Donald Trump’s exchanges with Democratic politicians usually go something like this: He picks a petty fight, almost always lobbing a tweet with a low-grade schoolyard taunt. The politician he targeted makes some bland statement about not engaging, but slips in a few passive-aggressive comments to needle him back. Political reporters lap it up.
That’s what’s been playing out between Trump and Michigan Governor Gretchen Whitmer over the past week.
Except this time is different, Whitmer says. This time, Trump’s routine is going to lead to Americans dying.
While Trump is taking shots at her from the White House, Whitmer told me, “more people are going to get sick and more lives are going to be lost because we don’t have enough testing, because we don’t have enough [personal protective equipment], because there aren’t enough ventilators, because the national stockpile, I understand, is getting close to being depleted. And we’re not even close to meeting the needs of people that are already sick, and more and more are going to get sick.” This isn’t a normal political fight, she said. “There’s going to be a horrible cost.”
Whitmer is trying to be diplomatic, even as she tries to negotiate for lifesaving equipment with a president who seems ready to let his personal vendettas guide his public-health response. She’s worried not just as the governor of a state that’s been shorted, but as the daughter of a man with COPD who’s living in Florida and who’s potentially put at more risk by the governor there, Ron DeSantis, who until earlier this week was taking more of a trust-his-gut approach to the pandemic. Whitmer said she’s dismayed by “the inconsistent messaging and the lackadaisical attitude at the national level, [which] really undermined the seriousness of the issue for a lot of people,” and by the “staggered inconsistent response we’ve seen nationally.”
Trump is often influenced by raw, self-interested politics. He’s looking to win votes in Michigan in November, but right now he’s depriving Michiganders of the help they need, because of his feelings about their governor. How does she make sense of that?
“I’m not sure how to answer the question,” Whitmer said.
Our full interview can be heard on the latest episode of The Ticket.
What follows is an edited and condensed transcript of their conversation.
Edward-Isaac Dovere: Do you remember the first you heard about the coronavirus?
Gretchen Whitmer: You know, in January and February, [thinking] This is a global phenomenon that it’s really just a matter of time. In February, my sister really started sounding the alarm. She was watching it very closely. Our dad is in Florida and we’ve been consistently, for a couple of months, trying to get him to come back to Michigan—frankly, because we’re so concerned about his ability to get the care he might need. He has COPD. And we really started working on him. We still have not been successful. And that’s why I’ve been watching what that governor’s not been doing, increasingly alarmed.
Dovere: What may turn out to be the final “normal” rally of the campaign happened in Detroit on March 9, the night before the Michigan primary. It was a Joe Biden event, and you were there endorsing him. The next day, things started to shut down. Why did that rally go on?
Whitmer: We were getting so much inconsistent messaging from the federal government and we hadn’t seen it occur in Michigan at that juncture. Now, the next day were the first two cases. And that’s when everything went to hyper-speed. But, you know, I’ve thought about that evening, because I’d told people, “We’ve got this virus. We’ve got to stop shaking hands.” We’re doing fist bumps, doing elbow bumps. You know, people were kind of teasing me about it, because they say, “Oh, I can shake your hand,” you know? I think that the inconsistent messaging and the lackadaisical attitude at the national level really undermined the seriousness of the issue for a lot of people. I think it still is.
Dovere: If you could go back in time and talk to yourself the morning of that rally, would you have said to cancel it?
Whitmer: I would say: Start buying every N95 mask I could get my hands on. I would say: Start shutting things down immediately. You know, despite all that, we’ve been more on the aggressive side and have moved faster than a lot of states. And each of those decisions has hurt. It weighs on you. You worry about people losing their jobs and not having money, and businesses that may not open again, and kids that you’re pulling out of school. And even at that juncture, there was conflicting advice even in the medical community.
Dovere: In 2018, when you were running in your primary, single-payer health care was an issue. You were not for it. Your primary opponent, whom you beat by quite a lot, was for it. Has anything over the last couple weeks made you think differently about that question or other questions about health-care access from where you were before this outbreak began?
Whitmer: I’ve always been for getting everyone covered. The debate in my primary, I thought, was not an honest one, because the state isn’t going to do this on our own. The ability for a governor who’s going in with a Republican legislature—I couldn’t tell people I can single-handedly do something that I know I couldn’t do. I just don’t think it’s intellectually honest. And that’s precisely why I took a more thoughtful approach to the same goal, which is getting more people covered.
Dovere: It’s impossible to talk with you about what’s going on here without getting into what your relationship has been with President Trump. He doesn’t want to talk to you. If you were on a call with him right after this one, what would you say to him to try to break through?
Whitmer: You know, it’s interesting. He did call me on Tuesday. And you know, I just reiterated: I don’t want to fight. We need to join together in the fight against COVID-19. We can’t afford to fight each other. We all have to be fighting this virus. And so I would say: Thank you for the 400 ventilators that FEMA sent. I’d say: I need about 5,000 more immediately. Every one of us has a job to do here. And the federal government, I think, really should be taking more of a national strategy. Having this patchwork of policies makes it more porous in terms of our ability to fight COVID-19 as a nation. We need to focus on bringing manufacturing back into the United States. We’re waiting on swabs from Italy and masks from China. Global trade is not all bad, but the fact of the matter is, we are at a disadvantage in terms of fighting COVID-19. And I would say we need to deploy the Defense Production Act in a meaningful, real way to meet the needs of Americans right now. These are the things I’ve said consistently on television. I’ve seen other governors say essentially the same thing and not have the same reaction. I’m not going to spend a lot of energy analyzing the difference there. But I will just say this: I’m doing my job and I’m doing the same job that governors across the country are doing. We are trying, in this untenable environment, to do as much as we can for the people we serve.
Dovere: Are people going to die because of the government’s shortfalls?
Whitmer: More people are going to get sick and more lives are going to be lost because we don’t have enough testing, because we don’t have enough PPE, because there aren’t enough ventilators, because the national stockpile, I understand, is getting close to being depleted. And we’re not even close to meeting the needs of people that are already sick, and more and more are going to get sick. And so I do think that there’s going to be a horrible cost because of all of these pieces.
Dovere: Joe Biden has been talking with a lot of people about what’s going on. One of the things that puts you into the conversation is, of course, you get talked about as a potential running mate for him. He said he’s going to pick a woman. You’re from a swing state. Even aside from that, you’ve generated a lot of national political interest. If he called and asked you to do it, what would your answer be?
Whitmer: Well, I’ll just say this: I am 15 months into my job as governor. I worked for two years to earn the opportunity to have this job. And no one could ever have anticipated that we would be here in this moment. I didn’t go out looking for the national spotlight. I know that the most important thing, where I’m spending all my energy right now, is trying to help my frontline health-care providers and trying to educate Michiganders so that we can slow the spread of COVID-19. I don’t like being attacked in national news. I didn’t go out of my way looking for all of this conversation. I just know that I need assistance and I need to use my voice at every opportunity to try to highlight what’s happening in Michigan so that I can help my nurses and doctors and respiratory therapists who are doing superhero work.
Dovere: The president called you “that woman from Michigan.” When you did your Daily Show interview, you were wearing a T-shirt that had that written on it. So there’s some of this fight that you seem to have identified with.
Whitmer: I have been called many things in my lifetime. And I know that if you can, try to keep it in perspective … Someone sent me that shirt and I thought it kind of said, This is not something that was going to hold me back. I’m going to keep trying to forge every alliance I can, whether it’s with the administration or it’s with a Michigan business that can produce some of these needed things or it is someone who will reach in and contract with me to help me get this critical equipment in. We’re gonna keep perspective because that’s what’s most important. And that means we are not one another’s enemies. The enemy is COVID-19.
We are living in post-legal times. The new conservative majority on the Supreme Court, and the carefully screened cadre of far-right judges in lower courts, are poking hungrily not only at venerable precedents but at the notion of precedent itself.
Adrian Vermeule, the Ralph S. Tyler Jr. Professor of Constitutional Law at Harvard Law School, is hardly a marginal figure. At just over 50, he has made his mark as a brilliant but distinctly conservative theorist of administrative and constitutional law. Four years ago, he was received into the Catholic faith, and has adopted a radically conservative posture toward law and society. His chosen philosophy is called “integralism,” which calls for subordinating the state to the principles of the Catholic Church.
Tuesday on this site, in an essay titled “Beyond Originalism,” he called on conservative judges and lawyers to exploit their new ascendancy by remaking the entire country. No longer should they be content to parry the claims of liberal legalists; instead, they must, to paraphrase Vladimir Lenin, proceed to construct the integralist order.
The essay appeared on the eve of April 1, and Vermeule might be having us on. He sometimes aspires to puckishness: Witness a late-February tweet that displayed an advertisement for a conference of anti-Trump conservatives with the comment, “The very first group for the camps.” The sportive conceit here is that these “RINO” conservatives (Republican in Name Only), just like hard-core Trumpists, would one day be shipped off to detention by rampaging liberal commissars. Similarly, his positions in “Beyond Originalism” are sufficiently outrageous that charitably imagining the essay as self-parody is easy.
By contrast, I suspect that Vermeule, with admirable honesty, really is explaining the beliefs that he and others on the right have quietly held for many years. His view of the presidency, for example, echoes some parts of Attorney General Bill Barr’s authoritarian manifesto, delivered in November to an adoring federalist gathering. Let’s examine what Vermeule proposes; it may be our future.
I will try to give a fair summary of his complex argument:
Originalism, Vermeule writes, has since the 1980s, come to dominate conservative legal discourse. The idea behind it was that judges can, by research, determine the “original intent,” of a constitutional provision, and then apply that and only that to present-day cases. The motive behind it, as Vermeule notes, was to fashion an argument that could oppose and eventually reverse Warren and Burger Court precedents that expanded sexual freedoms and limited the power of majorities to enforce morals and hierarchies.
In 2020, the Trump administration has brought the Supreme Court and lower courts under firm conservative control. As a result, originalism commands widespread allegiance among bench and bar; even many liberals have learned to play the game.
Now Vermeule, like Joe Pesci in My Cousin Vinny, asks scornfully: You were serious about that? He wants originalism out; what should replace it is “common-good constitutionalism … based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.”
This philosophy is “not enslaved to the original meaning of the Constitution” (unlike “originalism”) but is also “liberated from the left-liberals’ overarching sacramental narrative, the relentless expansion of individualistic autonomy.”
The state will coerce individuals, to be sure, but for their own good: “Subjects will come to thank the ruler whose legal strictures … encourage subjects to form more authentic desires.” The ruler will achieve this through “a powerful presidency ruling over a powerful bureaucracy.”
In the new commonwealth, judges and other officials will enforce:
respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality.”
Reader, you, like me, may wonder how this relates to the actual, you know, Constitution. We can read that document’s “sweeping generalities and famous ambiguities” as embodying natural law and morality. But, really, we need not fuss with textual trivialities all that much. “Thinking that the common good and its corollary principles have to be grounded in specific texts is a mistake.”
What legal changes would just rulers and judges make? “The Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common-good constitutionalism.” To put it differently: Kiss goodbye to your same-sex marriage, your contraceptives, your reproductive choice, and, for good measure, your right to protest against losing them.
That’s just the beginning. But sooner or later, you will thank the wise leader.
Many things could be said about the above vision. To address the easiest first, Vermeule is not admitting to having been an insincere originalist. He never was an originalist. He is an authentic Christian nationalist to whom the Constitution is only an obstacle; to cite just one example, see an argument he recently made on a Christian legal-theory website that immigration rules should be changed to provide “lexical priority [in visas] to confirmed Catholics, all of whom will jump immediately to the head of the queue.”
Puckishness takes one only so far. This man’s argument really is for authoritarian extremism.
Next, Vermeule’s philosophy (and to his credit, he essentially admits this) has absolutely nothing to do with the actual United States Constitution, and in many ways flatly contradicts it. A government that tends its people like sheep, remaking their desires and beliefs, has no basis in the Constitution itself. The structure of the Constitution embodies a distrust of “strong rule” so clear that no one with eyes could miss it; I can find no commitment there to “a powerful presidency ruling over a powerful bureaucracy.”
In fact, the Constitution as such is not a binding text to Vermeule. What common-good judges must do, he says, is “read into the majestic generalities and ambiguities of the written Constitution” (italics mine) the principles he favors. “Reading into” is a technique of scriptural interpretation. It is called “eisegesis,” which the Oxford English Dictionary explains is “the interpretation of a word or passage (of the Scriptures) by reading into it one’s own ideas.”
We’ve all met eisegesis in daily life—think of your freshman roommate who thought that Pink Floyd’s “Dark Side of the Moon” is actually about The Wizard of Oz. As a scholarly technique, however, eisegesis is, to say the least, disfavored; as a way of thinking, it is dangerous—to use a phrase from King Lear, “that way madness lies.” Much more honest would be for Vermeule to say that the old Constitution has failed and conservatives in robes should storm the Winter Palace, tear up the old rag, and substitute the Republic of Gilead.
This utopia where grateful “subjects” (formerly called “citizens”) kiss the rod that saves them from their foolish heart’s desires is eerily familiar. Consider this credo:
The national community is founded on man as bearer of eternal values, and on the family as the basis of social life; but individual and collective interests will always be subordinated to the common welfare of the nation, formed of past, present and future generations … The natural entities of social life—Family, Municipality and Guild—are the basic structures of the national community. Such institutions and corporations of other kinds as meet general social needs shall be supported so that they may share efficaciously in perfecting the aims of the national community.
The source is The Law of the Principles of the National Movement, promulgated by the Spanish government in 1958 as a summary of Falangism, the philosophy of General Francisco Franco’s regime. Falangists, too, spoke warmly of God, of the favored role of the Holy Catholic and Apostolic Church, of the sacred family, and of the “common welfare”; but they ruled by censorship, secret police, the garrotte, and the firing squad. We need not list the other 20th-century authoritarian regimes that embraced eternal values but ruled by terror.
In fact, my deepest objection to Vermeule’s anti-constitutional philosophy is not that it is harmful and antihuman, but simply that, in the end, it is so banal. This movie has had more remakes than A Star Is Born. The opening scenes are always set amid the delicate towers of Saint Augustine’s imaginary City of God; but the last scene takes place, every time, in dank basements soaked with very real blood.
National-security analysts see China as one of the greatest threats facing the United States and its allies. According to an emerging conventional wisdom, China has the leg up on the U.S. in part because its authoritarian government can strategically plan for the long term, unencumbered by competing branches of government, regular elections, and public opinion. Yet this faith in autocratic ascendance and democratic decline is contrary to historical fact. China may be able to put forth big, bold plans—the kinds of projects that analysts think of as long term—but the visionary projects of autocrats don’t usually pan out.
Yes, democratic governments are obligated to answer to their citizens on regular intervals and are sensitive to public opinion—that’s actually democracies’ greatest source of strength. Democratic leaders have a harder time advancing big, bold agendas, but the upside of that difficulty is that the plans that do make it through the system have been carefully considered and enjoy domestic support. Historically speaking, once a democracy comes up with a successful strategy, it sticks with the plan, even through a succession of leadership.
Washington has arguably followed the same basic, three-step geopolitical plan since 1945. First, the United States built the current, rules-based international system by providing security in important geopolitical regions, constructing international institutions, and promoting free markets and democratic politics within its sphere of influence. Second, it welcomed into the club any country that played by the rules, even former adversaries, like Germany and Japan. And, third, the U.S. worked with its allies to defend the system from those countries or groups that would challenge it, including competitors such as Russia and China, rogue states such as Iran and North Korea, and terrorist networks.
America can pursue long-term strategy in part because it enjoys domestic political stability. While new politicians seek to improve on their predecessor’s policies, the United States is unlikely to see the drastic shifts in strategy that come from the fall of one political system and the rise of another. Democratic elections may be messy, but they’re not as messy as coups or civil wars.
Open societies have many other advantages as well. They facilitate innovation, trust in financial markets, and economic growth. Because democracies tend to be more reliable partners, they are typically skillful alliance builders, and they can accumulate resources without frightening their neighbors. They tend to make thoughtful, informed decisions on matters of war and peace, and to focus their security forces on external enemies, not their own populations. Autocratic systems simply cannot match this impressive array of economic, diplomatic, and military attributes.
David Leonhardt recently wrote in The New York Times, “Chinese leaders stretching back to Deng Xiaoping have often thought in terms of decades.” Commonly cited examples of that long-term thinking include the Belt and Road Initiative, a program that invests in infrastructure overseas; Made in China 2025, an effort to subsidize China’s giant tech companies to become world leaders in 21st-century technologies, such as artificial intelligence; and Beijing’s promise to be a global superpower by 2049.
Since putting in place sound economic reforms in the 1970s, China has seen its economy expand at eye-popping rates, to become the world’s second largest. Many economists predict that China could even surpass the United States within the decade, and some have suggested that China’s model of state-led capitalism will prove more successful, in terms of economic growth, than the U.S. template of free markets and open politics.
I doubt these predictions. Because autocratic leaders are unconstrained and do not have to contend with a legislature or courts, they have an easier time taking their countries in new and radically different directions. Then, when the dictator changes his mind, he can do it again.
Mao’s autocratic China ricocheted from one failed policy to another: the Great Leap Forward, then the Hundred Flowers Campaign, then the Cultural Revolution. Mao aligned with the Soviet Union in 1950 only to nearly fight a nuclear war with Moscow in the next decade. Beginning in the time of Deng Xiaoping, China pursued a fairly constant strategy of liberalizing its economy at home and “hiding its capabilities and biding its time” abroad. But President Xi Jinping abandoned these dictums when he took over. As the most powerful leader since Mao—he has changed China’s constitution to set himself up as dictator for life—he could once again jerk China in several new directions, according to his whims, and back again.
The problem for Beijing is that stalled reforms will stymie its economic potential and its confrontational policies are provoking an international coalition to contain them. The 2017 U.S. National Security Strategy declared great-power competition with China the foremost security threat to the U.S.; the European Union labeled China a “systemic rival”; and Japan, Australia, India, and the United States have formed a new “quad” of powers to balance China in the Pacific.
Furthermore, the plans often cited as evidence of China’s farsighted vision, the Belt and Road Initiative and Made in China 2025, were announced by Xi only in 2013 and 2015, respectively. Both are way too recent to be celebrated as brilliant examples of successful, long-term strategic planning.
A certain level of domestic political stability is a prerequisite for charting a steady strategic course in foreign and domestic affairs. But autocratic regimes are notoriously brittle. While institutionalized political successions in democracies typically lead to changes of policy, political successions in autocracies are likely to result in regime collapse and war. China’s “5,000 years of history” were pockmarked by rebellion, revolution, and new dynasties. Fearing internal threats to domestic political stability—consider the protests this year in Hong Kong and Xinjiang—the CCP spends more on domestic security than on its national defense. If you follow the money, the CCP is demonstrating that the government is more afraid of its own people than of the Pentagon. This domestic fragility will frustrate China’s efforts to design and execute farsighted plans. If threats to Chinese domestic stability were to materialize and the CCP were to collapse tomorrow, for example, Chinese grand strategy could undergo another seismic shift, including possibly opting out of competition with the United States altogether.
Autocracies have other vulnerabilities as well. State-led planning has never produced high rates of economic growth over the long term. Autocrats are poor alliance builders who fight with their supposed allies more than with their enemies. And the highest priority of autocratic security forces is repressing their own people, not defending the country.
The world has undergone drastic changes in just the past few years, but these enduring patterns of international affairs have not. Some fear that Trump’s nationalist tendencies will erode the U.S. position, but the momentum of America’s successful grand strategy has kept the country on a fairly steady course. Despite Trump’s criticism of NATO, for example, two new countries have joined the alliance on his watch, including North Macedonia this week. The coronavirus has upended a sense of security in the U.S., leading many people into the familiar trap of lauding autocratic China’s firm response in contrast to the halting and patchwork measures in the United States. But there is good reason to believe that this assessment will be updated in America’s favor with the benefit of hindsight. Already we are seeing evidence that conditions are much worse in China than CCP officials are letting on and that China’s attempts at international “disaster diplomacy” are backfiring. It has been revealed that the CCP has continually misrepresented the numbers of COVID-19 infections and deaths in China, and European nations have rejected and returned faulty Chinese coronavirus testing kits.
The great political theorist Niccolò Machiavelli considered a similar line of thinking in the 16th century, about whether republics or dictators charted a more stable course. He wrote, “I, therefore, disagree with the common opinion that a populace in power is unstable [and] changeable … The prince … unchecked by laws, will be more … unstable, and imprudent than a populace.”
The U.S. political system certainly has problems. But democracy is the best machine ever invented for generating enormous power, wealth, and prestige on the international stage.
Here are three of the most common criticisms of originalism made by non-originalists:
(1) Originalism does not provide a determinate answer to contested questions—anything beyond, say, how many senators a state gets, or how old a person must be to be president.
(2) Originalism typically produces bad answers to such contested questions.
(3) Originalism is just a cover for conservative judges to reach the results they like.
Note that No. 1 is in tension with No. 2. How can a method that fails to produce any answers to contested questions produce bad ones? As for No. 3, originalism, like any other method or theory, is not self-enforcing. Instead, it provides a basis to criticize judges who fail to adhere to original meaning when it really matters.
I like to tweak progressive non-originalists (or “living constitutionalists,” as they are sometimes called) by asking them to consider what will happen if they win the argument and persuade conservative judges to abandon their professed commitment to originalism. How will you feel, I ask, when they start using your preferred approach to reach the conservative results that they like?
Well, if conservative judges adopt the approach recommended by the Harvard law professor Adrian Vermeule, progressive living constitutionalists will be able to find out exactly how they feel. In a lengthy article for The Atlantic, “Beyond Originalism,” Vermeule urges conservative scholars and judges to abandon originalism, and, in its place, to develop what he calls common-good constitutionalism. “Such an approach,” he writes, “should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.” He adds that this approach will give the government “ample power to cope with large-scale crises of public health and well-being—reading ‘health’ in many senses, not only literal and physical but also metaphorical and social” (emphasis mine).
The metaphorical and social “health” to which he refers is moral. Common-good constitutionalism “should take as its starting point substantive moral principles that conduce to the common good,” which, Vermeule believes, can be “read into the majestic generalities and ambiguities of the written Constitution.” Above all, common-good constitutionalism requires “a candid willingness to ‘legislate morality’—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority.”
Vermeule would like for government to have an expansive role in promoting this morality, via legislation or other bureaucratic means, even “against subjects’ own perception of what is best for them.” The bureaucracy, he says, “will be seen not as an enemy, but as the strong hand of legitimate rule.” Somewhat chillingly, he adds: “Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.”
Vermeule views originalism, with its focus on the original meaning of the text of the written Constitution, to be an obstacle to this agenda. “It is now possible,” he observes, “to imagine a substantive moral constitutionalism that [is] not enslaved to the original meaning of the Constitution.” Indeed, Vermeule rejects textualism altogether: “Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them.”
This is nothing but conservative living constitutionalism. While the article is long on narrative, critique, and assertion, it is short on original theory and specifics. Instead, for his theory, Vermeule relies on “Ronald Dworkin, the legal scholar and philosopher” (and my jurisprudence professor when he visited Harvard Law School), who “used to urge ‘moral readings of the Constitution.’ Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent.”
While he does not discuss it, we can expect Vermeule to want judges to defer to the moral opinions of legislators. One sign of this preference is the swipe he takes at the Supreme Court’s protection of the constitutional right to keep and bear arms. “[T]he difference with originalism is clear, because originalism is sometimes revolutionary; consider the Court’s originalist opinion declaring a constitutional right to own guns, a startling break with the Court’s long-standing precedents.”
The idea of “judicial self-restraint” was famously advocated by another Harvard law professor, James Bradley Thayer. In his 1893 Harvard Law Review article, Thayer proposed that judges should almost always defer to the judgment of legislators. Three years later, the Supreme Court followed his approach in Plessy v. Ferguson:
There must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable [emphasis mine].
Jim Crow was, above all things, a regulation of morality with a vengeance. The minority will just have to wait for the enlightenment of the majority. (Oh, wait—Vermeule may think the Enlightenment bad, too.)
Progressives are already seizing on Vermeule’s article to claim that conservatives’ commitment to originalism was always insincere and opportunistic. According to one Twitter wag, the piece “is an outright statement by a conservative law professor that originalism was just a rhetorical strategy which, now that conservatives hold power in the courts, can be abandoned and replaced with straightforward reactionary politics.”
Nonsense. Vermeule was never an originalist. For him, originalism was never a “rhetorical strategy.” Rather, he is a Catholic integralist, which makes him a very particular and scarce kind of “conservative law professor.” Integralists believe, as the priest Edmund Waldstein put it, “since man’s temporal end is subordinated to his eternal end, the temporal power must be subordinated to the spiritual power.” In case the meaning is lost: This is an argument for the temporal power of the state to be subordinated to the spiritual power of the Church.
A moral-readings approach like Vermeule’s raises some obvious questions:
What qualifies state legislators to make spiritual choices that will be imposed on nonconsenting citizens? What will legislative debates about morality look like? Who will be called as witnesses in legislative hearings? The inevitable answer is that legislators will just vote their own morality and the legislative majority will prevail. In the legislature, might will make right. (The state-sanctioned segregation upheld in Plessy is a good example of this.)
Assuming there is any judicial review left, what in judges’ training qualifies them to assess these competing moral claims on which legislation is to be solely based? Answer: Nothing.
Above all, what happens to social peace as the government starts incarcerating the dissenting minority for failing to adhere to their moral duties? Religious war, anyone?
What does Vermeule have to say about these and other obvious questions? Well, nothing. He does not even acknowledge that such questions exist. Presumably, all will be revealed to us in the fullness of time. As the (non-originalist) George Mason University law professor David Bernstein observed—in response to Vermeule’s piece—on Facebook, “It must be nice to be a Harvard professor. You can write a short, silly essay on constitutional law that addresses none of the obvious objections to your thesis, and still get a tremendous response as if you’ve written a serious piece of scholarship.”
Why now? Vermeule is quite naked in his political calculation: “The hostile environment that made originalism a useful rhetorical and political expedient is now gone. Outside the legal academy, at least, legal conservatism is no longer besieged.” (Yes, Vermeule calls originalism a “rhetorical and political expedient”—but what do you expect from a living constitutionalist?)
In this, Vermeule is consciously mirroring the views of his Harvard Law School colleague Mark Tushnet. During the run-up to the 2016 election, with Hillary Clinton’s victory (all but) assured, Tushnet wrote a blog post (to which Vermeule links) that urged his fellow progressives to “[Abandon] Defensive Crouch Liberal Constitutionalism.” Tushnet’s views are too lengthy to summarize, but one passage gives a sense of his premature triumphalism: After eight years of Obama appointees, “more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents, and … the same appears to be true of the district courts.” With Clinton set to pick Justice Antonin Scalia’s successor, “those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions.”
Oops. Now it’s Vermeule’s turn to crow, advocating an “ambitious” approach that “abandons the defensive crouch of originalism and that refuses any longer to play within the terms set by legal liberalism.” He writes,
If President Donald Trump is reelected, some version of legal conservatism will become the law’s animating spirit for a generation or more; and even if he is not, the reconstruction of the judiciary has proceeded far enough that legal conservatism will remain a potent force, not a beleaguered and eccentric view. Assured of this, conservatives ought to turn their attention to developing new and more robust alternatives to both originalism and left-liberal constitutionalism.
There seems to be something authoritarian in the water of Harvard Law School.
While methodological disagreement among originalists is healthy and will persist, I seriously doubt there will be many defections to common-good constitutionalism. Originalist scholars and judges are all too familiar with the pitfalls of living constitutionalism.
But there will be some. In particular, I have sensed a disturbance in the originalist force by a few, mostly younger, socially conservative scholars and activists. They are disappointed in the results they are getting from a “conservative” judiciary—never mind that there are not yet five consistently originalist justices. Some attribute this failing to originalism’s having been hijacked by libertarians. Some have been drawn to the new “national conservatism” initiative, which makes bashing libertarians a major theme. These now-marginalized scholars and activists will be delighted to fall in behind the Templar flag of a Harvard Law professor like Vermeule.
Vermeule’s article should put both conservatives and progressives on notice that the conservative living-constitutionalism virus has been loosed upon the body politic. But there’s time to take protective measures.
Progressives: Do you still want conservative judges to abandon their originalism for living constitutionalism? If not, “Originalism for thee but not for me” won’t cut it. To be taken seriously by them, you will need to bite the bullet and join the Originalist League. We have several teams you can play for.
Conservatives: After years of fending off attacks from your left flank, get ready to defend originalism from your right flank as well. Be prepared for conservative pushback against originalism. But rest assured that the underlying theory being asserted by Vermeule is nothing new. Until he presents an improved version, well-established criticisms continue to apply.
We can all be grateful to Vermeule for firing so visible a shot across the originalist bow. Forewarned is forearmed. Recall this passage from Justice Scalia’s dissenting opinion in Morrison v. Olson: “Frequently an issue … will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.”
There is nothing subtle or surreptitious about the challenge common-good constitutionalism poses to originalism. This wolf comes as a wolf.
Barry Goldwater’s 1964 nomination as the Republican presidential candidate was a defining moment in American politics, but not for the reasons that anyone thought at the time. Goldwater was crushed by Lyndon B. Johnson in the general election, a result, everyone agreed, that proved the type of radical conservatism Goldwater represented was dead. Everyone was wrong. Four years later, Richard Nixon was elected president, beginning a prolonged period of Republican political dominance that would culminate in Ronald Reagan’s 1980 victory. “Here is one time, at least,” the historian Rick Perlstein wrote, “in which history was written by the losers.”
The Goldwater experience—that electoral defeat does not mark the end of a movement—has implications today, and not only for the conservative right.
Even before the coronavirus outbreak, many on the “populist,” or “radical,” left insisted that globalization, climate change, automation, and inequality were creating the conditions for their own political resurgence, despite their leaders—Bernie Sanders in the United States, Jeremy Corbyn in Britain—being rejected at the ballot box. Now, in a world where governments are nationalizing wages and public services just to keep their economies afloat, such claims no longer seem far-fetched. Indeed, Corbyn, who will be replaced as Labour leader today, said the emergency economic measures being taken in Britain have proved him “absolutely right” in his demand for higher state spending, even though he badly lost an election just a few months ago after campaigning on that pledge. Is history repeating itself, accelerated by the severity of the social and economic crisis ripping through Western societies as a result of the pandemic?
The trouble with arguments claiming long-term inevitability is that they cannot be disproved. “The long run is a misleading guide to current affairs,” the economist John Maynard Keynes observed. “In the long run we are all dead.” So let me first say that the resurrection of the left is not inevitable, despite mounting claims to the contrary. Just because extreme measures have been taken to tackle the pandemic does not mean voters will want lighter versions of such policies in the long term. One example should stand as a warning in this regard: After the Second World War, Labour’s failure to end food rationing and price controls quickly enough cost the party at the ballot box in 1951, when Winston Churchill was reelected as prime minister. History can surprise: Perhaps the coronavirus will push people to the right, and voters will rally for tougher borders and more restrictive social policies. We are already seeing this in Hungary. Perhaps the concepts of left and right will not adequately contain the political demands that will follow this crisis. We don’t know.
But much as Johnson biographer Robert Caro wrote that power reveals, so too does a crisis. Crises reveal the nature of power, the fault lines that run through societies, and the characters of leaders. They reveal the underlying realities of life: in the case of this pandemic, for example, that a functioning economy rests on a functioning society; that “key workers” and “wealth creators” are not so different after all; and that national borders have not been abolished, even in Europe. This pandemic has also revealed that governing during an outbreak is not simply a question of listening to experts, because experts can disagree. Instead, governing is fundamentally about judgment, the ability to communicate, to resolve, to show compassion and instinct.
The ideas of the left are likely to stick around this time, then, not because of the pandemic itself and the measures taken to contain its impact, but because of what the pandemic has revealed. The sudden, crippling economic downturn caused by the coronavirus outbreak has shone a light on systemic weaknesses that few fully understood, such as those of global-health control. But the crisis has also illuminated problems that we could already see but did not appreciate—and that were central to the left’s pitch for power under Corbyn and Sanders. Have we prized economic efficiency too much over national resilience? If a healthy economy is possible only in a healthy society, do we not need to devote more time (and funding) to the latter? How do we remove the corrupting influence of money from our politics? How do we protect living standards in the age of automation, global supply chains, and pandemics?
Like mold on a bedroom wall, the left is fed by the intrinsic damp in the system: politicians selling off shares while reassuring the public that everything will be okay; health systems too frail to cope with pandemics despite years of preparation; governments powerless to protect their citizens from events caused beyond their borders. None of this is to say that the left is correct in its analysis or solutions, but merely to state the obvious: The system isn’t working.
In 2008, the taxpayers of the United States, Britain, and most other Western countries were forced to take on new collective debts to bail out financial sectors that were about to collapse. After assuming these debts, voters in places such as Britain elected governments that imposed years of austerity, while incomes barely increased (if at all). At the same time, climate change continued largely unchecked, and the pay of those who caused the crisis in the financial sector remained astronomical.
Will voters really endure cuts to public services again, having taken on a whole new round of debt to soften the economic blow of the coronavirus shutdown? Boris Johnson’s landslide victory over Corbyn in December was fueled by a pitch to voters to end both the Brexit chaos and the previous decade of austerity. He promised more money for health care and the police, and no tax raises. Without austerity, how will Johnson balance the books? Think tanks in Britain are already debating the answer, and one called for a new “social contract” between business and the state centered on tax. But after such a sudden economic implosion, will voters seek only moderate tweaks to the system, or will they consider more radical reform? The former British Conservative cabinet minister David Gauke told me that a move toward more communitarian politics and a bigger state is inevitable.
This is not an argument for Corbyn, Corbynism, Sanders, or the Bernie Bros. While in the U.S. Sanders is technically still in the running for the Democratic nomination, here in Britain, today is the day the curtain finally falls on Corbyn’s stewardship of the Labour Party. His record is bleak. In 2015, he inherited a party that, in the same year, had suffered its largest defeat since 1983. Today, he hands it over in markedly weaker condition, having led Labour last year to its worst result since 1935. His tenure, forever tainted by the revival of anti-Semitism that happened on his watch, lasted longer than most thought possible, because of the surprise general-election result that came in 2017 when he oversaw a late surge in the poll to rob the Conservative Party of a majority. Three years on, however, the reality is that the result blinded Labour to its overall loss in the election. Celebration of the 2017 result distracted from the party’s ongoing existential crisis, its voters largely found in urban England, and its working-class and Scottish base quickly vanishing. The narrow margin of the 2017 loss, it emerged, owed more to specific circumstances than to momentous trends moving the party’s way. Unable to see its own faults, and convinced of its own righteousness, Labour condemned itself to the crushing defeat that followed two years later.
Corbyn and Sanders were—and are—flawed politicians (Corbyn more obviously so than Sanders). Their historic baggage, ideological obsessions, inability to build a genuinely broad coalition of support, and, in the case of the Labour leader, failure to adequately tackle racism in his party (the kindest possible description of Corbyn’s behavior) made the pair in some ways uniquely unsuitable to stand for the leadership of their respective parties and countries.
Yet they captured a moment, representing an incorruptibility and steadfastness, a perception of moral righteousness, that many felt were needed to take on a rotten system. Sanders and Corbyn fancied themselves to be the new Reagans (or Margaret Thatchers) in terms of the imprint they would leave on their countries, but were not up to the task. The question to haunt the conservative right is, what happens if these two historically peculiar leaders aren’t the Reagans of their movements, but the Goldwaters? And what happens if—or when—the left finally finds its Reagan?
On Friday, the Centers for Disease Control and Prevention recommended that Americans wear face coverings when venturing out in public. The new guidelines come a month after the surgeon general urged people to stop buying masks, tweeting that they are “NOT effective” in preventing the general public from contracting COVID-19. So, what exactly should people wear now and when should they wear them?
On this episode of the podcast Social Distance, James Hamblin answers Katherine Wells’s basic questions about the coronavirus. What is a virus? Why is this one so bad? And what should be done to avoid catching it?
Listen to the episode here:
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What follows is an edited and condensed transcript of their conversation.
Katherine Wells: What even is a virus?
James Hamblin: It’s just a strand of nucleic acids, DNA or RNA, wrapped in some little coating or shell capsule that can keep it alive for a small period of time.
Wells: Are viruses like early life forms?
Hamblin: This is a fundamental question of biology and beyond even: “Is a virus alive?” It depends on how you define alive. A virus requires a living being in order to reproduce. It cannot reproduce on its own. But in much subtler ways, most living things require other living things in order to continue living. Human beings can’t reproduce on their own, if you take one human being and leave them in the middle of nowhere. So, there are kind of existential questions about where you draw that line of what defines life.
Wells: What’s the evolutionary incentive of a virus? If it could, it would just kill everything and be everywhere?
Hamblin: I might think of it more like a tide when you take down a dam. It’s not like the water wants anything. If there’s a town below that dam, the water doesn’t want to destroy anything. It doesn’t even have an evolutionary instinct. It’s just a physical force. It’s just, this is what it does. It finds that receptor and invades the cell and makes more.
Wells: Is it adaptive for the virus to kill us?
Hamblin: That’s part of what caused me initially to raise these alarm bells and get really concerned myself in February, is the basic science of it. I initially wrote this story, “You’re Likely to Get the Coronavirus,” and it made the point that there are a lot of mild cases out there—mild in terms of COVID-19, which is not a mild disease—and that there are asymptomatic carriers. There’s a long period of incubation when you can be asymptomatic. And that is what’s so scary about it.
Wells: Like, if it was a worse disease, it wouldn’t be so dangerous?
Hamblin: Let’s talk about it as if it were a human. There are some people who are just really genuine and good and you want to be around them and work with them and have them be in your life. And there are people who are clearly malicious and terrible, and you can immediately tell, like: Get that person away from me. And even though you might think, Oh that person is straight up dangerous; they immediately threatened to kill me, the actual probably most dangerous person is the one who is what we’d call a psychopath. Someone who seems intuitive and smart and thoughtful and caring, but actually has all these devious plans and is actually able to carry them out because they aren’t out there threatening people and throwing off signals that they’re a dangerous person. That’s what this virus is, and that’s why people fell along a spectrum of how scared they were by this. Some people were like: “Oh, it looks like these other coronaviruses, where it causes a lot of mild cases where people don’t die, so it’s not that dangerous.” And other people were like: “No, it’s because it’s so good at spreading and doesn’t kill everyone that it is so dangerous.”
Wells: To the extent that I’m going to get what the virus is, I get it. But one of the things that’s been sort of paralyzing recently is, I don’t know where it is. If I walk outside, is it in the air? Is it on surfaces?
Hamblin: The main way that people get it is from touching things and then touching their face. That continues to be the main way. That’s why hand-washing is so important. That’s why not touching your face is so important. Masks have very specific uses, which are absolutely necessary in some cases. We should define mask. When you say mask, what do you think of?
Wells: Well, I understand there’s the N95. I understand there’s the surgical mask. And then I understand there’s what I did this morning, which is take a scarf and loop it three times around my face, which I wouldn’t call a mask, but it is an attempt at some sort of barrier.
Hamblin: It’s like defining life. So that’s part of the thing we need to talk about, is you can’t say masks are good or bad. A respirator is also sometimes referred to as a mask or an N95 mask. Those are these tightly woven things that are rigid and they look like a dog’s snout, and they are supposed to seal perfectly around your face. These are medical devices, not something you would wear all day, every day. That’s what we definitely have a shortage of. We’ve exhausted our national strategic stockpile as of this week, which was supposed to last us for a long time.
Wells: Okay, so, I don’t have an N95, I assume I couldn’t get one if I tried. The doctors need them anyway. We’re not talking about it N95s for the average person.
Hamblin: No. Apart from very specific cases.
Wells: Unless you’re living with someone who has it?
Hamblin: Even then, [not] unless you had to go administer nebulizer treatment to them, or an inhaler.
Wells: And is that because the virus just can’t travel that far in the air?
Hamblin: That’s what we’re understanding. There were some initial concerning studies about what appeared to be airborne spread in experimental cases. They could make the virus go airborne in a confined space with no airflow. Does it actually in the world become airborne? No, to the best of our knowledge. The two types of viral transmission that we’ve long thought about are droplets or airborne, as in: Is it just in these gooey little drops that come out when you sneeze or cough? Some of them are tiny, and they might fly up to six feet, but ultimately, they’re going to fall down and hit the ground, versus: Do you mist this out and does it just hang in the air like oxygen or carbon dioxide and then sort of dissipates?
It turns out there’s not a black-and-white line between those two things. That dichotomy was false. This one appears to be almost entirely droplets. Occasionally, you can detect some lingering in the air for longer periods, but not clearly enough that it could infect someone unless someone is very sick, coughing and sneezing, and you were in close contact with them in a place with no airflow. So, you could be more than six feet away, but say we’re sharing a cruise-ship cabin and I’m just coughing and sneezing stuff into the air. It’s shooting out, and you’re on the bed eight feet away, but we’re constantly just using the same air. There is a possibility that could happen.
Wells: So, it’s not impossible that I could walk outside and just breathe it in accidentally, even though there’s no one around?
Hamblin: No, that’s impossible. I want to say that’s impossible. I don’t think anyone should be worrying at that level, because we have to be able to say we can move about the world, not in states of constant fear. And walking is important, especially if we’re going to need to be doing this distancing stuff for a year. If people feel like they can’t go outside and can’t move their bodies, we are going to see compounding of all sorts of other health issues and worsening cases of this disease, because if you are worn down and not exercising and not sleeping and depressed and not eating well, you’re not priming yourself to be in good condition when you do get sick.
The only instances where we believe the air would be a problem is in a constant exposure. And it would have to be a long-term thing. If you briefly shared an elevator with someone who didn’t even sneeze or cough and you were as far away from that person as you could be in an elevator, there is as close to zero percent chance of anything happening in that situation as possible.
Wells: Okay. So I don’t need to be terrified of going outside and of other people. That blanket terror is not rational. In what situations am I supposed to wear a mask, and what constitutes a “mask,” given that I don’t actually have a mask?
Hamblin: The CDC is now telling people: Cover your face with something. If you’re sick, if you’re coughing and sneezing, just do not go out. When you are feeling okay and you need to go out, the recommendation now is that you wear something to cover your mouth. If you were practicing appropriate social distancing, that would be of no use, no value.
Wells: Yeah, but realistically, in a dense city or in crowded homes or apartment buildings, you can’t, so wear something.
Hamblin: If it really is physically impossible for you to isolate yourself, then it’s unlikely to hurt unless you end up touching your face more because you’re adjusting this thing. Touching your face is definitely bad. We want to minimize that in every way. A mask is a tool. It is like a hammer. There are times when a hammer is incredibly valuable to you. You could not have driven that nail without it. But if you’re trying to fix a window, that is not of any value to you.
As we retreat ever more from in-person interaction, I keep thinking about this fascinating essay by Leslie Jamison, which tells the stories of people who (still!) spend much of their time on the all-but-forgotten online platform Second Life. Jamison explores how digital life offers connection, escape, reinvention—all so appealing right now—as well as how it falls short of the real deal.
Best read: After a long day on the internet
Senior editor and former lecturer on history and literature at Harvard University
In 1916, The Atlantic sent a young James Norman Hall across the Atlantic, to report on the volunteers taking to the air to defend France. Swept up in the romance of it all, Hall went rogue—enlisting in the Lafayette Escadrille himself, and becoming a highly decorated aviator, instead of filing the story he’d promised to write. The account he ultimately delivered, serialized in six parts in The Atlantic as “High Adventure,” mixes vainglory and bravado with a creeping awareness of the realities of war. (Hall and a fellow pilot moved to Tahiti after the war, where they wrote the The Bounty Trilogy together.)
Best read: With a wheel of brie, and a grain of salt
As a childless Millennial, I love nothing more than a healthy volley of truly eye-rolling dad jokes. My colleague Ashley Fetters dove deep into “one of America’s great familial oral traditions” for this 2018 masterpiece. You’ll get to hear from everyone from linguists to actual dads (and granddads).
Best read: Before a shower (Puns are great shower thoughts; let that sink in.)
In 1889, Jane Addams founded a settlement house in Chicago that provided childcare, education, and health services for the poor—and, some claimed, a home for a cursed “Devil Baby.” Investigating this urban legend for The Atlantic in 1916, Addams confronted the very real pain of the women the house served and offered an intimate account of how scary stories can take hold.
Best read: When the shadows on the wall start to grow long
In his rally-briefing yesterday at the White House, Donald Trump announced that the Centers for Disease Control and Prevention was recommending that Americans wear masks or similar face coverings when in range of other people.
You can see C-Span’s coverage of the whole briefing here, including Trump’s repeated emphases that this was a voluntary recommendation—“You don’t have to do it”—and that he, personally, would not comply. Important fact note: Trump, unlike virtually all other Americans, is exposed only to people who have already been tested for the virus, as reported here by NPR.
Around time 3:50 in this clip, he says “I don’t think I’m going to be doing it.” Then more definitively:
This is voluntary. You don’t have to do it.
I am choosing not to do it.
This is not the first time presidents have been called upon to deliver public health messages, nor even the first time during a presidential election year.
In the fall of 1976, Gerald Ford—who had never been elected either president or vice president, but who became president two years earlier, when Richard Nixon resigned—was in a close race for re-election. He ultimately lost, very narrowly, to the former one-term governor of Georgia, Jimmy Carter. (For the record: I was a speechwriter on Carter’s campaign staff then.) The race became close enough that practically every “controversial” stand that Ford took could arguably have made a difference in the outcome.
Among the issues that fall was swine flu. Starting early in that election year, public-health officials had been worrying that the newly mutated virus could reach pandemic proportions and become a modern counterpart to the deadly flu of 1918. They launched an all-out effort to produce a vaccine, and to get as many Americans as possible inoculated.
The story is long and tangled, both in scientific and in political terms. You can read fascinating accounts of what health officials got right, and wrong, in the 1970s swine flu era here and here, with links to other reports. One central issue was that the vaccine available by the fall of the year was a “live virus” version, rather than “killed virus,” which entailed a greater (though statistically still small) chance of side effects.
For the moment the relevant point is: The country’s political leadership was asking the public to take a controversial step, namely getting swine flu shots. And the ultimate political leader, Gerald Ford himself as president, prominently set an example by doing this himself. Thus the photo you see above.
The obligation to model the behavior they would like others to adopt is one all presidents have been aware of, even if they have imperfectly complied.
They talk about faith, and most of them have gone to religious services. They say that citizens should pay taxes, and they produce evidence that they have done so themselves. They urge people to be charitable, and they know that their own donations will be scrutinized. They talk about families, and they are photographed with their spouse and children—no matter what they’re doing when photographers aren’t there.
Some part of their brains recognizes the value of connecting with “what we [as a government] say” with “what I [as a person] do.” And they make sure the public sees evidence of them setting this example — as Barack Obama did during the H1N1 flu wave of 2009.
Trump’s reaction to the mask-wearing recommendation—fine for the rest of you, but that’s not for me—is of course far from the only illustration of his feeling that he need not set a personal example. See also: military or civic service; marital fidelity; scrupulousness about the appearance of financial conflict or family favoritism; recognition of “no person is above the law”; etc.
It is also not the most unreasonable stand he has taken. As NPR noted, everyone he meets is tested for the disease—so he is not likely to catch it from any of them, and they will be monitored after contact with him. And as Trump himself pointed out yesterday, the Oval Office is not a surgical operating room, and masks would seem odder there than in some other venues.
But Gerald Ford also had reasons not to follow the advice he was giving the country. He could have said: I’m extremely busy; I’m in the middle of an intense re-election campaign; I have great medical care around me if I should get sick. I am thinking about the reception Gerald Ford would have met, if he had said: I want all Americans to be inoculated. I am just choosing not to do it myself.
Chaos. Fear. Dwindling stockpiles of equipment. Impossible choices. Patients dying alone. These are some of the things that health-care professionals describe facing while fighting the COVID-19 pandemic. Over the past week, we spoke with doctors, nurses, and physician assistants at some of the hardest-hit hospitals in the nation. In a new documentary from The Atlantic, they bring us into their devastating new reality.
“All I’m seeing are people who are vulnerable, people who are weak, people who are scared,” says Dr. Darien Sutton, a New York emergency physician, in the video. “And I’m not gonna lie. It’s making me scared.”
Bill Withers hadn’t released a new song of his own in decades, but even before he died at age 81 of cardiac problems on Monday, the soul singer was on the minds of many people amid the globe’s current viral crisis. Apartment buildings full of people in social isolation and hospital rooms of health-care workers sang his 1972 classic, “Lean on Me.” For weeks, YouTube listeners of “Lovely Day” left messages like “As I write this, we are in the middle of the corona virus pandemic. I need some inspiration. Thanks Bill,” and “THIS SONG IS GOING TO GET ME THRU COVID19!!”
To turn to Bill Withers for solace has long been a reflex for millions. His songs have so suffused our communal space—churches, kids’ shows, supermarkets—that they seem older than the ’70s and ’80s, like they’re hymns. Music as widely consoling as his always runs a riskof overuse and misuse, and the popular reinterpretations of him range from outstanding instrumentals to Will Smith’s hammy dad rap to an Austin Powers parody I wish I could forget. But there was an edge to Withers. He had songs about mutilated soldiers and suicidal alcoholics, and he critiqued the music industry he walked away from soon after he conquered it. Withers was too great a talent and too independent an individual to be eclipsed by his own influence, and his legacy underlines the idea that comfort need not mean numbness, schmaltz, or complacency.
He certainly had an unusual career arc. Withers was in his 30s when he started getting serious about music—and he didn’t stay serious about it for all that long. Born in poor and rural West Virginia to a coal-miner father who died when Withers was 13, he grew up amid rank segregation. As soon as he was of age, he enlisted in the Navy, where he served for nine years. His post-military gigs included delivering milk and working an assembly line. The cover of his 1971 debut album, Just as I Am, shows him holding a lunch pail on a break from the factory; he once recalled of the shoot, “So guys are in the back yelling, ‘Hey Hollywood!’”
That album arose from a mix of ambition, impulse, and extraordinary talent. Inspired by seeing the singer Lou Rawls perform—and moreover, by noting the money and romantic attention Rawls got for it—Withers bought a used guitar, taught himself to play it, and recorded some demos. They impressed the music exec Clarence Avant, who set Withers up with the pivotal Memphis bandleader Booker T. Jones to cut an album. “The fact is we are born into the situations we were born into,” Withers said in a 2014 WNYC interview, looking back on his early life. “One day you … try to do something with yourself. The best advice anybody ever gave me was very simple: Go make something out of yourself.”
A track from his first studio sessions, “Ain’t No Sunshine,” would rightly launch Withers to orbit. For all the covers the song has spawned over the years, the original recording remains stunning. Withers’s voice—round, rich, and reverberating—is central and godlike. The arrangement seems to drift and coalesce. The overall effect matches the lyrical conceit about loneliness that moves like weather. In obvious ways, the song rates as “easy listening,” yet it also shows Withers’s genius for graceful extremity. Only a songwriter with a certain bravery and trust in the listener would cast those endless-seeming ripples of “I know / I know / I know.”
Many of his best moments are like that one: stark, graphical, almost confrontational musical choices that don’t disrupt the song’s spell but pull you further into it. There’s the lengthy “daaaay” of “Lovely Day.” There’s the acidic but perceptive take on submissive love on “Use Me.” There’s his knack for bold imagery, whether used for affection means in “Grandma’s Hands” or for political ones in “I Can’t Write Left Handed.” And there’s “Lean on Me,” a song whose gentleness survives and is boosted by brief, jolting tempo changes. Some radio stations truncate the end of that song, when Withers says “Call me” 14 times. What are they thinking?
Withers’s last hit was 1980’s “Just the Two of Us,” a jaunty duet with Grover Washington Jr. The backstory is another example of how Withers’s sweet soul sounds often came with a hidden thorn. Withers had bristled at the manipulations of his record company, Columbia, for years, so he went to work with Washington, who was on a rival label. “Just the Two of Us” was “a ‘kiss my ass’ song to Columbia,” he told Rolling Stonedecades later. He’d use his Rock & Roll Hall of Fame induction speech in 2015 to joke that “A&R” stands for “antagonistic and redundant.”
That induction speech is worth watching for a sense for how inspiringly and cannily Withers lived his life. He checked out of the music industry after 1985—the only original material since then came on a 2004 Jimmy Buffett album—and seemed quite happy raising a family in retirement. Onstage at the Hall of Fame ceremony, he was quick with jokes and jabs directed both at the contemporary pop scene and at his own old age. The impression he gave was of having willfully taken charge of his life as his songs took on lives of their own. “It’s been a wonderful odd odyssey with ups, downs, and sometimes screw-me-arounds,” he said, before acknowledging the varied pains his music had so often soothed: “We all know about those.”