Tuesday, March 19, 2019

Don Juan and Other Bad Data in Mark Regnerus' New Family Structures Study

Mark Regnerus' New Family Structures Study administered a survey to a large, random sample of American young adults to study the children of parents who have had same-sex relationships as compared with other children in other kinds of family structure.  If you look at Regnerus' databook, you will discover that many of his respondents are extraordinary people.

For example, when the men were asked how many female sexual partners they had had over the previous 12 months, one man reported 785 (Regnerus 2012b, 1370)!  Wow!  There's a real Don Juan.  And he was not the only one.  20 of the men reported that they had had sexual relationships over their life with over 100 women--"100+" was the highest number in the survey questionnaire.  16 women reported that they had had sexual relationships with over 100 men (1368).  Asked how often they had had sex in the past 2 weeks, 15 respondents reported more than 30 times; 5 had had it 45-50 times; and one person had had sex 75 times in 2 weeks (1382).  (I reported this to my wife, but she was remarkably skeptical.)

Isn't it amazing that these folks can keep such an accurate count of their couplings?  Mozart's Don Giovanni had Leporello keeping a catalogue of the Don's conquests--1,003 in Spain alone!  Do these people have someone keeping a record for them?

Moreover, these folks started their sex lives really early.  They were asked: "How old were you (in years) the first time you ever had vaginal intercourse?"  10 of them answered 0 (1365)!  They started in their mother's womb!

The respondents to Regnerus' survey were unusual in other ways besides their sexual prowess.  One man reported that he was 7 feet 10 inches tall (1290).  They were asked: "How old were you (in years) the last time you were arrested?"  3 people said 1.  4 people said 0 (1338).  Maybe, these 4 were arrested before they were born for their sex crimes in the womb.

There is another explanation that might have occurred to you.  Is it possible that some of these respondents were jokesters who amused themselves by making up ridiculous answers?  Regnerus assures us that this cannot be the case, because "the data collection was conducted by Knowledge Networks (or KN), a research firm with a very strong record of generating high-quality data for academic projects" (Regnerus 2012a, 756).

High-quality data?  When Regnerus' paper was first published in Social Science Research in June of 2012, not even his critics questioned the quality of his data, although they did question his analysis of the data.  But, then, a few months later, Darren Sherkat reported that his study of Regnerus' databook revealed some "unlikely responses" (Sherkat 2012, 1348).  Three years later, Cheng and Powell (2015, 619-20) identified some "unreliable cases in his data" that might be the work of some "mischievous jokesters."  As far as I know, Regnerus has not commented on this.

Nor has he commented on the dubious methods of Knowledge Networks in conducting online surveys.  Knowledge Networks is a marketing survey business that was acquired in 2011 by GfK, Germany's largest market research company.  Knowledge Networks recruits people for its "KnowledgePanel" by mailing envelopes to the homes of consumers telling them that they have been randomly selected to fill out online market research surveys.  The letter contains $2.  And they are promised compensation for their work.  If they do not have a computer or internet access, this is provided to them by the company for as long as they fill out surveys.  For every survey completed, the participants receive "points" that can be redeemed for a spin of a "Prize Wheel" or other contests, small gift cards, or a check for cash.  Some panel members have complained that the Prize Wheel is a scam, because it is programmed so that the spinner never lands on the Grand Prize.  One panel member who broke into the source code for the web page discovered this, and saw that after 1,000 spins, he never landed on the Grand Prize.

Most panel members work for cash.  But it takes over 8 hours to earn a $25 check.  Panel members generate about 1,000 points (worth $1) for each survey.  And each survey takes at least 20 minutes to complete.  So they're making about $3 per hour.

Needless to say, there is little incentive for panel members to work hard and think carefully as they fill out their online surveys.  Presumably, this often becomes boring, and they rush through their work; or they decide to amuse themselves by making up fraudulent answers to the questions.

There is no procedure at Knowledge Networks for "cleaning up the data" by throwing out answers that look suspicious.  And clearly Regnerus did not attempt to remove the bad data, because he was confident about Knowledge Network's "strong record of generating high-quality data."

Unfortunately, much of the social science research reported these days is based on this kind of data collection through online surveys with no attempt to identify fraudulent data.


Cheng, Simon, and Brian Powell. 2015. "Measurement, Methods, and Divergent Patterns: Reassing the Effects of Same-Sex Parents." Social Science Research 52: 615-26.

Regnerus, Mark. 2012a. "How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study." Social Science Research 41: 752-70.

Regnerus, Mark. 2012b. "New Family Structures Study (ICPSR 34392)." Inter-university Consortium for Political and Social Research.  Ann Arbor, Michigan.  Available online.

Sherkat, Darren E. 2012. "The Editorial Process and Politicized Scholarship: Monday Morning Editorial Quarterbacking and a Call for Scientific Vigilance." Social Science Research 41: 1346-1349.

Monday, March 18, 2019

Aquinas on Adoption: Can Same-Sex Marriage Show a "Likeness" to Heterosexual Marriage?

Thomas Aquinas argues for the natural law of marriage as rooted in the biological nature of those animals (such as birds) whose offspring require parental care from both parents.  Natural marriage understood in this way has two natural ends.  The primary end is the generation and rearing of offspring.  The secondary end is the conjugal bonding of male and female.

If one adopts this Thomistic view of marriage, then it might seem that Thomistic natural law could never sanction same-sex marriage as securing the two natural ends of marriage.  After all, Aquinas is clear in rejecting homosexuality as "contrary to nature," because no other animals engage in homosexual mating, and because homosexuals cannot naturally generate and rear children.  But now the biological study of animal behavior has shown that many animals engage in homosexual mating, and some of these homosexual animals care for offspring, which denies Aquinas's biological reasoning for rejecting homosexuality as unnatural.

One might then wonder whether there is any opening within Aquinas's natural law reasoning for supporting same-sex marriage and parenting.  One possible opening comes in what he says about the adoption of children:
"Art imitates nature and supplies the defect of nature where nature is deficient.  Hence just as man begets by natural generation, so by positive law which is the art of what is good and just, one person can take to himself another as a child in likeness [similitudo] to one that is his child by nature, in order to take the place of the children he has lost, this being the chief reason why adoption was introduced. . . . The sonship of adoption is an imitation [imitatio] of natural sonship" (ST, Suppl., q. 57, a. 1).
If adoptive parents can show a "likeness" or "imitation" of natural parents, so that "art imitates nature," then we might justify legal adoption as promoting the natural end of parental care of children, even when the adoptive parents are not the biological parents of the children.  Most heterosexual couples who want to have children prefer that these be their biological children.  But for various reasons, they can choose to adopt children who are either biologically related to them or not biologically related at all.  And when they do choose to adopt, they usually prefer to adopt younger rather than older children, so that there is a greater likelihood of a parent-child bonding comparable to that of biological parents with their children.

Recent research comparing children reared by their biological parents and adopted children suggests that there are differences, and that there is an elevated risk of bad outcomes for adopted children as compared with children reared by biological parents.  But still this is only a difference on average, and most adopted children grow up to become healthy and successful young adults.

We generally presume that the legal custody of children should go to their biological parents unless there is some good reason not to do this.  We allow for the legal adoption of children when this seems to be in the best interests of the children.

Same-sex couples cannot generate their own biological children through sexual intercourse.  But they can adopt children generated by heterosexual coupling.  Perhaps most commonly lesbian mothers have children that were conceived when the women were in a heterosexual marriage that they left by divorce.  More rarely gay males that were previously in a heterosexual marriage might take custody of children conceived in that marriage.  Or a same-sex couple might plan the adoption of children who are either unrelated biologically to either parent, or who are related to one or both of the parents.  Lesbian women can use assisted reproduction technology (ART) or surrogacy to generate children related to them either directly or indirectly.  If they use eggs or sperm from siblings, both same-sex partners could be biologically related to the children.  Is this same-sex parenting a close enough "likeness" to heterosexual parenting that both forms of parenting might satisfy the natural need of the children for parental care?

We are assuming here--as Aquinas does--that the natural gold standard for raising children is the intact and stable biological family with both biological parents sharing in the rearing of the children, and thus the goodness of any other family structure is judged by how well it approximates this natural family structure.  By the beginning of the 21st century, most of the scholarly research on marriage and the family had reached consensus on this.

One of the most commonly cited surveys of this research was by Moore, Jekielek, and Emig (2002), which concluded: "An extensive body of research tells us that children do best when they grow up with both biological parents in a low-conflict marriage."

They elaborated on this conclusion:
"Research findings linking family structure and parents' marital status with children's well-being are very consistent.  The majority of children who are not raised by both biological parents manage to grow up without serious problems, especially after a period of adjustment for children whose parents divorce.  Yet, on average, children in single-parent families are more likely to have problems than are children who live in intact families headed by two biological parents."
"Children born to unmarried mothers are more likely to be poor, to grow up in a single-parent family, and to experience multiple living arrangements during childhood.  These factors, in turn, are associated with lower educational attainment and a higher risk of teen and nonmarital childbearing."
"Divorce is linked to academic and behavior problems among children, including depression, antisocial behavior, impulsive/hyperactive behavior, and school behavior problems.  Mental health problems linked to marital disruption have also been identified among young adults."
"Children growing up with stepparents also have lower levels of well-being than children growing up with biological parents.  Thus, it is not simply the presence of two parents, as some have assumed, but the presence of two biological parents that seems to support children's development."
"Of course, the quality of a marriage also affects children.  Specifically, children benefit from a low-conflict marriage.  Children who grow up in an intact but high-conflict marriage have worse emotional well-being than children whose parents are in a low-conflict marriage" (1-2).
Whenever I have discussed these kinds of claims with college students, invariably some of those students who have been raised by single mothers or stepparents will protest that these claims are false, because, after all, young adults like themselves have done well without being raised by two biological parents.  We have then talked about this and noted that these claims are qualified by the words "on average" and "more likely": on average, there is a greater likelihood of harm to children raised by single parents or stepparents, although "the majority of children who are not raised by both biological parents manage to grow up without serious problems."  Moreover, even a household headed by two biological parents can be harmful to the children if there is a high level of conflict between the parents, which is why sometimes divorce is better for the children.

So what does this suggest about homosexual parenting?  Is it as good for children on average as heterosexual parenting in families headed by two biological parents in a low-conflict marriage?  Or does homosexual parenting bring increased risks for children comparable to parenting by unmarried mothers, divorced single mothers, and stepparents?

The answers here depend upon whether one thinks that homosexual parents are naturally inclined to form stable intact families headed by two parents in a low-conflict marriage who have some biological connection to the children, which would show some "likeness" to stable intact natural families with two biological parents in a low-conflict marriage.  Alternatively, if one thinks that the same-sex relationships of gay men and lesbian women tend inevitably to be unstable and full of conflict, then one will have to conclude that same-sex marriage will never succeed in securing good parenting for children, and so it can never approximate the success attainable by natural biological families.

This is the point that was made by William Saletan in his essay for Slate in response to Mark Regnerus's controversial article on parenting by people who have same-sex relationships.  Saletan (2012) began by asking: "Is same-sex marriage a good idea?  Or is an intact biological family the best environment for raising a child?  The answer may turn out to be yes and yes."

Surveying a large random sample of American young adults (ages 18-39), Regnerus identified those who reported that their mothers or their fathers had had a same-sex sexual relationship during their childhood.  These children were then put into the category of "gay father" (GF) or "lesbian mother" (LM).  Regnerus then identified the other children as belonging to another family structure during their childhood--"intact biological family" (IBF), "adopted," "divorced," "stepfamily," or "single-parent" household.  From what they reported about their lives, Regnerus could show that these GF or LM children were more likely to suffer emotional, mental, or social problems than those children raised in intact biological families.

This might seem to show that homosexuals cannot be good parents.  But that's not true, Saletan observes, because as Regnerus indicates, almost all of those children in the "gay father" (GF) or "lesbian mother" (LF) category came from a "failed heterosexual union," and these children spent little or no time being reared by same-sex parents.  These were not the children of stable, planned same-sex families.  They were the children of heterosexual unions that failed because gay men and lesbian women were trying to hide their homosexuality in a world where same-sex marriage was impossible.

So, Saletan explains, "this isn't a study of gay couples who decided to have kids.  It's a study of people who engaged in same-sex relationships--and often broke up their households--decades ago."  This study does tell us something important: "We need fewer broken homes among gays, just as we do among straights.  We need to study Regnerus's sample and fix the mistakes we made 20 or 40 years ago.  No more sham heterosexual marriages.  No more post-parenthood self-discoveries.  No more deceptions. No more affairs.  And no more polarization between homosexuality and marriage.  Gay parents owe their kids the same stability as straight parents."

Saletan concludes: "Kids do better when they have two committed parents, a biological connection, and a stable home.  If that's good advice for straights, it's good advice for gays, too."

In an essay for Slate posted the same day as Saletan's, Regnerus recognized Saletan's conclusion as one possible lesson from the research: "the instability detected in the NFSS could translate into a call for extending the relative security afforded by marriage to gay and lesbian couples" by legalizing same-sex marriage.

But Regnerus also saw that one could draw a different lesson: "it may suggest that the household instability that the NFSS reveals is just too common among same-sex couples to take the social gamble of spending significant political and economic capital to esteem and support this new (but tiny) family form while Americans continue to flee the stable, two-parent biological married model, the far more common and accomplished workhorse of the American household, and still--according to the data, at least--the safest place for a kid."  Clearly, this second lesson is the one favored by Regnerus.

Saletan and Regnerus agree with Aquinas that a household headed by two biological parents in a stable marriage is the best family structure to provide parental care.  Saletan and Regnerus disagree with one another, however, as to whether a stable and committed same-sex marriage with children can show at least a "likeness" to the natural parental care of children in a heterosexual marriage.

In my next post, I will say more about the debate over Regnerus's study.


Aquinas, Thomas. Summa Theologica.  Available online.

Moore, Kristin Anderson, Susan M. Jekielek, and Carol Emig. 2002. "Marriage from a Child's Perspective: How Does Family Structure Affect Children, and What Can We Do About it?"  Trends in Child Research Brief.  June 2002.  Available online.

Regnerus, Mark. 2012. "Gay Parents: Are They Really No Different?" Slate.com. June 11, 2012.  Available online.

Saletan, William. 2012. "New Family Structures Study: Is Gay Parenthood Bad?  Or is Gay Marriage Good?"  Slate.com. June 11, 2012.  Available online.

Saturday, March 16, 2019

The Darwinian Science of Same-Sex Marriage in Thomisitc Natural Law

On April 4-6, I will be lecturing at Saint Vincent College (Latrobe, PA) as part of a conference on "Science, Human Nature, and Public Policy."  Of the nine speakers for this conference, I foresee that I will be the only one arguing in favor of the modern scientific understanding of human nature as applied to public policy.  As often happens with me at such gatherings of conservatives who think modern science is the enemy, I will probably be everyone's punching bag.  This is likely to be similar to what happened a few years ago at a conference at Berry College organized by Peter Lawler on "The Science of Virtue."  I wrote about it here.

I will write a paper entitled "The Darwinian Science of Same-Sex Marriage in Thomistic Natural Law."  I will defend seven claims.

1. Thomistic natural law is rooted in biological science, because natural law corresponds to four levels of the natural inclinations of human biological nature.  (I have a post on that here.)

2. Darwinian science largely confirms this four-leveled conception of human nature.  (I have posts on that here and here.)

3. The biological character of Thomistic natural law is clearly manifest in the natural law of marriage.  (I have a post on that here.)

4. While Darwinian science largely confirms Thomas's natural law of marriage, it denies Thomas's claim that homosexuality is "contrary to nature" as indicated by the fact that no nonhuman animals show homosexuality.  (I have posts on that here and here.)

5. Justice Anthony Kennedy's opinion in Obergefell v. Hodges (2015) favoring same-sex  marriage as a constitutional right is implicitly, although not explicitly, a Thomistic natural law argument.  (I have posts on that here and here.)

6. The debate over same-sex marriage turns on empirically falsifiable predictions about whether same-sex marriages can satisfy the natural inclinations of marriage without harming children or weakening heterosexual marriage.

7. At this point in history, the scientific study of the relevant empirical evidence is inconclusive on this debate over same-sex marriage; and we might need 15-25 years of experience with legalized same-sex marriages to give us the evidence we need to settle the debate.  (I have some posts on this herehere, and here.)

Some of my material for this paper will be drawn from a paper I prepared two years ago for a symposium on "Law as a Guide to Justice" at the University of Cambridge.  I wrote about that here.

At the Saint Vincent conference, Mark Regnerus will be one of the speakers.  He is the author of a controversial study claiming that there is empirical evidence that same-sex parenting harms children.  I have written a post on that, and in my next post I will say more about it.

Sunday, March 10, 2019

The Natural Right to Punish Cheaters Among Bacteria

In our discussion of the evolution of morality at the Liberty Fund conference in Tucson, some discussants complained that Ridley's account of the spontaneous evolution of morality did not recognize the importance of reason in moral judgment.  Ridley says a lot about Adam Smith's emphasis on moral sentiments, but he ignores Smith's recognition that the moral sentiments are guided by moral reasoning.

In response to this, Ken Blanchard (a political scientist at Northern State University, Aberdeen, South Dakota) said that evolutionary morality is always rational in the sense that there is some evolutionary logic in morality, even when there is little or no conscious reasoning involved.  For example, he observed, there is an evolutionary logic of justice even among bacteria.  All dead organic material is potential food for bacteria.  But the large organic molecules must be broken down by bacteria secreting enzymes that break up proteins and peptides, so that the smaller molecules can then be absorbed through the bacterial cell membranes.  Through "quorum sensing," bacteria communicate their presence to one another by secreting signaling molecules, detecting changes in concentration of signaling molecules, and then regulating the transcription of genes in response.  Once the signaling molecules exceed a certain threshold level (the quorum), this triggers changes in gene expressions.  In this case, it triggers the secretion of enzymes for dissolving the organic material into nutrients that can be consumed by the bacteria.  But since secreting enzymes is costly for bacteria, evolution can favor the appearance of mutant bacteria that cheat by not secreting the enzymes but then consuming the nutrients generated by the work of the other bacteria that secret the enzymes: the cheaters can thus enjoy the benefits of a public good without paying their fair share of the costs for producing that public good.  To enforce cooperation, bacteria have evolved the capacity for detecting these cheaters and punishing them by secreting cyanide that kills them.  Here then is the evolutionary logic of justice among bacteria in which those who fail to cooperate for the common good are punished.

I now realize that Blanchard was reporting the research of microbiologist E. Peter Greenberg and his colleagues.  Greenberg first introduced the term "quorum sensing" in 1994 to denote the regulation of bacterial gene expression by population sensing (Fuqua, Winans, and Greenberg 1994; Davis 2004).  Thirty years ago, most microbiologists assumed that bacteria could not communicate with one another, and so they could not use communication to coordinate social cooperation.  But now Greenberg and others have shown that just as human beings communicate with words, bacteria communicate with signal molecules, which allows them to cooperate with one another.  This has become part of a new field of research--sociomicrobiology--that studies the social evolution of microorganisms (West et al. 2006).  As with plants and animals, bacterial cooperation is subject to social cheating, and one way to suppress cheating is for bacteria to engage in policing that punishes cheaters.  The bacterium Pseudomonas aeruginosa shows this, because these are the bacteria described by Blanchard, that secrete cyanide to punish social cheaters (Wang et al. 2015).

Policing punishment to enforce social cooperation has been seen in many animals (Clutton-Brock and Parker 1995; Bekoff and Pierce 2009).  For example, among social insects--particularly, ants, bees, and wasps--each worker in the colony would benefit from rearing her own sons, rather than the queen's sons.  But other workers have evolved to prevent this because it reduces the reproductive efficiency of the colony, and the policing workers are more related to the sons of the queen than the sons of other workers.  This has favored an evolutionary selection for policing by workers, who destroy the eggs laid by other workers (Ratnieks, Foster, and Wenseleers 2006).

A different kind of policing has been observed among some primates.  Among pigtailed macaques (Macaca nemestrina), building and preserving social networks requires conflict management.  A small group of individuals who are high ranking in the power structure--alpha males--exercise third-party policing by intervening impartially to control conflicts.  When monkeys come into conflict, a high-ranking individual can intervene with a threat that pacifies the conflict (Flack, de Waal, and Krakauer 2005; Flack, Girvan, de Waal, and Krakauer 2006).

Just as it is with bacteria and other animals, human beings have a naturally evolved propensity to punish cheaters who violate the social contract that supports social cooperation.  Lucretius recognizes this when he speaks of how justice originated when our early human ancestors formed "common pacts of peace" neither to harm nor be harmed, and here he follows Epicurus who taught that natural justice is "a pledge of reciprocal usefulness, neither to harm one another nor be harmed," which is enforced by the fear of punishment of those who violate this social contract (5.1012-1025).  This is the evolutionary Epicurean morality that Nietzsche promoted in Human, All Too Human.  This also corresponds to Locke's teaching about the "executive power of the law of nature"--the natural right to punish cheaters who violate the law of nature.

Extensive cross-cultural experimental research by evolutionary psychologists has shown that human beings are very good at detecting cheaters in a social exchange.  This has led them to conclude that one of the evolved mechanisms of the human brain is a cheater detection module (Cosmides & Tooby 1992, 2016; Van Lier, Revlin, De Neys 2013).

This suggests that Darwinian natural right as enforced by the natural right to punish cheaters could have appeared in some form very early in the evolutionary history of life--perhaps with the first bacteria.

Some of these points have been developed in other posts--on bacterial morality (here), on the Lockean right to punish cheaters (herehere, and here), and on Nietzsche's evolutionary morality (here and here).


Bekoff, Marc, and Jessica Pierce. 2009. Wild Justice: The Moral Lives of Animals. Chicago: University of Chicago Press.

Clutton-Brock, T. H., and G. A. Parker. 1995. "Punishment in Animal Societies."  Nature 373: 209.

Cosmides, Leda, and John Tooby. 1992. "Cognitive Adaptations for Social Exchange." In J. H. Barkow, Leda Cosmides, and John Tooby, eds., The Adapted Mind: Evolutionary Psychology and the Generation of Culture, 163-228.  Oxford: Oxford University Press.

Cosmides, Leda, and John Tooby. 2016. "Adaptations for Reasoning About Social Exchange." In David M. Buss, ed., The Hundbook of Evolutionary Psychology, 2nd ed., 2 vols., 2:625-68. Hoboken, N.J.: John Wiley.

Davis, Tinsley H. 2004. "Biography of E. P. Greenberg."  Proceedings of the National Academy of Sciences 101: 15830-15832.

Flack, Jessica C., Frans de Waal, and David C. Krakauer. 2005. "Social Structure, Robustness, and Policing Cost in a Cognitively Sophisticated Species." The American Naturalist 165: E126-E139.

Flack, Jessica C., Michelle Girvan, Frans de Waal, and David C. Krakauer. 2006. "Policing Stabilizes Construction of Social Niches in Primates."  Nature 439: 426-29.

Fuqua, W. Claiborne, Stephen C. Winans, and E. Peter Greenberg. 1994. "Quorum Sensing in Bacteria: the LuxR-LuxI Family of Cell Density-Responsive Transcriptional Regulators." Journal of Bacteriology 176: 269-75.

Ratnieks, F. L. W., K. R. Foster, and T. Wenseleers. 2006. "Conflict Resolution in Insect Societies." Annual Review of Entomology 51: 581-608.

Van Lier, Jens, Russell Revlin, and Wim De Neys. 2013. "Detecting Cheaters Without Thinking: Testing the Automaticity of the Cheater Detection Module." PLoS ONE 8 (1): e53827.

Wang, Meizhen, Amy L. Schaefer, Ajai A. Dandekar, and E. Peter Greenberg. 2015. "Quorum Sensing and Policing of Pseudomonas aeruginosa Social Cheaters." Proceedings of the National Academy of Sciences 112: 2187-2191.

West, Stuart, Ashleigh S. Griffin, Andy Gardner, and Stephen P. Diggle. 2006. "Social Evolution Theory for Microorganisms." Nature Reviews Microbiology 4: 597-607.

Friday, March 08, 2019

The Evolutionary Lucretian Liberalism of Spontaneous Order: A Liberty Fund Conference

The Liberty Fund conference in Tucson last week on "Lucretius, Evolutionary Morality, and Spontaneous Order" helped me to think through the idea of evolutionary Lucretian liberalism.

The question for this conference was whether an evolutionary study of cosmic history--from the origin of the universe to the present and into the distant future--supports the claim of classical liberalism that order emerges best from the bottom up through spontaneous evolution rather than from the top down through intelligent design and planning.

The fundamental thought is conveyed in one passage of Lucretius's On the Nature of Things: "Nature is seen, free at once, and quit of her proud rulers, doing all things by herself spontaneously [per se sponte omnia], without control of gods" (2.1090-93).  Matt Ridley sees this Lucretian teaching as a general theory of evolution that applies the classical liberal principle of spontaneous order to everything in the universe: "the physical world, the living world, human society, and the morality by which we live all emerged as spontaneous phenomena, requiring no divine intervention nor a benign monarch or nanny state to explain them" (The Evolution of Everything, 8).  The French physiocrats expressed this thought in a motto: Laissez faire et laissez passer, le monde va de lui meme! (Let do and let pass, the world goes on by itself!)  The alternative position is the Platonic teaching that all natural and social order requires intelligently designed planning from the top down.

With selected readings from Lucretius, Ridley, and Christian, Brown, and Benjamin's Big History, we talked about a wide range of topics over six sessions:

1. The Evolution of the Origin of the Universe
2. The Evolution of Life, Mind, and Culture
3. The Evolution of Morality
4. The Evolution of Religion
5. The Evolution of the Economy and Government
6. The Evolution of the Future

There were at least four kinds of criticism of the idea of Lucretian evolutionary liberalism.  The first criticism arose from the Straussian interpretation of Lucretius as an "ancient" philosopher, who therefore cannot rightly be identified as a "modern" liberal thinker.  I have responded to this criticism in my previous post.  After thinking more about this, I now believe that a crucial issue here is whether one can see Lucretius as drawing from an ancient Greek tradition of liberalism, as set forth by Eric Havelock in his Liberal Temper in Greek Politics, or whether Strauss was right in arguing that Havelock failed to identify any Greek thinker as a true liberal.  It seems to me that Havelock did identify in some of the pre-Socratic philosophers the evolutionary liberal idea of spontaneous order that was developed by Lucretius.

The second kind of criticism of evolutionary liberalism came from the traditionalist conservatives, who complained that this view of the world was morally, intellectually, and spiritually degrading--that it led to Nietzsche's "last man," who lives a comfortable life without any aspiration for anything high or noble.  The "Big History" of evolution that we were studying, one discussant observed, is actually a "small history" of small people in a soulless world with no transcendent longings.  This discussant also noted that in all of our reading nothing was said about the "regime"--Aristotle's politeia understood as the political community devoted to forming the human soul to achieve its highest virtues.

This is the conservatism of the Counter-Enlightenment with its scorn for the bourgeois liberalism and the scientific materialism that create a life of mediocrity without excellence.  In previous posts, I have responded to this Counter-Enlightenment attack on liberalism in my comments on Steven Smith (here), Roger Scruton (here), Patrick Deneen (here), and Benjamin Wiker (here).  I have also responded to the common appeal to Nietzsche's "last man" image by pointing out that the Nietzsche of Human, All Too Human defends an Epicurean evolutionary liberalism that recognizes the moral dignity of the bourgeois virtues (here and here).  Moreover, I have argued that those who sneer at the mediocrity of the bourgeois life need to confront Deirdre McCloskey's argument for the bourgeois virtues as including all of the moral, intellectual, and spiritual virtues (here).

As I have indicated in some of these posts, this debate over the virtues and vices of evolutionary liberalism ultimately comes down to an empirical question about the facts of human history: Has life in the illiberal regimes been generally more or less civilized than life in the liberal regimes?  As summarized by Ridley (28-33), people like Steven Pinker and Norbert Elias have presented historical evidence that the move from the illiberal social orders of the European Middle Ages to the liberal social orders of modern Europe was a "civilizing process," in which the moral standards of life improved.  The conservative critics of classical liberalism would have to prove that the factual evidence of history does not support this claim.  They would also have to recommend illiberal alternatives to liberalism.

A third criticism coming from the traditionalist conservatives was that evolutionary liberalism seems to assume a na├»ve progressivism that is denied by the fact that the cosmic and cultural evolution of history does not show inevitable and linear progress.  The authors of Big History present the entire history of the universe from the Big Bang to the present as a movement from simplicity to complexity through eight thresholds of increasing complexity.  Although they never mention Herbert Spencer, he also argued for a cosmic evolution from simplicity to complexity, from homogeneity to heterogeneity.  The authors of Big History rely on astronomer Eric Chaisson's claim that the cosmic history of increasing complexity can be studied through the measurable matrix of increasing flows of energy required to sustain more complicated structures against the entropy of the Second Law of Thermodynamics.

But eventually, according to the prevailing view of scientists, the universe must end in "heat death," because entropy will win.  Life on Earth will become impossible.  In 4 to 5 billion years, the Sun will die.  Over hundreds of billions of years, all the stars will fade out.  And with no stars, there will be no planets, and thus no biospheres to support life anywhere.  The universe will continue to expand forever into eternal darkness.  Entropy will have finally destroyed all structure and order.  For those scientists who believe our universe is part of a larger multiverse, other universes might continue to evolve.

Similarly, Lucretius offers four proofs that while the universe of atoms and the void--the "sum of sums" (summarum summa)--is eternal, our "world" (mundus) is mortal (5.235-415).  Our world as constituted by the Earth, all life on Earth, the Sun, the moon, and the stars will endure for a long time, but eventually it must all die.  New worlds can then arise out of atoms and the void.

Lucretius says that most human beings are afraid of this teaching that the world is mortal.  Earthquakes are especially fearful because they suggest the possibility that the Earth could be destroyed.  And "men fear to believe that a time of destruction and ruin awaits the nature of the great world, even when they see no great a mass of earth bowing to its fall" (6.565-68).

Leo Strauss quoted this as showing "fear of the most terrible truth"--the terrible truth that "nothing lovable is eternal or sempiternal or deathless, or that the eternal is not lovable" (Liberalism Ancient and Modern, viii, 135).  Strauss believed that only the few human beings capable of living the philosophic life can calmly accept this most terrible truth; and so in any healthy social order, this terrible truth would have to be hidden from the great multitude of human beings who cannot bear it.

Since Big History was written as a textbook for high school and college students, the authors must disagree with Strauss's claim that most human beings cannot bear the truth about the mortality of the world.  The authors admit that their view of the remote future as the "eternal death" of the universe is a "bleak picture."  And yet they try to see this as a "quite satisfying" picture for human beings, because it indicates that humanity has been lucky enough to live in "the springtime of the universe," the brief time when the universe has had all of the conditions for producing the wondrous world in which life and human beings could exist (304).

But rather than worrying about cosmic history many billions of years into the future, most human beings are surely more inclined to worry about the near future--the next hundred years or so--because they might imagine what the world will be like for their children and grandchildren.  With this in mind, our discussion turned to a consideration of whether we should be hopeful or gloomy about how well human beings in the near future will handle environmental problems such as global warming and the scarcity of natural resources and the threats from destructive technologies such as nuclear and biological weapons.

The authors of Big History sketch two alternative scenarios for "ominous trends" and "hopeful trends."  For the "ominous trends," they rely on gloomy predictions about the "limits to growth" by people like Lester Brown.  This kind of thinking has led people like Naomi Klein to argue that the only solution to our environmental problems as created by unregulated capitalism is to have "managed degrowth" to drastically reduce global production and consumption and then to execute a global plan for spending at least 10% of our global economic output on building renewable sources of energy to replace all high-carbon sources.

Against this sort of thinking, Ridley is clearly on the side of the "hopeful trends" scenario, because he believes that as long as there are free market incentives for solving environmental problems, there are likely to be innovative technological changes that will protect human beings from catastrophe. (I have written a post on the debate between Klein and Ridley here.)  As always, the key for Ridley is to allow for spontaneous cultural evolution:  "It is a fair bet that the twenty-first century will be dominated mostly by shocks of bad news, but will experience mostly invisible progress of good things.  Incremental, inexorable, inevitable changes will bring us material and spiritual improvements that will make the lives of our grandchildren wealthier, healthier, happier, cleverer, cleaner, kinder, freer, more peaceful and more equal--almost entirely as a serendipitous by-product of cultural evolution.  But the people with grand plans will cause pain and suffering along the way" (319-20).

Some of the discussants at the Liberty Fund conference agreed with this--thinking that as long as people were free to cooperate in spontaneously ordered groups, they could find imperfect solutions to their problems.  For example, one discussant spoke about Elinor Ostrom's studies of how neighbors cooperate to enforce social norms for managing common pool resources in ways that solve the "tragedy of the commons."

But at this point, some discussants brought up a fourth criticism of evolutionary liberalism--the fanaticism of Ridley's claim that everything good comes from bottom-up evolution, and everything bad comes from top-down planning.  Ridley declares: "bad news is man-made, top-down, purposed stuff, imposed on history.  Good news is accidental, unplanned, emergent stuff that gradually evolves.  The things that go well are largely unintended; the things that go badly are largely intended. . . . Letting good evolve, while doing bad, has been the dominant theme of history" (317-18).

While agreeing with Hayek about the importance of spontaneous order, Ridley ignores Hayek's claim that good order often does emerge top-down by design in deliberate organizations.  Families, firms, governments, military organizations--these are all deliberately designed forms of order.  And particularly in time of war, Hayek thought, a society might need to be centrally planned for warfare.

As I have indicated in a previous post (here), Ridley's version of evolutionary liberalism suffers from one fundamental flaw--an almost anarchistic scorn for government.  Unlike Hume, Smith, Darwin, and Hayek, Ridley fails to see that although governmental power is dangerous when it is unlimited and undivided, the spontaneous order of human civilization can arise only within a framework of general rules deliberately designed and enforced by government. 
Although Ridley has a short section on the evolution of marriage (85-90), he says nothing about the Hayekian account of the family as a deliberate organization rather than a spontaneous order.  I have written about that here and here.

Like Hayek, Ridley points to the evolution of the common law as an example of spontaneous order that shows how law can emerge without any need to be invented by lawmakers (33-36).  But Ridley is silent about Hayek's argument that the common law as "grown law" often needs correction by legislation as "made law" (Law, Legislation, and Liberty, vol. 1, 88-89).

I now regret that at this Liberty Fund conference we did not talk about the evolution of government, legislation, and the family as deliberate orders. We should have thought more about how the evolution of a free society requires both spontaneous order and deliberate order.

Some discussants suggested that good things can come either bottom-up or top-down.  One discussant pointed to Ridley's account of how Hong Kong became a place of free trade.  Sir Harry Pottinger, Hong Kong's first Governor in 1843, promoted free trade.  Then, in the 1960s, Sir John Cowperthwaite, the Financial Secretary of Hong Kong, resumed this experiment in free trade (233-34).  So here we see how top-down administrators can create the open space for bottom-up emergence of order.

Despite these four lines of criticism, it seemed that most of the discussants at this Liberty Fund agreed that the evolutionary science of the cosmos, culture, and mind can support classical liberalism.

Tuesday, February 26, 2019

The Straussian Denial of Evolutionary Lucretian Liberalism

I will soon be leaving for Tucson, Arizona, where I will be directing a Liberty Fund conference on "Lucretius, Evolutionary Morality, and Spontaneous Order."  We will be staying at the beautiful Loews Ventana Canyon Resort.  Our six discussion sessions will center on readings selected from three books--Lucretius's On the Nature of Things, Matt Ridley's The Evolution of Everything, and David Christian, Cynthia Stokes Brown, and Craig Benjamin's Big History: Between Nothing and Everything.

Going to a Liberty Fund conference is one of the great joys of my life. I get to sit around a table with 14 very smart people talking about texts that raise deep questions about the historical, philosophic, scientific, theological, and psychological implications of human liberty.

In this case, we will talk about how Lucretius's atomist science of nature might support a natural history of the evolution of everything, and of how human morality, politics, religion, and mind might fit within that Big History.

In particular, I am interested in the possibility of understanding Lucretius as a premodern forerunner of modern evolutionary liberalism.  I have written many posts on various aspects of this thought--some of them can be found hereherehereherehere, and here.

I foresee that many (maybe most) of the participants will disagree with me.  In particular, I know that John Colman-the author of Lucretius as the Theorist of Political Life--disagrees with me, because his book advances a Straussian interpretation of Lucretius as an ancient political philosopher who was mistakenly appropriated by modern political philosophers to serve their modern project for progress through political enlightenment and technological science.

Prior to Machiavelli, the Straussians assume, the ancient political philosophers saw the philosophic life as the only naturally good life, and they saw that contemplative life of the few people devoted to the truth as opposed to the social life of the many based on common moral, political, and religious opinions that cannot survive rational questioning.  But beginning with Machiavelli, modern political philosophers have sought to close the gap between philosophy and the city by promoting a modern liberal social order in which there is freedom of thought and religious toleration, and philosophy is turned towards natural science and technology that gives human beings a mastery of nature that is popular because it makes the life of the multitude more secure and prosperous than it has ever been.

If one accepts this stark Straussian separation between ancients and moderns, then one must be surprised that so many modern philosophers have been deeply influenced by Lucretius, which has been confirmed by much of the recent scholarship on the history of Lucretius's influence.  Colman admits that the long list of modern philosophers influenced by Lucretius includes Montaigne, Machiavelli, Bayle, Descartes, Bacon, Hobbes, D'Holbach, and Helvetius; and he also admits that these were true philosophers living the contemplative life.  But still Colman argues that Lucretius was not a modern thinker at all, and therefore the modern philosophers influenced by Lucretius were mistaken in that they did not understand Lucretius's true teaching.

Colman says nothing about the most obvious objection to his reasoning--the implausibility of his assumptions that Lucretius was unable to write his book so as to convey his true teaching to his philosophic readers, that all of his early modern philosophic readers were unable to correctly identify his teaching, and that for the first time in history some Straussian scholars have recently uncovered the true teaching that Lucretius failed to convey to his earlier philosophic readers.

Moreover, Colman says nothing about the fact that even Leo Strauss suggested some disagreement with these assumptions.  In Strauss's book Liberalism: Ancient & Modern, the central chapter and the longest chapter is his "Notes on Lucretius," thus implying that the Epicureanism of Lucretius anticipates modern liberalism.  In the Preface of the book, Strauss noted the modernity of ancient Epicureanism:
"The most extensive discussion is devoted to Lucretius' poem.  In that poem, not to say in Epicureanism generally, premodern thought seems to come closer to modern thought than anywhere else.  No premodern writer seems to have been as deeply moved as Lucretius was by the thought that nothing lovable is eternal or sempiternal or deathless, or that the eternal is not lovable.  Apart from this, it may suffice here to refer to Kant's presentation of Epicureanism as identical with the spirit of modern natural science prior to the subjection of that science to the critique of pure reason" (viii).
And yet, Strauss worried about the sadness of this Epicurean teaching--that the world that we love is not eternal, because every world is mortal within the eternal universe of atoms in motion.  He identified this as "the most terrible truth" (85, 100, 135).  He thought that philosophers can live with this truth with a tranquil mind.  But most human beings cannot.  And consequently most human beings can find peace of mind only through the pleasing delusion of a religious belief that the world of human concern is supported by a loving intelligent designer.

Although Colman refers repeatedly to Strauss's study of Lucretius, he never refers to this remark about the modernity of ancient Epicureanism.  What Colman does say implies that Strauss was just wrong in seeing Epicurus and Lucretius as coming close to modern thought.

For example, Colman argues that while Francis Bacon seemed to be influenced by Lucretius, Bacon was mistaken in his reading of Lucretius, and he failed to see how his teaching contradicted the teaching of Lucretius.   According to Colman, Bacon rejected Lucretius's teaching that the philosophic life was the highest life: "Bacon's judgment about the fruitlessness of classical philosophy precluded him from praising the delight in knowledge for its own sake" (141).  Unlike Lucretius, Colman  claims, Bacon promoted the advancement of technological knowledge that could lead to the human mastery of nature for the relief of the human estate.  Bacon sought to overcome the limits of nature through technological power.  By contrast, Lucretius taught "the impossibility of overcoming natural necessity and chance through political and technological means" (141).

There are three problems with Colman's reasoning here.  The first problem is that far from rejecting the Lucretian claim that philosophic knowledge is the highest life, Bacon repeatedly affirmed that a life of pursuing and contemplating truth is "the sovereign good of human nature" (2002, 342).  He argued for a union of contemplation and action, so that neither is subordinated to the other (2002, 148-150, 155, 167, 222, 439).

The second problem is that contrary to Colman's claim that Bacon saw human technological power as unlimited by nature, Bacon was clear that human creation is always limited by nature.  Only God can create ex nihilo or destroy in nihilo (2002, 190-91).  Human beings command Nature only by obeying her.  "All that man can do to achieve results is to bring natural bodies together and take them apart; Nature does the rest internally" (2000, 33).

The third problem is that Lucretius agrees with Bacon in seeing the importance of technological progress in human evolutionary history, which is most fully set out in Book 5 of On the Nature of Things (5.925-1455), where he recounts the history of discoveries and inventions such as the use of fire, language, and farming.  Colman recognizes this (104-113).  But then he asserts: "According to Lucretius, man's technological and artistic productions are no match for the power of nature.  Thus the account of the development of the arts that concluded Book V is corrected by the finale of Book VI, which speaks of natural cataclysms and plague" (139).  Here Colman is referring to the account of the horrible suffering caused by the plague in Athens, which is how Lucretius ends his book.

Colman doesn't explain how Lucretius's account of the plague "corrects" his account of technological progress in Book 5.  Presumably, Colman's suggestion is that the suffering of the Athenians in the plague "corrects" any belief that human beings can ever have such absolute power over nature as to protected from all the natural causes of suffering.  But neither Lucretius nor Bacon ever claim that human beings can have such absolute power over nature.  Rather, their claim is that improvements in the human knowledge of natural causes can increase human power for the relief of the human estate, but without ever achieving absolute power, which would require absolute knowledge.

Colman notes that following Thucydides' account of the plague, Lucretius observes that medical doctors were of no use because they were ignorant of the natural causes of the disease.  But Colman is silent about Lucretius's explanation of diseases such as plagues as caused by germs (or "seeds") that are invisible to ordinary human vision (6.30, 665, 1090-1131).  Thus, Lucretius was the first philosopher to suggest the germ theory of diseases.  And by suggesting this just before his account of the plague, he suggests to his careful readers the thought that once scientists identify the germs that cause plagues, human beings can increase their power to protect themselves against such diseases.  This is exactly what Bacon had in mind.  And as I have indicated in a previous post (here), the medical science of how microscopic bacteria and viruses cause diseases like the plague have helped to improve human health, and this has become one of the great benefits of the modern Liberal Enlightenment.

So can the Straussian scholars recognize that in this and other ways the Liberal Enlightenment has succeeded?  It's not clear.  Generally, Strauss and his followers insist that liberalism must fail because it denies the natural fact of the contradiction between social order and philosophic truth, so that every social order must be closed to any philosophic or scientific enlightenment.  A crucial consequence of this natural fact is the necessity and desirability of esoteric writing: philosophers or scientists seeking the truth about nature must write and speak in such a way as to hide their true teaching from the multitude of people who would be harmed by this teaching.

But recently some Straussian scholars have conceded that he Liberal Enlightenment has become so successful that esoteric writing is no longer necessary or desirable.  As I have indicated in some previous posts (here and here), Arthur Melzer has shown that Strauss was right about the importance of esoteric writing up to about two hundred years ago.  But Melzer has also indicated that esoteric writing began to disappear around 1800, and today most of us in the modern liberal open societies regard esoteric writing as neither necessary nor desirable, because Liberal Enlightenment has succeeded.  If this is so, then Strauss was wrong about the necessary failure of the modern project.

In his best-selling book on Lucretius as the creator of modernity (The Swerve), Stephen Greenblatt proclaimed: "We are all Epicureans now."  One evident manifestation of this is that Lucretius's teaching of the atomist science of the cosmos as a spontaneous natural order unguided by any divine design has become the popular cosmology for our societies today, and in the open societies today there is no attempt to suppress this teaching as subversive to social and religious order.

"The Cosmos is all that is or ever was or ever will be."

In 1980, that was the first line spoken by Carl Sagan beginning his thirteen-part television series Cosmos, which became one of the most-watched series around the world for the Public Broadcasting System.  The book Cosmos became one of the most popular science books ever written.  It was a comprehensive presentation of how modern scientists understand the natural history of the universe over 14 billion years.  Sagan was clear in his rejection of any conception of the universe as requiring divinely intelligent design.  In the 2013 edition of Cosmos, Ann Druyan (Sagan's wife) pointed to the significance of the opening line: "Some religious fundamentalists found that first line offensive.  To them it was a shot across the bow that Carl was out to steal their thunder.  They were on to something."

In 1996, Sagan wrote another best-selling book The Demon-Haunted World: Science as a Candle in the Dark.  One of his epigrams in the book was from Lucretius: "As children tremble and fear everything in the blind darkness, so we in the light sometimes fear what is no more to be feared than the things children in the dark hold in terror."

In 2014, Neil deGrasse Tyson, an astrophysicist, hosted the television successor to Sagan's Cosmos, which was entitled Cosmos: A Spacetime Odyssey.  The book tied to the television series--Origins: Fourteen Billion Years of Cosmic Evolution--has only one epigram, which is a quotation from Lucretius: "The world has persisted many a long year, having once been set going in the appropriate motions.  From these everything else follows."  Tyson used the same epigram for his 2017 book Astrophysics for People in a Hurry.  He has become one of the most widely-read authors of popular science books.

So why aren't these Lucretian scientist-philosophers like Sagan and Tyson being persecuted?  Or why hasn't the fear of persecution forced them to write esoterically?  Isn't the answer clear--the success of the Liberal Enlightenment allows for the popular promulgation of Lucretian natural philosophy without any fear that this will subvert the social order?

Modern liberalism has created more public freedom of speech for teaching Lucretian science than ever before in history.  And yet even in the ancient polytheistic world of Greece and Rome, Epicurus and Lucretius were remarkably free in openly teaching what they thought.  Epicureanism became one of the most popular philosophical movements in the ancient world, even though it was widely identified as atheistic, and the Epicureans were boldly provocative in their public teaching.

In fact they were so bold in their teaching that we might doubt that they were esoteric writers.  Even Colman concedes: "The early modern philosophers were attracted to Lucretius also because they saw in him an unwillingness to make the kind of concessions that the Platonic Socrates or Aristotle had made to the religious opinions of the city.  This may explain why Lucretius does not mention either Plato or Aristotle when discussing his philosophic forbearers and limits himself to a few pre-Socratics" (133).

It was not until the Christian Church took political and cultural power over the world that Epicureanism was suppressed, and the books of Epicurus and Lucretius were banned.  The Church could accommodate the teachings of Platonism, Aristotelianism, and Stoicism, which were absorbed into Christian theology and philosophy.  But the Church could not tolerate Epicureanism in any form.  It was not until a copy of Lucretius's book was found hidden away in a German monastery in 1417 that modern readers finally had access to Lucretius after a thousand years of suppression.  The book was placed on the Church's Index of Prohibited Books.

This suggests that there was more freedom of speech for philosophers in the ancient world--at least for Epicurean philosophers--than Strauss was willing to admit.  In a previous post, I have argued that there was far more freedom of thought for philosophers in Athens than the Straussian scholars have recognized.


Bacon, Francis. 2000. The New Organon. Eds. Lisa Jardine and Michael Silverthorne. Cambridge: Cambridge University Press.

Bacon, Francis. 2002. The Major Works. Ed. Brian Vickers. Oxford: Oxford University Press.

Colman, John. 2012. Lucretius as Theorist of Political Life. New York: Palgrave Macmillan.

Sagan, Carl. 1996. The Demon-Haunted World: Science as a Candle in the Dark.  New York: Ballantine Books.

Sagan, Carl. 2013. Cosmos. New York: Ballantine Books.

Strauss, Leo. 1968. Liberalism Ancient & Modern.  New York: Basic Books.

Tyson, Neil deGrasse, and Donald Goldsmith. 2004. Origins: Fourteen Billion Years of Cosmic Evolution. New York: Norton.

Tyson, Neil deGrasse. 2017. Astrophysics for People in a Hurry. New York: Norton.

Thursday, February 21, 2019

Trump's "Fuhrer Principle" in His Declaration of National Emergency is Unconstitutional

In 1935, the United States was facing a national emergency--The Great Depression--and President Franklin Roosevelt claimed that this national emergency gave him the power to rule by executive decree outside of the lawmaking authority of the Congress.  In 1933, the Congress had delegated its lawmaking power to the President through the National Industrial Recovery Act (NIRA), which effectively allowed the President to centrally plan the economy by creating "codes of fair competition" for various sectors of the economy.  One of these codes was the "Live Poultry Code" that regulated the poultry industry in New York City.

When the Schechter Poultry Corporation was punished for violating this code, they filed a lawsuit challenging the constitutionality of the President's power to enact such codes.  In the Supreme Court case of Schechter Poultry Corp. v. U.S. 295 U.S. 495 (1935), the Court ruled unanimously (9-0) that this was indeed unconstitutional for two reasons--it was an unconstitutional delegation of congressional power to the President, and it was not within the congressional power for regulating commerce among the several states.  This effectively halted Roosevelt's attempt to enact his New Deal policies through executive orders.  A few years later, the Court broadened its interpretation of the Congress's commerce power, which allowed much of the New Deal to go forward, but the Court never reversed its declaration that the Congress cannot delegate its constitutional powers to the President.  As recently as 2011, the Supreme Court cited Schechter as a precedent in Bond v. U.S.

That's bad news for Donald Trump and those who support his Declaration of National Emergency as authorizing him to fund his Wall, because the Schechter decision can be cited in any Supreme Court case as condemning this action as unconstitutional.  (Damon Root has written about this at the Reason magazine website.)  The Court might quote the following passage from Charles Evans Hughes's opinion in Schechter:
"We are told that the provision of the statute authorizing the adoption of codes must be viewed in the light of the grave national crisis with which Congress was confronted.  Undoubtedly, the conditions to which power is addressed are always to be considered when the exercise of power is challenged.  Extraordinary conditions may call for extraordinary remedies.  But the argument necessarily stops short of an attempt to justify action which like outside the sphere of constitutional authority.  Extraordinary conditions do not create or enlarge constitutional power.  The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants.  Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary.  Such assertions of extraconstitutional authority were anticipated and precluded by the explicit terms of the Tenth Amendment.  'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'" (295 U.S. 495, 528-529)
Hughes went on to declare: "The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested."

The Constitution is very clear that the appropriation of money is a congressional power: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law" (Article I, Section 9).  The President cannot constitutionally appropriate money for building a Wall on the southern border without congressional authorization.  The fact that Trump resorted to his Declaration of National Emergency after the Congress had refused to appropriate the money he requested makes his unconstitutional usurpation of congressional power especially evident.

Now, of course, Trump and his supporters will argue that Congress has given him the power to do this under the National Emergencies Act of 1976.  But that only shows that the National Emergencies Act is itself unconstitutional insofar as it delegates congressional power to the President, just as was the case with the NIRA in the Schechter case.

When the Justices in the Schechter case were writing their opinions in 1935, they were doing this in the shadow of Adolf Hitler, who had claimed emergency powers in Nazi Germany since 1933.  The Reichstag Fire of 1933 was used as a pretext to suspend the Weimar Constitution and introduce a state of emergency for four years.  Legislative power was given to Hitler, so that his government could enact laws without a vote in Parliament.  This was all justified by the Fuhrerprinzip ("Fuhrer Principle")--the idea that during a national emergency, there must be a national leader who can rule by executive decree without being bound by law.  Hitler and his supporters also argued that anyone not considered part of the Volksgemeinschaft ("National Community of the People") was outside the law and thus not protected by it.  Sound familiar?

The "Fuhrer Principle" was embraced by the American Progressives, who thought that only the President acting by executive decree could provide the "leadership" necessary for meeting national emergencies.  Woodrow Wilson was the first president to invoke this principle in declaring a national emergency.  So Trump's declaration and his reliance on rule by executive decree shows that he belongs to the Progressive tradition that has created the Presidential Administrative State as a way of overturning the constitutional system of checks and balances.

Remarkably, while Nancy Pelosi and other Democratic leaders in Congress have denounced Trump's declaration as unconstitutional, they have refused to recommend the revocation of the National Emergencies Act as an unconstitutional law.  Instead, acting pursuant to section 202 of that Act, they have proposed a congressional resolution to terminate Trump's declaration.

We can hope that the Supreme Court will invoke the reasoning of the Schechter decision in striking down Trump's "Fuhrer Principle" and the National Emergencies Act as unconstitutional.

Writing in The Atlantic, Elizabeth Goitein has written a good article on "The Alarming Scope of the President's Emergency Powers."