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A Conversation Regarding Thomas Goode Jones

In America, American History, Books, History, Humanities, Law, liberal arts, Nineteenth-Century America, Politics, Scholarship, The South on November 8, 2017 at 6:45 am
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Bob Higgs, the Man with a Smart Card

In Creativity, Economics, Law, Politics, Science on October 11, 2017 at 6:45 am

A different version of this article appeared here in the Library of Law and Liberty.

The U.S. healthcare industry is notoriously inefficient and troublesomely massive. It’s also wealthy and getting wealthier and more powerful as medical costs have exceeded, by some estimates, $10,000 per person.

What’s to be done?

Back in 2005, a group of healthcare experts asked, in a RAND Corporation study, whether electronic medical-record systems could transform healthcare by reducing costs and increasing efficiency. The answer, in short, was: it depends.

Although systematizing electronic medical records could save over $81 billion per year, these potential savings would be realized, the study concluded, only if healthcare in the United States integrated new technologies to allow for the flow of medical data between the patient and relevant parties such as doctors, hospitals, or insurers. Non-standardized record systems would result, by contrast, in inconsistent, inefficient, and incomplete data exchanges that could increase rather than decrease costs.

RAND Corporation revisited the issue in 2013, finding that healthcare expenditures had grown by $800 million since 2005 in part because systems of electronic medical records remained non-standardized. “We believe that the original promise of health IT can be met,” wrote Arthur L. Kellermann and Spencer S. Jones, the authors of the study, “if the systems are redesigned to address these flaws by creating more-standardized systems that are easier to use, are truly interoperable, and afford patients more access to and control over their health data.”

Healthcare in the United States is constitutionally fragmented: Not only does the industry consist of various entities, from doctors and hospitals and insurance providers to commercial suppliers of devices, goods, and services, but also the pricing of medical services is unreliable and unpredictable in part because the country is so large and the industry subject to different regulations from state to state.

Information integration could go a long way towards cutting medical costs and increasing medical savings. For example, it could reduce waste resulting from misdiagnoses, repetitive procedures, erroneous prescriptions, and duplicate testing and imaging.

What if there were a simple solution for this waste?

One entrepreneur believes he’s found the technology to revolutionize the way healthcare records are shared and maintained through Health Information Exchange (HIE).

Robert E. Higgs is the founder of ICUcare, a company that aims to improve technologies in the fields of telemedicine and electronic health records. He has invented a “smart” health card that can contain a patient’s complete medical history, which is stored in a cloud. His vision is that patients own their personalized smart cards, which they can voluntarily submit to healthcare providers and institutions for cheaper and more efficient services. Data on the card are easily stored and updated and exchanged only with the patient’s consent; thus, in the case of emergency, the patient’s medical records can be readily accessed and quickly reviewed.

There remains, sadly, a felt need to transition the healthcare industry from paper to electronic records. The smart card meets this need, but it does much more. It tracks your billing history, reconciles erroneous payment information, protects against fraud and identity-theft, and serves as a conveniently portable device.

One would expect such a card to have been in circulation by now, given the extensive government investment in HIEs. President George W. Bush, for example, issued an executive order in 2004 to create the Office of the National Coordinator for Health Information Technology (ONC), a division of the Department of Health and Human Services (DHS) designed to advance technology and innovation pertaining to the exchange of healthcare information. This office created eHealth Exchange, a coalition of states, federal agencies, hospitals, medical groups, pharmacies, and other such entities that’s now run by the Sequoia Project.

But the federal government and the public-private partnerships it has fostered have been unable to produce a smart card that matches Higgs’s in capability and functionality. And even if they had, government retention of sensitive medical data would, among other things, raise privacy concerns that voluntary private transactions and coordination would alleviate.

Moreover, the many spinoff organizations emanating from the ONC and DHS have only crowded the field with swollen, inefficient government and quasi-government structures and programs. Rather than helping the situation, these putative “solutions” have slowed down innovators like Higgs, forcing them to deal with politicians and bureaucrats rather than patients and hospitals.

Having heard about Higgs’s curious smart card through a friend, I decided to reach out to him to find out more. I asked him, first, about privacy implications, namely whether the smart card could increase incidents of non-consensual data transfers and disclosures.

The smart card, he said, “never sends data to the care provider—it brings the care provider to the data.” He explained that data on the smart card are encrypted using the same standards as those used by the Department of Defense for common-access cards.

“We used Advanced Encryption Standard 265, or AES-256,” he said, “the highest standardized encryption specification that’s used worldwide by entities as diverse as corporations and the U.S. government. The key size of 256 bits means that the key, which turns encrypted data into unencrypted data, is a string of 256 ones or zeros.”

I admitted that I didn’t fully understand.

“Put it this way,” he said. “The research I’ve read indicates that each character has two possibilities—one or zero—for which there are 2,256 possible combinations. If 50% of the possibilities must be exhausted to determine the correct key, then you need to guess 2,255 of them [to hack the encryption].”

Pressed about how long it would take to test all possible keys to break the encryption, Higgs, parroting a claim I’ve heard used to describe bitcoin, said, “The universe itself has existed for 14 billion years. It would take something like 1.5770813e18 longer than our universe’s full age to exhaust just half of the key-space of our encryption.”

An attempt to verify Higgs’s figures turned up a plethora of studies and blog posts about encryption and decryption, bitcoin, hacking, and computer engineering (the calculation appearing on many blogs and tech sites is ~6.7e40, which equals 235,385,265,247,008,100, which is multiplied by 6.7 to yield the 1.5770813e18 number that Higgs supplied).

These calculations can be confusing, but the point Higgs wanted to drive home is that the smart card reverses the current power imbalance: today corporations and governments store medical records that patients often can’t access or don’t know about; the smart card, however, empowers patients to store their own records that they may voluntarily release to corporations and governments. The smart card, in other words, returns agency to the consumer whose data is at stake.

It would also, Higgs alleges, reduce rates of healthcare fraud. According to estimates by the National Health Care Anti-Fraud Association, the United States loses tens of billions of dollars every year due to healthcare fraud. Canada, Germany, and France have each instituted some form of a smart card to successfully cut back on fraud.

A company called Cerner has just landed a deal with the Department of Veterans Affairs (the VA) to implement an electronic health records system. The move away from the VA’s Vista system to Cerner’s electronic system suggests that at least some government officials are aware of the need to adopt interoperable and integrated measures of retaining and sharing medical records. The VA will implement the same electronic health record system used by the DOD.

So far as I can tell, however, Cerner has not created a smart card like Higgs’s. I reached out to Adam Lee, a senior communications partner at Cerner, to ask about smart cards and Cerner’s hopes and plans with the VA. Lee referred me to this press release about Cerner’s work with the VA but did not discuss smart cards.

Talking to Higgs is like talking to a computer: more engineer than salesman, he’s strikingly intelligent but has difficulty getting through to politicians. He’s monotone and meticulous, frank and unexcitable. He’s fast with facts and figures and savvy with technology, but the average politician wants to know primarily whether the smart card appeals to constituents and only secondarily whether it’s operable and efficient.

Higgs grew emotional during our phone call, however, as he told me the story of his wife, who underwent a routine procedure that went wrong. He claimed that, during this standard operation, errors were made that could have been avoided had her doctors possessed his wife’s proper medical records. She’s been subjected to numerous tests throughout her illness, he said, only to have them redone when visiting a new facility or specialist because of an inability to simply retrieve her medical history. She remains in bad shape, living at home with hired assistance.

This unfortunate situation has motivated Higgs to seek answers to save others from similar mistakes in similar circumstances.

If Higgs’s smart card is so great, you might ask, why hasn’t it been adopted? Why haven’t I heard of it? Why doesn’t it circulate widely? Why aren’t hospitals jumping at the opportunity to use it?

The answer, according to Higgs, is simple: the healthcare industry doesn’t want you to know about his smart card because it doesn’t want to reduce costs. It’s full of people getting rich off inefficiency and artificially high prices. Lobbyists for the healthcare industry have taken advantage of the fear and apathy of politicians to ensure that technological progress is delayed or stymied.

Thus, Higgs describes his job in terms of David versus Goliath.

There are numerous ideas about how to trim healthcare spending; Higgs’s smart card is not the exclusive remedy or sole fix. But it’s an encouraging development. Healthcare spending makes up about 17.8% of the nation’s economy, according to an actuary report by the Centers for Medicare and Medicaid Services. And it shows no signs of decreasing. This trend is unsustainable; something must be done—and undone.

We could use more men like Higgs and less government to push us in the right direction before it’s too late.

 

 

 

Review of Brent J. Aucoin’s “Thomas Goode Jones: Race, Politics & Justice in the New South” (University of Alabama Press, 2016)

In America, American History, Arts & Letters, Book Reviews, Books, History, Humanities, Law, liberal arts, Politics, Scholarship, Southern History, The South on August 2, 2017 at 6:45 am

This review originally appeared in the Spring 2017 issue of the Journal of Faith and the Academy.

Brent J. Aucoin’s new biography is a probing treatment of the neglected figure of Thomas Goode Jones. To some, Jones is discredited because of his ownership of slaves and military leadership in the Confederate Army; to others, he’s a wounded war hero, distinguished jurist, and revered governor who sought reconciliation with former slaves. The truth, as always, is more complex.

Jones does not fit neatly into simplistic categories; he defies the trite labels of current political vocabulary. He even cut across partisan divides in his own day. His story is not a crude morality tale, nor does it contain clear lessons for posterity. Aucoin calls Jones “enigmatic.”  He seeks to consider Jones “holistically.” His studied reflection on Jones reveals a complicated man who’s both congenial and flawed, ahead of his time and yet a definite product of it.

Born in precarious circumstances in what today is Macon, Georgia, Jones had family roots in Virginia. His father, Samuel Goode Jones, worked for the railroad and moved the family from place to place, trying to earn an honest living. They settled in Montgomery when Samuel took a job there as an engineer. Thomas Jones was five at the time.  He and his family attended St. John’s Episcopal Church, downtown, where the pew in which Jefferson Davis worshipped remains intact, the other rows of pews having been replaced long ago.

A romantic childhood it was not. Jones was sent to Virginia to study at academies that fed into the Virginia Military Institute (VMI). He was groomed to be a soldier. By the time he enrolled at VMI, the Civil War had broken out, and he joined the ranks of his professor, Major General Thomas J. Jackson. Jones transferred units and worked his way up the chain of command, barely avoiding death on more than one occasion. Legend has it that, while riding horseback, he saved a wandering child during the heat of battle. This and other tales of heroism earned Jones the reputation as a valiant warrior. General Robert E. Lee himself selected Jones, among others, to deliver the flag of surrender to General Ulysses S. Grant at Appomattox Courthouse.

After the War, Jones returned to Alabama to begin a new career, or careers.  He married, sired 13 children, and enjoyed a rapid rise to fame and distinction, first as an editor of The Daily Picayune and later as a speaker, lawyer, and Democratic politician.  Believing it was God’s will for the South to fully reintegrate into the Union, he championed reunification, receiving honors and awards for his efforts to this end.  His celebrated 1874 Memorial Day Address was a reconciliatory precursor to that of Oliver Wendell Holmes Jr. a decade later.

Jones is known, in our day, mostly as a legislator, judge, and governor—and indeed the bulk of Aucoin’s book is dedicated to these periods of Jones’s life. Aucoin pays close attention to Jones’s often contradictory, always multifaceted, and sometimes disturbing views on race and race relations. Following Booker T. Washington, Aucoin says, “Jones eschewed the idea of a political solution to the so-called Negro problem—namely, the passage and enforcement of civil rights legislation—but also . . . opposed the political effort to disenfranchise blacks.”

Jones supported segregation of the races under a separate-but-equal scheme, yet he backed the creation of Alabama State University, a black college founded in 1867. He advocated the education of blacks to varying degrees, but his rhetoric on this topic can sound paternalistic and hollow to the modern ear. That he opposed educational prerequisites to voting, however, suggests he was willing to risk clout and status to take an unpopular stand on behalf of former slaves. He also, quite controversially at the time, sought to abolish the exploitative convict leasing system that carried with it the residual features of slavery.

Aucoin describes Jones’s politicking in great detail, from probable election fraud to campaigns for higher taxes. As governor, Jones decried the mob violence that had become common in Alabama. Later, as a judge, he attempted to charge a lynch mob under federal law.

Jones’s popularity waxed and waned. An economic crisis befell the state during his governorship, and workers from different industries began to strike. This once gallant soldier grew tired and frustrated and lost much of his charisma.  During one ceremony as governor, suffering from “cholera morbus,” he fell from his horse as he tried to dismount. Word of this clumsy incident spread quickly, and Jones was humiliated.

Yet he always drew admirers. His work on race relations, if not always courageous, was at least a step in the right direction. When he died, an unexpected number of blacks attended his funeral, watching solemnly. “Jones may not have been a hero,” Aucoin submits, “or someone on the good side who was unfaltering in his fight against evil, but there appears to be cause for concluding that he distinguished himself from the more rabid racist leaders of the South.”

The institution I work at bears the name of this curious man, whose bust is displayed prominently at the top of the stairs of the entry rotunda, looking down on the busy law faculty and students who come and go without the slightest concern for, or even knowledge of, his life. I’ve placed my copy of Aucoin’s biography beneath that bust with a short note: “Free copy. Learn about a fascinating person.”

It seemed like the right thing to do.

The Circuitous Path of Papa and Ezra

In Arts & Letters, Essays, History, Humanities, liberal arts, Literary Theory & Criticism, Literature, Modernism, Politics, Western Civilization, Writing on May 24, 2017 at 6:45 am

This review originally appeared here in The American Conservative.

Ernest Hemingway, fresh off his marriage to Hadley Richardson, his first wife, arrived in Paris in 1921. Paris was a playground for writers and artists, offering respite from the radical politics spreading across Europe. Sherwood Anderson supplied Hemingway with a letter of introduction to Ezra Pound. The two litterateurs met at Sylvia Beach’s bookshop and struck up a friendship that would shape the world of letters.

They frolicked the streets of Paris as bohemians, joined by rambunctious and disillusioned painters, aesthetes, druggies, and drinkers. They smoked opium, inhabited salons, and delighted in casual soirées, fine champagnes, expensive caviars, and robust conversations about art, literature, and the avant-garde. Pound was, through 1923, exuberant, having fallen for Olga Rudge, his soon-to-be mistress, a young concert violinist with firm breasts, shapely curves, midnight hair, and long eyebrows and eyelashes. She exuded a kind of mystical sensuality unique among eccentric highbrow musicians; Pound found her irresistible.

Pound was known for his loyalty to friends. Although he had many companions besides Hemingway—among them William Butler Yeats, James Joyce, T.S. Eliot, Marianne Moore, Robert McAlmon, Gertrude Stein, e.e. cummings, Pablo Picasso, Wyndham Lewis, T.E. Hulme, William Carlos Williams, Walter Morse Rummel, Ford Madox Ford, Jean Cocteau, and Malcolm Cowley—Hemingway arguably did more than the others to reciprocate Pound’s favors, at least during the Paris years when he promoted Pound as Pound promoted others.

Pound was aware of Hemingway’s talent for publicity: he and Hemingway had combined their genius to promote Eliot’s The Waste Land. Hemingway introduced Pound to William Bird, an American reporter who arranged to publish an autobiographical piece about Pound’s childhood. Bird was instrumental to the eventual publication of Pound’s A Draft of XVI Cantos. Pound, for his part, secured for Hemingway a position as assistant editor of The Transatlantic Review. Their relationship matured into something symbiotic and mutually beneficial.

Pound edited Hemingway’s work, stripping his prose of excessive adjectives. Hemingway remarked that Pound had taught him “to distrust adjectives as I would later learn to distrust certain people in certain situations.” Unlike, say, Conrad Aiken or Robert Frost, who resisted Pound’s editing, Hemingway acquiesced to Pound’s revisions. In exchange, Hemingway taught Pound how to box. He acknowledged that the scraggly Pound had “developed a terrific wallop” and had “come along to beat the hell wit the gloves.” Hemingway worried that “I will get careless and [Pound] will knock me for a row of latrines.” He even treated Pound to a night at the prizefights to brighten Pound’s spirits as Pound battled various illnesses.

Pound, however, grew disillusioned with Paris, where his friends were gravitating toward socialism and communism. Paris, he decided, was not good for his waning health. Hemingway himself had been in and out of Paris, settling for a short time in Toronto. In 1923, accompanied by their wives, Pound and Hemingway undertook a walking tour of Italy. The fond memories of this rejuvenating getaway inspired Pound to return to Italy with his wife Dorothy Shakespear in 1924. They relocated, in 1925, to a picturesque hotel in Rapallo, a beautiful sea town in the province of Genoa, on the bright blue Tigullio Gulf.

Pound found the weather in Rapallo to be soothing and agreeable. It was Hemingway who had first recommended this scenic spot, having visited Sir Max Beerbohm there years before. Hemingway’s tales of the sunshine, swimming, tennis, and other outdoor activity in Rapallo appealed to Pound, who fancied himself an athlete. The fact that his mistress Olga frequented Italy—where her father owned a house—made Rapallo all the more desirable, as did Dorothy’s seeming willingness to share her husband with his lover.

The friendship remained intact as Pound settled into Rapallo. About to vacate Europe for Key West, Hemingway dashed off a missive to Pound that began “Dear Duce” and then boasted about how Papa, as people had begun to call Hemingway, was “going to know everything about fucking and fighting and eating and drinking and begging and stealing and living and dying.” Gradually, though, the Pound-Papa gulf widened.

The move to Italy also effectively terminated Pound’s glory years in Paris, about which Hemingway wrote affectionately:

So far we have Pound the major poet devoting, say, one fifth of his time to poetry. With the rest of his time he tries to advance the fortunes, both material and artistic, of his friends. He defends them when they are attacked, he gets them into magazines and out of jail. He loans them money. He sells their pictures. He arranges concerts for them. He writes articles about them. He introduces them to wealthy women. He gets publishers to take their books. He sits up all night with them when they claim to be dying and he witnesses their wills. He advances them hospital expenses and persuades them from suicide. And in the end a few of them refrain from knifing him at the first opportunity.

This last line is both teasing and fitting because there was, in fact, at least one assailant in Paris who didn’t refrain: a man who attempted to stab Pound at a dinner party hosted by the surrealists.

Hemingway guessed that Pound might stay in Italy “sometime” even if he took “no interest in Italian politics.” Hemingway was right about Pound’s love for Rapallo but wrong about his political affinities. More than anything else, Italian politics—and the rise of fascism—damaged Hemingway’s regard for Pound, who became a zealous supporter of Mussolini and a reckless trafficker in conspiracy theories.

Hemingway grumbled that if Pound “actually and honest to God … admire[d] and respect[ed] … [Mussolini] and his works [then] all I can say is SHIT.” Hemingway, true to character, remained manfully playful, stating, “I will take practical steps by denouncing you here in Paris as a dangerous anti-fascist and we can amuse one another by counting the hours before you get beaten up in spite of your probity—which in such a fine country as it must be would undoubtedly save you.” Such slight criticisms may have been colored with a lighthearted tone, but the disapproval was plain.

When Hemingway and Guy Hickock visited Pound in northern Italy in 1927, Pound was living in self-imposed exile. Hemingway had recently converted to Catholicism and was enjoying renewed fame after the publication of The Sun Also Rises. He divorced and remarried that year, offering Hadley a portion of the profit from The Sun Also Rises as part of their divorce. Pound, meanwhile, was immersing himself in political theories that likely baffled Hemingway as much as they angered him.

Shortly after the stock-market crash in 1929 and the onset of a worldwide economic crisis, Pound took to writing in Italian. Mussolini’s March on Rome had occurred seven years earlier, and since then he had assumed dictatorial control of Italy, suppressed opposition parties, and built a police state. Pound was enthralled. He met Mussolini in 1933, peddling strange monetary schemes to the fascist leader.

In 1933 Pound and Hemingway exchanged letters that highlighted their diverging attitudes toward Mussolini, fascism, and government. Pound, who’d embraced wild and polemical speculations about the economic theories of the American Founders—Jefferson in particular—began to decry capitalism and taxation while celebrating fiat currency and a convoluted system of state central planning. “Since when are you an economist, pal?” Hemingway mocked. “The last I knew you you were a fuckin’ bassoon player.” Hemingway offered Pound some money, sensing that money was needed, but Pound declined it.

Pound was now enamored with Il Duce; Hemingway was furious. Hemingway hated government, he told Pound, and preferred organized anarchism and masculine sport to statist ideology. Hemingway saw through Pound’s charlatanic flourishes and economic fallacies and accused Pound, quite rightly, of lacking clarity. Yet Pound’s admiration for Hemingway’s work did not diminish, and Pound, ever devoted, included Hemingway in an anthology that he was then editing.

Possibly the last time Pound and Hemingway saw each other, they were having dinner with Joyce on a warm summer night in Paris. Pound allegedly bloviated about economics and the decline of art and European civilization, and Hemingway and Joyce feared that Pound had gone mad. The date and details of the dinner are a matter of debate, as is the veracity of any account of that evening. But one thing is certain: Hemingway was frustrated with Pound’s embrace of Italian fascism. By the time Pound voiced support for Franco in the Spanish Civil War, putting him once again at odds with Hemingway, their once thriving friendship had deteriorated beyond repair.

The falling out was no secret, and other writers took sides. William Carlos Williams wrote to Pound in 1938, saying, “It is you, not Hemingway, in this case who is playing directly into the hands of the International Bankers.” Hemingway conveyed his concerns about Pound to their friend Archibald MacLeish:

Thanks for sending the stats of Ezra’s rantings. He is obviously crazy. I think you might prove he was crazy as far back as the latter Cantos. He deserves punishment and disgrace but what he really deserves most is ridicule. He should not be hanged and he should not be made a martyr of. He has a long history of generosity and unselfish aid to other artists and he is one of the greatest living poets. It is impossible to believe that anyone in his right mind could utter the vile, absolutely idiotic drivel he has broadcast. His friends who knew him and who watched the warpeing [sic] and twisting and decay of his mind and his judgement [sic] should defend him and explain him on that basis. It will be a completely unpopular but an absolutely necessary thing to do. I have had no correspondence with him for ten years and the last time I saw him was in 1933 when Joyce asked me to come to make it easier haveing [sic] Ezra at his house. Ezra was moderately whacky then. The broadcasts are absolutely balmy. I wish we could talk the whole damned thing over. But you can count on me for anything an honest man should do.

Hemingway was referring to Pound’s notoriety as a propagandist for radio and newspaper during the Second World War.  When he received transcripts of Pound’s radio broadcasts, he surmised that Pound was “obviously crazy” for espousing such “vile, absolutely idiotic drivel.” Pound was a “crazy … and harmless traitor,” Hemingway concluded, and an “idiot” with a “distracted mind” who “ought to go to the loony bin.” And that’s precisely where Pound ended up: He was admitted to St. Elizabeth’s Hospital in Washington, DC, in 1945.

Pound’s friends put their reputations at stake to help him. MacLeish, expressing both love and admonition, dashed off these words in a missive to Pound:

… your information is all second-hand and distorted. You saw nothing with your own eyes. And what you did see—Fascism and Nazism—you didn’t understand: you thought Musso belonged in Jefferson’s tradition and God knows where you thought Hitler belonged. I think your views of the history of our time are just about as wrong as views can be. But I won’t sit by and see you held in confinement because of your views. Which is what is really happening now. I am doing what I am doing partly because I revere you as a poet and partly because I love this Republic and can’t be quiet when it violates its own convictions.

MacLeish helped to orchestrate Pound’s release from St. Elizabeth’s, drafting a letter to the government on Pound’s behalf that included Hemingway’s signature, along with those of Robert Frost and T.S. Eliot. A year later Hemingway provided a statement of support for Pound to be used in a court hearing regarding the dismissal of an indictment against Pound.

Hemingway, who was now living in Cuba, did little else to help Pound. More for practical reasons than personal conviction, Hemingway, who was himself targeted by the American government, refused to sign a petition of amnesty for Pound. The petition had been Olga’s idea, and Hemingway didn’t believe the American people would rally behind the desperate pleas of an adulterous lover. Hemingway never visited Pound at St. Elizabeth’s, but he did tell Pound, via Dorothy, that he had read and enjoyed The Pisan Cantos. And when he won the Nobel Prize in 1954, Hemingway announced that the year was good for releasing poets, a not-so-slight reference to his old friend.

Hemingway awoke on the morning of July 2, 1961, put a 12-gauge, double-barreled shotgun to his head, and, alone in the foyer of his home, blew his brains out. He was 61. Pound’s friends and family didn’t tell him about Hemingway’s death, but a careless nurse did, and Pound reacted hysterically. The older of the two, Pound, at 72, was free from St. Elizabeth’s, where he’d spent 12 solemn years. He had returned to his beloved Italy to finish out his long and full life. In the autumn of 1972, he died peacefully in his sleep in Venice, the day after his birthday, which he’d spent in the company of friends.

Civics Education and the Blackstone & Burke Center for Law & Liberty

In Academia, Civics, Conservatism, Humanities, Law, Law School, Legal Education & Pedagogy, liberal arts, Libertarianism, News and Current Events, Pedagogy, Philosophy, Politics, Scholarship, Teaching, The Academy, Western Civilization, Western Philosophy on April 26, 2017 at 10:49 am

A version of this piece will appear in Faulkner Magazine. 

Our country has suffered a decline in civic literacy.  From 2006 until 2011, the Intercollegiate Studies Institute (ISI) conducted annual studies that evaluated the civic literacy of students and citizens.

The results were discouraging. Most Americans were unable to pass a basic test consisting of straightforward, multiple-choice questions about American heritage, government, and law. One of the ISI studies suggested that students knew more about civics before they began college than they did after they graduated college.

It’s not just students and ordinary citizens displaying civic ignorance. Our political leaders have demonstrated that they lack the understanding of law and government befitting their high office.

Judge Arenda Wright Allen of the U.S. District Court for the Eastern District of Virginia recently began an opinion by stating that the Constitution declared that “‘all men’ are created equal.” This line appears in the Declaration of Independence, not the Constitution.

Senator Chuck Schumer told CNN that the three branches of government were the House, the Senate, and the President. He not only failed to mention the judicial branch, but also treated the bicameral legislature in which he serves as if it were bifurcated into separate branches of government.

Congressman Sheila Jackson Lee, while criticizing the alleged unconstitutionality of proposed legislation, claimed that the Constitution was 400 years old.

These anecdotes suffice to show the extent to which Americans no longer respect their founding principles or the framework of government established in our Constitution.

That is why the Blackstone & Burke Center for Law & Liberty was founded at Thomas Goode Jones School of Law. We seek to promote the principles of the common-law tradition and American constitutionalism so that the next generation of civic leaders will make informed, thoughtful decisions about the future of our country.

Ordered liberty in the United States has rested on a commitment to religious faith and pluralism, fidelity to the rule of law, and ancient liberties grounded in the conviction that all humans are created equal and endowed by their Creator with certain inalienable rights. These values characterize the American experiment. Our society is built upon them, and its continued vitality depends upon maintaining and promoting our commitment to them.

Therefore, the Blackstone & Burke Center will educate students, teachers, judges, and political leaders in the areas of religious freedom, freedom of association, freedom of speech, and economic freedom. We will coordinate educational programs, research initiatives, and judicial conferences that examine the norms and nurture the institutions of ordered liberty.

We believe that the principles and ideas of the American Founding are worth conserving and celebrating. Our vision is to help renew an America where freedom, opportunity, prosperity, and civil society flourish.

The Blackstone & Burke Center has recruited of board of advisers consisting of internationally recognized thought-leaders such as Judge Andrew Napolitano, Senior Legal Analyst for Fox News; Dr. Robert P. George, McCormick Chair in Jurisprudence at Princeton University; Dr. James R. Stoner, Hermann Moyse Jr. Professor and Director of the Eric Voegelin Institute for American Renaissance Studies at Louisiana State University; Professor F. H. Buckley, George Mason University Foundation Professor at Antonin Scalia Law School; Dr. Don Devine, former Director of the U.S. Office of Personnel Management in the Reagan Administration and Senior Scholar at the Fund for American Studies; Dr. Ingrid Gregg, past president of the Earhart Foundation; and Dr. Daniel Mark, Vice Chairman of the U.S. Commission on International Religious Freedom and Professor at Villanova University.

In our first few months of operation, we organized and hosted a reception featuring a Library of Congress traveling Magna Cart exhibit, which was displayed in the rotunda of the Alabama Supreme Court for three weeks.  Judges, business and university leaders, lawyers, students, teachers, and the general public attended the reception to commemorate and learn about Magna Carta, and Acting Chief Justice Lyn Stuart of the Alabama Supreme Court and Judge William “Bill” Pryor of the Eleventh Circuit Court of Appeals delivered remarks about Magna Carta.

The Blackstone & Burke Center received a grant from Liberty Fund, Inc., to gift the entire Liberty Fund book and media catalog to the law library, as well as a grant from the Association for the Study of Free Institutions to bring a prominent speaker to our campus next fall.

The Blackstone & Burke Center also established a formal affiliation with Atlas Network and, through Atlas Network, partnerships with such organizations as the Acton Institute, American Enterprise Institute, American Legislative Exchange Council, Becket Fund for Religious Liberty, Cato Institute, Center for Competitive Politics, Claremont Institute, the Federalist Society, the Foundation for Economic Education, the Foundation for Individual Rights in Education, Freedom Foundation, the Goldwater Institute, the Heritage Foundation, the Hoover Institution, the Hudson Institute, the Independent Institute, Institute for Justice, Intercollegiate Studies Institute, the Law & Economics Center at George Mason University, Liberty Fund, Mackinac Center for Public Policy, Mont Pelerin Society, National Review Institute, Pacific Legal Foundation, the Philadelphia Society, the Pope Center for Higher Education Policy, Reason Foundation, State Policy Network, Students for Liberty, the Fund for American Studies, Young Americans for Liberty, and more.

Finally, the Blackstone & Burke Center received a grant from the Charles Koch Foundation under the auspices of the Philadelphia Society to direct a professional development conference on academic freedom at a meeting of the Philadelphia Society in Pennsylvania. Attendees included graduate students and university administrators from across the country who shared an abiding interest in the meaning, purpose, and characteristics of intellectual exchange in university settings.

We at the Blackstone & Burke Center look forward to a promising future as we inspire and educate new leaders in the principles and foundations of ordered liberty. To learn more about the Blackstone & Burke Center, visit our website at www.blackstone&burke.com.

Donald Trump, the Cowboy

In America, American History, Art, Arts & Letters, Conservatism, Film, History, Humanities, Literary Theory & Criticism, Philosophy, Politics on March 22, 2017 at 6:59 am

Allen Mendenhall

This article originally appeared here at The Daily Caller. 

Americans love film, a medium we’ve popularized across the globe. We’re home to Hollywood; we pioneered cinema as an industry and an art form.

Film has enabled cultural memory and iconography to survive in residual form from generation to generation. Since early motion pictures, images that flashed across our screens have become part of our communicative coding, manifesting themselves in political discourse in subtle, unexpected ways.

Perhaps the most foundational figure in American cinema is the nomadic cowboy, that romantic hero of the frontier whose moral ambiguity thrills and troubles us. Frederick Jackson Turner announced his frontier thesis in 1893, drawing attention to the rugged individualism and westward expansion that characterized American liberty and differentiated the New World from Europe.

The masculine figure of the cowboy embodies this thesis. He’s an archetype. Garbed in buckskins and spurs, he conquers the wilderness and the Indians, exacting ruthless revenge on his foes and exercising his menacing skills to achieve justice, at least his notion of it.

But he has a dark side. One is never certain whether he’s a bad guy with good qualities or a good guy with bad qualities. He can be, like Wyatt Earp, both lawman and outlaw, and his very presence creates dysfunction, jeopardizing the harmony of the community and the stability of the nuclear family. Even Shane, the most impeccable of cowboys, endangers the affection between Joe Starrett and his wife and risks undermining the sense of corporate community he’s fighting to uphold.

The cowboy is a paradox: heroic yet savage, mannered yet unruly, tamed yet wild, gentle yet violent. He’s a beloved and mysterious loner, reckless in the pursuit of civilized life. There’s dissonance in his desire to establish domestic settlement and close the frontier while exploring nature, roaming the open range, and maintaining noble independence. With his code of honor, he’s the American version of the brave and chivalrous knight who rides off on quests and adventures.

Former presidents have sought to embed themselves in the Western genre, troping the image and lore of the cowboy. President Reagan, a friend of John Wayne, acted in Westerns and was known to clad himself in big shiny belt buckles and Stetson hats. George W. Bush played up his Texas swagger, wore boots and shot rifles, vacationed on his ranch and applied the pioneering spirit to foreign affairs.

Unlike his immediate predecessor, Donald Trump is a cowboy, or the semiotic mutation of one. That’s why he appeals to so many Americans. This may come as a surprise. He might seem more like the cowboy’s close cousin, the urban gangster. After all, he’s a New York casino and real-estate magnate who wears dark suits and bright ties and displays his money and wealth. He’s gaudy and flashy like Tony Montana, and a wealthy patriarch like Vito Corleone. He’s charismatic and travels in groups, and there’s a noirish quality to his messaging, which the media keeps calling “dark.”

Yet his narrative arc is not one of dramatic rise and inevitable fall.  Nor is he an immigrant figure with ties to drugs and organized crime. He is, instead, the brawling gunslinger, marked by vanity and bravado, irresponsible in his boastfulness. He speaks for a community not his own, glamorizing his triumphs and victories. His bombast and boisterousness have an inexplicably moral feel, as if he represents more than himself and speaks for others—the common man, the forgotten man, the ranchers and laborers.

The cowboy stands up to cattle-baron cronies, just as Trump takes on leading news outlets and the so-called “establishment.” He portrays himself as an outmatched Will Kane, ready to confront gangs of rivals against all odds—as he did in the election when he knocked off his primary opponents and then the presumptive Democratic president, proving an entire class of pollsters and the commentariat wrong.

Like Old Rough and Ready, Trump is vague on political positions and policy prescriptions. His supporters speak of the “Trump Train,” a phrase suggestive of the nineteenth-century railroad, which dominated American industry. His derogatory comments about Mexicans and immigrants are alike in kind if not degree to those of Ethan Edwards regarding the Comanche. Think John Wayne in The Searchers.

Trump is married, but not domesticated. He blurs the lines between truth and embellishment, decrying and creating fake news in the same breath. He harnesses the power of the maxim from The Man Who Shot Liberty Valence: “When the legend becomes fact, print the legend.”

Trump’s high-soaring rhetoric is reminiscent of an earlier moment in American history when there were, in the American psyche, clear winners and losers. The slightest insult can cause him to seek revenge that’s both personal and heedless, having something of the showdown about it.

He’s a tweet-dueler. The Internet being the new frontier, in an age when you can’t get away with gratuitous killing, he trades characters, not bullets. And he’s quick on the draw, able to unload rounds of tweets in mere seconds.

Like William Munny, the aging anti-hero in Clint Eastwood’s Unforgiven, Trump doesn’t drink. His infatuation with Mexico and insistence on building a wall across the Southern border recall the boundary disputes of a bygone era. Imagine Santa Anna and the Republic of Texas as historical antecedents to current border anxieties.

Trump’s carefully orchestrated press conferences, campaign rallies, and inaugural address suggest that he demands a spectacle that’s as visually magnificent as a John Ford film. He fancies the long-shot panorama with American flags in the background. He flies in and out of small towns, ever the roving myth, and he doesn’t have a single place to call home.

During a period of economic contraction, aging population, shifting demographics, and declining American power, ordinary Americans understandably look to a time of territorial growth, when heroes defeated “the Other,” solved their problems, and overcame adversity. With the advent of Google Maps and Street View, folks long for a past of exploration and geographic mystery—when there were borders between known and unknown lands. Trump talks about Greatness. Speaking in superlatives, he refers to things as Amazing, Huge, Tremendous, and Wonderful. His vision for America is as wide in scope as the Western landscape.

Trump is a construct of the mythic figure we’ve come to expect from viewing Western symbols, plots, and motifs. He reminds us of the William Faulkner line: “The past is never dead; it’s not even past.” The cowboy is indeed alive and well, even if he’s a sign of the past. He comes in the improbable, astonishing form of Donald Trump. And he wants to win.

 

Our Real Constitution—And What Happened to It

In American History, Arts & Letters, Book Reviews, Books, Conservatism, History, Humanities, Jurisprudence, Law, liberal arts, Philosophy, Politics, Scholarship, Western Philosophy on January 25, 2017 at 6:45 am

Allen Mendenhall

This review originally appeared here in The University Bookman.

Conservatism lost a giant when George W. Carey passed away in 2013. Thanks to Bruce Frohnen, his longtime friend, we’re able to hear anew Carey’s prudent admonitions in these strange and interesting times.

Before his death, Carey completed drafts of chapters on progressivism and progressive constitutional reform that later became substantial portions of two chapters in Constitutional Morality and the Rise of Quasi-Law, the book that Frohnen has now completed. The final product is an impressively collaborative effort that substantiates the idea of constitutional morality, which Carey spent years developing.

The two men had planned to split the chapters in half. Having few disagreements between them, they reserved the right to approve and edit each other’s contributions. Carey’s untimely passing changed these plans. To honor his friend, Frohnen consulted Carey’s work carefully, downplaying his own more “antifederalist” positions to accommodate Carey’s more federalist leanings. If Jefferson and Hamilton would have agreed that the size and scope of the American government has become dangerous and unmanageable, then it’s no surprise that Frohnen and Carey found common ground.

Constitutional morality denotes “the felt duty of government officials … to abide by the restrictions and imperatives imposed on them by a constitution.” It contemplates the “unwritten constitution,” a concept central to Frohnen and Carey’s argument that’s drawn from Russell Kirk and Orestes Brownson, both of whom Frohnen in particular has interpreted thoughtfully and skilfully. Kirk defined the unwritten constitution as “the body of institutions, customs, manners, conventions, and voluntary associations which may not even be mentioned in the formal constitution, but which nevertheless form the fabric of social reality and sustain the formal constitution.” To maintain their authority and gain general acceptance in a community, written constitutions and positive laws must reflect the norms and values of the people they bind. Frohnen and Carey’s narrative is about how quasi-law in the form of executive decree and the administrative state have become divorced from the people they govern.

The narrative runs something like this. Rule by executive command and administrative agencies has resulted in a decline of the rule of law in the United States. Odd, extratextual interpretations of the United States Constitution have dislocated its content from the common understandings of reasonably prudent Americans. The Progressive Era facilitated a shift in our approach to law that was qualitatively different from the teachings of checks-and-balances, decentralization, separation-of-powers, and other such doctrines alive in the minds of our Founders, even those like Hamilton and the young Madison (as against the later Madison) who favored a strong national government. Consequently, we have found ourselves in a crisis of constitutional morality, there being little institutional and systemic accountability to curb the broad powers of bureaucracy, reckless and unelected federal judges, a delegating congress beholden to lobbyists and corporations, and the expansion of executive privilege, prerogative, and patronage.

Political rhetoric of limited government, common among Republican leaders, does not square with the manifest reality of the ever-growing managerial state. Heated discourse alone won’t suffice to roll back federal programs and agencies. “What is required,” say Frohnen and Carey, “is a retrenchment of the federal government into a much smaller but more detailed and legalistic form that allows more actions to be taken by other institutions, be they states, localities, or associations within civil society.” In short, these men call for devolution and subsidiarity. They make the case for localized control based on clear rules that are consistent with common norms and expressed in a shared idiom.

Championing the rule of law involves the recognition that, although morality does or should underpin laws, “we cannot use the tool of law to achieve perfect virtue, or freedom, or any other moral good.” Without denying the importance or reality of natural law, which is antecedent to human promulgation, Frohnen and Carey approach it cautiously, stating that it “is not a rigid code demanding that human law force all human beings into a straightjacket of specific individual conduct.” Seemingly skeptical of grand schemes for the magnificent systematization and organization of natural-law principles, they humbly submit that humans “can only do our best to develop practical lawmaking and interpreting virtues such that the laws we make will be efficacious in spelling out and enforcing duties in such a way as perhaps to encourage people to pursue virtue.” This nomocratic mode of thinking recalls Hume, Burke, Oakeshott, Kirk, and Hayek with its awareness of the limitations of human knowledge and its attention to the historical, institutional, and cultural embeddedness of standards and values.

If there is one take-home point from this book, it’s that government is not the instrument through which to facilitate the good, the true, or the beautiful. We should avoid the “new dispensation” that consists in “a government ruled not by formal structures and procedures but by the pursuit of putatively good policy through broad statements of programmatic goals and the exercise of broad discretionary power.” Disempowering the central government may be the obvious counter to this new dispensation, but we’ve been advocating that for decades. In fact, Frohnen and Carey believe that “there can be no simple return to the original dispensation,” which involved “the Framers’ constitutional morality, emphasizing procedure, caution, and restrained defense of one’s institutional prerogatives.”

With no quick and easy remedy at the ready, Frohnen and Carey encourage something less magnificent and extraordinary: civic participation in local associations and mediating institutions such as “families, unions, clubs, schools, and religious groups,” the kinds of little platoons that struck Alexis de Tocqueville, during his tour of America, as bulwarks against tyranny. “More important than any particular policy,” Frohnen and Carey aver, “is the attitude toward law and policy making that must be recaptured.” Although they suggest that some form of separation or secession may become inevitable, the corrective they envision is rhetorical and discursive. We must, in their view, shape the political discourse through private associations, which, in the aggregate, engender the bottom-up processes of rulemaking that reflect the normative orders of local communities rather than the top-down commands of a faraway, massive, impersonal sovereign.

Free Exchange with Dr. Donald Livingston of Emory University

In America, American History, Arts & Letters, Books, Conservatism, Economics, History, Humane Economy, Humanities, Law, liberal arts, Liberalism, Libertarianism, Philosophy, Politics, Scholarship, Southern History, The South, Western Civilization, Western Philosophy on January 18, 2017 at 6:45 am

In 2014, Dr. Donald Livingston sat for an interview for “Free Exchange,” a program of the John W. Hammond Institute for Free Enterprise at Lindenwood University.  The interview appears below. Dr. Livingston is Professor Emeritus in the Philosophy Department at Emory University, President of the Abbeville Institute, and Fellow of the Institute for Advanced Studies at the University of Edinburgh.

Cornel West and Robert P. George Discuss the Liberal Arts

In Academia, Arts & Letters, Books, Ethics, History, Humanities, liberal arts, Liberalism, Literature, Pedagogy, Philosophy, Politics, Scholarship, Western Civilization, Western Philosophy on January 4, 2017 at 6:45 am

Dr. Cornel West and Dr. Robert P. George discussed the purpose of a liberal arts education at a forum of the American Enterprise Institute (AEI) in Washington, D.C., on Wednesday, November 30, 2016.  AEI Visiting Fellow Ramesh Ponnuru moderated the discussion, which appears in the video below.

Seth Vannatta on Conservatism and Pragmatism in Law, Politics, and Ethics

In Academia, American History, Arts & Letters, Book Reviews, Books, Conservatism, History, Humanities, Jurisprudence, Law, liberal arts, Philosophy, Politics, Pragmatism, Scholarship, The Academy, Western Philosophy on December 28, 2016 at 6:45 am

Allen 2

At some point all writers come across a book they wish they had written. Several such books line my bookcases; the latest of which is Seth Vannatta’s Conservativism and Pragmatism in Law, Politics, and Ethics.

The two words conservatism and pragmatism circulate widely and with apparent ease, as if their import were immediately clear and uncontroversial. But if you press strangers for concise definitions, you’ll likely find that the signification of these words differs from person to person. Maybe it’s not just that people are unwilling to update their understanding of conservatism and pragmatism—maybe it’s that they cling passionately to their understanding (or misunderstanding), fearing that their operative paradigms and working notions of 20th century history and philosophy will collapse if conservatism and pragmatism differ from some developed expectation or ingrained supposition.

I began to immerse myself in pragmatism in graduate school when I discovered that its central tenets aligned rather cleanly with those of Edmund Burke, David Hume, F. A. Hayek, Michael Oakeshott, and Russell Kirk, men widely considered to be on the right end of the political spectrum even if their ideas diverge in key areas. In fact, I came to believe that pragmatism reconciled these thinkers, that whatever their marked intellectual differences, these men believed certain things that could be synthesized and organized in terms of pragmatism. I reached this conclusion from the same premise adopted by Vannatta: “Conservatism and pragmatism . . . are methods . . . guided by various common norms.” As such, they can lead to different political policies despite the consistently conservative character of their processes and techniques.

Read my review of Vannatta’s book in University of Dayton Law Review by downloading it from SSRN at this link.

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