Trump's Supposed Intellectual Forbearers

It is all too easy to bash Donald Trump’s erratic behavior and the dubious decisions characterizing his second term in office. Here is the partial list of major offenses: his misguided unilateral executive decisions to impose worldwide tariffs; his exaggerated claims about the powers of the unitary executive; his brutal immigration roundup; his gunning down of unknown individuals alleged to be narco-terrorists on Venezuelan motorboats; his inexcusable nastiness after the murders of Rob and Michele Reiner by their troubled son Nick. Trump’s erratic and often egomaniacal behavior has drawn stern condemnation from across the political spectrum, including his MAGA base. Count me in.

That these criticisms are fair game does not excuse recent academic efforts to use Trump’s behavior as a springboard to attack distinguished dead conservative scholars on the ground that they were the unwitting intellectual precursors of the MAGA movement. One recent prominent attack in this vein is by Laura Field, whose association with the “illiberalism studies” program at George Washington University is a strong tipoff to her own biases. Consider Field’s New York Times op-ed on “The 77-Year-Old Book That Helps Explain the MAGA New Right,” a broadside against the late distinguished English Professor at the University of Chicago, Richard M. Weaver (1910-1963), best remembered (by the few who remember him at all) for his influential 1948 book, Ideas Have Consequences. To Field, it is all downhill from the title; Weaver’s book is a disingenuous stew of ideas, of which the most dangerous was his attack on “nominalism,” or the view that there are no absolute moral truths. Writing in the Platonic tradition, Weaver attacked the whole-hearted adoption of “nominalism” as causing nothing less than a cultural catastrophe, namely the disintegration of society, of which, of course, the Nazis, Stalinists, and Maoists were potent exhibits. Is it really so bad to make a categorical condemnation of murder, as Weaver did? Can it be correct in dealing with this issue, as opposed to the choice between chocolate and vanilla, to say, as Field does, that “under liberal and constitutional democracy, citizens are entitled to shape their own conceptions of the world” — the consequences to outsiders be damned?

Field’s thoughtless egoism strengthens Weaver’s hand. Worse still, she tries to square the circle by linking Weaver’s generalizations to Trumpian excesses, a move beyond any philosophical reasoning. Weaver was, in fact, a strong defender of tradition — his collected essays are entitled In Defense of Tradition — as a means to mold and shape societies, primarily because incremental change can help insulate polities from disruptive changes that can unmoor complex but stable social systems whose properties are insufficiently understood. Trump represents the antithesis of this cautious approach, evident, for example, in his decision to wreck the East End of the White House.

There is, in fact, no serious effort by Trump in his second term to moor himself in any philosophical tradition, let alone Weaver’s. It is, therefore, a real slap in the face to Weaver for Field to say with a straight face: “When Dr. Weaver argued that modern ideas are evil, he helped legitimate the repression of anyone who thinks about truth differently.” Weaver’s opposition to moral relativism did not put him at odds with all modern ideas, given that Weaver was in fact an active participant in modern political debates who never once took public positions, say, against immigration or for the creation of a Christian nation. Weaver is not responsible for the use or misuse of his ideas by others on any part of the political spectrum, who have their own political agendas. Thus, it is critical to look more closely at them in their own right.

The theme of absolute moral truth was not just a feature of Weaver’s work. It was also a dominant theme of a far more influential thinker of that period, Leo Strauss (1899-1973), who overlapped with Weaver at the University of Chicago. Field knows this history well, given that, at both the University of Alberta and the University of Texas at Austin, she studied under noted Straussians who held the same general view. And it is a fair criticism of Field that she turns a blind eye to the excesses of the Biden administration in its relentless pursuit of Trump when he was out of office, done not in pursuit of principles of justice, but in an effort to kneecap the then-incumbent’s chief rival for the presidency. Ironically, it is in these proceedings where two long-standing, powerful ideas — nemo judex in causa sua (no one should be a judge in his own cause) and audi alteram partem (always hear the other side) — were not scrupulously observed. Yet these ideas have lasted so long precisely because they represent an eternal protection against murder, rape, and theft, carried over to the judicial realm. To ignore those principles in any hearing is to invite theft or murder, just as Weaver, Strauss, and Field would understand these actions.

Here’s why this stark picture necessarily gets muddied. The fatal intellectual weakness of both Weaver and Strauss lies in the near-mystical reverence that they attach to their ideas, without attempting to spell out those ideas’ utilitarian or consequentialist justifications. Staging a rigged trial is like gambling with loaded dice; their use necessarily transfers wealth from A to B. Trials, therefore, happen when there is factual and legal uncertainty, which is a notion that does not figure large in the static world of neo-Platonists. Like many modern libertarians, these thinkers go off the rails by failing to supplement their powerful theories of conduct with an analysis of how uncertainty requires some regulation before the fact, and the use of sophisticated procedures to resolve disputed cases in some forum.

What, then, does the full picture require? The first is a clear conception of right and wrong conduct, just as Weaver and Strauss insist. But they offer no substantive guidance on the content of the rights they seek to preserve, or how they should be executed. What they should have done was look to the natural law system as it operated from Roman times forward, which would offer a more precise view of the substantive rules that have lasted. I have spelled out this overarching system elsewhere; the substantive entitlements are stable even as the rules for their enforcement cannot be. Thus, self-ownership or individual autonomy is the rock of that system because it imposes a categorical injunction against slavery. From there, the rule of occupation of land or chattels (not investment of labor, pace Locke) allows individuals to acquire ownership over previously unowned things, e.g. a res nullius, which is good against the world, for things that are capable of private ownership — which does not include the seas, the air, and the beach, which, as res communes, cannot be reduced to private ownership in a state of nature, but must be left open to all. Those things that are subject to private ownership can be used, subject to prohibitions against force and fraud against others, and either sold outright or combined into partnerships, where they are managed collectively under rules that require care and loyalty from all participants.

The difficulty in enforcement stems from the pervasive presence of two forms of error, under- and over-enforcement, in a legal system that does not have infinite resources to prosecute and punish all offenders. So here the basic theorem — strong word — is to minimize the sum of error and enforcement costs, which means, at a minimum, that one does not put the same procedural guarantees in place for murder and petty theft. That is why the United States Constitution speaks about “due” process: to allow the flexibility needed to operate a system.

Also arising are situations of necessity or emergency, which require the suspension of the ordinary protections of property. These include wars and natural disasters, but not the trade deficits that Trump has used to bolster his indefensible power grab. Yet in most cases where property is needed for public use, it must be taken only upon payment of just compensation to its owner, either in cash or in kind. These rules show how to cash out the fundamental guarantees. They also provide a route for making changes in property rights to accommodate technological advances, whether patents on the one hand or radio transmissions or overflights, unknown to all our ancestors, on the other. The foundational rule is to accept all these changes to the extent that they benefit the population as a whole by preventing any landowner from freeriding on the inventions of others and from shutting down all aviation and radio transmissions.

We therefore must supplement Weaver and Strauss’s fixation on rights and duties with an account of how best to address the uncertainties of their enforcement. It is undoubtedly the case that too many public leaders, such as Tucker Carlson and Kevin Roberts, who purport to appeal to an earlier tradition they do not understand, violate the very norms they profess to protect. But what Laura Field ought to have done was stress the discontinuity between these distinguished earlier thinkers and the political opportunists who misuse their words on all sides of the political spectrum.

Richard A. Epstein is a senior research fellow at the Civitas Institute. He is also the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, where he serves as a Director of the Classical Liberal Institute, which he helped found in 2013. Epstein is also the James Parker Hall Distinguished Service Professor of Law Emeritus and a senior lecturer at the University of Chicago.