedroom activities?

00:28:09.000 That's a principle with which I fully agree.

00:28:11.000 I am not sure it's a principle with which the founders would have fully agreed, particularly since many of them were in favor of laws that regulated exactly that sort of behavior.

00:28:19.000 Right.

00:28:19.000 And I guess the question becomes, since we are now talking about the morphing of rights beyond what the founders suggested, is there any limiting principle there whatsoever?

00:28:28.000 I think there is, and let me try and explain it with reference to Scalia and another part of the Constitution, the Eighth Amendment.

00:28:34.000 The Eighth Amendment prohibits cruel and unusual punishment.

00:28:39.000 The Eighth Amendment is one reason why Scalia defined himself as a fainthearted originalist.

00:28:45.000 While they were sitting in Philadelphia in 1787 writing that, and while a few years after that they were ratifying the Eighth Amendment, It was common practice in America to crop ears, brand cheeks, floggings, whippings, pillorings, etc.

00:29:05.000 None of which would we tolerate now.

00:29:07.000 Now Scalia went back and forth. 0.99

00:29:08.000 He finally said late in his life, okay, if the state legislature wanted to flog people, they'd be stupid but constitutional. 0.99

00:29:18.000 I think they're unconstitutional. 0.99

00:29:19.000 Here's how I think you get there by being true to it.

00:29:21.000 I think there is such a thing as intention originalism.

00:29:25.000 What was the intent of the authors and ratifiers of the Eighth Amendment?

00:29:30.000 It was to prevent cruelty as government policy.

00:29:35.000 Now, that does not mean that it meant to prevent cruelty as it was understood in the 1790s.

00:29:43.000 It meant cruelty as society understood it as it evolves.

00:29:49.000 Now, Earl Warren said, There are evolving standards of decency that mark the maturation of a society.

00:29:59.000 And because Earl Warren said it, a lot of conservatives say we don't believe that.

00:30:03.000 Let me say something about Earl Warren.

00:30:05.000 Before he was Chief Justice, he was Governor of California.

00:30:09.000 Before he was Governor, he was Attorney General.

00:30:11.000 Before he was Attorney General, he was a District Attorney.

00:30:15.000 And he knew what went on in the back rooms of police stations.

00:30:19.000 And a lot of the criminal justice decisions of the Warren Court came from that, that the Chief Justice knew what was going on.

00:30:29.000 And I think conservatives ought to be able to accommodate that.

00:30:33.000 Intention originalism says, what were they intending?

00:30:38.000 When we get to the Brown decision, school segregation, it would have been much cleaner if, instead of the Warren Court going into a lot of sociology, if they just said, hey, look, We're guaranteed equal protection of the laws.

00:30:54.000 This is obviously unequal.

00:30:58.000 Get rid of it.

00:30:59.000 Could have been cleaner.

00:31:00.000 People could have understood it.

00:31:01.000 I think that's true.

00:31:03.000 I just hesitate to allow intention originalism in any, we wouldn't do it in any other area of the law, right?

00:31:09.000 If you read the Sherman Antitrust Act, you wouldn't simply reinterpret it based on the evolving standards of the meaning of words.

00:31:14.000 You would read it as literally as possible.

00:31:16.000 And if we want to change the law, we have legislatures, we have, which require effectively super majorities given the filibuster. 0.97

00:31:23.000 We have methods of changing the law and having the Supreme Court step in and curtail a lot of the debate that is happening, whether it's in the Obergefell decision or even in cases where, again, I agree with the outcome like Lawrence v. Texas, it seems to me a dangerous, you know, you say we have to embrace the danger, but it seems to me that the danger from having unelected justices who are unanswerable to any form of public

00:31:47.000 Blowback make the rules as opposed to we can get rid of certain people we can replace them with other people That's not I'm still very much in favor of the checks and balances.

00:31:55.000 I just wonder if there's no actual check or balance on the judiciary Well, you cited a moment ago the great Alex Bickle who was a clerk for Felix Frankfurter and a colleague and mentor in a way of Bob Bork Alex Bickle's great books about the least dangerous branch quoting Alexander Hamilton courts have neither the The person or the sword, how much damage can they do?

00:32:18.000 Well, we know they can do a lot of damage.

00:32:19.000 But should they exercise force or will, then they lose their legitimacy.

00:32:22.000 Quite.

00:32:24.000 I'm saying that, again, I concede everything you say about the potential dangers.

00:32:30.000 There's no safety in politics.

00:32:33.000 What do you fear most?

00:32:35.000 I fear most majority rule.

00:32:37.000 Abusive majorities.

00:32:40.000 So, in your book, you talk a lot about sort of the secular roots of the Republic, and you kick back pretty strongly against the notion that this is a Judeo-Christian Republic or a Christian Republic.

00:32:50.000 Obviously, I agree that there's nothing in the Constitution that mandates a particular religious viewpoint, but I feel like you may be giving some short shrift to the Judeo-Christian roots of some of the very ideas that you're talking about.

00:33:04.000 So, you say sort of that secularism or agnosticism, atheism, that these kick in favor of conservatism, Maybe you can explicate that argument so I don't mischaracterize it.

00:33:14.000 Yeah, the chapter in the book that I had most fun writing was called Conservatism Without Theism.

00:33:20.000 Can I be autobiographical for a moment?

00:33:22.000 Of course.

00:33:23.000 My father's father was a Lutheran minister, and my father as a young boy would sit outside Pastor Will's study and listen to Pastor Will and some of his congregants wrestling with the problem of reconciling the doctrines of free will and grace.

00:33:40.000 That made my father a philosopher, not a religious person, a philosopher.

00:33:45.000 And I grew up in a secular household, not hostile to religion.

00:33:48.000 I've described myself as an amiable, low-voltage atheist.

00:33:52.000 I'm married to a fierce Presbyterian, so I'm live and let live.

00:34:01.000 I don't deny the enormous contribution of Judeo-Christian thought to the culture that produced, eventually, in the 18th and 19th centuries, democracy.

00:34:13.000 I say in my book that Martin Luther, although as autocratic as can be and a ferocious opponent of peasant revolts and all the rest, nevertheless, when he stood at the Diet of Arms and said, I cannot do otherwise.

00:34:31.000 That was asserting the primacy of conscience, the great Protestant contribution to Western civilization, and the primacy of conscience is the basis of individualism, the heart of the kind of conservatism I'm talking about, and the kind of conservatism against which some conservatives, as you said a moment ago, are in rebellion against kind of what they consider excessive individualism.

00:34:59.000 What I wanted to argue here was not that there's any incompatibility between religion and conservatism, but there's no necessity for a religious basis of conservatism.

00:35:11.000 People say, well, what about the founders?

00:35:13.000 The founders, basically, the most important one were deists. 0.99

00:35:18.000 Deism, to me, is barely a religion.

00:35:22.000 Religion should explain, enjoin, and console. 0.96

00:35:26.000 All deism does is sort of explain.

00:35:29.000 That everything's here because God created it, and then he left.

00:35:34.000 Someone said the deist God is like a rich aunt in Australia, benevolent but rarely heard from.

00:35:41.000 I just, you know, I don't think deism counts as a religion.

00:35:48.000 It seems to me that the Lucretian world, Lucretius is sort of my model here, he said, the world is all whirl.

00:36:00.000 One of the Greek playwrights had the phrase, World is king, having driven out Zeus.

00:36:05.000 I'm saying, good, get rid of Zeus.

00:36:08.000 I don't want God's interfering in our lives.

00:36:11.000 World is just fine.

00:36:13.000 I'm back to the conservative sensibility, God losing control of events in the Bible.

00:36:18.000 And if you embrace world, then cosmology itself, all that we know about the great crashing whirl of the universe suggests that there is perfectly possible to have design, if you will, things that look created but weren't created by a creator.

00:36:41.000 They just happened.

00:36:43.000 I quote Huck Fenn to that effect in the chapter.

00:36:47.000 Huck's on the raft with Jim and they look up and they said, was they created, the stars, or did they just happen?

00:36:54.000 I'm of the just happened school.

00:36:56.000 So there are a couple of questions that spring from that.

00:36:58.000 One is whether, practically speaking, obviously you can be a conservative and be an atheist, you can be a conservative and be a Gnostic.

00:37:04.000 Some people denied that, you know.

00:37:07.000 Whitaker Chambers said a man without mysticism is a monster.

00:37:10.000 Well, since it made me a monster, I kind of resented that.

00:37:16.000 And Russell Kirk said that a defining The element of conservatism has to be a religious sense.

00:37:26.000 I don't have it.

00:37:28.000 I don't like being read out of the movement on religious grounds.

00:37:31.000 Yes, I think it is perfectly possible, just as it's perfectly possible to be a fully moral, and sometimes more moral than a religious person, atheist.

00:37:38.000 It is perfectly possible to be a conservative while being an atheist.

00:37:41.000 I don't know that atheism tends toward conservatism.

00:37:43.000 In fact, I think that it tends toward the opposite.

00:37:45.000 That could very well be.

00:37:47.000 Statistically speaking, obviously, as religion declines in America, so has conservatism.

00:37:51.000 The relationship between religion and any doctrine is contingent, and there's no question that you're right empirically.

00:37:57.000 As a matter of fact, religion tends to make people more susceptible to conservatism than atheism.

00:38:06.000 And I'm going to make the slightly stronger argument, which is that even some of the premises that you're basing conservatism on do require a footing in religion.

00:38:13.000 So to take the example of natural right, there's nothing in nature that dictates natural right at all, obviously.

00:38:19.000 And nature is a place where things kill other things and eat them.

00:38:23.000 And so the idea of rights that spring from that is actually quite unnatural.

00:38:27.000 I mean, nature is a creation of hierarchy and power hierarchies and Nature red in tooth and claw.

00:38:33.000 Exactly.

00:38:33.000 I mean, this is why the original interpretation of Darwinism for the first 70 years of its existence tended toward social Darwinism and fascism, was the idea that nature was counted against rights and that it was survival that actually mattered most.

00:38:46.000 And so the notion of individual rights based in natural rights, that actually does not spring from anything atheistic.

00:38:53.000 That would be one contention.

00:38:54.000 The other contention I'd make is that your conservatism is very much dependent on the notion that you are a free actor acting in a world that has certain predictable rules to it that either emerge from chaos or emerge from a creator.

00:39:07.000 But even the notion of free will, the idea that we have the capacity to choose, is an assumption that you have to make about the universe that is simply not present in a scientific materialist sense.

00:39:16.000 It's a great philosopher's joke.

00:39:17.000 Of course, I believe in free will.

00:39:18.000 I have no choice.

00:39:22.000 I believe there is, as the great conservative James Q. Wilson, the greatest social scientist of the last 50 years, wrote a book called The Moral Sense.

00:39:34.000 I believe there is a moral sense.

00:39:35.000 How it evolved, I don't know, but there it is.

00:39:38.000 I think it exists.

00:39:39.000 We are disposed to compassion and kindness and promise-keeping and other ways.

00:39:45.000 I say in the book that, in fact, I think we are, at the end of the day, rule utilitarians.

00:39:54.000 The greatest happiness for the greatest number is produced over time by obeying certain rules, and that the rules include respecting certain rights that we empirically, from historical experience, have decided are crucial to human flourishing.

00:40:13.000 And I think individualism is crucial to human flourishing, I think individual property rights are absolutely crucial to human flourishing, because Property creates a zone of sovereignty in which you can operate.

00:40:29.000 None of that requires a grounding other than observation, anthropology, sociology, and history.

00:40:35.000 It does not require theology.

00:40:37.000 Isn't that sort of linking isn't ought in a way that is logically inappropriate, meaning that because things have been that way, Thus it is a moral rule, as opposed to an actual principled moral rule, that there are natural rights, that these do exist, that they pre-exist government.

00:40:53.000 In other words, the problem with rule utilitarianism is that a lot of things are utilitarian that would conflict with your individual rights-based morality.

00:41:00.000 Rule, not I think, I don't think they would conflict over time.

00:41:04.000 That's why it's not act utilitarianism, it's rule utilitarianism.

00:41:09.000 That you judge not just individual acts, but a pattern of behavior A series of social arrangements.

00:41:16.000 We know that democracy is pretty good.

00:41:20.000 We know that without property, people do not flourish because there are no means for asserting themselves and exercising sovereignty and making choices which are the essence of freedom.

00:41:36.000 So, again, it's dangerous.

00:41:40.000 I can't Anchor this in some cosmology.

00:41:43.000 I mean, I guess that and that, I guess, is the problem is that when you read the Declaration of Independence, it is not a rule utilitarian document.

00:41:49.000 It is it is a document of essential principle about the way things should be, not saying that in the past rights have worked and therefore rights are good.

00:41:57.000 But the author of the declaration said that these truths are self-evident, by which he meant and those who agreed with him meant evident to minds not not clouded by ignorance or superstition.

00:42:11.000 They did not mean that everyone on the planet accepted these propositions.

00:42:14.000 Damn few did, or still do for that matter. 0.91

00:42:19.000 But I think Jefferson was right. 0.98

00:42:21.000 Minds unclouded by ignorance and superstition, clear minds, clear thinking minds, Accept those truths as self-evident.

00:42:29.000 So let's talk about the question of the role of government in light of sort of a real utilitarian viewpoint.

00:42:34.000 So folks on the political left would suggest that in a real utilitarian way, the government should be involved in, for example, health care.

00:42:41.000 Because when the government is involved in health care, then there is a universality that applies to health care, even if the price is higher or even if it means that certain people on the upper end The first question is the proper scope and actual competence of government.

00:42:52.000 Can government do what people want it to do?

00:42:53.000 the age spectrum, then that is the way that it ought to be.

00:42:56.000 How do you apply a small government conservatism to questions of where the government should be involved in American life?

00:43:02.000 The first question is the proper scope and actual competence of government.

00:43:10.000 Can government do what people want it to do?

00:43:13.000 It doesn't know how.

00:43:15.000 Or is it, to use Hayek's great phrase, the fatal conceit of government, that it can acquire information and manipulate information and act disinterestedly on information better than markets can allocate information and generate it.

00:43:36.000 That's all markets are, information-generating devices.

00:43:40.000 Governments, first of all, don't act disinterestedly.

00:43:45.000 I wish my progressive friends would sit down with James Buchanan's works, Nobel Prize winner from the University of Virginia, who gave us the public choice theory, which is that governments are run by human beings.

00:43:59.000 In the private sector, human beings try to maximize profits, basically, broadly understood.

00:44:05.000 In government, human beings try to maximize power.

00:44:09.000 Government is not disinterested.

00:44:11.000 Government is a political actor.

00:44:13.000 Government is a faction.

00:44:15.000 Government is... Elizabeth Warren has half a grip on a point.

00:44:22.000 She says, look at the government.

00:44:24.000 It is no accident, she says, and she's right, that five of the ten richest counties on a per capita basis are in the Washington area.

00:44:32.000 Trillions of dollars sloshing through Washington.

00:44:36.000 She's right.

00:44:37.000 That the government is often the plaything of factions that are intense, compact, articulate, confident, and well-lawyered.

00:44:47.000 They manipulate the government.

00:44:48.000 They can understand, the more affluent and educated can understand the gears and pulleys and levers of this opaque machine, this great Leviathan in Washington.

00:45:01.000 Then, however, Elizabeth Warren and other progressives say, solutions to make the government much bigger and much more powerful, get it much more deeply involved in allocating wealth and opportunity, at which point you say, no, no, wait, please.

00:45:15.000 You've just described the government as given to certain pathologies that are inherent in a large government that is deeply involved in the allocation of wealth and opportunity.

00:45:28.000 Want to reduce the role of money in politics?

00:45:32.000 Reduce the role of politics in money.

00:45:34.000 See what happens.

00:45:35.000 That's why I say progressives have a firm grip on half a point.

00:45:39.000 They just get lost.

00:45:45.000 What is the prospect for change?

00:45:46.000 So folks on the left would say, well, this doesn't allow for change nearly quickly enough because it sort of forecloses grand experiments.

00:45:52.000 It suggests that stuff that is working half well, maybe there's a better way and we just haven't tried it yet.

00:45:57.000 And on the conservative side, there are people who say, well, rule utilitarianism because it's not rooted in a fundamental unchanging principle per se, that that actually does allow for exactly that sort of experimentation that can get quite dangerous because you don't know it's failed until it's failed.

00:46:10.000 Whatever progresses, Criticize about capitalism, surely they can't say it doesn't produce change.

00:46:16.000 I mean, the greatest change in the history of the human race occurred from the late 18th century to today, called The Great Enrichment by Deirdre McCloskey in her three-volume book on the bourgeois virtues.

00:46:30.000 Capitalism is a permanent revolution.

00:46:35.000 Writing the greatest hymn to capitalism in the Communist Manifesto said, under capitalism everything solid disappears into air.

00:46:43.000 He's right.

00:46:46.000 He said he understood capitalism, the most revolutionary thing that ever happened.

00:46:50.000 He just didn't like the destination.

00:46:53.000 But capitalism is a constant, it's a permanent revolution.

00:46:57.000 That's Trotsky's phrase.

00:47:00.000 Trotsky should have been a capitalist.

00:47:04.000 Capitalism is the permanent revolution, and government, the more complicated society gets, said the progressives, said Woodrow Wilson, the more complicated it gets, the more it requires government to manage it.

00:47:17.000 It's exactly wrong.

00:47:19.000 The more complicated society gets, the more there is that government doesn't understand, the more there is to know.

00:47:26.000 The more information there is out there that government cannot possibly master and apply to society.

00:47:33.000 Get out of the way. 0.53

00:47:34.000 Where we are in the country right now, you mentioned Marx and his belief that the end goal, the end point of this particular journey is not the right end point.

00:47:43.000 It is one thing in America to argue about the means to get to the end point.

00:47:46.000 It's another thing to argue about the end point itself.

00:47:48.000 Do you think that we've reached beyond the sort of conciliatory I don't think we should agree on endpoints.

00:48:00.000 I don't think we should anticipate the end.

00:48:03.000 We don't know what the end's going to be.

00:48:06.000 Let me give you a tiny, just a simple example.

00:48:10.000 Until 2007, millions and millions of Americans had cell phones and were happy.

00:48:19.000 Then in 2008 along came the smartphone, and everyone hated the cell phones they had.

00:48:25.000 Good!

00:48:27.000 Creative dissatisfaction.

00:48:30.000 So we have these little devices.

00:48:32.000 I have more computing power in my pocket than NATO had in 1960.

00:48:37.000 I mean, I have more access to information than the Library of Alexandria, or the Library of Congress for that matter.

00:48:44.000 Wonderful!

00:48:46.000 Is that the end?

00:48:47.000 I doubt it.

00:48:48.000 Someone's going to come along and make me extremely dissatisfied with my iPhone, whatever it is.

00:48:54.000 I guess it's a question of end goals, not just end product.

00:48:56.000 Okay.

00:48:57.000 Well, it depends what you mean by goals.

00:49:00.000 The great moment in modernity.

00:49:04.000 was when, first it began sort of with Machiavelli, but then Hobbes and Locke and others, and said, you know, people are going to disagree about the ultimate good.

00:49:14.000 They just are.

00:49:15.000 Sorry.

00:49:17.000 What we have to do is figure out institutional arrangements so that people who disagree about fundamentals can still live together.

00:49:24.000 That's called modernity.

00:49:26.000 It's called modern society.

00:49:27.000 It's why a number of religious conservatives don't like modernity and are quite candid about it.

00:49:34.000 There's been a lot of candor in the world.

00:49:37.000 Some of these conservatives today say, we don't like modernity.

00:49:39.000 Good.

00:49:40.000 I admire their forthrightness.

00:49:41.000 Woodrow Wilson said, I don't like the Founders.

00:49:44.000 Woodrow Wilson said, do not read the first two paragraphs of the Declaration.

00:49:49.000 It's 4th of July fluff.

00:49:52.000 Don't like the separation of powers.

00:49:55.000 Woodrow Wilson, I can exhaust you in the day with all his defects, but candor he had, and I admired that.

00:50:03.000 So, in one second, I'm finally going to ask you about the topic we have now voided for a full hour, and that, of course, is President Trump and your thoughts on President Trump.

00:50:10.000 But if you want to hear George Will's thoughts on President Trump, you actually have to subscribe over at Daily Wire.

00:50:15.000 You have to pay us.

00:50:16.000 To subscribe, go over to dailywire.com, click subscribe, and you can hear the end of our conversation there.

00:50:20.000 Plus, I'm going to ask him about baseball, too, because we can't end on that note.

00:50:22.000 George Will, thank you so much for stopping by.

00:50:23.000 It really is an honor and a pleasure to have you.

00:50:25.000 Thank you for your time, sir.

00:50:26.000 Great fun.

00:50:26.000 I enjoyed it.

00:50:27.000 Thank you very much.

00:50:39.000 Executive producer, Jeremy Boren.

00:50:41.000 Associate producer, Colton Haas.

00:50:43.000 Our guests are booked by Caitlin Maynard.

00:50:45.000 Post-production is supervised by Alex Zingaro.

00:50:48.000 Editing by Donovan Fowler.

00:50:49.000 Audio is mixed by Mike Karamina.

00:50:51.000 Hair and makeup is by Jesua Olvera.

00:50:53.000 Title graphics by Cynthia Angulo.

00:50:55.000 The Ben Shapiro Show Sunday Special is a Daily Wire production.

The Ben Shapiro Show - November 10, 2019

George Will | The Ben Shapiro Show Sunday Special Ep. 76

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