The Evolution of the Natural Desire for Music: Patrick Savage's Comparative Musicology

 

           Bad Bunny's Super Bowl Halftime Show Received Over Four Billion Views 

                                        Snowball the Cockatoo Dances to the Back Street Boys

Last September, I wrote a couple of posts on the natural desire for music and on the political history of Beethoven's 9th Symphony.

I argued that the desire for music is one of the 20 natural desires of our evolved human nature.  It belongs to the category of "aesthetic pleasure from art, music, dance, and storytelling."  But to explain the evolution of music, we need to distinguish music and musicality.  While musicality is biologically universal, music is culturally variable.  Musicality includes components such as melodic, rhythmic, and harmonic cognition; and it is that part of our biological nature that gives human beings in all cultures the capacity and the propensity to generate and enjoy all forms of music.  But music in all its variety is culturally constructed through the biological power of human musicality.  Music then is like language in its biological universality and cultural diversity.  All human beings normally have a biological instinct for learning and using a language.  But different human beings will learn different languages in different cultures.

There are at least five evolutionary theories of music.  For me, the most persuasive one proposes the social-bonding hypothesis that human musicality is a coevolved system for social bonding.  As already indicated, musicality denotes the biological capacities of all human beings that allow us to perceive and produce music.  Social bonding refers to all kinds of affiliative connections that bind two or more people into a group.  Coevolved means that musicality has evolved through a process of gene-culture coevolution.  In my post from last September, I surveyed the five kinds of evidence for this social-bonding theory.  

Since Patrick Savage (a professor at the University of Auckland, New Zealand) is one of the leading proponents of this theory, I was pleased to see that Oxford University Press has just published his new book--Comparative Musicology: Evolution, Universals, and the Science of the World's Music.  Remarkably, this book is freely available as a downloadable pdf file at go.nature.com/4akfrne).

Savage has outlined some of his thoughts in that book in an article--"Music Is Not a Universal Language--But It Can Bring Us Together When Words Fail," Nature 650 (2026): 819-822.  He briefly considers five questions.

1. What can science say about music?  Some scientists have found in cross-cultural anthropological studies evidence that all cultures have something that we can identify as music, which seems to show that music is the "universal language of mankind," as Henry Wadsworth Longfellow observed in 1835.  But some ethnomusicologists have argued that cultural diversity is so deep that there cannot be any human universals.  And others have argued that even if music were universal in some sense, its meanings might not be.  The debate comes down to how we define "music" and "universal."

2.  Can we define music?  In 1997, some ethnomusicologists recorded the sounds of some men in Papua New Guinea engaged in a secret ritual.  It was described as "sounds of large and small friction blocks, a swung slat, ribbon reeds, and human moaners" (see go.nature.com/4abgwjp).  The ethnomusicologists who recorded this thought it was music.  Since this was part of a secret ceremony, the men did not disclose its meaning.  Nor did they even say whether they considered it to be music.  Savage says these sounds do not satisfy a working definition of music as "sound organized into regular pitches or rhythms," which characterizes 99% of the world's music.

3.  Is music uniquely human?  While spoken language is unique to human beings, Savage observes, singing and dancing are not.  Some capacity for singing is found in songbirds and cetaceans.  And dancing--synchronized movements to a beat--is shared with other animals--like the dancing cockatoo Snowball.

4.  Is music a universal language?  Cross-cultural studies have shown that listeners from distant cultures can sometimes detect some of the intended emotional meanings in each other's music.  For example, "fast and energetic music tends to be perceived as happier and is more likely to accompany dancing, whereas slow and less energetic music is often considered sadder and more likely to be used in calming genres, including lullabies."

But this is not always the case.  In one study led by Elizabeth Margulis at Princeton University, scientists curated a same of 32 instrumental music recordings--16 by Western composers and 16 by Chinese ones.  They then asked some 600 participants in the United States and China to describe the kinds of story they imagined as they listened to the music.  For instance, when they listened to an excerpt from Guan Pinghu's Strains of Spring Morning, some Americans thought of "cowboys," while some Chinese people thought of "sorrow" (see go.nature.com/4rvzyw6).  Then, when they heard an excerpt from Ferde Grofe's Sunrise from his Grand Canyon Suite, some Americans heard "birds," while some Chinese people heard "man" (see go.nature.com/46dfoyj).  Like those other Americans, I definitely hear "birds."  But that could be because I know the title is Sunrise.

This seems to show that music cannot be "the universal language of mankind" in any literal sense because the narrative meanings of musical sounds are not transmitted clearly across cultures.  Savage concludes from this that "while music is universal, its meaning is not."

5.  Is music beyond words?  Even though music is not a universal language, Savage argues, it can still be used to improve cross-cultural understanding, because the near universality of music is not in its meaning but in its structure.  Savage et al. (2015) have identified 18 features of musical structure that are widespread in all or almost all cultures.  And here "widespread" means they are "statistical universals"--that is, nearly universal but not absolutely.  Most of these support coordinated music-making:

Throughout the world, humans tend to sing, play percussion instruments, and dance to simple, repetitive music in groups, and this is facilitated by the widespread use of simple-integer pitch and rhythm ratios, scales based on a limited number of discrete pitches (usually no more than 7), and isochronomous beats grouped in multiples of two or three. . . . The widespread use of simple, discrete meters and scales also enables multiple people to memorize and coordinate their performances.  These widespread musical properties have few direct parallels in language.  Group coordination provides a common purpose that unifies the cross-cultural structural regularities of human music (Savage et al., 2021, 8).

This is impressive cross-cultural evidence for the near universality of musicality as an evolved instinct of human nature that supports social bonding.

Savage explains:

These statistical universals are important because they can help us to synchronize and harmonize our singing, dancing or playing to diverse types of music from around the world, even if we have no idea of the intended meaning of the piece.  I have experienced this while participating in genres as diverse as Inuit throat-singing, Ghanaian highlife, Japanese Bon dancing, Māori haka, Papua New Guinean song and Senegalese drumming.

An indication of the intercultural universality of music is how musical traditions from around the world can be blended in pleasing ways.  For me, the most exciting example of this was when my wife and I attended a performance of Yo Yo Ma's Silk Road Ensemble at the Ravinia Festival in Highland Park, Illinois, some years ago.  The Silk Road Ensemble combines Western and Eastern styles of music.  Yo Yo Ma has said that this is his attempt to show how music can bring people from different cultures together as an expression of a shared humanity. 

 

                                                   Yo Yo Ma and the Silk Road Ensemble

A similar example of intercultural music making is related by Savage.  He tells the story of several hundred music scholars from around the world gathering in Wellington, New Zealand, for a conference.  Savage lives in Wellington, and he invited some of these scholars to his home for food and drinks, after which they started singing and playing music from their home countries.  He writes:

My favorite moment was when a colleague who was attending this conference for the first time, Gedisa Jacob, who researches music at the Institute of Papua New Guinea Studies in Port Moresby, started to sing a song from his home in Morobe province (see go.nature.com/4aaxbma).  At first, the rest of us just listened.  But as he moved into the chorus, which used non-linguistic "vocables" such as "oh yah oh" (similar to "tra la la" in English songs), I felt like I was starting to understand the rhythmic and melodic structure, which used the same five-note (pentatonic) scale and four-beat meter found in many songs worldwide.

I started to join in, harmonizing with his melody on the piano.  One of the other guests, Cara Brasted, started to improvise her own complementary melody on the violin.  My dad, Mike Savage, started to improvise on his guitar and my student, Marin Naruse, joined in on her sanshin (an instrument originating from her home, the Amami Islands in Japan).  Gradually, more of us joined in, singing and playing together: "Oh yah ooooh oh yah oh."

None of us, other than Jacob, had any idea what the song was about.  Afterwards, he explained that it concerns the mayam tree, the leaves of which his people use to make traditional medicines.

But it really didn't matter.  Singing and playing these near-universal scales and rhythms collectively had bonded us together in ways that couldn't be expressed in words.  That is the power of music.  Music is not a universal language--but it can bring us together when words fail.

But then Savage concludes by suggesting that Darwin might have been right in proposing that language originally evolved out of music: "Even if music is not a universal language, it might hold the key to understanding the origins of language--and perhaps even what makes us human."

Imagine that our earliest Paleolithic ancestors had music but not language.  And then one day, while they were making music together, someone sang "Oh yah ooooh oh yah oh."  Could that singing have become the words of a protolanguage--once they agreed to associate "Oh yah ooooh oh yah oh" with the leaves of a tree that had some medicinal powers? 

A similar thought is suggested by Beethoven's 9th Symphony.  When the baritone soloist first shouted "Oh friends, not these sounds!", that was the first time that a singing voice had entered a symphony.  The search for "more joyful sounds" required a combination of instrumental and vocal music--a choral symphony.  Thus did the 9th Symphony perhaps suggest the evolutionary emergence of language out of music through singing.

The natural desire for speech could thus have evolved out of the natural desire for music.

Dictator Trump Launches an Unconstitutional War for Regime Change in Iran--A Military Duty to Disobey?

 

Trump Announces His War Against Iran in an 8-minute Video on "Truth Social"

At 2:30 am Eastern time, Trump announced his war against Iran in this 8-minute video.  He repeatedly spoke about the evil of "this regime" over 47 years--beginning in 1979 when the Ayatollah Ruhollah Khomeini led the Iranian revolution that overthrew the Shah of Iran and established the Iranian Islamic Republic that would propagate its theocratic ideology across the Muslim world.  Trump emphasized Iran's leadership of terrorist networks that have killed so many people, including some Americans.

Trump announced three objectives for this war.  First, he promised that he would "annihilate their navy" and their military.  Second, he said that he would "obliterate" their nuclear program because "Iran can never have a nuclear weapon."  Third, he spoke to the Iranian people about how no president had ever tried to help them overthrow their oppressive regime, but now he will give them the chance to take over the government: this will be "the hour of your freedom," he declared, and "this will be probably your only chance for generations."  For these reasons, Trump pronounced this a "noble mission."

This raises at least five questions.  By what authority does Trump launch this war?  Didn't he say last June that he had "obliterated" Iran's nuclear capability through bombing its nuclear facilities?  Does Trump have a coherent foreign policy with respect to wars for "regime change"?  Is this war part of a bigger global struggle?  Do the military personnel in this war have a constitutional duty to obey unconstitutional orders from Trump?

The answer to the first question is obvious: he has no constitutional authority to start this war.  Only Congress can declare war.  Not only has Trump not asked for a congressional declaration, he has not even consulted with Congress about this, nor has he made any attempt to explain to the American public why this war is necessary.  Now, of course, historically Congress has allowed presidents to go to war without a declaration from Congress, but some members of Congress have recently proposed resolutions that Trump cannot go to war with Iran without some kind of congressional approval.  The critical point here is that the framers of the Constitution were clear that while the British king had the power to declare war, the American president should not have that kingly power.  But once again we see here that Trump wants to be a king, or even an absolute dictator, who can declare wars by sending out a social media post at 2:30 am in the morning.

As to the second question--about Trump's claim in June that he had "obliterated" Iran's nuclear facilities--I wrote about this in a post last June.  I noted then that Trump was lying, and that within six months Iran could be near to producing nuclear bombs.  Now, Trump implicitly admits that he was lying then, because he says that he needs to "obliterate" their nuclear capacity once again.  But why then should anyone believe anything he says when he lies so shamelessly?

The answer to the third question about whether Trump has a coherent foreign policy is obviously No.  One of his signature foreign policy principles when he was campaigning for office was that the U.S. should never go to war in foreign places for "regime change," because that had so clearly failed in Iraq and Afghanistan.  Our American military personnel should never have to risk their lives in such foolish projects, Trump has said.  But now, this morning, he said in his video that Americans will die in this war, and we will have to accept this.  So what we see here is that when you have a dictator like Trump who is so erratic that he changes his mind from moment to moment depending on who spoke to him most recently, you will see him launching wars for "regime change" whenever some foreign policy hawk (or Benjamin Netanyahu) has whispered this into his ear.

It is true, however, as I said last June, that the U.S. attacking Iran can look like a "noble mission" if we see Iran's place in the global struggle between liberalism and illiberalism.  Iran is leading a network nations and Islamic extremist groups supporting illiberal autocratic systems in a struggle against the liberal pluralist systems led by the United States.  But it becomes a question of prudence as to whether a military invasion of Iran is the best way to defeat the illiberal network that Iran leads.  How likely is it that the Iranian people will overthrow the Islamic regime and establish a stable liberal regime in its place?  Or will the war drag on for many years--as it did in Iraq and Afghanistan--without a successful "regime change"?

And how can Trump take the side of liberalism in its global struggle with illiberalism when Trump himself has scorned liberalism and has devoted himself to destroying the liberal international order?  Or has Trump changed his mind a few hours ago, and now he wants to promote freedom around the world?  Or should we wait for him to change his mind again a few hours from now?

Confusing?  Well, sure, but that's what you get from a dictator who is a grandiose narcissist.

And what about the fifth question: Do the military personnel in this war have a constitutional duty to obey unconstitutional orders from Trump?  Of course, I've framed the question in a way that makes the answer clear.  The military take an oath to uphold the Constitution of the United States.  And they are taught that under international law, they must disobey any illegal order.  And so, if Trump does not have the constitutional authority to launch this war--authority coming from a formal declaration of war or at least some authorization from Congress--then surely the military have the duty to disobey Trump's orders.

If Trump orders a nuclear strike on Iran, we will have to hope that the military will disobey his order.

In any case, Americans have to feel ashamed for what they have done to their country and the whole world in electing Trump to be president and allowing him to rule as a military dictator.

Bruce Springsteen's "Land of Hope and Dreams American Tour"

Protest music is often an important part of nonviolent resistance.  Notice that in his announcement, Springsteen says that his tour is to defend the "American Constitution."

                        

     Bruce Springsteen Announces His "Land of Hope and Dreams American Tour"

Here is another lyrics video for the "Streets of Minneapolis."

Here is a video of his debut live performance in Minneapolis:

Bruce Springsteen 2026 tour dates

• March 31 – Minneapolis, Minnesota – Target Center
• April 3 – Portland, Oregon – Moda Center
• April 7 – Inglewood, California – Kia Forum
• April 9 – Inglewood, California – Kia Forum
• April 13 – San Francisco, California – Chase Center
• April 16 – Phoenix, Arizona – Mortgage Matchup Center
• April 20 – Newark, New Jersey – Prudential Center
• April 23 – Sunrise, Florida – Amerant Bank Arena
• April 26 – Austin, Texas – Moody Center
• April 29 – Chicago, Illinois – United Center
• May 2 – Atlanta, Georgia – State Farm Arena
• May 5 – Belmont Park, New York – UBS Arena
• May 8 – Philadelphia, Pennsylvania – Xfinity Mobile Arena
• May 11 – New York, New York – Madison Square Garden
• May 14 – Brooklyn, New York – Barclays Center
• May 16 – New York, New York – Madison Square Garden
• May 19 – Pittsburgh, Pennsylvania – PPG Paints Arena
• May 22 – Cleveland, Ohio – Rocket Arena
• May 24 – Boston, Massachusetts – TD Garden
• May 27 – Washington, D.C. – Nationals Park

The Supreme Court Rules Against Trump's Administrative State in Overturning His Tariffs: A Victory for Lockean Liberalism

Beginning on February 1, 2025, Donald Trump issued a series of executive orders that invoked the International Emergency Economic Powers Act of 1977 (IEEPA) as statutory authority for his imposition of massive tariffs on imports from countries around the world.  I responded to this by arguing that this was both illegal and unconstitutional.  

It was illegal because IEEPA does not clearly give the President any power to levy tariffs.  In fact, the IEEPA says nothing about tariffs.  And in the almost 50 years since it was passed, no president has claimed that it gives him any power over tariffs--until Trump.  It was unconstitutional because the Constitution gives to Congress, but not the President, the power to tax, and tariffs are taxes.  This is a crucial part of the constitutional system of separation of powers that prevents the concentration of power in the president.  Consequently, the Congress cannot constitutionally give up its taxing power to the president.  

Any congressional delegation of the taxing power, including the power over tariffs, to the executive branch must be constrained by specified limits and procedures, which one can see in the congressional statues giving the president some powers for setting tariffs.  In his first term, Trump worked within these statutes to raise tariff rates on various nations.  But he discovered that the requirements of these laws severely constrained his power.  So at the beginning of his second term, he decided that he would use the IEEPA to give himself unlimited power to impose tariffs at will, even though the IEEPA says nothing about tariffs.

Those federal judges who claim to be "originalists" or "textualists" in adhering strictly to the original meaning of constitutional or statutory texts will have to rule that Trump's tariffs are unconstitutional.  If they don't, they will show the dishonesty of their profession of originalist jurisprudence because they will show that they are willing to ignore the original meaning of the legal texts if it contradicts their partisan political commitment to Trump.

THE DECISION: ONE COALITION AND TWO SPLITS

On Friday, the Supreme Court issued its 6 to 3 decision in Learning Resources, Inc., et al. v. Trump declaring that IEEPA does not give Trump any power to impose tariffs.  As you might expect from what I have argued previously about this debate, I am persuaded by the reasoning of the majority.  If you read the decision (all 170 pages of it!), you can decide for yourself whether the six justices in the majority and I are right.  I won't add much here about the substantive issues beyond what I have already said.

Here I am interested in the lineup of judges on the two sides, which is remarkable in three ways.  First, those on the side of the majority constitute a coalition of three Republican appointees (John Roberts, Neil Gorsuch, and Amy Coney Barrett) and three Democratic appointees (Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson).  Second, there's an even split among the six Republican appointees because three are on the majority side and three (Clarence Thomas, Brett Kavanaugh, and Samuel Alito) are on the dissenting side.  Third, there is a split within the Trump appointees: two voting with the majority (Gorsuch and Barrett), and one going with the dissenters (Kavanaugh).  Trump lost this case because he lost the votes of Gorsuch and Barrett.  If they had taken his side, it would have been a 5 to 4 decision in Trump's favor.

So what's going on here?  In Gorsuch's opinion, I see the best explanation for both the coalition and the two splits, although Gorsuch only implies what I will make explicit here.

The ultimate issue here is the question of how to properly allocate the powers of the national government between the Congress, the Executive Branch (the President and the federal administrative officers), and the Federal Judiciary so as to secure the separation of powers with checks and balances.  The first and longest article of the Constitution is the Legislative Article I, with the longest list of enumerated powers, which suggests that even with the separation of powers between the three branches, Congress should be supreme.  

But over time the presidency has become ever more powerful, particularly in matters of war and foreign affairs.  And since the end of the nineteenth century, the Congress has delegated some of its lawmaking powers to the president and to administrative agencies.  This has grown into what has been called (mostly by its critics) the Administrative State--administrative agencies seem to exercise concentrated legislative, executive, and judicial powers, with few checks on their power, creating an administrative tyranny that threatens individual liberty.

In 1946, the Congress attempted to limit this administrative power through the Administrative Procedure Act (APA), which in effect created a separation of powers within the federal administrative agencies.  The APA required agencies to keep the public informed of their procedures and rules, to allow the public to participate in the rulemaking process through public commenting, and to establish formal procedures for rulemaking and adjudication that would allow the public to file lawsuits challenging unfair rulemaking.

Conservatives, libertarians, and classical liberals have argued that this does not go far enough in limiting administrative power.  They have proposed new limits that are either vertical or horizontal.  Some conservative Republican lawyers have proposed the Unitary Executive Theory as the best way to put a vertical limit on the Administrative State: if Article II of the Constitution gives the President absolute power over all the federal administrative officers in the Executive Branch, then a popularly elected president can enforce the will of the people upon the Administrative State. 

The problem with this, however, as I have argued, is that the lesson this teaches someone like Trump is "Article II gives me the power as president to do whatever I want to do."  Far from limiting the Administrative State, this creates a Presidential Administrative State in the service of Trump's dictatorship.

Consequently, some conservatives, libertarians, and classical liberals have said that what we need is for Congress to exercise its constitutional powers in ways that will horizontally limit the powers of both the President and federal administrators.  Over the past one hundred years, the Congress has delegated too much of its constitutional power--either directly or by acquiescence--to the President and federal administrative officers.  

There are two ways to reverse this.  The radical way is to insist on a strict non-delegation principle--that Congress may not delegate its constitutional powers to the President or administrators.  But that would require a revolutionary overthrow of the Presidential Administrative State that few people would be willing to accept.

The moderate way to reverse the flow of lawmaking power out of Congress would be for the federal courts to enforce what has been called the "major questions doctrine."  That's the principle that Gorsuch defends in his opinion in Learning Resources v. Trump.  Gorsuch defines this principle as the rule "that, when executive branch officials claim Congress has granted them an extraordinary power, they must identify clear statutory authority for it" (Gorsuch, 6).  Notice that "executive branch officials" includes both the President and federal administrators.  Notice also that "extraordinary power" surely includes the power claimed by Trump "to impose a tariff of any amount, for any time, on only his own say-so" (Kagan, 6).  This is called the "major questions" doctrine because it applies only to cases that involve major economic or political consequences.  This is more moderate than an absolute non-delegation doctrine because it allows the Congress to delegate its powers to executive branch officials but only when the delegation is stated in clear statutory language.  That's a high standard because most of the growth in the Presidential Administrative State has come from executive branch officials appealing to vague or ambiguous language in congressional statues as delegations of congressional power to the Executive Branch.

The shrewd decision to employ the major questions doctrine in the legal strategy that won the Learning Resources case came from Ilya Somin in a blog post that he published the day after Trump announced his first tariffs on February 1 of last year.  Ilya suggested that since the major questions doctrine was "more moderate" that a strict non-delegation doctrine, it would appeal to "some of the conservative judges" and "one or more liberal judges."  Later, Somin advised the Liberty Justice Center, a right-leaning legal organization that brought the Learning Resources case to the Supreme Court.  Somin's strategy was even more successful than he anticipated because he persuaded all three of the liberal judges and three of the six conservative judges.

So why weren't those three dissenting conservatives (Kavanaugh, Thomas, and Alito) persuaded?  These three judges claim to be textualists and originalists who base their decisions not on their political preferences but on the original meaning of the constitutional and statutory texts.  In this case, they argued that Trump's absolute power to impose tariffs was authorized by the language of the IEEPA, which stated that once a president has declared an international economic emergency, he has the power to 

investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States. 50 U.S.C sec. 1702 (a) (1).

Notice that this does not mention tariffs, nor any synonyms such as duties and imposts.  So where did these judges find the power to impose tariffs in this passage?  Well, they take two words out of this passage--"regulate" and "importation"--and they create the phrase "regulate . . . importation," which they claim clearly means impose tariffs.  In Kavanaugh's opinion, by my count, he uses the phrase "regulate . . . importation" 74 times!  But he never considers how these two words fit into the context of this long sentence.

In her concurring opinion, Kagan points out that "regulate" is one of 9 verbs in this delegation provision.  The others are "investigate," "block," "direct," "compel," "nullify," "void," "prevent," and "prohibit."  Those verbs are followed by 11 objects, each describing a distinct sort of transaction involving foreign property--not just "importation," but also "acquisition," "holding," "transfer," and so on.  Combining these verbs and objects in all possible ways, the statute authorizes 99 actions a President can take.  When "regulate . . . importation" is compared with the 98 other actions, they all look like various ways to constrain or alter various foreign transactions.  But none of these 99 actions clearly require that the President exercise the congression power to tax by imposing tariffs.

Now Kavanaugh argues that the word "regulate" broadly defined could include "imposing tariffs."  But that is not clearly indicated in the IEEPA.  And the Constitution distinguishes the Congress's "Power to lay and collect Taxes, Duties, Imposts, and Excises" (in the first clause of Article I, section 8) from the power "To regulate Commerce with foreign Nations" (in the third clause of section 8).  So the Constitution does not use the word "regulate" as including taxing and imposing tariffs.

If we apply the major questions doctrine to this case, then we would have to say that the IEEPA does not delegate the congressional power over tariffs to the President because this statute does not state that in clear unambiguous language.

Gorsuch points out that the three dissenting judges in this case are taking a position that contradicts the position they took a few years ago in ruling against the unconstitutional and illegal powers claimed by Biden's Administrative State.  During Biden's term of office, these three conservative judges joined in some major questions decisions that struck down claims to extraordinary powers made by the Biden Administration.  

For example, in National Federation of Independent Business v. OSHA (2022), the Biden Administration argued that the statute charging the Occupational Safety and Health Administration with promoting "safe and healthful working conditions" authorized that agency to impose a vaccine mandate on 84 million Americans.  The six conservative judges constituted the majority ruling against the Biden Administration because the statutory language was too vague to clearly delegate to the Executive Branch such an extraordinary power.

Similarly, in Alabama Assn. of Realtors v. Department of Health and Human Servs. (2021), the Biden Administration argued that the statute permitting the Centers for Disease Control and Prevention to issue regulations "necessary to prevent the . . . transmission . . . of communicable diseases" granted to that agency the power to declare a moratorium on landlords evicting tenants.  Once again, the six conservative judges ruled that this language was not clear enough to justify giving such a power to the Executive branch.

In many other similar cases during Biden's term, the outcome was the same.  The Biden Administration would invoke vague statutory language as justifying broad powers for the Biden Administrative State, and the six conservative judges would rule against them on the grounds that the statutory language was not clear enough.

But now in Learning Resources, three of those six conservative judges wanted the Court to rule in support of Trump doing exactly what Biden had done--using vague statutory language to justify expanding the powers of the Presidential Administrative State.  So they are in contradiction with themselves.

Strikingly, the three liberal judges are also in contradiction with themselves but moving in the opposite direction.  They voted in favor of the Biden Administration using vague language to justify broad executive power, but now they are voting against the Trump Administration for doing the same thing.

What's going on here?  Gorsuch suggests--although he says it quietly--that the three liberal judges who voted with the majority in Learning Resources and the three conservative judges who dissented in Learning Resources are voting for their partisan preferences--the liberal Democrats voting in support of a Democrat President, and the conservative Republicans voting in support of a Republican President.  By contrast, the three conservative judges who voted with the majority against Trump in Learning Resources are free from political bias in consistently adhering to their principles of originalist jurisprudence--originalist principles that require them to overrule the unconstitutional and illegal actions of a Presidential Administrative State, regardless of whether the President is a Democrat or a Republican.

LIBERAL AND ILLIBERAL AMERICA IN THE MAGA MOVEMENT

So what happens now after the Learning Resources decision?  There are at least two ways that Trump could counter the Court's decision.  He could refuse to obey the decision.  He could say: "I can do anything I want, and it doesn't matter what the Supreme Court says.  So I will continue to exercise my absolute power to impose tariffs whenever and however I want."  

Or he could order the Congress to overturn the Court's decision by passing a law that entirely gives up the congressional power of taxing and imposing tariffs to the President.  He has taken neither of these courses of action.  Instead, he has said that he will use laws other than the IEEPA that might give him some power over tariffs.

Notice what this means.  Trump accepts the principle of separation of powers through which Congress and the courts can check his powers as President.  This is very far from his boast: "As president, I can do anything I want."

Apparently, he doesn't believe that a Republican-controlled Congress would obey his order to legalize his dictatorial powers.  (House Speaker Mike Johnson has said that it's unlikely that Congress would ever pass legislation to codify Trump's tariffs.)  And he doesn't believe that his MAGA supporters would allow him to rule as a dictator.  

This confirms what I have argued previously--that in Trump's leadership of the MAGA movement we see the tension between an illiberal America and a liberal America, but ultimately liberal America will prevail.  So in this case, we see that the Lockean liberal principle of separation of powers prevails over the propensity to accept the dictatorship of unbridled power.

I speak of separation of powers as Lockean because Locke insists that governmental administrators exercise only "subordinate powers" and must therefore be "accountable to some other power in the commonwealth" (ST, 152).  Because governmental actions must be guided by law, and because the legislative body cannot delegate its lawmaking power to anyone else, administrators should serve simply as instruments for carrying out the laws enacted by the legislative body. Locke writes: "the Legislative cannot transfer the Power of Making Laws to any other hands.  For it being but a delegated Power from the People, they, who have it, cannot pass it over to others" (ST, 141).

Locke's principle of separation of powers is based on an anthropological principle--that human beings with political ambition naturally strive for tyrannical dominance over others, and therefore the only check on such striving for dominance is a system of countervailing powers, where ambition checks ambition.

Gorsuch points to this Lockean anthropological principle in his opinion in Learning Resources:

. . . highly resourceful members of the executive branch have strong incentives to exploit any doubt in Congress's past work to assume new power for themselves.  The major questions doctrine helps prevent that kind of exploitation.  Our founders understood that men are not angels, and we disregard that insight ate our peril when we allow the few (or the one) to aggrandize their power based on loose or uncertain authority.  We delude ourselves, too, if we think that power will accumulate safely and only in the hands of dispassionate "people . . . found in agencies." . . . Even if unelected agency officials were uniquely immune to the desire for more power (an unserious assumption), they report to elected Presidents who can claim no such modesty (Gorsuch, 16). 

Created in the Image of Apes? Or Dolphins? Or God?

My essay--"Of Apes and Men"--has just been published by Law & Liberty, an online magazine produced by Liberty Fund.  It's a review of Jonathan Leaf's The Primate Myth.  My original title for this piece was "Created in the Image of Apes?  Or Dolphins?  Or God?"

Ten Rules of Nonviolent Resistance for ICE OUT! The Natural Right to Refuse Consent to Unjust Government

 

Five-Year-Old Liam Conejo Ramos Being Detained by ICE Agents in Minneapolis, Later Locked Up in a Detention Facility in Texas.

Liam and his father, Adrian Conejo Arias, an asylum seeker from Ecuador, were taken from Minnesota to Texas and held at a detention facility outside San Antonio.  Lawyers working on their behalf filed a petition for a writ of habeas corpus, an ancient principle from Magna Carta (Article 39) that forbids the government from holding anyone in custody without providing a legally tenable reason for doing so.

On Saturday, Fred Biery, a federal judge in Texas' Western District, granted their petition, freeing them to be returned to Minneapolis.  Here is an excerpt from his written decision:

The case has its genesis in the ill-conceived and incompetently-implemented government pursuit of daily deportation quotas, apparently even if it requires traumatizing children.  This Court and others regularly send undocumented people to prison and orders them deported but do so by proper legal procedures.

Apparent also is the government's ignorance of an American historical document called the Declaration of Independence.  Thirty-three-year-old Thomas Jefferson enumerated grievances against a would-be authoritarian king over our nascent nation.  Among others were:

1. "He has sent hither Swarms of Officers to harass our People."

2. "He has excited domestic Insurrection among us."

3. "For quartering large Bodies of Armed Troops among us."

4. "He has kept among us, in Times of Peace, Standing Armies without the consent of our Legislatures."

"We the people" are hearing echoes of that history.

And then there is that pesky inconvenience called the Fourth Amendment:  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized."  U.S. CONST. amend. IV.

Civics lesson to the government: Administrative warrants issued by the executive branch to itself do not pass probable cause muster.

That is caused the fox guarding the henhouse.  The Constitution requires an independent judicial officer.

Accordingly, the Court finds that the Constitution of these United States trumps this administration's detention of petitioner Adrian Conejo Arias and his minor son, L.C.R.  The Great Writ and release from detention are GRANTED pursuant to the attached Judgment.

Observing human behavior confirms that for some among us, the perfidious lust for unbridled power and the imposition of cruelty in its quest know no bounds and are bereft of human decency.  And the rule of law be damned.

Below his signature, Judge Biery attached the widely seen photograph of Liam, with an anonymous photo credit--"Credit: Bystander."  He also cited two Biblical verses: Matthew 19:14 ("But Jesus said, Suffer little children, and forbid them not, to come unto me: For of such is the kingdom of heaven") and John 11:35 ("Jesus wept"). 

As A. O. Scott of The New York Times has noted, Judge Biery's opinion is a remarkably eloquent and subtle piece of writing that refutes Trump's "unitary executive theory" of presidential power.  Without ever mentioning Trump by name (except the card-table verb "trump"), the Judge intimates that Trump is acting like the "would-be authoritarian king" George III condemned by the Declaration of Independence.  He also suggests that Trump and his agents are motivated by "the perfidious lust for unbridled power and the imposition of cruelty in its quest."

Notice also that the "lust for unbridled power" is checked by legal principles (the rule of law and separation of powers) that enforce moral and scriptural principles (such as "human decency" and protecting young children).

Judge Biery's decision shows us how the separation of powers allows a judicial officer of government to resist an unjust government.  But when Judge Biery gives credit for the photograph of Liam to "Bystander," he recognizes another kind of resistance to unjust government--the nonviolent resistance of those many ordinary people who have been observing, recording, and publicizing ICE misconduct.

This American nonviolent resistance to ICE is similar to the nonviolent resistance to the Gestapo in World War II Europe.  At the Waging Nonviolence website, Rivera Sun has pointed out the parallels.  In 1940, when the Nazis invaded and occupied Denmark, a 17-year-old Arne Sejr printed a flier called "10 Commandments for Danes" that became a program for the Danish resistance movement.  Here are the "10 Commandments for Danes":

1.  You must not go to work in Germany and Norway.

2.  You shall do a bad job for the Germans.

3.  You shall work slowly for the Germans.

4.  You shall destroy important machines and tools.

5.  You shall destroy everything which may be of benefit to the Germans.

6.  You shall delay all transport.

7.  You shall boycott German and Italian films and papers.

8.  You must not shop at Nazis' stores.

9.  You shall treat traitors for what they are worth.

10.  You shall protect anyone chased by the Germans.

As I have indicated in my previous posts on nonviolent resistance, the fundamental insight here is that tyrannical rulers depend on the cooperation or at least passive acquiescence of the people they rule.  When the people exercise their natural right to refuse to consent to unjust government by actively resisting that government, the ruling elites are denied the resources and cooperation required for ruling.  

There is empirical evidence that this works.  Erica Chenoweth and her colleagues have gathered data from hundreds of resistance movements over the past 100 years, and they have shown that if at least 3.5 percent of the people become active in a mass nonviolent resistance movement, it is highly likely to succeed.  

Following the example of the "Ten Commandments for Danes" and the experience of the American nonviolent resistance movement of the past year, Rivera Sun has proposed "10 Rules of Resistance for #ICEOUT":

1.  No silence.

2.  No selling. 

3.  No service.

4.  No hotel rooms.

5.  No entry.

6.  No informing.

7.  No looking away.

8.  No collaboration.

9.  No transporting.

10.  No detention centers.

In her essay, she provides details and examples for each of these rules.

A few days ago, Trump border czar Tom Homan announced that the "surge" of thousands of ICE agents into Minneapolis will be drawn down.  If that happens, that will show the first big victory for the resistance movement against ICE. 

Abraham Lincoln and Charles Darwin: The Evolutionary Science of Liberty, Slavery, and the Bible

I am reposting this from last year.

On February 12, 1809, Charles Darwin was born in England, and Abraham Lincoln was born in Kentucky.  They had more in common than just the coincidence of their birth on the same day.  Almost every February 12th, I have posted an essay on some of the common themes in their lives.  I have identified ten points of similarity between Darwin and Lincoln.

1. Both saw the Universe as governed by natural laws, which included the natural laws for the evolution of life and human beings.

2. Both denied that the Bible was a divine revelation, and they denied the Biblical doctrines of divine special creation in the first chapters of Genesis and the divinity of Jesus in the New Testament.

3. Both were accused of being atheists or infidels.

4. Both spoke of God as First Cause in a deistic sense.

5. Both appealed to the Bible as a source of moral teaching, even as they also appealed to a natural moral sense independent of Biblical religion that could correct the Bible's moral mistakes (such as the Bible's endorsement of slavery).

6. Both rooted that natural moral sense in the evolved moral sentiments.

7. Both abhorred slavery as an immoral violation of evolved human nature, and they saw the American Civil War as a crucial turning point for the abolition of slavery.

8. Both were moral realists.

9. Both saw human history as moving through a Big History of three evolutionary eras--the foraging era, the agrarian era, and the modern commercial and liberal era.

10. Both were classical liberals.

Although there is no evidence that Lincoln ever read Darwin, we do know from William Herndon that Lincoln was persuaded by his reading of Robert Chambers' Vestiges of the Natural History of Creation (1844) to embrace an evolutionary science of the history of the Universe very similar to Darwin's theory.

Now, we have a new book by David Kent--Lincoln: The Fire of Genius: How Abraham Lincoln's Commitment to Science and Technology Helped Modernize America--about how Lincoln's life-long study of modern science and technology shaped his moral and political life.  Although Kent recognizes some of my ten points of similarity between Lincoln and Darwin, he is remarkably silent about the second, third, fifth, and ninth points.

Kent says nothing about the popular charge against Lincoln that he denied the truth of the Bible and therefore was an atheist or infidel.  When Lincoln ran for a seat in the U.S. Congress in 1846, his opponent--Peter Cartwright, a Methodist minister--circulated a rumor that Lincoln was an infidel.  The basis for this charge was that as a young man, Lincoln had read some notorious books of skeptical deism--particularly, Volney's Ruins of Empires and Tom Paine's The Age of Reason--and he wrote his own pamphlet arguing that the Bible was not divinely inspired and that Jesus was not truly the Son of God.  His friends warned him that the reputation for being an infidel or atheist would ruin his life, especially if he wanted to have a political career.  So, he burned his pamphlet,  and he became very secretive about his religious beliefs.  Darwin was similar.  As I have indicated in some previous posts (here and here), Darwin denied that the Bible was a divine revelation and that Jesus was divine; but he wrote about this only in private correspondence.  Kent is silent about this.

Kent has a long section in his book on Lincoln's "Lecture on Discoveries and Inventions."  But he does not notice how Lincoln mocks the Bible in that lecture.  As I have indicated, Lincoln suggests that "in the beginning," there is no divine creation of man, and man depends totally on himself "to dig out his destiny" without any guidance from God.

Kent also does not notice Lincoln's suggestion that the Bible's endorsement of slavery needs to be corrected.  While Kent surveys some of the attempts to justify slavery as supported by the Bible, he does not confront the fact that the Bible really does affirm slavery.  Frederick Ross's Slavery Ordained by God (1857) shows that all of the references to slavery in the Bible are proslavery.  Lincoln read this book, and Kent points to Lincoln's note on the book's proslavery theology.  But Kent does not notice Lincoln's failure to refute Ross's reading of the Bible.  Nor does Kent reflect on Lincoln's remarkable observation in his Second Inaugural that in the Civil War between North and South, "Both read the same Bible, and pray to the same God; and each invokes His aid against the other."

Kent also fails to see how Lincoln's Darwinian evolutionary science of human history moves through three eras--from foraging to farming to commerce.  By embracing the moral progress to the modern commercial society, Lincoln shows the classical liberalism that he shares with Darwin.