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, 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.  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. 

Did It All Start with the Big Bang? And What Difference Does That Make for the Meaning and Purpose of Our Lives?

I have written about "The Big Bang Theory"--the popular television show that ran on CBS from 2007 to 2019.  Every episode began with a clever theme song that ended with the line: "It all started with the Big Bang."

Is that true?  The brief answer is: We don't know.  

We don't know because the earliest history of the universe is beyond what we can observe.  Whatever is beyond any possible observation cannot be known to exist or not to exist.  Asserting its existence is a matter of belief or faith, not a matter of scientific knowledge.  It's an assertion of religion (or revelation) not of science (or reason).  Here I agree with physicist Sabine Hossenfelder's insistence that scientific models of reality must always be tested against observational evidence because otherwise they are just speculative stories that are more like religion than science (Hossenfelder 2022).

What difference (if any) does this make for how we think about the purpose of our lives?  The brief answer is that we must choose between at least two alternatives.  We can believe in a divinely caused Big Bang that can support a moral cosmology that gives our lives a divinely appointed purpose that might include eternal life after death.  Or we can recognize a moral anthropology that gives our lives a human purpose in satisfying our natural desires--such as the desire to understand the universe, which can be expressed either as a desire for religious understanding through Revelation or a desire for intellectual understanding through Reason.

If human beings are to be free to pursue these alternative ways of life and to debate their relative merits, people must have the religious and intellectual liberty secured in a Lockean liberal open society that allows for freedom of thought and expression.  The kind of freedom that is manifest even in some popular culture such as the "Big Bang Theory" television show.

THE BIG BANG?

Human beings wonder about their origins.  They want to know where they came from.  They ask about not only their ancestral and social origins but even about the origin of everything.  That's why every human society has stories about how all things came to be as they are.  Commonly, they are religious stories about how divine beings brought the world into existence.  "In the beginning God created the heaven and the earth."  So declares the first verse of the King James Bible.

But what exactly does that mean?  And is it true?  Some theologians have said that God created everything ex nihilo (from nothing).  But others have said He created everything ex materia (from some preexisting material).  Some have said God created only one universe--the one that we live in.  But others have said that He might have created other universes, perhaps even an infinite number of them.

Some philosophers and scientists (like Aristotle) have said that there was no need for divine creators because the world was eternal as composed of eternal matter and thus had no beginning and no end.  But others (like Lucretius) have argued that the world has arisen spontaneously from the random motion of atoms without any need for divine intervention, and that atomic flux would eventually dissolve every world and create a new one.

Thomas Aquinas defended the orthodox Christian doctrine that God did indeed create everything from nothing.  But he admitted that this could not be scientifically demonstrated.  "It is by faith alone do we hold and not by any demonstration that can be proved, that the world did not always exist. . . that the world began to exist is an object of faith, but not of demonstration or science" (ST, I, q. 46, a. 2).

But then when Georges Lemaitre (a cosmologist who was also a Jesuit priest) first proposed a Big Bang theory of the universe, Pope Pius XIII pointed to this as a scientific demonstration of the divine creation of the universe from nothing.  Lemaitre himself, however, criticized the Pope for failing to see how this scientific theory had nothing to do with the Christian doctrine of creation, which could be believed by faith but not known by demonstration.

As I have indicated in my essays on the Big Bang, the scientific theory of the Big Bang has been invoked by some people (like William Lane Craig) to prove that God exists and by other people (like Stephen Hawking) to prove that God does not exist.  I have argued that both are mistaken.  

Craig states his argument as a syllogism:

 1. If the universe began to exist, then there is a transcendent cause which brought the universe into existence.

2. The universe began to exist.

3. Therefore, there is a transcendent cause which brought the universe into existence.

There are good reasons to doubt that those two premises are really scientific statements rather than affirmations of religious faith.

The first premise is not "obviously true," as Craig says, because while we all have experience of how natural causes work within the universe to bring things into existence, we do not have experience with how transcendent causes work outside the universe to bring the universe itself into existence. 

Consequently, while the "principle of sufficient reason"--that for everything there must be a causal explanation--might hold true for our ordinary experience of how things work within the universe, this principle does not necessarily apply to what things are like outside the universe, because none of us has ever stood "outside the universe" to see if the principle of sufficient reason holds true there.  Standing "outside the universe"--experiencing the transcendent or the supernatural--is a matter of religious imagination that is beyond our empirical experience of the world and thus beyond empirical science.

Therefore, the first premise of Craig's syllogism might be a statement of religious faith, but it is not a statement of scientific truth.

The same can be said about the second premise.  "The universe began to exist."  What exactly is being stated here?  There are two possibilities.  The universe began to exist out of nothing.  Or the universe began to exist out of something. 

Craig's argument requires that he equivocate between these two different statements.  The universe began to exist out of nothing is the Christian theological doctrine of creation ex nihilo.  But, then, this would deny Craig's claim that this premise is "religiously neutral."  In fact, that the universe began to exist out of nothing is not a scientific statement at all, because there is no human observational experience of absolute "nothing" that would make the study of "nothing" part of empirical science.  I even doubt that any of us really understands what we're saying when we talk about absolute "nothing," because it's beyond ordinary human experience.

And yet scientists like Stephen Hawking do speak about how the Big Bang could have come from "nothing" without any need for God.  His explanation is that "the laws of nature we call quantum mechanics" tell us "that not only could the universe have popped into existence without any assistance, like a proton, and have required nothing in terms of energy, but also that it is possible that nothing caused the Big Bang.  Nothing" (Hawking 2018, 34-35).  Far from the Big Bang proving God's existence, as Craig claimed, Hawking claimed to have shown that since nothing caused the Big Bang, God does not exist.

Hawking appeared five times on the "Big Bang Theory" show as the one scientist that Sheldon most admired.  He playfully mocked Sheldon, but he also recognized his brilliance.  Nothing was said about Hawking's atheism.

Notice that in his argument for atheism, Hawking had to assume at the origin of the universe the reality of the laws of quantum mechanics and of quantum vacuum states.  That's not nothing!  That's something!  Notice also that Hawking had no explanation for where those laws of physics came from.

Moreover, Hawking's model for the origin of the Big Bang is only one of many Big Bang models that scientists have proposed over the past 30 years.  By some counts, there are over two dozen such models (Afshordi and Halper 2025).  Some physicists say our universe is one of infinitely many universes, and each one is a bubble in a rapidly expanding quantum fuzz.  Others say the Big Bang started from the hot gas of tiny, vibrating strings.  Others say the Big Bang was a bounce of a collapsing universe into an expanding one.  Others say the universe is always in a state of eternal inflation.  In this video, Phil Harper gives the top ten answers to the question of what happened before the Big Bang:

Remarkably, in the end, it doesn't matter which model you choose because you end up with the same outcome--the universe that we live in today.  That it doesn't matter which story you believe points to a fundamental problem: there is no data to tell us which model is right.  The reason for that is that the fundamental constituents of nature are either too small, too far away, or too far in the past to be observed directly by us or indirectly through our instruments, and thus nature's secrets are buried so deep or so far away that we have no way to test our theoretical speculations about them.

Below is a sketch of the limits on the scale of human observational experience of nature.  At the small scale, microscopes have extended our experience beyond our visual reach, and the Large Hadron Collider (LHC) has extended our reach even deeper.  We have gone from scales of centimeters to millionths of a millionth of a millionth of a centimeter.  But we have reasons to believe that the fundamental constituents of nature that string theory attempts to describe lie at a distance scale 10 million billion times smaller than the resolving power of the LHC.  At the cosmic scale, telescopes have extended our experience of the astronomical universe; but no telescope will ever look beyond our universe's cosmic horizon and see the other universes assumed by the multiverse hypothesis.  The white area is the range of scales within human experience.  The grey area is outside that range.  You can click on the image to enlarge it.

Notice that the limit of the observable universe at the right end of this scale is the cosmic microwave background.

The oldest light we can see is the cosmic microwave background, emitted nearly four hundred thousand years after the hot Big Bang some 13.8 billion years ago.  It is almost perfectly uniform, with tiny variations in temperature at 1 part in 100,000, which are shown as red (hot) and blue (cold) spots.  This is the most important store of data for early-universe cosmology.  Multiple satellites with telescopes have studied these fluctuations.  Shown here is the most recent map produced by the European Space Agency's Planck satellite probe.

This illustrates how we can make and use technical instruments (such as telescopes) to extend the range of our observational experience of nature.  But it also illustrates the limits on how far that extension can go. 

When Aristotle explained his theological cosmology of a geocentric universe in De Caelo ("On the Heavens"), he admitted that it was hard to study the heavenly bodies--the stars, the sun, the planets, and the Moon--because "we have very little to go on, and we are placed at a great distance from the phenomena that we are trying to investigate," and "very few of their attributes are perceptible by sense experience" (286a7, 292a15-b25).  

So when Galileo defended his Copernican heliocentric system, he argued that Aristotle would have been persuaded by the evidence that Galileo had gathered from his telescope because Aristotle would have welcomed the use of the telescope to extend the range of human observational experience of distant planets and stars.

In the 400 years since Galileo, telescopes have become more powerful; and sending telescopes into space has expanded the depth of their observational power.  So that now we have stunning images of deep space from the James Webb Telescope and images of the cosmic microwave background that take us back over 13 billion years into the history of the universe.  But notice that the image of the cosmic microwave background is dated at four hundred thousand years after the Big Bang.  It's not clear that we will ever get any closer than that to the Big Bang, or to whatever there might have been before the Big Bang, which might forever be beyond our range of observational experience.  

Consequently, it will be impossible to test our models of the Big Bang against observational data, which will mean that our models will be little more than speculative origin myths that rest on belief or faith rather than scientific knowledge.

COSMIC PURPOSE?  HUMAN PURPOSE?

Asking about the origins of the Cosmos might seem like a very abstract kind of questioning that doesn't have much to do with ordinary human life.  But in fact it's one of the fundamental questions that we must ask as we try to make sense of our lives.

Must we believe that in the beginning God created the Universe and created man in His image if we want to give some cosmic meaning to our lives?  If this Divine Creator cares about us and for us, and if He endowed us with a knowledge of His moral law as an eternal standard of right and wrong to guide our moral life, and if He promises to help us live according to that moral law, or to save us from our sinful flaws, and then to reward those who love Him with eternal life, doesn't that give us a cosmic purpose to our lives?

But if we believe that in the beginning the universe arose through some impersonal process of natural evolution of matter and energy, and if eventually we somehow emerged as but blips of complexity in that uncaring universe, then how can we believe that our life has any meaning if there's no purpose to it?

Or should we see that even if there is no cosmic purposefulness in our lives grounded in the moral cosmology of a divinely created universe, there is a natural purposefulness in our lives grounded in the moral anthropology of our natural human desires?  Even if we live in an uncaring universe, we care for ourselves, and we strive to satisfy our natural desires.  Perhaps that is what makes our lives meaningful.

And so, for example, all human beings have some natural desire to understand the universe and their place in it.  This began when natural selection favored species that made correct predictions about their environment, and then organisms became increasingly better at understanding nature, until the evolution of the human cerebral cortex reached a point where human beings could understand their world by probing deeply into nature through intelligence, symbolism, and observation.

But then this natural human desire for understanding could be expressed either as a desire for religious understanding or a desire for intellectual understanding.  Human beings moved by the desire for religious understanding could imagine that they and their universe were created by a supernatural Mind analogous to the human mind.  Human beings moved by the desire for intellectual understanding could imagine that they and their universe were created by natural laws of evolution.  Some human beings can be theistic evolutionists who believe that God originally created the laws of nature and then allowed the universe to evolve naturally according to those laws, while occasionally intervening miraculously in that natural history to reveal Himself to human beings.

The tension between the natural desire for religious understanding and the natural desire for intellectual understanding is manifest in the Reason/Revelation Debate.

THE REASON/REVELATION DEBATE IN "THE YOUNG SHELDON"

Much of "The Big Bang Theory" revolves around Sheldon and his life story.  He grew up in East Texas in a Southern Baptist family that struggled to understand him because he was a child prodigy with an IQ of 187, who used his intelligence to make scientific arguments against religious belief.

From 2017 to 2024, CBS broadcasted a spin-off prequel--"Young Sheldon"--about Sheldon's childhood in the 1980s and 1990s.  The theme of scientific cosmology as supporting atheism against religious belief continued in this show.  

Pastor Jeff is the minister of the Southern Baptist church where the Cooper family goes every Sunday.  The young Sheldon is determined to show everyone that he can use science to refute Pastor Jeff's religious beliefs by arguing that the Bible's story of Creation is denied by the evidence for the natural evolution of the universe and human life.

One example of this conflict between science and religion is the third episode of the second season (airing on October 4, 2018) entitled "A Crisis of Faith and Octopus Aliens."  This episode begins with the Cooper family attending church on a Sunday.  Pastor Jeff is delivering his sermon, and suddenly Sheldon raises his hand to ask a question.  He challenges Pastor Jeff to tell him what God would look like in an alien planet inhabited by octopuses.  Would God look like an octopus?  Jeff struggles to answer.

Then, that Sunday afternoon, Sheldon's mother Mary receives a phone call and is told that the 17-year-old daughter of her friend Stephanie Hanson had died in an accident.  Mary and her husband George go to the funeral.  Throughout the week, Mary is troubled by the question of why an all-good God would torture a good Christian like Stephanie by killing her innocent child.  She talks with Pastor Jeff, but he cannot give her a satisfactory answer.

On Saturday night, Mary takes her mother to a bar named "Lucky's Place," where they drink and play billiards.  She tells her mother about her religious struggle and how this has depressed her mood.  She is drunk, and she is driven home by her mother.  Her husband George takes her to bed.

The next day, Sunday, she does not go to church, and she does not say a prayer at the family dinner.  Her husband and children are shocked to see these signs that she is doubting her faith in God.

Later, in the evening, Sheldon comes out to the front porch of their house to talk with her and attempt to comfort her.  Here's the scene:

Notice that even though Sheldon is an atheist, he makes a scientific argument for the existence of God based on the "fine-tuning" of the universe.  The strength of gravity must be mathematically precise--neither too strong nor too weak--to make it possible for the universe to exist as a place where human life can emerge.  Isn't it unlikely that that could be just an accident?  Doesn't this logically suggest the need for God to design the precise conditions that make the universe and life possible?  Sheldon indicates that he is still an atheist, but he does see this as a scientifically logical argument for religious belief.

Mary responds by saying that her problem with God is not a matter of logic in her head but what she feels in her heart.  Sheldon then makes another argument that might appeal to her heart.  In a world of over five billion people, how likely is it that I would have the one woman who is a perfect mom for me?  Mary is moved by this, and she thanks God for giving her Sheldon as her child.  In the voice-over, the adult Sheldon tells the viewers that he didn't tell his mom that he shouldn't have to share credit with God for making the argument that comforted her.

One of the YouTube clips of this scene has a comment from "B Sharp" about Sheldon's first argument:  "I love Young Sheldon, and this is a sweet moment.  However, Sheldon is using the fine-tuning apologetics argument, which is fallacious.  The universe wasn't created for humans.  Humans evolved to exist in this universe."

One could also respond in a similar way to Sheldon's second argument.  That a son loves his mother is not an unlikely event that requires some supernatural intervention, because parent-child bonding is an evolutionary adaptation of human nature.

But then what if evolved human nature includes a natural desire for religious understanding--for transcendence and transcendent meaning?  This emotional desire is not based on pure logic, and therefore it cannot be refuted by logical argument.  And, therefore, as Rebecca Goldstein has shown, the emotional longing for religious transcendence prevails over scientific reasoning, particularly when science faces fundamental mysteries in the universe that cannot ever be explained by reason alone; and thus Revelation cannot be refuted by Reason.  Perhaps this is what Mary Cooper meant when she pointed to what she felt in her heart.

Nevertheless, the fine-tuning argument is one of the best scientific arguments for God as the Intelligent Designer of the universe.  Christian astrophysicists like Owen Gingerich and Deborah Haarsma like to invoke this argument.  And yet, I have written some posts indicating the flaws in this line of reasoning.

It is not really clear, for example, that scientific cosmology shows that the universe is precisely fine-tuned for life, and particularly human life.  Most cosmologists agree that the universe will come to an end, and that all life will be extinguished.  Consider one line in the theme song for "The Big Bang Theory":

"It's expanding ever outward, but one day it will pause and start to go the other way, collapsing ever inward, we won't be here, it won't be heard.  Our best and brightest future that it'll make an even bigger bang!"

Does the end of the universe in a Big Collapse mean that far from being fine-tuned for life, the universe has been fine-tuned for death?  Or should we have faith in those eschatological religions that promise us eternal life after death?

In a liberal open society, we are free to openly debate such questions--even in popular television shows--without fear of persecution.

And in that debate, one of the big questions for us will be:  Did it all start with a Big Bang?

REFERENCES

Afshordi, Niayesh, and Phil Halper. 2025. Battle of the Big Bang: The New Tales of Our Cosmic Origins. Chicago: University of Chicago Press.

Hossenfelder, Sabine. 2022. Existential Physics: A Scientist's Guide to Life's Biggest Questions. New York: Viking.

Paul Gottfried's Esoteric Writing: He (Quietly) Scorns John Winthrop's Protestant Theocracy

Responding to those like Mark Brennan and Paul Gottfried who argue that America is defined by its Anglo-Protestant culture, I have asked: What kind of Protestant culture defines America?  Is it the illiberal Protestant theocracy first established in the Massachusetts Bay Colony by John Winthrop?  Or is it the liberal Protestantism of religious liberty and toleration first established in Rhode Island by Roger Williams?  Was Winthrop the First Founding Father?  Or was Williams?

I have written two long essays arguing that after a 200-year-long debate (1630-1833) between these two Protestant traditions, the tradition of Williams prevailed over Winthrop's.  At the national level, the turning point came with the adoption of the Constitution and the Bill of Rights, which affirmed Williams' principles of "no religious test" for office, a "wall of separation" between church and state, and the religious liberty of all individuals.  At the state level, the turning point came as the states revoked their religious establishments and affirmed the individual right to religious liberty.  The last state to do this was Massachusetts in 1833, when people heard Winthrop rolling over in his grave and Williams cheering.

Gottfried has just written a second reply to my argument.  But it's hard to understand what he is saying because he continues to employ the rhetorical strategy of silence by ignoring most of what I have argued.

And yet, after three readings of his essay, I finally realized that he was engaging in the kind of esoteric writing that was once so well explained by Leo Strauss.  When an author wants to say something that he knows will anger many of his readers, he might cautiously choose to hide his true teaching from his many careless readers, while allowing his few careful readers to decipher his secret teaching.  As Editor-in-Chief of the paleoconservative magazine Chronicles, Gottfried knows that most of his readers would be angry if he openly said that Williams was right in arguing for religious liberty and toleration, and Winthrop was wrong in arguing for Protestant theocracy.  So, to avoid that provocation, he chose to write in such a way that only his very careful readers would see his agreement with Williams' liberal Protestantism.

The key to this secret teaching is a paragraph near the center of his essay:

Arnhart, in one of his commentaries, says he can't imagine how JD Vance could wish to restrict immigration to those who were culturally homogeneous when his wife is a Hindu.  Allow me to suggest some answers.  Our once-dominant Anglo-Protestant culture grew weaker over time, and what Vance wants to preserve are some of its residual characteristics: respect for constitutional law, a sense of individual responsibility, and the Protestant work ethic, but not necessarily the original religious doctrines.

Notice that he begins by directing his reader's attention to my "commentaries," which suggests to the careful reader that he needs to read my essays in order to understand what Gottfried is saying here.  The careful reader will then see that I frame the debate as a choice between Winthrop and Williams, and that America eventually moved to the side of Williams.  So now the reader is primed to ask, which side is Gottried taking?  Gottfried says nothing explicitly about either Winthrop or Williams.  But is he implicitly taking a position in this debate?

"Our once-dominant Anglo-Protestant culture grew weaker over time."  What is he implying here?  I argue that Winthrop's theocratic Protestant culture grew weaker over time as Williams' liberal Protestant culture grew stronger.  Is Gottfried agreeing with this?

What does he mean by "respect for constitutional law"?  Anyone who has read my "commentaries" will know that I show how the Constitution rejects the theocratic government of Winthrop and endorses the religious liberty and separation of church and state advocated by Williams.  Does "respect for constitutional law" require that we accept this?

What does Gottfried mean by "a sense of individual responsibility"?  Williams argued that the "individual responsibility" of every person in matters of faith required religious liberty and toleration of religious diversity.  Winthrop argued that the established church must coercively compel all individuals to believe the doctrines of the church.

So when Gottfried says that we should respect America's Protestant culture "but not necessarily the original religious doctrines," is he implying that we can rightly reject Winthrop's original theocratic doctrines?  That does seem to be what he is implying when he writes: "Since Vance is himself a convert to Catholicism and his wife is a Hindu, I don't think that either would argue that only those who are strictly Protestant should be allowed to reside here."  

Winthrop's theocratic Protestantism would have persecuted Vance for his Catholicism and Usha for her Hinduism.  But since America has long ago adopted Williams' liberal principles of religious liberty and toleration as part of the American Creed, Vance and his wife can enjoy the freedom that comes from living in an American Creedal Nation.

Bruce Springsteen, "The Streets of Minneapolis"

 

                                               Bruce Springsteen, "The Streets of Minneapolis"

The folk music of resistance to Trump's dictatorship.  Here are the lyrics:

Through the winter's ice and cold, down Nicollet Avenue
A city aflame fought fire and ice 'neath an occupier's boots
King Trump's private army from the DHS, guns belted to their coats
Came to Minneapolis to enforce the law or so their story goes

Against smoke and rubber bullets, in the dawn's early light
Citizens stood for justice, their voices ringing through the night
And there were bloody footprints where mercy should have stood
And two dead left to die on snow-filled streets, Alex Pretti and Renee Good

Oh our Minneapolis, I hear your voice singing through the bloody mist
We'll take our stand for this land and the stranger in our midst
Here in our home they killed and roamed in the winter of '26
We'll remember the names of those who died on the streets of Minneapolis

Trump's federal thugs beat up on his face and his chest
Then we heard the gunshots and Alex Pretti lay in the snow dead
Their claim was self-defense, sir, just don't believe your eyes
It's our blood and bones and these whistles and phones against Miller and Noem's dirty lies

Oh our Minneapolis, I hear your voice crying through the bloody mist
We'll remember the names of those who died on the streets of Minneapolis

Now they say they're here to uphold the law but they trample on our rights
If your skin is black or brown my friend you can be questioned or deported on sight
In our chants of "ICE out now!" our city's heart and soul persists
Through broken glass and bloody tears on the streets of Minneapolis

Oh our Minneapolis, I hear your voice singing through the bloody mist
Here in our home they killed and roamed in the winter of '26
We'll take our stand for this land and the stranger in our midst
We'll remember the names of those who died on the streets of Minneapolis
We'll remember the names of those who died on the streets of Minneapolis

ICE out (ICE out)
ICE out (ICE out)
ICE out (ICE out)
ICE out (ICE out)
ICE out (ICE out)
ICE out