Who Are The Oligarchs?

Joshua Kleinfeld

Joshua Kleinfeld teaches and writes in three areas: legal and political philosophy; legislation and statutory interpretation; and criminal law and procedure. He has also practiced law in Northwestern’s Juvenile Criminal Defense Clinic. He is a full professor with tenure at the Northwestern Pritzker School of the Law and (by courtesy) in Northwestern’s philosophy department. In 2017-18, he was a visiting professor at Harvard and Stanford Law Schools. He is the recipient of the Bator Award, given annually to one American law professor under the age of 40 who has demonstrated “excellence in legal scholarship, a commitment to teaching, a concern for students, and who has made a significant public impact.”

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Episode Transcript

[Music] 

MAGUIRE RADOSEVIC: My name is Maguire Radosevic. I am the secretary of the Federalist Society chapter, here, at the law school. I’m going to read a quick mission statement of the Federalist Society. The Federalist Society for Law and Public Policy Studies is a group of conservatives and Libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the Judiciary to say what the law is, not what it should be.  

The society seeks both to promote an awareness of these principles and to further their application through its activities. I’d also like to thank the public law and policy program here at the law school for co-sponsoring our events. Um, with that I’d like to introduce today’s guest speaker, Professor Josh Kleinfeld. Professor Kleinfeld holds a JD from Yale Law school, a PhD in Philosophy from the Goethe University of Frankfurt, and a BA in Philosophy from Yale College. He clerked for Judge J Harvey Wilkinson on the United States Court of Appeals, for the fourth Circuit; Judge Janice Rogers Brown on the United States Court of Appeals for the D.C circuit; and president, that is, Chief Justice Aaron Barack of the Supreme Court of Israel. He worked as an associate attorney at Debevoise & Plimpton, in Frankfurt Germany, in the area of corporate criminal law. Before law school he worked as a senior research analyst at the White House’s Council on bioethics, and now he is a professor of law at the Northwestern University Pritzker School of Law. So, without further ado, please join me in welcoming Professor Josh Kleinfeld.

JOSH KLEINFELD: Hi everybody. Thank you so much for having me here. I’m really grateful to be here. Thanks for coming, uh, during lunch, to be part of the discussion. I hope the pizza is some compensation for your time, even if, you know, whatever I say isn’t. And, thanks also to Oren, who, um, um, I, I saw him in the fall and said, “hey I’d love to come to Berkeley, and share some ideas.” And, he sort of brought in the invitation. It’s a real honor to have him comment as well. I just had the occasion to look at this list that’s put together of the most cited criminal law and procedure scholars in the world, and, um, he’s number one by a country mile. One of the interesting things about the list is that the majority of people under him are in their, you know, 60s, 70s, 80s; which, is to be expected, because you acquire citations and scholarly life as you go along, right. And then there’s Oren, at the top, and only 21 years old.  

In the 2020 election, um, a story appeared pretty close to the time of the election about Hunter Biden’s laptop. Uh, it, it, it turned out that a laptop had been found that it was Hunter Biden’s Joe Biden’s son, um it had various sorts of, um, uh, sexual material that could be sort of titillating, uh, but not really relevant to the election properly. But it also had some material that potentially was relevant, uh, for example, material about Hunter Biden’s financial affairs, and how they were entwined with Joe Biden’s financial affairs. Uh, the story was broken on the, uh, broke, broken on the New York, in the New York Post. And, Twitter was worried, we now know, that Twitter employees and Leadership were worried that it would help Trump in the election, so they arranged for any tweets linking to the article to simply fail. Um, the tweets were just mysteriously, wouldn’t go through, um Facebook, meanwhile, also hid the story, [and] buried it in their algorithms. Uh, The Washington Post and the New York Times treated this story as sort of the equivalent to porn, and just, you know, mocked it as a story just purely period interest, um, it turns out it was all collusive, and it was, uh, it was not because the story was untrue. Later it was admitted to be true and various retractions were published in these same sources, it was purely for electoral management purposes, that is, to help fight and win the election. Of course Twitter also de-platformed, uh, a former president, um, uh, there was an effort to create a new Twitter, uh, but the company that was developing needed servers that were under Amazon’s control and Amazon spiked their access to the servers despite the profit motive, right. It would have been profitable for Amazon to provide the servers for a competitor to Twitter, but they spiked it. 

There was a book that, uh, came out on the origins of the BLM, or Black Lives Matter movement, uh, which was critical of the movement. Uh, Amazon prevented the Heritage Foundation from placing ads on its site about the book. Amazon also de-shelved Ryan Anderson’s book, uh, when Harry became Sally; which, is about transgenderism, and, uh, Amazon employees tried to take down Abigail Schreier’s book, Irreversible Damage. Amazon is an interesting actor and all this, uh, when Amazon was locating its second headquarters, uh, it put pressure on cities. Essentially, cities were desperate to get this, uh, enormous source of economic revenue and Amazon created [some] sort of rules about where it would locate as its headquarters, having to do with the city’s policies towards transgenderism, and related issues. Um, a number of cities complied in their effort to, uh, to get Amazon second headquarters, so what we’re seeing here is a phenomenon of big institutional actors taking sides, taking one side in the culture wars, and it’s not just big Tech. It’s Information Systems, uh, uh, more broadly. For example, publishers more broadly, a number of historians have tried to publish book length rebuttals to the New York Times 1619 project, and they haven’t been published, and they haven’t been published not because of Amazon in this case, but because of the publishers places, like, you know, the Penguins, and random houses of the world. Basically, their employees revolted over the idea of publishing one of these books and so these books are not available. 

And, it’s not just those who deal in information, it’s the professions, many of my conservative and libertarian students are terrified of being outed as, as, being conservatives and libertarians in their law firms. They sense, I think correctly, that at least at many of those law firms they won’t make partner, they might be fired, and things will dry up for them if they are outed as political outsiders. Uh, one of my friends is a doctor at the University of Chicago hospitals. One of his colleagues was overheard saying after some DEI training session, they were walking out, and he said he was overheard saying I’m so sick of all this woke stuff, and he was suspended for racism. Um, the same is true of accounting firms and essentially all the other professions, but it’s not just the professions, and not just big Tech, and not just the information world, it’s the corporate world generally, it’s the world of business. Sometimes, in surprising places. Coca-Cola insisted that it would only work with law firms that had a certain number of Black partners, and secured collaboration to that end with a number of other corporations. 

You see similar kinds of activities in, in Delta Airlines, and Walmart, and Gillette for that matter, in the NFL, where you might not expect it at first glance but you certainly see it, and it’s not just uh where am I now, Tech professions, uh, publishers’ professions, uh corporate world generally. It’s also the world of Finance, so you certainly see this kind of thing in Goldman Sachs for example, and perhaps most importantly in BlackRock, which owns about a six of the economy at this point. It has a controlling, uh, shareholder presence and about a six of the economy, and, of course you see it in the non-profit World. Guggenheim MacArthur, uh, those, the non-profit world in America is actually quite massive. It’s a huge amount of money which, and collectively, through that money a great deal of power, and it’s incredibly ideologically tilted more than universities, as a matter of fact. At the center of it all are the universities, uh, the cancellations, and firings, and social ostracism, and ideological bias of universities is now a manner, I think of common acknowledgment. It’s sort of the stuff of headlines. People have different opinions about it, of course, but the fact of it is largely a matter of common recognition. 

What’s not familiar is how old these phenomenons are. What your generation knows as the woke movement was, when I was a kid, called identity politics and political correctness, and it was essentially exactly the same things, the same ideology, the same, uh, tactics, like cancellations and the like. Uh, in fact there was a whole wave of what we now call cancellations in the 1990s for various professors who said politically incorrect things as they were now known. The famous book about this, Alan Bloom’s, Closing of the American Mind, was written in 1987, or rather published in 1987. Unless you think all this is new, finally this, all of this is not just anecdotes, there’s systematic evidence of both astonishing ideological unity, ideological extremism, and bias towards ideological outsiders throughout our various American institutions. 

So, my goal with these opening examples is not just to get your blood pounding, I want to make two points today. One is about the institutional sphere. The, the, ten thousand institutions, as I will call them, and that is equally a point about power, about where power is in America; and, the other point I’d like to make today is about democracy, and for reasons I’ll explain, it’s equally a point about liberty. So, there’s two sections in the remainder of the talk. The first one is called Ten Thousand institutions, and the second one is called Democracy.

Here we go with ten thousand institutions. High over this fear I’ve just been speaking of Amazon, the NFL, and Coca-Cola, and Goldman, and law firms, and all the rest of it casts your eye over them as a whole. I want to invite you to picture the country as ten thousand institutions. They’re organized by sphere. There’s a financial sector, a medical sector, a law sector, non-profit foundations, corporations that sell goods to customers, universities [both] public and private, other educational institutions like public and private schools, all of the above, right. I’m asking you to, may I have a glass of water actually? Do we have any water? Thanks, thanks McGuire. Um, I’m inviting you to see that entirety of, uh, institutional actors as a collection. What you see when you do so is a vast complex institutional landscape. I like to picture it as if it were a city. The cityscape of San Francisco, or my hometown of Chicago. Not my hometown, my current town, imagine each institution is a building, that is, you know, Latham and Watkins, that’s a building in this, in the imaginary City, uh, Goldman Sachs is a building, Berkeley is a building, uh, all of the various institutions that comprise our societal world are buildings and they’re organized by neighborhood. 

So you wander into, I don’t know, it’s north side. This is the medical sector, and there you find all your hospitals and your medical schools, which kind of overlaps with the neighborhood that comprises the universities and your American Medical Association, and the Lancet, and New England Journal of Medicine, right. This is your medical neighborhood. You wander a little bit, um, a little bit east you’re in the Northeast now, and, uh, here’s your legal world, and you have your Latham, and Siddly, and Kirkland, and all the other big firms, but you also have your law schools, there’s sort of a section of every neighborhood that overlaps at the center with the universities, um, and you have like your bar associations, and your CLE training programs, and all the other things that comprise it. There’s another neighborhood for the sports world. So there you have the NFL, it’s a big building, the NBA, it’s a big building, the NHL, the MLB, but you also have ESPN and the other kinds of components of our vast and complex societal landscape. What emerges from all this is a certain picture of how our society is formed. It’s a picture in which, uh, there are quite a number of different neighborhoods comprising the different sectors or industries, broadly defined in social life, and in each one there are these vast buildings that comprise different institutions. 

Thank you, and within, within each of the institutions are actually concrete individuals, you know, flesh and blood, people like you and me, living out our lives. My term for this image of the vast institutional landscape of any complex society is the ten-thousand  institutions and my first goal today is just to see clearly this world of ten thousand institutions. You know sometimes people think, particularly in law school, sometimes people think that what philosophy is about is making normative arguments, right. Everybody makes normative arguments, but philosophers do it a little differently, or a little better, or something like that. I don’t think that’s really quite right about philosophy. The office of philosophy in many cases is just to see things more clearly, just to illuminate the world one already lives in by providing a conceptual apparatus for understanding it. Uh, so my first goal today in this ten-thousand institution section. I would later make a normative argument but my goal today primarily is just to make, just to illuminate this part of this way of looking at society as a world of, of, many, many institutions. So I’m going to make a series of points about these institutions that are really designed to illuminate, and the first is the most important.

The first one is that ten-thousand  institutions are our public life. I want to urge you, particularly those among you who are sympathetic to libertarianism, um, which I think, which I’m sympathetic to in some ways, but I also think can be, benided. Uh, I want to urge you to think of the social world not in the simple and simplistic categories of public versus private, but to subdivide the public category. So you see it as state, institutional, and private. Three categories, the first two collectively jointly Define the public sphere, state and institutional, defines the public sphere, and then there’s the genuinely private sphere of individuals and concrete personal associations. What do we mean by the public sphere, after all, what we may mean is the space in which we engage with other citizens in the projects of collective life and make collective policies or norms to govern our Collective life equally? We mean the sphere where power is exercised, where groups as collectives exercise power. Uh, institutions, the ten-thousand institutions, satisfy those definitions. That’s where we live our collective lives together. It’s where we make policies to govern our collective life together, and it’s really the center of power in our society, alongside the state. 

Think for example about covid policy. The experience we’ve just had. Who made covid policy? Well, to be sure, some of it came out of Mayor’s offices, or Governor’s offices, or the CDC, or the FDA, or the Pres, or the White House, but a great deal of it came from Berkeley, or Northwestern, or your employer. That is a great deal of the ins of. The policy was made by the institutions to a substantial extent. The policies were made in cooperation between mayors and governors, and agencies, and these large-scale institutions. Hmm, um, I’ll have a lot to say in this talk about libertarian shibboleths, not because I’m indifferent to the goal of liberty, but because some libertarians, in my view, misunderstand the nature of the social world. This is the first misunderstanding, to think of the public sphere as the state, as the government, as opposed to thinking of the public sphere as where we are governed. Think of it verbally, in which case it becomes clear that we’re governed both by institutions and by the state. Expanding on this two-part idea of the public sphere, I wanna, I wanna add a few nuances, here. First is that institutional life is not really non-governmental. It’s more like a marbling of governmental and non-governmental. It’s a combination of them thinking about universities. I mean even the private ones are deeply engaged with the government. They receive federal funding, there’s to, um, tax advantages for, uh, uh, for their special loan terms. I should say, for your student loans, there’s an enormous grants program, and of course there’s enormous regulation coming from the DOE. So, even you know the Northwesterns of the world, where I work, are deeply entwined with the government and there’s a general counsel’s office that’s routinely on the phone with the DOE, right. And, there are places like Berkeley which are formerly hands of the state, and frankly, they’re not that different, uh, they’re very similar to one another. Well think about an insurance company that’s a highly regulated industry. Is it really, purely non-governmental? It’s more like a marbling of inter, an interplay between government and non-government. 

Well, think about a financial institution. Again, staffs of lawyers making sure that they are um, um, correctly carrying out the imperatives of government, or think of Twitter. Twitter is interesting. It’s less regulated, somewhat regulated but less regulated. But, is it really private? It’s just charging a public function. Uh, in other words, the institutional sphere is not just the public sphere in a, in a conceptual sense, that I was arguing, um, arguing about before even in a formal sense. It’s deeply entwined with the state and again expanding on these institutions are the main way legal enforcement gets done in society. Think of how taxes are collected. They’re collected so effectively because the government isn’t really interfacing with 330 million individuals. It’s interfacing with the ten-thousand institutions for withholding purposes, or broadly, imagine some new policy were introduced by, I don’t know, the Biden Administration in the educational sphere. How would that be done? It would not be enforced through private lawsuits, right. there would be an agency which cooperates with the university general counsel’s office to define policy. In fact, this is really where you’re going to live as lawyers, uh at least for some portion of your life, I presume, and many big firms are in other settings what, what high-powered lawyers do in our society, to a substantial extent, is serve as the interface between the state and big institutions. So, this is really where you, where you’ll be living, okay. 

Second big point about the institutions, they have become incredibly ideologically unified. Uh, ideological unity is in turn associated with the existence of a group of people. A sort of managerial elite, or ruling class, with common backgrounds and common values. There’s evidence of a relatively extreme degree of ideological unity at many of our institutions. Some examples:  Netflix employees said 98 percent of their political contributions to Democrats; um, uh, Nvidia, 93 to Democrats; Adobe, 93; IBM, 90; Salesforce, 89; Alphabet, 88; Microsoft, 85; Apple, 84; PayPal, 84; Amazon, 77; Facebook, 77. This is really astonishing ideological unity in the sort of professional institutions. And, uh, there have been similar studies of universities showing really quite astonishing things. Uh, for example, a study of 51 of the 66 highest ranked, uh, U.S News liberal arts colleges, so sort of the top 50 of liberal arts colleges, uh, half of them, 25, had no Republican faculty whatsoever. Uh, and the remainder had typically one or two, right. So really quite minimal. 

They’re well-known psychological effects of high degree, um, high degrees of ideological unity, uh, familiar, just very briefly about this, because there could be a whole lecture about it, but there are, um, fascinating studies about what happens when you get a bunch of people who think in similar ways together to talk about something, and the basic finding is that they’re together collectively, is it’s like, it’s like turning up the volume both on the ferocity of their conviction, and the extremism of their conviction, and it seems to be a quite consistent psychological, sociological pattern. So for example, um, let’s imagine you get a group of people and you survey them initially at T1, and about their views of climate change, and you’ve got a group of people, let’s say 30 people, who are moderate climate change skeptics, I don’t, maybe, they think that, um, climate change is a problem, but it’s not an urgent problem, or they think climate change is a problem, but it’s maybe, maybe not caused by human beings. They’re sort of in that category. Now get another group, they are moderate climate change, um, I don’t want to say believers, but, uh, they’re moderately alarmed about climate change. So they say climate change is a high priority problem and I think it’s human cost, right. 

Put them together for an hour and a half to talk to one another, separately from one another, and we know exactly what will happen from a battery of empirical studies. What will happen is, if you give them the same survey after they’ve talked for ninety minutes, they will report not that they think that maybe climate change isn’t, uh, isn’t really happening, or, isn’t caused by humans, they will say they’re certain that climate change has nothing to do with human beings and is not a problem at all, and the other group will say we’re certain that climate change is our first priority problem, we should make any sacrifice to stop it. In other words, both their certainty and their extremism goes up and it happens with almost any belief. Meanwhile, an intermingling of people with different beliefs will tend to moderate everybody, so what happens when you produce these institutional environments with very, very high degrees of ideological unity? It’s predictable, it makes them all more extreme and more certain.

 Um, in this context I want to confront what I see as another libertarian error, and that is underestimating the force and importance of ideology. It’s common for Libertarians, I think of my father who is a kind of libertarian of the last generation, it’s common for Libertarians to focus on incentives, particularly market incentives, and imagine that they trump competing ideological considerations, I think that is not as it seems. If you cast your eye over history, I submit that the two most powerful forces in human social life are identity and ideology. Ideology is more important, more powerful than what people see with their own eyes. When I was a child, I went to, uh, I grew up in Fairbanks Alaska. It was a little town, um, and, uh, I went to a summer camp for kids who had done well on the SAT. At too young in age, and, uh, for the first time I met sort of the members of the coastal elite. And I’ll never forget, I was 13 years old and I was talking with this other kid and he was arguing ardently that there are no natural athletic differences between men and women. That is, women could lift just as much weight or jump just as high, dunk just as, uh, on just as high a rim in basketball. The only reason there appeared to be differences was that women had been convinced by Society not to exert themselves to the maximum degree, and I was arguing with him saying well what about just observable facts, like the mass of an arm or a thigh, or something. It got nowhere, and then I got really absurd. Well, force equals mass times acceleration, so you know, given the same amount of acceleration you imagine more mass. Wouldn’t that, nothing, nothing, right. Why, nothing, because ideology is more important, more powerful than what people see with their own eyes. 

Ideology is more powerful than the love of a parent for a child during the 1968, German cultural revolution, uh, largely, uh, or partly, a revolution over sexual freedom. Uh, even more emphasized over there, than over here, um, a series of sexual freedom kindergartens were established, uh, where uh parents would send their kids in and the kids would have sexual encounters with the teachers quite routinely and the parents thought it was good and right because they were convinced to do so by this ambient ideology, more powerful than the love of a parent for a child. Ideology is more powerful than experience, look at the number, you know, right now, if you, um, if I go back to my graduate school philosophy experience, if you were to just ask my, my, colleagues in the program, um, who’s your favorite political philosopher, what’s your political philosophy, the modal answer would undoubtedly be Marxism. And if you then said, well, what about the experience of the Soviet Union in China, and Vietnam, and Cambodia, and Venezuela, and so on and so forth? They would just say, “…doesn’t matter.” Experience doesn’t matter. Ideology trumps it.  I don’t think we’ll ever really understand how the societal sphere works, how the sphere of ten-thousand institutions works, unless we appreciate the sheer force of ideology in the world. It’s not that incentives don’t matter, libertarian insights about market incentives, principal Asia problems, these are insights to be sure. The problem is that they tend to think of the thing to which markets are oriented. The, the thing to which we’re incentive, the thing we’re incentivized to try to acquire as being purely material, that is financial, or otherwise property, and that’s not so often, the things, um, for which we will sacrifice ourselves, are ideological.

In this context I want to address a series of false equivalency arguments but it is very common for people to argue that you know, Josh you’re pointing out all sorts of problems, um, on the left side of the aisle but what about the problems on the radical right? Aren’t they just as bad? Isn’t the radical right just as threatening and just as extreme as the radical left? And the answer is, yes. But… what’s the but? The but is that the radical right doesn’t have control of the ten-thousand institutions. So let’s imagine, I’m going to give very rough numbers here, that twenty of America’s population are that ten, that ten of America’s population has very radical and alarming right-wing ideas. Maybe they’re white nationalists, and ten of the American population has really alarming left-wing ideas. The difference as voting blocks, they’re equal, right, but who runs the institutions? That’s where the power is in society, and that’s where there’s no equivalence whatsoever. The institutions of America, the ten-thousand institutions, the city of ten-thousand institutions is substantially, um, ideologically unified in one direction.

Third big point about the institutions, when they are this unified and this powerful they are incredibly oppressive. There are some things, you know, when you feel them, you know, when you’re having fun, you know, when you’re in love and you know, when you’re free and, I know, I don’t feel free, and I’m going to submit that many of you, and many of your classmates do not feel free. You are aware that all sorts of things are unsayable. We have vast social and professional consequences, all sorts of, um, that you sort of, you are walking in through a, you’re part of a, you’re sort of aspiring to membership as law students in a professional class, and really what is the managerial elite, and you sense that there is a vast array of things that could cost you your membership card, and it creates a sense of being systematically unfree. Um, it is incredible how much power there is in an ideologically unified ruling class collectively in control of society’s major institutions.  So we come to the fundamental problem, the final point about the ten-thousand institutions, uh, an ideologically unified ruling class in control of society’s institutions has created a new threat to liberty, not the familiar one of the Libertarians, you know, state comes with guns telling you your money or your life, or something like that, that crude threat, a much more subtle threat where our institutions collectively, high and low, the ones that we watch on TV because we like sports. So the ones that we are members of because we’re trying to be doctors or lawyers or something like that, and the ones our children go to when they go to school just comprehensively our institutions are ideologically one-sided, um, with exceptions to be sure, but not sufficient exceptions to change the basic fact and the basic threat to liberty, and this threat to liberty is not the one our constitution was designed for, at least not the rights portion of our constitution, our Bill of Rights, that part of our constitution was designed for concerns about a tyrannical government, but this is a different threat. This is an institutional threat, I do think it’s a threat our democratic Constitution was designed for the first, uh, part of our Constitution, and that’s what I’ll get into next. 

Um, I just want to close out this analytics section of the talk with a final point that these ten-thousand institutions are the oligarchs. These are the oligarchs. You know, it’s very, the, the, I think a number of people on the left, they think of like a, Daniel Markovitz, for example, have written, um, in about American society as an oligarchic society. They are worried about the unequal distribution of wealth and the power of billionaires, like the Koch brothers, or something like that. I think those worries are exaggerated, but they’re really on to something. We do have an oligarchy problem in America, the ten-thousand institutions are the oligarchs in a very real sense. We are, right now sitting inside an oligarch, Berkeley is an oligarch, incredibly wealthy, wealthy at a scale that few people have ever been wealthy, right. Famous that would name Berkeley rings out from, I’ve, I’ve said the name Berkeley in you know Tbilisi Georgia, and Yerevan Armenia, and Manila in the Philippines, and everyone knows that name, a brand that everyone recognizes, but beyond the fact that it’s sort of maybe as big as Coca-Cola, and is famous, too, it has two other things that Coca-Cola does not have. Coca-Cola does not certify people to be members of the elite, Berkeley does. Berkeley has control of populations, it gives them their membership card in the ruling classes, and Berkeley has one more thing, too. 

Each of the fields that comprise it, physics, philosophy, history, whatever, is a way of conceptualizing a little piece of social reality to a substantial extent. They, they give us the, the glasses through which we can see the world around us, and when they become ideologically one-sided they, they, as it were, um, become the apparatus of our minds in a way Coca-Cola does, it, they give us our capacity to think about the past. For example, to think about the human mind, or think about science. So we are inside an oligarch now, in other words, who are the oligarchs? The oligarchs are the ten-thousand institutions. And so here we come to my second big point. I’m going to rush through this because I want to have time for questions, in time for Oren.

This next big point is about democracy and Liberty. First thought is it is imperative to control these ten-thousand  institutions. It’s a matter of basic justice that we are able to control, as a community, these ten-thousand institutions. And, what force can control this? What force was designed to control this? Only democracy, only majority control. Where else is the control of these institutions supposed to come from? There’s nothing outside them that could exercise control except the power of majorities through democratic means. There’s no other source of power someone, it’s, it’s a matter of basic justice that someone, somewhere, can say to Goldman, and Coca-Cola, and Delta, and the NFL, and, and all the other institutions in the city of ten-thousand institutions, that someone can say, “…don’t do that, that’s wrong.” The way we once said, “…don’t discriminate against African-Americans, that’s wrong.” We have to have that ability as a democracy to intervene in our collective life. For what, or the democracy, what is the point of democracy? It’s to control the terms of our public life, our shared communal life, and if they, if they cannot intervene in those institutions, if they cannot exercise, you know, many Libertarians, it’s a common idea among Libertarians that the institutions of America should be largely immune from government, or control government, or control should be sort of minimized at all costs.

That doesn’t help the cause of liberty, that hurts the cause of liberty. What’s necessary is for democratic forces to be able to intervene in these collective institutions, in order to redeem the cause of liberty. So what you start to see is not democracy, and liberty, as opposed, but democracy and Liberty as unified, democratic, that is to say, as I use the term majoritarian forces are necessary to controlling, to it’s to, to, preventing the oligarchy of institutions preventing the community as a whole from being under the illiberal control of a ruling class. 

I just think that if we reflect on the point of democracy, it’s to control the shape of our shared public life, and that has to mean control of the institutions. To say that is not, to be a right skeptic, I am not a right skeptic, I believe in the sanctity of individual rights, but it’s a grave mistake to think that the sanctity of individual rights means that Coca-Cola is immune or substantially immune from government, or control, or Berkeley is immune, or Northwestern is immune, or substantially immune from public control. Individual rights are individual, or involve small-scale associations like families, uh, it is actually by intervening, uh, democratically in these institutions, that we preserve individual rights. I think this point has to be nuanced in one more way. 

There is one set of institutions that are, according to the Constitution, set aside, substantially set aside from government or control, and those are religious institutions. But it is a mistake to think that the way our government relates to religious institutions is a sort of model for how it should relate to all institutions. So just as the government can’t intervene into the Catholic Church, what to do, it also can’t intervene into Northwestern what to do, or tell Goldman Sachs what to do, or tell Coca-Cola what to do. That doesn’t follow. We have a very specific set of disastrous religious civil wars undergirding our reasons for setting aside religion from government or control, as well as some basic philosophical matters, having to do with the nature of faith and religiosity itself, that is a special case. Those institutions are set aside and constitutionally set aside. The rest of our institutional life is open to democratic control.

Um, imagine you disagree. Imagine you believe that really the ideal of fully independent institutions is the correct ideal. You know, we don’t want the government in control of businesses. We don’t want democracy intervening in our business, we want people to be able to get together and run their business how they want, and the market will fix it, right? If one business is doing it the wrong way, other businesses will come around to do it another way. I would invite those of you who are thinking along these lines, I would invite you to consider what you think is best. In the second best world we already have, remember what I said about the marbling of state power and institutional power there, really it is already the case that these businesses don’t operate in immunity, that these institutions don’t operate separately in an immunity from government. They are deeply entwined with government, uh, regulation all the time, already, the universities, for example, or the businesses they are already so entwined with the power of the federal and state government that if you, you, might think the ideal is to have substantial market independence, but in the second best world we have uh there’s already extensive entwining and so the question is why should that entwining stop at majoritarian control. I’ll just conclude with this, my goal is the, the traditional goal of libertarians is, is to preserve and advance the cause of liberty. The goal stays the same but what our generation knows that the Reagan generation didn’t is that government isn’t always the enemy, and minimizing government isn’t the answer to all problems. 

The answer to tyranny was never just right and it was certainly never just minimal government. The answer to tyranny is mainly democracy. Tyranny is the problem to which democratic government is the solution.  Thank you.

So a two-minute response and then I really want to hear from students to the extent we have time, um, I want to say is, I, I think Oren’s absolutely right that, um, uh, what my talk reflected was a sort of shift in, in conservative thought. A shift that’s been happening, uh, on the level of politicians like a Ron Desantis, or something, and something that’s happening with intellectuals as well. Uh, I’m basic, I’m aware I’m basically trying to provide a philosophical backdrop, a intellectual substrate to the majoritarian conservatism. I resist the word populist, but the majoritarian conservatism that is now increasingly widespread, I take pride in that. I think that’s a lot of what intellectuals do I mean. If you look over the course of philosophical history, what you see is there’s something emerging in politics. There’s something happening. It’s 1789, the French Revolution is unfolding and, um, Edmund Burke writes his reflections on the revolution in France, and Thomas Payne writes his declaration, uh, his, his response, uh, to Burke, and that’s how intellectual life works, right? We try to engage theoretically and philosophically at the broadest possible level with the world as we experience it, and revise our ideas from the past, so I don’t take that to be a criticism just sort of an observation that I, I think is warranted um, I do think it’s interesting to observe the extent to which, uh, um, I’m picking up and others are picking up on ideas traditionally associated with the left. I mean the, um, the, they’re not consistently associated with the left. It’s actually complicated,

 I mean the first real wave of thinking that institutions need to be democratically regulated was with the Reconstruction Republicans in the wake of the Civil War. There’s a major intellectual tradition associated with reconstruction around these lines because Thaddeus Stevens and the, and, and other sort of Heroes of the, umm Republican reconstructionists were trying to reform Southern institutions. They were well aware of the Constitutional implications of doing so. Um, and then in the 20th century, that idea was associated with a lot of left, and especially Marxist thinkers, and you know, I borrow from their ideas with pride actually. You’ll notice that one of my, the ideas I was trying to sort of put front and center was the idea of class consciousness; which is of all ideas, characteristically Marxist. That’s fine. That’s about how events, you know, new events, new experiences, and the social world, and the political world, can lead us to recapture ideas to think in new ways, to have new forms of illumination, at least, I hope. 

So, um, I do resist the idea that this is that sort of, um, that my talk reflects are kind of back in the good old days, called it good old day-ism. Like things were fine before, and now they’re messed up, and so we have to change things. I don’t mean to say that things were fine before, I do think there is, um, I do think something genuinely new is happening, which should spur new ways of thinking, or new insights about the institutional sphere and its relationship to democratic forces. Um, uh, but I, I don’t mean to minimize the ways in which the, our social life, or our institutions were oppressive in various ways before. Just the, the new reality highlights certain shortcomings that we can now remedy. I do want to resist one thing, and that is the, the kind of minimization, like Twitter ads, just working the refs, nothing’s really changed here. Same old, same world. Oren, respectfully, I feel like, I feel like it’s, it’s the new deal. We’re seeing a new form of state emerge, and you’re saying nothing’s really changing, here. Same old, same old. It’s not same old, same old. Something really is changing and, uh, we can, we can face the change, we can think about what it means, and what to do about it, but we shouldn’t, we shouldn’t imagine that the current situation of, uh, really the emergence of these ideologically unified institutions, operating collusively, according to a shared class consciousness, is no change from the past. It really is a change from the past. Just as the new deal represented a change in the way government is done from the past. I mean part of the, um, part of the goal here is to recognize the reality in which we’re living. So, I’ll just end there, thanks.

MAGUIRE RADOSEVIC: Yes, we have a few minutes for questions so if anybody has one, perfect. Um, we’ll start back here and then I’ll work my way back. Um, I’m going to be carrying this microphone around. Make sure you speak into the microphone, but you don’t have to hold it super close, just kind of like what I’m doing right now. I’ll walk around.

PARTICIPANT 1: Awesome, thank you so much. Um, so to me, one of the really great observations of libertarianism is about a political economy. Instead of having one institution that sets the rules for everything, you have ten-thousand institutions, in your words, who collectively set the agenda, and the fact that there are ten-thousand institutions makes it more resistant to ideological capture. I wonder, how would you expect, uh, the imposition of central control over ten-thousand institutions to avoid the same problem and why should we expect the government to be neutral, and is neutrality even a real possibility given that there is no such thing as, you know, true neutral? 

JOSH KLEINFELD: Thank you, it’s a great question. Um, you’re absolutely right, that the traditional expectation is that as long as you have a lot of institutions, you have a lot of diversity of institutions, it’s not working. And, I think the main response to your question is to look around. The main response to your question is just to observe the sheer amount of unity among our ten-thousand institutions. Partly, I think it’s at the, uh, they’ve gotten bigger, you know. If you look over the history of legal practice, it used to be most lawyers were in solo practice, or small firms, the big firms have gotten bigger so that’s part of the explanation, I suppose, and that’s happened kind of across the board. It’s sort of more market share to a smaller number of players, um, uh, partly, it’s that the managerial elite, the ruling class, who control, you know, there’s a group of people who run institutions whether it’s you know a union, or a non-profit, or a university, or whatever, they’re the same basic group of people. They’ve had a very common kind of education, uh, there’s, so, once a prevailing ideology gets control of the universities, it becomes a class consciousness, a class ideology. It, it, you could look at universities as the ideological bottleneck of the entire world of institutions, so I think that might be part of the explanation, The biggest thing I’d point to is that, um, uh, the expectation let me put it this way, there’s good theoretical reasons which greatly Inspire the libertarian movement. To think the sheer profusion of Institutions will cause there to be a lot of diversity, and therefore freedom, we have to recognize when it’s failing. We have to recognize when the, when the hypothesis, theoretically attractive, though it may be is empirically untrue and respond to the empirical reality, finally I want to respond to your worry, reasonable worry, that, uh, government intervention will not increase the amount of diversity and freedom but will only decrease it. Still, further, it’s necessarily kind of unifying, right? It’s intervention from the top, I think the shape of that intervention can easily be structured, can realistically be structured to expand diversity, and freedom if, if the government were to add political ideology as a protected class, and tell institutions that they can’t discriminate against fire, non-partner, uh, individual employees on grounds of politics, unless directly relevant to their job. You could have, uh, you would have a much higher degree of intellectual diversity and freedom in our institutions than you have now. 

By the way, that’s not so unfamiliar. California already has that law, it just doesn’t enforce it; but, actually, California is highly protective of political ideology in institutions. Um, and federally we have a series of protected classes we just don’t count political ideology among them, uh, so there’s, that’s just one example, but there are a variety of ways in which state intervention could be freedom enhancing. Don’t, don’t fall prey to two theoretical ideas, that more institutions means more diversity and freedom, and that and that government intervention will necessarily reduce it in a totally non-empirical way, in a way that doesn’t observe what’s actually happening and just assumes that what must happen on a theoretical basis, uh, is happening. We need to get away from that thinking and get into empirical thinking. Thanks

MAGUIRE RADOSEVIC:  Okay I think we have time for one more question.

PARTICIPANT 2: At the very least we’re facing a political problem and by that I mean that the old kind of clubber growth Chamber of Commerce policies just aren’t driving out like the Republican base or voters anymore. So, I just want to ask both of you how you advise the Republican party to respond to that?

MAGUIRE RADOSEVIC: Yeah, comparative advantage, I sort of specialize in the philosophy side, not in the political strategy side. So, um, I, I do think,  I do think people feel unfruited, right? My earlier point, you know, when you’re having fun, you know, when you’re in love, and you know when you’re free, people feel unfree, and they feel degraded by it. You know, I, I have a friend, he’s a law professor at a very, very distinguished school, and his dad, uh, is a butcher. His Dad tried to launch a grocery store, and the grocery store, uh, didn’t work out. And, um, it’s an interesting study of various corporate law principles which my friend brings up in class from time to time. Uh, and the students have said,  “…you know you should bring your dad in to talk about his experience. That would be so interesting.” My friend told me, why would I let those students at my father, you know, and he’s a butcher. He’ll undoubtedly say something, they’ll consider it improper, and then they’ll make his life a living hell. Right, um, he wants to protect his father from those students. People sense that, and it makes them feel both unfree, and degraded, and I think it’s good political strategy to offer solutions to that kind of thing. Say this isn’t right and we need to protect people via governmental power from various kinds of cancellation or exclusion from employment or other kinds of, um, wrongful uses of institutional power. And, I think I think that can be done in various practical policy ways that will have a lot of political appeal, but again, I hasten to add I’m not a strategist. I’m trying to provide the intellectual backdrop of, of this moment.

 I just want to add one thing to that. Maybe see if you agree with it a lot of those crazy beliefs have to do with alienation from American institutions. I mean so believing that Obama was born out of the United States, notwithstanding the fact that you know, our media institutions for example, tell you, no it’s a fact he was brought into it, that comes from a profound distrust of our media institutions, right? Or believing that Trump won the election and the election was stolen comes from this sense of a kind of conspiratorial ruling class, who’s fixing the election. And, so, I guess my point is the two: the phenomena that I’m talking about, and the phenomena you’re pointing out, of these crazy right-wing beliefs. They’re related, they’re, they’re the, um,  what happens when your institutions become really, really, biased and really ideologically unified. And, and people start to feel alienated from them is, um, uh, that the alienated people start to embrace, uh, crazy beliefs or just false beliefs outside of the institution. See, I want people to trust their institutions, but I also want our institutions to be trustworthy. Neither part of that is working right now. Maybe that’s where we end. I think we’re out of time.

[Applause]

 

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