1.) At various points this essay seems to move back and forth between the rule of law and freedom, which can be confusing and misleading. They are not the same thing. Of course they are related: both are features of modern liberal democracies, the rule of law is probably a necessity if one wants but to secure freedom within a political order, etc. But it would have been nice if the piece said a bit more about what sort of background theory it’s relying on to link these two things together.
2.) I’m not as sure about the point that the rule of law can’t simultaneously exist and not exist. David French had a great piece in the New York Times last week about the Good shooting in which he drew on Edward Fraenkel’s dual state theory of the Nazi legal order by way of an earlier piece by Aziz Huq in The Atlantic. The core idea is that, under the Nazi system, there were two parallels legal tracks: the “normative state”, in which the law functions as we expect (corporations can be formed, contracts are enforced, property rights are respected, adjudication in legal courts under impartially enforced rules occurs, etc.), and the “prerogative state”, where the normal system of law ceases to operate and the state can act with arbitrary, unchecked power. This is a system that worked for an extended period of time under the Nazi regime, with the result that ordinary Germans did not feel they were living under an extraordinary repressive regime (at least in the first years) while Jews and many other disadvantaged groups were being politically persecuted. Lest this point be dismissed because of its association with the Nazis (the first person to bring up the Nazis loses, right?), one can point to other examples of the dual state. The American South during Jim Crow operated in a dual state regime as French points out in a recent podcast, as it involved a normative state governing white Americans while a prerogative state oppressed black Americans; Huq points to Singapore, which has a kind of dual state where normal private activities are governed by a legal system that looks a lot like the English legal system, whereas politically sensitive activities are subject to political repression that is largely immune from judicial intervention (indeed, the judiciary is often a mechanism for this repression); etc. (The dual state theory resonates with an adaptation of a William Gibson phrase I’ve heard and read Ezra Klein use a lot recently: “Authoritarian is already here, it’s just unevenly distributed.”) I think it’s possible to sustain this situation, with its two parallel legal tracks, for a surprisingly long time, provided most Americans interact with normative state rather than the prerogative state. And if this is so, then appealing to the self-interest of elites, particularly commercial elites, may be challenging.
I think it's a good point that a dual state framework can exist but I think
1) The boundary is not enforceable and tends to expand. The split depends on a credible promise: “we’ll keep politics over there.” But once police/prosecutors/courts learn that politics can override rules in some domains, everyone has to price the possibility it can override them in your domain too. The result is higher political risk premiums, more short-termism, more lobbying/nsurance, and less investment.
2) Even a contained prerogative state taxes modern growth. If repression hits a meaningful share of people (or even a strategically important slice: universities, journalists, immigrants, founders, minority communities), you get brain drain, self-censorship, and lower dynamism.
The self interest of elites under authoritarianism tends to be a self reinforcing cycle simply because: the more they act to support (or fail to oppose) the regime the more angry people get at them, that anger then drives them to cozy up more to the regime to shield themselves from that anger.
One example of this tied into one of the periods you mention, the jim crow south, is where southern elites and white middle class despised northerners and advocates for black rights so much it made them dig their heels in even when it was objectively only hurting themselves. The more angry people got at the south the more the south doubled down on segregation. That's why ultimately desegregation had to be enforced by external powers.
Similarly I think these times reveal that one of the dangers of excess concentrations of wealth is that we cannot rely on wealthy leaders of industry to preserve and uphold liberal values, and that in many cases they will even use that wealth to aid despots in attacking liberal values.
We have seen this movie before: in the 1850s when Southern white supremacists attempted to enforce the odious Fugitive Slave Act through exemplary brutality, and in the 1950s when their ideological and demographic descendants attempted to do the same with the odious Jim Crow laws.
To your point about the interconnectedness of GDP growth and liberal institutions: there is a reason "every map of the US looks the same", a reason the states of the former Confederacy have lagged the rest of the country economically and in every human development metric for most of our history, and it is precisely that capricious authoritarianism, with or without a fig leaf of legal authorization, is bad for economic progress and human flourishing.
According to Monmout, 61% of voters consider illegal immigration a very serious problem… A major problem democrats face is that we broadcast to these voters that they are evil…
I think painting these voters as “ideological descendants” of slave drivers is bad both tactically and on substance. In fact, it’s largely how Trump got reelected.
On point as always Jerusalem. It's been rather striking to me how many silicon valley executives have tweeted like a billion times about the clunky poorly design California wealth tax, while we've gotten narry a peep from the same crowd about BDP/ICE executing people in the street.
As far as I'm concerned, if they aren't willing to use the enormous power that much accumulated wealth gives them when it actually matters, why are we letting them squat on it in the first place? It should be a concern to all that the richest man in the world is constantly espousing white supremacist propaganda, and that a system that's vulnerable to the whims of the wealthy like Elon Musk cannot guarantee liberal freedoms for all.
As far as I'm concerned, if they aren't willing to use the enormous power that much accumulated wealth gives them when it actually matters, why are we letting them squat on it in the first place
"
Because it's not our money. They can use it how they want
The western liberal democracy social contract since the Great Depression has been that government will not overly interfere in markets, money, and wealth but it will guarantee individual freedom and rights regardless of race, gender, and now in the 21st century sexuality. If the government cannot defend itself from large concentrations of wealth or stop them from infringing on the rights of others it is failing in it's duty.
My read is that corporate America / centrist business leaders feel like they strayed too far into activism in the early 2020s (eg woke capital). They largely got behind center-left positions, especially on DEI. The Biden administration sort of antagonized them anyway, and the Robby Starbuck attacks landed with the right-leaning public.
They felt pretty badly burned since they pleased no one. Now they’ve decided to avoid politics altogether.
I’m not totally sure who is to blame, or how democrats move forward.
Re: "But I think Cowen gets this issue precisely wrong. The risk that this moment will become polarized into yet another left vs. right issue is heightened if nonpartisan and right-wing voices choose to remain silent."
I admit, my thinking on best courses of action in response to the horrors taking place in Minnesota contains aspects of the concern Cowan expressed. As such, my interest was piqued by your take that he gets it precisely wrong. However, what follows appears to be a bit of a false binary. Why do you necessarily equate a disciplined, measured and tactical response with choosing silence?
By suggesting we act in ways that lower the salience of immigration issues, I don't think Cowan is advocating for silence. Rather, he's suggesting we learn from our recent mistakes instead of undermining our cause with overreaching initiatives like defund the police. From the perspective of someone who desperately wants a historic blue wave in the midterms, I think the worst thing centrist dems/free-market dems/state capacity libertarians can do is start calling for the total abolition of ICE. For one, that reinforces MAGA talking points (a.ka. outright lies) that rank-and-file Dems are for opening all borders. For another, that totally shifts blame away from the real culprits: Trump and his coterie of sycophants and enablers.
Even if you think abolishing ICE is justified, Cowan's point is that now is not the time to push for it. Instead, speak up but stay disciplined because the problem isn't actually ICE. Had Trump armed the IRS and tasked them with harassing brown people and shooting anyone who gets in the way, would it then make sense to abolish the IRS? Of course not, because the actual problem is that we elected a president who thinks lawfully exercising your second amendment rights is grounds for execution if you seem disinclined to vote to his preference. There is no way focusing on that message plays into MAGA's hands.
Great post! I have two thoughts:
1.) At various points this essay seems to move back and forth between the rule of law and freedom, which can be confusing and misleading. They are not the same thing. Of course they are related: both are features of modern liberal democracies, the rule of law is probably a necessity if one wants but to secure freedom within a political order, etc. But it would have been nice if the piece said a bit more about what sort of background theory it’s relying on to link these two things together.
2.) I’m not as sure about the point that the rule of law can’t simultaneously exist and not exist. David French had a great piece in the New York Times last week about the Good shooting in which he drew on Edward Fraenkel’s dual state theory of the Nazi legal order by way of an earlier piece by Aziz Huq in The Atlantic. The core idea is that, under the Nazi system, there were two parallels legal tracks: the “normative state”, in which the law functions as we expect (corporations can be formed, contracts are enforced, property rights are respected, adjudication in legal courts under impartially enforced rules occurs, etc.), and the “prerogative state”, where the normal system of law ceases to operate and the state can act with arbitrary, unchecked power. This is a system that worked for an extended period of time under the Nazi regime, with the result that ordinary Germans did not feel they were living under an extraordinary repressive regime (at least in the first years) while Jews and many other disadvantaged groups were being politically persecuted. Lest this point be dismissed because of its association with the Nazis (the first person to bring up the Nazis loses, right?), one can point to other examples of the dual state. The American South during Jim Crow operated in a dual state regime as French points out in a recent podcast, as it involved a normative state governing white Americans while a prerogative state oppressed black Americans; Huq points to Singapore, which has a kind of dual state where normal private activities are governed by a legal system that looks a lot like the English legal system, whereas politically sensitive activities are subject to political repression that is largely immune from judicial intervention (indeed, the judiciary is often a mechanism for this repression); etc. (The dual state theory resonates with an adaptation of a William Gibson phrase I’ve heard and read Ezra Klein use a lot recently: “Authoritarian is already here, it’s just unevenly distributed.”) I think it’s possible to sustain this situation, with its two parallel legal tracks, for a surprisingly long time, provided most Americans interact with normative state rather than the prerogative state. And if this is so, then appealing to the self-interest of elites, particularly commercial elites, may be challenging.
I think it's a good point that a dual state framework can exist but I think
1) The boundary is not enforceable and tends to expand. The split depends on a credible promise: “we’ll keep politics over there.” But once police/prosecutors/courts learn that politics can override rules in some domains, everyone has to price the possibility it can override them in your domain too. The result is higher political risk premiums, more short-termism, more lobbying/nsurance, and less investment.
2) Even a contained prerogative state taxes modern growth. If repression hits a meaningful share of people (or even a strategically important slice: universities, journalists, immigrants, founders, minority communities), you get brain drain, self-censorship, and lower dynamism.
The self interest of elites under authoritarianism tends to be a self reinforcing cycle simply because: the more they act to support (or fail to oppose) the regime the more angry people get at them, that anger then drives them to cozy up more to the regime to shield themselves from that anger.
One example of this tied into one of the periods you mention, the jim crow south, is where southern elites and white middle class despised northerners and advocates for black rights so much it made them dig their heels in even when it was objectively only hurting themselves. The more angry people got at the south the more the south doubled down on segregation. That's why ultimately desegregation had to be enforced by external powers.
Similarly I think these times reveal that one of the dangers of excess concentrations of wealth is that we cannot rely on wealthy leaders of industry to preserve and uphold liberal values, and that in many cases they will even use that wealth to aid despots in attacking liberal values.
We have seen this movie before: in the 1850s when Southern white supremacists attempted to enforce the odious Fugitive Slave Act through exemplary brutality, and in the 1950s when their ideological and demographic descendants attempted to do the same with the odious Jim Crow laws.
To your point about the interconnectedness of GDP growth and liberal institutions: there is a reason "every map of the US looks the same", a reason the states of the former Confederacy have lagged the rest of the country economically and in every human development metric for most of our history, and it is precisely that capricious authoritarianism, with or without a fig leaf of legal authorization, is bad for economic progress and human flourishing.
According to Monmout, 61% of voters consider illegal immigration a very serious problem… A major problem democrats face is that we broadcast to these voters that they are evil…
I think painting these voters as “ideological descendants” of slave drivers is bad both tactically and on substance. In fact, it’s largely how Trump got reelected.
I'm fairly certain Nicholas is talking about people like Stephen Miller not The Average Voter.
Idk it read to me like he was painting with a painting with a broad brush.
If he wrote “Steven Miller is very bad!” I think that’s a great mindset and message for Democrats.
On the other hand china is very authoritarian .And has had dramatic growth
On point as always Jerusalem. It's been rather striking to me how many silicon valley executives have tweeted like a billion times about the clunky poorly design California wealth tax, while we've gotten narry a peep from the same crowd about BDP/ICE executing people in the street.
As far as I'm concerned, if they aren't willing to use the enormous power that much accumulated wealth gives them when it actually matters, why are we letting them squat on it in the first place? It should be a concern to all that the richest man in the world is constantly espousing white supremacist propaganda, and that a system that's vulnerable to the whims of the wealthy like Elon Musk cannot guarantee liberal freedoms for all.
"
As far as I'm concerned, if they aren't willing to use the enormous power that much accumulated wealth gives them when it actually matters, why are we letting them squat on it in the first place
"
Because it's not our money. They can use it how they want
The western liberal democracy social contract since the Great Depression has been that government will not overly interfere in markets, money, and wealth but it will guarantee individual freedom and rights regardless of race, gender, and now in the 21st century sexuality. If the government cannot defend itself from large concentrations of wealth or stop them from infringing on the rights of others it is failing in it's duty.
My read is that corporate America / centrist business leaders feel like they strayed too far into activism in the early 2020s (eg woke capital). They largely got behind center-left positions, especially on DEI. The Biden administration sort of antagonized them anyway, and the Robby Starbuck attacks landed with the right-leaning public.
They felt pretty badly burned since they pleased no one. Now they’ve decided to avoid politics altogether.
I’m not totally sure who is to blame, or how democrats move forward.
Great essay. The rule of law was violated in Minneapolis. And it affects al of us.
Re: "But I think Cowen gets this issue precisely wrong. The risk that this moment will become polarized into yet another left vs. right issue is heightened if nonpartisan and right-wing voices choose to remain silent."
I admit, my thinking on best courses of action in response to the horrors taking place in Minnesota contains aspects of the concern Cowan expressed. As such, my interest was piqued by your take that he gets it precisely wrong. However, what follows appears to be a bit of a false binary. Why do you necessarily equate a disciplined, measured and tactical response with choosing silence?
By suggesting we act in ways that lower the salience of immigration issues, I don't think Cowan is advocating for silence. Rather, he's suggesting we learn from our recent mistakes instead of undermining our cause with overreaching initiatives like defund the police. From the perspective of someone who desperately wants a historic blue wave in the midterms, I think the worst thing centrist dems/free-market dems/state capacity libertarians can do is start calling for the total abolition of ICE. For one, that reinforces MAGA talking points (a.ka. outright lies) that rank-and-file Dems are for opening all borders. For another, that totally shifts blame away from the real culprits: Trump and his coterie of sycophants and enablers.
Even if you think abolishing ICE is justified, Cowan's point is that now is not the time to push for it. Instead, speak up but stay disciplined because the problem isn't actually ICE. Had Trump armed the IRS and tasked them with harassing brown people and shooting anyone who gets in the way, would it then make sense to abolish the IRS? Of course not, because the actual problem is that we elected a president who thinks lawfully exercising your second amendment rights is grounds for execution if you seem disinclined to vote to his preference. There is no way focusing on that message plays into MAGA's hands.
Thank you.