Saturday, October 22, 2022

Against the Independent State Legislature Theory: How Judges Have Impeded the John Eastman/Claremont Institute Plot to Overturn the Constitution for Trump

In previous posts, I have written about how judges have frustrated the attempts by John Eastman and the Claremont Institute to overturn the Constitution in support of Trump.  In many cases, these judges were even appointed by Trump.  This vindicates the constitutional principle of rule of law in checking the ambition of potential dictators.  Recently, we have seen two more examples of this coming from retired federal appellate judge J. Michael Luttig and federal district court judge David Carter.

The House of Representatives Select Committee to Investigate the January 6 Attack on the U.S. Capitol has sought to obtain emails sent or received by John Eastman on his Chapman University email account between November 3, 2020 and January 20, 2021.  Eastman filed a suit with the U.S. District Court in California arguing that many of these emails were protected by the attorney-client privilege, because he was acting as an attorney advising Trump as his client.  David Carter is the judge in this case.

Judge Carter began by examining 111 documents dated January 4-7, 2021, that were under dispute.  In a decision on March 28, Judge Carter ruled that while 10 documents were privileged, 101 were not; and Eastman was ordered to turn these over to the Committee.

The attorney-client privilege is subject to a "crime-fraud exception," which applies when "(1) a client consults an attorney for advice that will serve [them] in the commission of a fraud or crime, and (2) the communications are sufficiently related to and were made in furtherance of the crime" (p. 31 of Carter's decision).  Carter ruled that the Select Committee was correct in claiming that the crime-fraud exception applied in this case, because Eastman and Trump were acting illegally in attempting to obstruct Congress's proceeding to count the electoral votes on January 6, and in attempting to defraud the United States by interfering with the election certification process.

Carter surveyed the evidence for concluding that the "illegality of the plan was obvious" to both Eastman and Trump (36), and that "it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021" (40).

In a decision a few days ago, October 19, Judge Carter ruled on the claim of privilege over the documents from November 3, 2020, to January 20, 2021.  Once again, Carter ruled that "more likely than not" Eastman and Trump committed obstruction of an official proceeding and a conspiracy to defraud the United States (3).  His most shocking conclusion was that in some of these emails, Eastman said that in one of their lawsuits claiming voter fraud in Georgia, where they had counted fraudulent votes by "10,315 deceased people, 2,560 felons, and 2,423 unregistered voters," they had found that "some of the allegations (and evidence proffered by the experts) has been inaccurate," and yet Trump had signed a verification swearing under oath that these numbers were correct" (16-17).  Thus, Eastman and Trump knew that they were lying under oath about their evidence for voter fraud.  This is a stunning piece of evidence for the guilt of Eastman and Trump.

Since Carter was appointed to the federal bench in 1998 by President Bill Clinton, Eastman and Trump can say that this just shows the political bias of a liberal Democrat judge.  But they can't say that about the Trump-appointed judges that have ruled against Eastman and Trump.  Moreover, they can't say this about J. Michael Luttig, who has long been known as one of the most conservative Republican judges in the country, and who has become one of the leading critics of the Eastman plot for overturning the Constitution in favor of Trump.

Luttig is one of the most prominent conservative jurists in America.  He worked with John Roberts as young lawyers in the Reagan Administration.  He was appointed by George H. W. Bush to lead Clarence Thomas through his Supreme Court confirmation hearings in 1991.  He was then appointed by Bush to the U.S. Court of Appeals for the Fourth Circuit in 1991, serving until 2006, when he resigned to become general counsel for Boeing, until his retirement in 2019.

In the days before the January 6th certification of Biden's Electoral College victory, Eastman and Trump were pressuring Vice President Pence to accept Eastman's legal theory for overturning the election by having the Vice President refuse to certify the electoral votes in some of the states won by Biden, or having the Vice President ask the Republican-controlled legislatures in those states to consider selecting Trump electors and thus overturn the popular election of Biden.  Pence's legal team advised him that this was unconstitutional, because the Vice-President's role in certifying the Electoral College vote was only ceremonial, and that he did not have the constitutional power to overturn a presidential election.  On the evening of January 4th, Pence's legal team contacted Luttig to ask him to act as an outside legal expert, and he was emphatic in saying that there was not constitutional basis for Eastman's theory.  This was particularly remarkable because Eastman had been one of Luttig's former law clerks.

On the morning of January 5th, Pence's legal team contacted Luttig again and said that Pence needed help to support his resistance to Eastman's plot.  Luttig responded by writing a Twitter thread arguing that there was no constitutional support for Eastman's legal theory.  On January 6th, Pence quoted this in his public letter explaining why he was refusing to accept Eastman's proposal for overturning the election.  On January 7th, Pence personally called Luttig to thank him for his help.

Eastman's legal theory was based partly on what has been called the "independent-state-legislature" theory (ISL).  Luttig has said that "there is literally no support at all in the Constitution" for this theory, because it is "antithetical to the Framers' intent, the text, and the Constitution's fundamental design and architecture."

ISL is based on an unusual interpretation of two clauses in the Constitution.  Article I, Section 4, clause 1 reads: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."  Article II, Section 1, clause 2 reads: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."  

Proponents of ISL say that these provisions give the "Legislature" of each State absolute power over Federal elections to Congress and the Presidency, a power that is so absolute that it cannot be limited by anything in state law or even in the state constitution.  Consequently, Republican-controlled state legislatures in 2020 had the power to overturn Biden's popular vote win in their States by appointing Trump electors to the Electoral College.

Another consequence of the independent state legislature theory is that a state legislature has absolute power to engage in partisan gerrymandering in redistricting its congressional districts free from any limits by state constitutional law.  So, for example, in North Carolina, the Republican-controlled legislature drafted new congressional district maps in 2021 that gave an advantage to the Republican Party in ten seats and to the Democrats in four.  Multiple lawsuits were filed against the Republican leaders of the North Carolina legislature claiming that the maps were so partisan gerrymandered as to be unconstitutional.  The North Carolina Supreme Court has held that the maps are unconstitutional.  A special master team of outside experts were assigned to create new maps, which were accepted by the courts.  

The Republican leaders of the legislature have appealed the case to the U.S. Supreme Court, arguing that under the independent state legislature theory, the North Carolina legislature has absolute power over congressional districting that cannot be constrained by the state constitution.  The U.S. Supreme Court has granted review, and oral arguments are scheduled for December 7, 2022 in the case of Moore v. Harper.  Many observers of the Court are expecting that the conservative Republican majority on the Court (Roberts, Alito, Thomas, Gorsuch, Kavanaugh, and Coney Barrett) will rule in favor of the independent state legislature theory in this case.

Luttig has joined this case as a co-counsel with Neal Katyal as the counsel of record arguing the case against the North Carolina legislative leaders.  Luttig has said that Moore v. Harper is "without question the most significant case in the history of our nation for American democracy."  He has also said that this is part of the Republican move towards the independent state legislature theory as part of a plot for overturning the elections in 2024.

Predictably, Eastman and the Claremont Institute have filed an amicus curiae brief in Moore v. Harper supporting the independent state legislature theory.  They attempt to answer the criticisms of the  ISL theory coming from various constitutional scholars, such as Vikram David Amar and Akhil Reed Amar.

The Claremont Institute's brief states its core idea bluntly: "when performing federal functions [such as drawing congressional district maps], the legislatures of the several states are not operating pursuant to state authority, but rather pursuant to federal authority, and cannot be constrained by anything in state law or even a state constitution to the contrary" (2).

On the face of it, this makes no sense.  How does federal authority establish the identity of a state legislature?  Surely, what counts as a state legislature is defined by a state constitution and thus subject to the limits set down in that constitution.

If you read the brief, you will see that it nowhere cites any evidence for this theory in the American Founding.  On the contrary, as Amar and Amar point out, throughout the Founding period, it was assumed that the establishment and legitimacy of a state legislature depended on a state constitution as an expression of popular consent to government; and thus every state legislature was subject to constitutional limits.

You will also see that the Claremont brief would require the Supreme Court to overrule all of the previous decisions of the Court that deny the ISL theory.  If you compare the Claremont brief and the paper by Amar and Amar, you will notice that never in the history of the U.S. Supreme Court has a majority of the justices endorsed the ISL theory.  In Bush v. Gore (2000), three justices (Rehnquist, Scalia, and Thomas) did seem to endorse ISL in their concurrence with the majority.

You should also notice that the Claremont brief is totally silent about a previous Supreme Court decision about partisan gerrymandering in North Carolina--Rucho v. Common Cause (2019).  As Amar and Amar point out, the majority opinion in this case written by Chief Justice Roberts rejected the independent state legislature theory by arguing that voters in the states can approve constitutional amendments that prohibit partisan gerrymandering, and these constitutional limits can then be enforced by the State Supreme Court (see Amar and Amar, 35).  Remarkably, all five of the conservative Republican justices in 2019 signed onto this opinion!  The Claremont brief is careful to hide this.

I will be interested to see what happens at the oral arguments for Moore v. Harper on December 7th, and whether we see any hints that the Eastman/Claremont Institute position is going to win out.

Thursday, October 13, 2022

Trump's Chimpanzee Politics in the Ohio Senate Race: Tim Ryan Emasculates J. D. Vance

 I have written about Donald Trump's chimpanzee politics.  Recently, we have had an excellent illustration of how to counter Trump's alpha male theatrics.  An alpha male cannot rule by himself, he needs the support of beta males.  But then beta males are vulnerable to the charge that they are . . . only beta males servile to the alpha male.

Tim Ryan is a Democrat running for the U. S. Senate from Ohio.  Normally, Ohio would seem to be Trump Country.  And once Trump endorsed J. D. Vance for the Senate, that would seem to be enough for Vance to defeat Ryan.  

But a few weeks ago, Trump held a rally in Ohio, where he bragged that while Vance had criticized him in 2016, he sought Trump's endorsement in 2022.  Now, he's "kissing my ass," Trump gloated.  Vance then walked onto the podium to praise Trump.  In a debate with Vance, Ryan reminded the audience of this.  What kind of a man would give up his dignity to win Trump's endorsement, he asked.  He observed that no one he knows from his high school class would have done this--to emasculate himself in becoming subservient to a higher ranked male.  What Ohio wants, Ryan proclaimed, is not an ass-kisser but an ass-kicker.

Notice that this has nothing to do with policy debates.  It's pure chimpanzee politics--who's the dominant male, who's the beta male.  Ryan simultaneously identified Vance as the beta male and himself as alpha--as an ass-kicker not an ass-kisser.

This is a dramatic illustration of the evolutionary psychology of the Democratic strategy for subverting Trump's rhetoric of chimpanzee politics.  A narcissistic alpha male like Trump cannot prevail without the support of submissive beta males, but the very submissiveness of these beta males exposes them to the humiliation of being toadies.

Wednesday, October 12, 2022

Indigenous Americans Introduced Slavery to America. European Liberalism Abolished Slavery.

The second Monday in October has long been celebrated as Columbus Day.  But in recent years, many people have insisted that this day should be celebrated as Indigenous Peoples Day or as Native Americans Day.  On Monday, even South Dakota Governor Kristi Noem recognized Native Americans Day.  The justification for this is that Columbus should be seen as the villain who initiated the European conquest of the indigenous people of the Western Hemisphere, while the Native Americans should be seen as the heroic victims of colonial exploitation and enslavement.  A similar kind of rhetoric runs through the "1619 Project" of The New York Times, with the claim that American history began in August of 1619, when 20 African slaves were sold to the governor of the Virginia colony: American history is a history of slavery that exposes the fraudulent hypocrisy of the American principle of equality of rights in the Declaration of Independence.

This rhetorical argument of anticolonialism and antiracism is partly true and partly false.  It is partly true because the European settlers of the New World were indeed brutal oppressors of the Native Americans and the African slaves.  It is partly false, however, because it ignores two historical facts about slavery in the New World.  First, it ignores the fact that Indigenous Americans had enslaved one another before the Europeans arrived in the New World.  Second, it ignores the fact that Europeans debated the justice of slavery, and the European liberal principle of equal human liberty led eventually to the abolition of slavery.

In his book--The Other Slavery: The Uncovered Story of Indian Enslavement in America (Houghton Mifflin Harcourt, 2016)--Andres Resendez has shown how Indigenous slavery arose in every part of the Western Hemisphere before the arrival of the Europeans and before the establishment of African slavery.  For example, the Maya and the Aztecs enslaved captive people who could be used for human sacrifice.  The Iroquois waged war to enslave captives.  And the native Americans along the North Pacific Coast of North America enslaved people captured in war.  Resendez has written a short summary of his book for a Smithsonian Institute publication.  What this shows is that the natural human propensity to tribalistic xenophobic/us-against-them thinking has throughout human history supported the enslavement of those identified as out-group members.

But even if the history of slavery manifests a natural inclination to exploitation and social parasitism, the human resistance to slavery manifests a natural moral sense that opposes such exploitative parasitism.  Throughout the history of the debate over slavery--from Aristotle to Bartolome de Las Casas, to John Locke, to Thomas Jefferson, to Charles Darwin, to Abraham Lincoln--one can see the natural moral sentiments expressed as a joint product of emotional capacities for feeling moral passions like sympathy and anger and rational capacities for judging moral principles like kinship and reciprocity.  (I wrote about this in chapter 7 of Darwinian Natural Right.)

In this debate, we can see the fundamental incoherence in slavery, which requires treating some human beings as if they were not human, as if enslaved human beings do not feel the natural human resistance to exploitation.  Aristotle pointed to this incoherence in his account of natural slavery as distinguished from conventional slavery.  Any careful reader of Aristotle can see that slavery as actually practiced is purely conventional (based on force) rather than natural (based on justice).  Bartolome de Las Casas saw that, and it supported his argument that the native American Indians could not be natural slaves, and therefore their enslavement by the Spanish was naturally unjust.  The American Indians were equally entitled to their human rights because they were equal in their humanity as members of the human species.  He made this argument before the Spanish judges of the Royal Council convoked at Valladolid in 1550.  The Spanish Crown prohibited the enslavement of the Native American Indians.  But Spanish colonists were able to evade this prohibition through legal arrangements such as encomiendas, which was a disguised form of slavery.

As I have indicated in a series of posts, the Lockean liberal principle that all human beings were naturally equal in their liberty supported the self-evident truths of the Declaration of Independence that rendered human slavery unjust, which led finally to the abolition of slavery in America through Lincoln's Emancipation Proclamation and the Thirteenth Amendment.

Thursday, October 06, 2022

The Decline of Monarchy and the Evolutionary Symbolic Niche Construction of Bourgeois Culture

Queen Elizabeth at Buckingham Palace After Her Coronation in Westminster Cathedral in 1953


On pages 16-17 of the paper by Gerring et al., you can see graphs for "Monarchies and Republics in Europe, 1100-2005" and "Monarchies and Republics in the World, 1700-2005."  Here "republic" means simply "nonmonarchy."  The primary alternatives to monarchy were "personal dictatorships" and "corporate forms of government" (with public assemblies that were either democratic or oligarchic).  What is striking in both graphs is how for most of this history, the number of monarchies far exceeds the number of nonmonarchies; but then around 1900, the number of nonmonarchies surpasses the number of monarchies.  Why?

If King Charles III of Great Britain were to declare that he was going to reclaim all of the monarchic power once held by Charles I and Charles II in the seventeenth century, this would undoubtedly be rejected, and even ridiculed, by the British Parliament and the British people.  Why?

Here's the answer from Gerring et al.: "We have argued that monarchy solved the primordial coordination problem of politics in the premodern era.  Where societies are disconnected, a focal point is needed and monarchy was, for millennia, a readily available heuristic for establishing legitimate government.  In the modern era, as societies became more interconnected, monarchy's advantage disappeared.  With societies now highly mobilized and interconnected, monarchy's inability to integrate the masses into politics became a defect rather than an asset" (17).  According to Gerring et al., the primary reason why societies today are so "highly mobilized and interconnected" is the development of mass communications--the printing press, newspapers, national postal systems, the telegraph, radio, television, and the internet.  In particular, they show how the diffusion of radios beginning in the 1920s is associated with the decline of monarchy in the modern era (23-26).

But this raises some obvious questions that are not answered by Gerring and his colleagues.  What explains the development of mass communications?  And what was it about the content of mass communications that subverted monarchy?

Does it make any sense to say that "monarchy's inability to integrate the masses into politics became a defect rather than an asset"?  Why can't monarchy use modern mass communication to glorify monarchy among the masses?

Modern mass communication is a product of modern science and technology.  What is it about modern culture that has promoted science and technology?

Monarchy depends on a perception of society as a hierarchy.  Patricia Crone observes: "Pre-industrial society was commonly envisaged as a hierarchy (chain of command) in which everyone knew his proper place, enjoyed the appropriate rights and duties and obeyed his superiors, receiving obedience from his inferiors in his turn: all in the last resort obeyed the monarch, through whom human society was slotted in with the divine" (115).  This hierarchy was a very narrow pyramid--with a ruling elite at the top that was about 1-2% of the population and peasants at the bottom who were about 80-90% of the population.  What is it about modern culture that has undermined this premodern perception of society as a rigid hierarchy?

One possible answer to all of these questions is suggested by Crone's book, although Crone does not explicitly state it: modernity has dissolved the monarchic culture of hierarchy by promoting the evolutionary symbolic niche construction of the bourgeois culture of equal liberty.


According to Crone, human beings are unique in their capacity and need for culture: "Human beings are distinguished from other animals by their inability to survive without culture, that is information which is not transmitted genetically and which thus has to be learnt afresh by every new generation.  (For example, the capacity to reproduce is genetically transmitted, but kinship systems, courtship etiquette and marriage rules are elements of culture; the capacity to utter noises is genetically transmitted, but languages have to be learnt; so do social and political institutions, agriculture, pottery-making, counting, writing and so on.)" (94).

The social organization of other animals is built into their genes, and thus every species of social animal has its own genetically determined social structure that does not change.  "The human animal is of course genetically programmed too.  However, its programme for social organization is deficient (and to some extent even counter-productive).  The programme does little but instruct its bearer to learn, or in other words to acquire culture with which to supplement (and in some cases even to suppress) such specific instructions as it retains.  Without doing so, the species simply could not survive; doing so, it can survive almost anywhere on earth and even, for limited periods, outside it.  Culture is thus the species-specific environment of Homo sapiens.  Living in accordance with nature is an attractive idea, but in the human case it actually means living with culture" (94-95).

Crone explains human culture as a construct of the human mind that can be imagined but not directly observed.  Through cultural constructions, human beings create world views--that is, theoretical constructions of the world in the mind.  World views can be prescriptive, in that they provide a valuation of the world--telling us what to do and not do.  These prescriptive world views can be religious, ideological, philosophical, or moral.  Religious world views differ from the others in that religion explains the world with reference to supernatural beings rather than abstract principles or impersonal laws.  Religions have been more popular in history than the other atheist or non-theist world views, because "supernatural beings endowed with human feelings are easier to understand, love and obey than abstract concepts."  

In contrast to these prescriptive world views, Crone argues, modern science provides a purely descriptive world view--a theoretical construction of the world that explains the world without telling us what to do (142-43).  She does not answer the obvious objection to this claim--that modern science must be prescriptive (in other words, ethical) because the practical commitment to the life of science implies that this is a good life.  The success of modern science and its promotion of modern mass communications would have been impossible without the modern ethical commitment to science as a human good.

Crone identifies two functions of culture that are best served by religious world views: the drawing of socio-political maps and providing meaning.  The first is important because since human beings are not genetically programmed for any specific kind of socio-political order, they need to culturally construct a conception of good social and political order as an invention of the human imagination.  Crone offers a simple, and comical, illustration:

"Nothing in my genetic equipment tells me that I should milk cows or be forbidden to do so; you may force me to milk them, but if that is all there is to it, I may beat you up or run away the moment you are busy drinking; and though you may be in league with others today, you may fall out with them tomorrow: common interests are highly unstable, as anyone familiar with the phenomenon of intrigue should know.  By contrast, if you devise a religion which says that the gods want my kind to milk and your kind to stick together in enjoyment of authority, on the grounds that my kind descend from a cow whereas you and yours descend from a god, then you may hope to create a society which remains stable not only during our lifetime, but also, and crucially, when social roles have to be transferred to the next generation: the religion would both justify and solidify the social order" (147).

The second function of culture--providing meaning--is served when a religious world view justifies the socio-political order by showing how it fits into God's plan for the world and for the human beings who obey His laws.  As Crone indicates, religion justified monarchy in pre-industrial societies by identifying the king as the link between the divine and the human worlds.  This justified the premodern hierarchical ranking from high to low: from God to King to peasants.

The Crown, Orb, and Sceptre of the Monarch on Queen Elizabeth's Coffin

At the funeral for Queen Elizabeth II, we saw the symbols of this link to the divine in the monarchy.  These are the same symbols displayed at Elizabeth's coronation in 1953.  The Sceptre and Orb were first created for Charles II's coronation in 1661, which was the restoration of the monarchy that had been overthrown in 1649 with the beheading of Charles I and later the establishment of a Republic.  The Sceptre represents the Crown's power and governance.  The Orb is a golden jeweled globe with a gem-encrusted cross symbolizing that the monarch's power is from God.  At the coronation of King Charles II next year, we will see him receiving this same Crown, Orb, and Sceptre from the Archbishop of Canterbury.  For Elizabeth's coronation in 1953, William Walton composed a march for orchestra entitled "Orb and Sceptre."

But now these seventeenth-century symbols of the divine right of monarchs have been reduced to a purely ceremonial role in a modern society that no longer believes that monarchs rule by divine right.  Most of us certainly don't believe that there is any divinely ordained monarchic hierarchy in which most human beings must live as peasants under the dominance of a tiny ruling elite.  We believe that all human beings are created equal and endowed by their Creator with equal rights to life, liberty, and the pursuit of happiness, and that governments are established by consent of the governed to secure those individual rights.  In other words, most of us believe in a social and political order of liberal democracy justified by a culture of bourgeois virtues, in which most human beings belong to a bourgeois middle class, and all human beings are regarded in principle as equally free.

Crone correctly sees the importance of the rise of bourgeois culture in explaining the transition from pre-industrial societies to modern industrial societies.  Pre-industrial societies were based on the fundamental idea that there is a natural, cosmic, or divine hierarchy by which one monarch and few members of a small elite group are born with the authority to rule over the great mass of human beings, mostly peasants, who must submit to being pushed around and exploited without complaint.  Bourgeois ethics denies that idea by asserting that all human beings are naturally equal in their liberty, and that they cannot rightly be ruled by anyone else without their consent. Crone is mistaken in thinking that this bourgeois culture--like all culture--transcends our evolved human nature as social and political animals, and thus cannot be explained by evolutionary biological science.

As I have argued in previous posts, human beings are not the only cultural animals, but they probably are the only animals with symbolic culture, who use language to create social institutions through symbolic niche construction.  Human beings do this through a Lockean social contract by which people consent to establish institutions by agreeing to constitute those institutions.  We do this through what John Searle calls a Declaration of Status Functions: Let X count as Y in the context of C.  

Let this twenty-dollar bill count as money in the U.S. currency system.  Or let Joe Biden count as president of the United States because he was elected through the electoral system established by the Constitution.  

Or let Prince Charles count as King Charles III because he is the oldest son of the dead queen?  But today the British understanding of the legitimacy of the monarchy differs from that which prevailed during the monarchy of Charles I and Charles II.  The British people no longer agree to see the monarch as the ruling sovereign by divine right at the top of a hierarchy with most people as obedient peasants at the bottom.  Now the British people agree that Parliament is supreme and that the Prime Minister will act as the chief executive, so that the monarch will be the ceremonial head of state but not the ruling sovereign.  And the British people see themselves not as obedient peasants but as human beings who are in principle naturally free and equal, who obey only that government to which they have consented.


What we see here is what Patricia Crone and other historians call the "rise of the bourgeoisie"--the symbolic niche construction of bourgeois liberty and equality that constitutes the liberal culture of the modern world, as set against the illiberal culture of the pre-modern world (see Crone, Pre-Industrial Societies, 21-24, 186-87, 195-97, 206).

This all began in the 18th century with Adam Smith's liberal idea--"allowing every man to pursue his own interest his own way, upon the liberal plan of equality, liberty, and justice" (Wealth of Nations, Liberty Fund, 664, 687).  In previous posts, I have identified this as what Deirdre McCloskey calls the "Bourgeois Revaluation," which can be expressed as a Searlean status function: Let the bourgeois life count as honorable in a commercial society.  As McCloskey says, this bourgeois liberalism can be understood as "reinstating a pre-agricultural equality" by establishing an equal dignity and liberty for ordinary people--including an "equality of genuine comfort"--that restores the equal autonomy of individuals enjoyed in hunter-gatherer bands for hundreds of thousands of years until the establishment of rigid class hierarchies in agrarian state societies (Bourgeois Equality, 631-39).  This is a restatement of John Locke's argument for liberalism as the restoration of the natural liberty and equality of the state of nature.

McCloskey overstates her case, however, when she argues that the bourgeois virtues include all of the traditional seven virtues--four pagan virtues (prudence, temperance, courage, and justice) and three Christian virtues (faith, hope, and charity).  In Bourgeois Equality (xxi, 423) and Bourgeois Virtue (508), she says that the bourgeois virtues are "the seven virtues exercised in a commercial society," and "the seven principal virtues of pagan and Christian Europe were recycled as bourgeois."  But she cannot quote Adam Smith or anyone else saying this.

McCloskey can point to Smith's account in The Theory of Moral Sentiments of the virtues of prudence, temperance, courage, justice, and benevolence (part of Christian charity?).  But she cannot find any statement by Smith that these are the bourgeois virtues of a commercial society.

Moreover, she cannot explain why Smith identifies admiration of the rich as "the corruption of our moral sentiments."  In her one-paragraph comment on Smith's chapter against admiring the rich, she observes: "That the Waltons are rich does not make them admirable people, despite the undoubted commercial savvy of Sam and his brother Jim" (Bourgeois Equality, 564).  But this contradicts her claim that the rhetoric of the bourgeois virtues promotes "the admiration for and acceptance of trade-tested betterment" (564).  She also cannot explain why Smith in the Wealth of Nations never identifies businesspeople as virtuous, and why he refers only once to "virtues," and it's a lament that the "laboring poor" in a commercial society suffer a decline "in intellectual, social, and martial virtues" (WN, 782).

Recently, Daniel Klein has offered a much more modest--and more defensible--version of McCloskey's argument.  Using the Google Books Ngram Viewer, Klein shows that after about 1740 people for the first time started writing about "honest merchants" and "honest traders," terms that had almost never appeared before 1740.  For the first time, the profession of merchants and traders was regarded as "honest."  Klein traces this idea to the jurisprudence of Hugo Grotius and others who saw that those who made money through honest dealings--that is, voluntary transactions--had a property right to their wealth that should be protected by law.

But unlike McCloskey, Klein distinguishes honest dealings from virtuous conduct.  Being honest is a necessary but not sufficient condition for being virtuous.

Klein quotes from Alexis de Tocqueville's chapter in Democracy in America on "Why Americans Consider All Honest Callings Honorable" (part 2, chap. 18).  While in aristocracies, "it is not exactly work itself which is despised, but work with an eye to profit."  By contrast, in America, "equality makes not only work itself, but work specifically to gain money, honorable."  "In the United States professions are more or less unpleasant, more or less lucrative, but they are never high or low.  Every honest profession is honorable."

Thus, a bourgeois life in a modern liberal society is regarded as honest and honorable.  But it does not necessarily display all the virtues.  The modern adoption of this idea of bourgeois dignity is enough to explain the Great Enrichment of the past 200 years that has created the world in which most of us live today: the richest, healthiest, freest, and most populous world that human beings have ever experienced in their 200,000 years of evolutionary history.