Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Michael Sandel:

One of the mistakes that we’ve made has been to assert or to assume that the arc of the moral universe bends in a certain way.

Preet Bharara:

That’s Michael Sandel. He’s a professor of political philosophy at Harvard University where he has taught one of the most popular courses at the college called Justice. Once upon a time, he was my professor. Throughout his career, he’s explored and written about many philosophical issues like ethics, meritocracy, morality, and democracy. His latest book, Equality: What It Means and Why It Matters, is a conversation with economist Thomas Piketty held at the Paris School of Economics last year. Professor Sandel joined me to discuss what human nature can tell us about our government, how higher education can foster free expression, and dealing with moral disagreements in our politics. That’s coming up, stay tuned. What does Professor Sandel think is destroying good faith discussion? He shares his thoughts.

Professor Michael J. Sandel, welcome back to the show.

Michael Sandel:

It’s great to be back with you, Preet.

Preet Bharara:

So I’ll remind folks that it’s always a treat to have you on. It’s very special to me. You were my professor in college three or four years back, was it?

Michael Sandel:

Something like that.

Preet Bharara:

Or was it 35 years ago? And you’ve been great to come on a few times. I will say again, for the record, for newcomers, you were the best professor I ever had. You led me down this path of thinking about justice and fairness and how to contribute to those causes. And you are as responsible as anyone for the career path that I chose. So, thank you. I’m working very hard on calling you something other than Professor Michael J. Sandel. I don’t think I can call you Mike, but maybe from time to time I’ll call you Michael. For me, your life tenured as Michael J. Sandel.

Michael Sandel:

Well, I’ll take it from you, but I really want to say, Preet, that what you’ve said means an enormous amount to me.

Preet Bharara:

Well, you’ve had that impact on a lot of people, so thank you for that. So I want to spend our hour talking both about enduring principles, how we think about government, how we think about the structure of government, but also as it relates to the current moment and some writings you have put forth in the world recently. So can we start with the basic question? I had Francis Fukuyama who famously wrote a verse, an article, then a book entitled The End of History. And we last week had a conversation about what forms of government are most sustainable, which are most natural. Obviously he had a view that view changed. Do you have a view having studied structures of ordered society and governments for your whole life, given human nature, are there forms of government over time that are more natural than others, more likely than others, more sustainable than others? And you can pick a different adjective if you want. How do you think about that?

Michael Sandel:

Well, that’s a hard question and a deep question. And it seems to me that there is a deep human aspiration to have a say, to have a voice in how our lives go, not only individually, but also collectively. That would suggest that there is a bent toward some form of democracy or self-rule or Republican government. Now, what that means in practice, there are lots of debates historically.

Preet Bharara:

Yeah.

Michael Sandel:

But I think part of what afflicts us in our current political moment is that a great many people don’t feel that their voices matter, that their voices are heard, that they have a meaningful say, and that’s given rise to all sorts of grievances that have been exploited in ways that we can perhaps discuss, Preet.

Preet Bharara:

So do you think to paraphrase a famous saying, “The arc of history is long but it bends towards democracy” or not?

Michael Sandel:

No, I wouldn’t go that far.

Preet Bharara:

Yeah.

Michael Sandel:

I think that one of the mistakes that we’ve made and that some of the most admirable liberal and progressive political leaders have made in recent years has been to assert or to assume that the arc of the moral universe bends in a certain way, that there is a right side of history and that we, the enlightened ones, are on the right side of history and those who disagree with us are on the wrong side of history. I think there’s a hubris in that. I think history is contingent. We saw this, going back to your first question in the 1990s at the end of the Cold War, it seemed that we had reached the end of history that our version of democratic capitalism was the only system left standing that we had won. There was a triumphalism and a hubris mission accomplished in that way of reading the moment. And I think that we’re now reaping the bitter fruits of that hubris.

Preet Bharara:

So, actually elaborate on that. What are the bitter fruits?

Michael Sandel:

Well, I think that if we go back to the 1990s, and I just recently came out with a new edition of a book I wrote in the mid-’90s called Democracy’s Discontent. And in the mid-’90s, despite the peace and prosperity and the confidence that our system had won, I saw just beneath the surface sources of discontent with the Democratic project. One of them had to do with a growing sense of disempowerment, a sense that our voices didn’t matter in the age of market-driven globalization. The other had to do with a sense that the moral fabric of community was unraveling from family to neighborhood to nation.

There was a sense, people had a sense that they were dislocated in the world, that a purely market driven way of organizing the economy and insisting on a global economy had the effect of eroding the moral and civic significance of places closer to home. And this had a bearing on the project of self-government because we… Well, Tocqueville, when he came and observed the New England Township, what struck him was that we learned, that Americans learned the art of self-government in the small sphere within their reach. That’s what he loved about the New England Township. And then he hoped as democratic theorists have hoped, that as the sphere extended beyond the New England Township, our reach and our capacity as citizens would expand to meet it. But there has to be some sense of belonging in order for democracy to work.

Preet Bharara:

So that’s interesting because when you talk about a feeling of loss with respect to moral fabric, the obvious question arises, and I know you talk about this when you teach students whose morals, whose values, depending on who you ask and which community you’re in, and even within communities there’s a lot of division about morality and values. So how does that work in a society where people have deep differences of opinion?

Michael Sandel:

It can work in one of two ways. One way is to say that if we bring moral argument and disagreement into politics into the public square, that’s a recipe for intolerance and maybe coercion. So we should try to govern ourselves according to principles, the basic framework of rights, that doesn’t choose among competing conceptions of the good life or virtue. We should ask citizens to leave their moral and spiritual convictions outside when they enter the public square. This is one approach and I think it’s influential, but it’s mistaken because people want public life to be about big questions including questions of values that matter to them. And so I think it’s a mistake to ask citizens to leave their moral and spiritual convictions outside when they enter the public realm. I think we should have a more capacious public discourse that welcomes voices, be they secular, be they spiritually informed, despite the fact that we will disagree in pluralist societies, but better to bring those disagreements directly into public discourse and to figure out how to conduct those disagreements with stability and mutual respect than to shy away from them.

And one of the ways we shy away from them, and this connects to what unfolded really from the ’90s to the present, if we as democratic citizens don’t argue about fundamental questions and values, we are tempted to outsource our moral judgments to markets which are seemingly neutral ways of defining the public good. And in many ways that’s what we did during the period of neoliberal globalization from the ’90s up through the 2000s. And we saw eventually a backlash against that for partly because it didn’t work economically, but especially because it produced widening inequalities and a moral vacuum at the heart of our public life.

Preet Bharara:

Is it really the case that we tend to avoid moral discussion or that the problem is that when we engage in moral debate, there is often one side who feels very passionately and vehemently about its moral convictions to such an extent they try to impose it on others. So take something simple about which people will, I think rationally disagree and in good faith disagree, abortion, reproductive rights right to life, whatever phrases you want to use depending on what side you’re on. With respect to a question like that, how is a civilized, stable liberal democracy supposed to deal with that issue? Because it’s both a matter of personal morality, one could argue public morality and also public policy and public health. There’s a lot of intersecting things there. How do we resolve an intractable issue like that publicly?

Michael Sandel:

Well, we’ve been struggling with that and not very well in recent decades. What the Supreme Court tried to do in Roe v. Wade was to say, we disagree about the morality of abortion and therefore it’s not for the court to come down on one side or another of that fraught debate and therefore the court enunciated it’s the three trimester rule about when states can and when they can’t regulate abortion. And the rule they came up with was about the three trimesters and the policies that should prevail in each. That was a reasonable compromise. People may disagree, there could be other compromises, but what the opinion… The way in which it failed is that it claimed to be neutral on the underlying moral question about the moral status of the fetus.

When does the fetus become a person such that taking its life would be a murder? It claimed to be neutral on that underlying question. That was a mistake. I think it’s better, I think it’s inescapable to have a public debate even about some morally fraught a question as the moral status of the developing fetus. Because if you think about it, is it really possible, and I would put this to you, Preet, is it really possible to be neutral on that question in setting policy about when abortion should be permitted and when they should not be?

Preet Bharara:

So I don’t know, but isn’t it possible to be ambivalent, and is that-

Michael Sandel:

Yes.

Preet Bharara:

And so can you have an ambivalent legal opinion on it, and is that different?

Michael Sandel:

Well, I think there’s a difference between… I have ambivalence on the underlying question itself. Many of us do.

Preet Bharara:

Right. I think that’s the more natural position for a lot of people. And by the way, it’s not a binary question, should there be abortion? Should there not? There is a spectrum of things, there are exceptions that people talk about.

Michael Sandel:

Yes.

Preet Bharara:

People can be personally… I know there are people who are personally against abortion and would never seek one, but wouldn’t oppose that view on others. So there’s a wide range of things and is part of… I just wonder also, so there are other options, right? So maybe you can’t be neutral in your view. I don’t know what ambivalence means about it. But even on a complicated moral question like abortion where there’s a range of options and a range of thoughts is the best approach. And this sounds very pragmatic and maybe that’s not so possible, as a primary and initial matter, try to find as much common ground as possible.

Michael Sandel:

Yes, of course, of course.

Preet Bharara:

And then leave the margins for another day.

Michael Sandel:

Well, certainly to seek common ground, yes. On ambivalence, I think it’s important to honor the ambivalence that a great many people feel on this issue. I think there’s a difference between ambivalence and the claim to neutrality. Here’s another example where I had to think about this. In the debate some years ago I was asked to serve on the president’s council on bioethics when there was a debate going on embryonic stem cell research and whether the federal funds should be used to support research on embryos created in a lab essentially. And this was a bioethics council appointed by President George W. Bush. And most of the people on there were very conservative. So I found myself in a debate really about embryonic stem cell research and by implication the moral status even of a blastocyst as it’s developing one day, two days, eight days. And I defended the position that there should be federal funding of embryonic stem cell research.

But in order to make that case, I had to meet the argument that destroying an eight-day blastocyst is morally equivalent to taking the life of a child because there were some among my colleagues who held that deep religious view. And so I engaged and others of us engaged in debate about whether that view is morally plausible or not. And we had some fascinating discussions and actually we swayed some people in the middle people who were ambivalent even though we didn’t sway those who had the very firmly established theological view. So is it possible to have these discussions? Well, it depends. We’re not very good at it now. But here’s another setting. We think first… When we think about moral argument in politics and moral disagreement, we tend to think first of abortion and to a lesser extent something like stem cell research, which involve life and death and when does human life in the relevant sense begin?

But what worries me is that there is a pretense to neutrality that reaches far beyond these about when human life begins to questions about, for example, what counts as a valuable contribution to the economy, and how should various people’s contributions to the economy be rewarded? Now, should a hedge fund manager, for example, make 5,000 times more than a nurse or a school teacher? And if so, is that because their contribution is really 5,000 times a greater value than the value of what a school teacher or a nurse contributes? Now, some people would say, “Well, who’s to say what counts as a valuable contribution to the economy or the common good?” We’re going to disagree about that. And if we’re going to disagree about how to value this or that form of work or contribution, shouldn’t we just let the market decide as if it were a neutral decision-making procedure?

But I dispute that we have in effect outsourced our moral judgment about the value of a contribution to the labor markets. But the result is that hedge fund managers and Taylor Swift, to take another example, implicitly we are endorsing the idea that what they contribute really is 5,000 times more valuable than what a school teacher or a nurse or for that matter, a primary care physician contributes. And that seems morally implausible to most people. So I think we should reclaim that the responsibility to debate these questions as democratic citizens rather than to outsource them to procedures or to markets to decide these questions for us, Preet.

Preet Bharara:

When you were last on the show, I believe we discussed your very great book, The Tyranny of Merit. And you pointed out I think very wisely that a lot of the debate is not on the right ground, that the debate tends to be, should we be meritocratic, should we not? And you raised the question well, what does meritocracy mean? And the great example you gave different from the one you just gave in that other context was even if you believe that the best basketball player makes the most money, and I can’t remember if you said Michael Jordan or LeBron or someone else, there must be somebody who on merit is the greatest arm wrestler on earth, but the markets aren’t set up in a way that even the greatest arm wrestler on earth can make anywhere near probably less than one over 5,000 of what LeBron or Michael Jordan made as basketball players. And we should think about that.

The problem is I think even if you avoid avoidance, as you say, it’s a very frustrating conversation to have. What is the implication, even if people agreed with you that there shouldn’t be a 5,000 time differential between those two examples, what is the way in which or should the government intervene in some way to remedy that if it’s in fact something bad and then that has consequences that are very, very, very serious and some would say catastrophic and some would say liberating?

Michael Sandel:

Yes. Well, I think the first step in trying to answer that question, Preet, is to acknowledge and to recognize that the government already intervenes to shape labor markets and who makes 5,000 times more than whom by the rules we have and the regulations and tax systems we have, for example. Even before we get to the tax system, should the interest that corporations pay should interest be tax-deductible? You could ask it about corporations and there would be great resistance to questioning this in the case of mortgage deductibility, but companies are allowed to deduct interest. Companies are given incentives to do stock buybacks, for example. Those two rules alone have enormous consequences for the verdict of the labor market on who makes what. And by implication, who deserves to make what. We could debate, for example, if we believe in the dignity of work, we could debate why is it that earnings from labor we tax at a higher rate than unearned income than income from dividends and capital gains? Why is that?

So it’s not as if we aren’t already living by rules that we have enacted and we could change that determine the level of income inequality and the implicit judgment about what’s valuable. You remember back in the pandemic, those of us with the luxury of working from home couldn’t help but notice how deeply we depend on workers we overlook most of the time, delivery workers, warehouse workers, grocery store clerks, home healthcare providers. For a moment back then during the pandemic, we were celebrating those workers. Do you remember? We were applauding for them at the end of the day, we were putting up signs thanking them.

That could have been a moment for a broader public debate about how to bring their pay and recognition into better alignment with the value and the importance of their work. Well, the pandemic receded and we went back to business as usual. But I think the way to renew our public discourse to make it morally more robust is to begin by recognizing how the arrangements we have in place already implicitly convey certain value judgments. We should be explicit about them and be willing to debate them.

Preet Bharara:

Here’s the other problem, because I do think that a lot of our policy debates artificially sidestep values and morality, although some people embrace them and that’s their political appeal to their particular tribe. But what you’re saying about an open and more welcoming attitude towards real moral discussion and open moral discussion that requires people to be respectful of people’s differing views.

Michael Sandel:

Yes.

Preet Bharara:

And once you start bringing morality and/or religion and values into it, then it’s not about, well, my policy is more likely to decrease unemployment than your policy and I can’t judge you on that. You’re just dumber than I am. Or you got your degree from a different place than I did. But now when you start talking about good and bad, that quickly morphs into good and evil. And how do you consistent with the need for having civil discourse about moral issues when they inherently bring out, in some ways, Michael, they bring out the worst in us. Isn’t there an inherent paradox in what you’re suggesting?

Michael Sandel:

There’s certainly a big and difficult challenge in what I’m suggesting, Preet. I agree. And we are not very good at reasoning together in public about hard ethically charged questions. We are not. To the contrary, what passes for political discourse these days consists mainly of shouting matches, partisan ideological, shouting matches and rude social media posts that are more inflammatory than instances of real public discourse. So I think to create a public culture hospitable to the civility public discourse requires, we have to do a few things. First, we have to figure her out what to do about social media and its corrosive effect on public discourse. And in particular, the way in which it captures our attention, keeps us glued to our screens, scrolling, swiping, mainly prompted to stay there by inflammatory and offensive news feeds and tweets and so on. So we’ve got to figure out something, what to do about social media. And I should add, Preet, that this was not a problem I had back in the day when you took the course, but I have banned the use of screens in the classroom.

Preet Bharara:

Good for you.

Michael Sandel:

Because I can’t possibly compete for attention of students and I certainly can’t teach them how to listen to one another with mutual respect if they’re gazing at their screens. However good I may be at commanding attention, there’s no way I can compete with the attention grabbing qualities of screens. And actually, it’s not been easy to get students to abide by the policy I should add because it’s become a addiction. So much so that students find themselves just unable… Even when we try to enforce it, unable to abide by this. And yet at the end of the semester, sorry for this digression, at the end of the semester when they submit the student evaluations, many students say they appreciate the policy because it enabled them to concentrate in a way they can’t if they can use their phones. And yet it’s a huge struggle to enforce it during the class. Anyhow, this was a digression maybe, but there’s things-

Preet Bharara:

Can we pause on that digression for a moment?

Michael Sandel:

Yeah, yeah, go ahead.

Preet Bharara:

So as a grown middle-aged man now, mostly no one has the ability to take my phone away, my screen away. With a couple of exceptions. Sometimes when you go to a comedy performance or a musical performance, they give you one of those bags that lock and so for two hours you can’t go… And I sometimes feel, and I didn’t grow up with a screen or a smartphone, obviously, nor did you, and I feel that an appendage has been taken away from me.

Michael Sandel:

Yeah.

Preet Bharara:

So it’s not just among the young. Anyway…

Michael Sandel:

Yes, and imagine children and grandchildren who have just grown up with screens all the more so, and yet they do experience it that they suffer withdrawal symptoms, it is an addiction, but they experience a liberation when they manage to do without it for a time. So that’s one obstacle to a better public discourse.

Preet Bharara:

A profound one. So can we talk about that for a second?

Michael Sandel:

Yeah.

Preet Bharara:

You invoked the good old days back in the day when I was in college, and I think the most important skill that I got starting with you and with others was the ability to think critically, to respect and in good faith, answer the arguments of people with whom you disagreed. My best friend in college, some people know, is somebody who was on the other side of the political spectrum. And we would have, sometimes there was beer involved, but we would have debates into the evening because there’s that excitement when you’re 17, 18 and you’ve not engaged seriously in philosophical debate, moral debate, policy debate about abortion, about end of life, about the fairness of the time. To me, it was an exhilarating time. I spent my time at the university where you still teach at Harvard much maligned these days, and we’re going to get to something about good old Harvard in a moment.

But I gained enormously from the ability to take seriously other people’s art… I mean, I suggest that the best, and this is my own moral value professor, that political philosophy is a great education for anybody no matter what field you go into because of the importance of understanding argument in good faith. Right? And I don’t remember anyone ever getting in trouble for asserting an opinion about even as charged an issue was abortion or anything else back 35 years ago when I was in college. And your former colleague and other recent podcast guest, Neil Ferguson, who can be provocative at times had this to say about this. Quote, “In 2014, I felt that I could speak quite freely in my classes at Harvard, make jokes, even risque jokes. I could teach controversial topics without fear of being disciplined, threatened or publicly castigated. But that ceased to be true.” Did that cease to be true? How do you think about those issues and what’s your experience been like and what do you think is going on in the academy?

Michael Sandel:

Well, I don’t long for the days when I… I never told risque jokes to begin with. Fact check.

Preet Bharara:

True, that’s true.

Michael Sandel:

I don’t feel nostalgic for that ability, nor do I consider the restraint on that kind of thing to be a restraint on my freedom. But what I do think is important is that the classroom be a place where students and teachers are free to engage in debates about the hardest moral and civic questions we face. Because how else can higher education contribute to the cultivation of democratic citizenship? Civic education is not only or mainly learning about how the government works and what this branch does and so on. It’s above all learning how to engage in public deliberation and argument on big questions that matter. Learning how to listen to those with whom we disagree and to respond and to argue and to defend one’s position with civility and mutual respect, but also with a certain confidence in poise. We’re not born knowing how to do this.

This is a civic art that democracy requires and that we need to learn. I think some of that learning should begin earlier than in college. I think it should begin in secondary school at least, and maybe before that. But I certainly think that colleges and universities have a responsibility that we are not adequately meeting to expose students to large questions of moral and political philosophy that bear on our current controversies and debates and teaching them by example how to reason together and argue together across their differences in a classroom setting. And above all, learning how to listen attentively and sympathetically to those with whom we disagree.

So we spoke a moment ago about social media being an obstacle. I think that we need to invigorate the moral and civic education that takes place in our classrooms. Now, directly to the question you asked, Preet, about what the circumstances are now, students do in alarming numbers say that they don’t feel comfortable, many don’t feel comfortable expressing controversial views in the classroom. One survey that was done of graduating seniors recently, I think it may have been last year, that was in a report that a Harvard committee issued found when they said, “Do you feel comfortable expressing your views on controversial questions in the classroom?” Only 55% said yes, and 45% said no. The justice course I reinstated, Preet, the justice course this past fall, having let it live-

Preet Bharara:

My favorite class of all time.

Michael Sandel:

… online. And it was partly because I thought I had done my fair share having taught it for about three decades, but I’d not taught it for seven or eight or nine years and people could see it online. But given this challenge of promoting civil discourse, I thought I’d reinstate it. And they did the course evaluations do a survey at the end of the class and they ask this question now, when you were there, they didn’t ask this question, but in this class, did you feel comfortable expressing your views on controversial questions? Overall at Harvard, the figure was 55/45. In the class this past semester, the justice class, it was 92% to 8-

Preet Bharara:

Congratulations.

Michael Sandel:

… said they felt comfortable. Now that’s in large part because they had practiced, they were challenged, they were exposed to the norms of a classroom where people reason through hard questions about justice, about equality and inequality, about the role of markets, about what we owe one another as fellow citizens. It can be done. I think that we need to take it seriously in higher education.

Preet Bharara:

I’ll be right back with Michael Sandel after this. Have you heard of this idea that classrooms be treated under Chatham House rules such that outside the classroom you cannot attribute comments or statements to particular people? Is that a cop-out? Is that something to be considered? Is it unfortunate and sad that anybody has to propose such a thing?

Michael Sandel:

I think the classroom should… I’m sympathetic to this proposal. The classroom should be a protected space in the set… Not protected in the sense that you can’t speak your mind there. It has to be robustly open. But I don’t think that students in a classroom setting should have to worry that their classmate is going to post something that they said on social media or maybe a snippet of what they said and that they will then be subject to all sorts of harassment as a result. So I think there should be basic understanding that whatever is said in a classroom is for that purpose, and it’s not to be put online now after class. Ideally students will continue the argument and it will spell just as you were saying, Preet, you did with your roommates and so on. That’s important. So I would not draw the boundary so tightly that the conversation can’t continue, but I would say it should be out of bounds to quote some student who set a controversial thing on social media and expose them to all sorts of harassment and abuse.

Preet Bharara:

Why do you think it is the case… And I asked Neil Ferguson this question also, I’m not sure I got a satisfactory answer. Why is it the case that particularly in humanities departments at colleges, and particularly the elite colleges in the country, that the faculty is overwhelmingly liberal, progressive democratic as opposed to conservative and Republican?

Michael Sandel:

I think because at least in recent decades, those fields have attracted disproportionately liberal young people.

Preet Bharara:

But why is that?

Michael Sandel:

Well, it’s an interesting question. I mean, it may be that more conservative young people chose other majors, were more likely perhaps to go into business or to the field such as economics or STEM fields where there is a different, I don’t know the exact figures, but I think there is an ideological variation in the subjects people take up.

Preet Bharara:

I guess the question is it just people have different preferences and certain people gravitate to certain kinds of jobs for reasons that I have not unpacked fully. There are more male prosecutors and female prosecutors. I think there should be more gender equality and diversity that that would be better. But is there any part of this lopsidedness that you think is due to a hostility of the academy to conservative entrance or I would think that given how lopsided it is that a star scholar on the right would be a welcome addition to almost any faculty, is that naive?

Michael Sandel:

Should be or would be?

Preet Bharara:

I think both.

Michael Sandel:

Both I think should be. But I think there is a tendency in academia as in other fields, for people in hiring to replicate themselves. Well, that’s bad. And this extends to intellectual and ideological outlook. And so given the preponderance in some fields of those to the left of center, I think there is a tendency to replicate that in hiring. And I think that’s deeply unfortunate. For over the years, I would teach courses, and perhaps you’ll remember some of them with conservative colleagues. There was a colleague I had who’s since retired named Harvey Mansfield, who was known as the conservative figure in Harvard’s government department and one of the few outspoken conservative faculty members on the campus.

He and I taught a few times, more than a few times together where we had a running debate about questions, including a course called Liberalism and Conservatism and American Democracy that we co-taught along with George Will who came and joined the class. So we had running debates. During the early 2000s I taught a similar debating course with Larry Summers, the Economist, and we were debating the version of neoliberal globalization that he defended and that I was critical of. So I think I’ve always myself been drawn to courses that involve debate and competing perspectives. And it goes back, I suppose, I don’t know if we’ve talked about this story Preet, but when I was in high school in California-

Preet Bharara:

Oh, yes, you had-

Michael Sandel:

Do you remember that story?

Preet Bharara:

Was it the current or the future President of the United States came?

Michael Sandel:

The future Ronald Reagan.

Preet Bharara:

That’s worth retelling quickly.

Michael Sandel:

Well, I was a student body president of my high school, which by the way was Paley High Pacific Palisades. And sadly it burned in the recent fires.

Preet Bharara:

Oh, that’s too bad.

Michael Sandel:

And this was in 1971 and right at the height of the Vietnam War protests and so on. And Ronald Reagan was governor and he lived in the neighborhood of the school. So I invited him to come have a debate. I was on the debating team and thought I was a pretty good debater and that I would make quick work of Ronald Reagan, who was then the rising conservative figure in the Republican Party. And everybody knew who he would run for President. And he had run against Nixon and lost the nomination.

And so he came, to make a long story short, and he and I had a debate and I put the hardest questions I could to him about the Vietnam War and about the United Nations and about his desire to scale back social security and his opposition to the 18-year-old vote, which was then up for vote as a constitutional amendment. And he did very well against me because he was genial, he listened, he was respectful. So I can’t say I won the debate, but it was I guess an early experience of trying out this idea of debating and arguing with people with very, very different views. And I think that’s the kind of thing that should be right at the heart of the civic education we provide in higher education.

Preet Bharara:

Let me change the scenario and instead of that Republican President Ronald Reagan, talk about what it would look like for you or someone else to debate the current Republican president Donald Trump, who I believe does not embrace any of the virtues of good faith argument, respect for the other side’s opinions, respect for truth, respect for being confronted with prior statements of his own, which he will deny straight to your face. I have never seen any journalist ever get the better of Donald Trump in an interview, whether they’re acting in good faith, whether they’re trying to trick him, whether they’re trying to do gotcha, whether they’re asking open-ended questions. What’s your assessment of debating someone like Donald Trump and how that goes?

Michael Sandel:

It would be very difficult for just the reasons you say. I do think one exception is there was an interview done by a conservative journalist who now works for the New York Times. I think his name is Jonathan Swan, I’m not sure.

Preet Bharara:

Oh, yeah. Yeah.

Michael Sandel:

And he did get the better of Trump. He was very well-prepared and he followed up on the absurdities that came across and it was very effective. But you’re right, it’s very difficult and it’s very rare in part because his political success is the ability to channel grievance and anger and resentment, and he’s very good at that and he’s had an easier time of it, in part because the Democrats who have opposed him are not very good, have not been effective at taking seriously the grievances, including the legitimate grievances that Donald Trump is able to exploit. So the real test, I agree with you to imagine a journalist or a debater sitting down and trying to win an argument in those terms, it might be not so easy though I wouldn’t rule that out either.

Preet Bharara:

But I think it’s been a number of years and we’ve seen only one example of it in your memory.

Michael Sandel:

Well, yeah, very few. But the real test is not a good journalist put him on the spot effectively. It’s will the Democratic Party find its voice and be able to invigorate and reimagine its mission and purpose in a way that speaks to the legitimate grievances, especially of working people that Donald Trump has been able to exploit. Because until that happens, no amount of legal challenges, and we’ve seen this going back to the Mueller report and Comey and no legal challenges, they’ve all failed. But at the political task of challenging Donald Trump effectively. It’s a political, not a legal task, and it requires the Democratic Party reinventing itself, re-imagining itself.

Preet Bharara:

And they’re so good at that. One substantive issue that falls into that category that is an issue for Democrats is immigration and the border. How do you think about that issue morally? Is there a moral dimension to it? Do boundaries matter for only reasons of national security or are there other issues relating to community that are good and embraced in good faith? Or are there aspects of it that are not good and imbued with xenophobia and other bad things? How do you think about the issue of immigration from your standpoint?

Michael Sandel:

Well, all of those elements are in play when we try to think through the question of immigration. But I think it’s certainly true, which I think you’re suggesting that the reason the immigration issue is so potent not only for Donald Trump but for right-wing authoritarian, populist parties and movements in many democracies, the reason it’s such a potent issue is not only for reasons that people worry about job loss and wage competition, and it isn’t even only, or mainly that people really believe Trump’s flurred rhetoric about criminals and people from mental institutions pouring across the border.

It touches something deeper than the xenophobia and the racism that is a part of Trump’s political appeal. People who feel that the country can’t control its borders, feel that the country doesn’t really take citizenship and belonging and community, national community seriously. This is the element of truth in the argument that borders have some moral and civic significance, not for reasons of xenophobia, but because unless people believe that their country cares about them in a special way, unless people believe that we have special obligations to one another as citizens, it’s very to summon any sense of common purposes and ends.

It’s very hard for people to feel that we are all in this together, that we are participants in a common life, in a common democratic project. So what’s been missing in much of the rhetoric of mainstream parties and the Democratic Party over the past four or five decades has been a strong sense of national community because it’s a mistake. Liberals are sometimes uneasy, even allergic to talk of patriotism.

Preet Bharara:

Yeah, that is true.

Michael Sandel:

But this is a mistake because it cedes patriotism to the right and the anxiety about talking about patriotism or belonging or community for fear that that will sound right-wing and xenophobic. That seeds the right a monopoly on some of the most potent sources of politics. That’s why it’s a mistake. That’s why by progressives in the Democratic Party should not cave in to the xenophobic rhetoric of Trump, but should embrace and articulate its own conception of patriotism, solidarity, community, belonging, what it is we share as Americans. And that’s the only way to blunt the effect, the galvanizing effect that this anti-immigrant rhetoric has to Trump’s benefit. That’s the only way to take it on in a serious way.

Preet Bharara:

That also depends on whether or not everyone on the democratic side actually has that view. I’ll tell you an anecdote from my time working in the Senate Judiciary committee that always struck me, I was astonished by it. My boss, Senator Schumer, was with other senators offering a bill to ease the immigration of nurses, people who were in the nursing profession from other countries, particularly Africa if I recall correctly, because there were nursing shortages in Buffalo and in other places around New York state and in other parts of the country as well. And we’ve had this H-1B visa debate from the right and criticism from the right.

And I got into a discussion with another democratic staffer and his critique wasn’t we’re taking jobs away from Americans, he didn’t love the bill. I don’t know if you reflected the views of his boss, his member. But his position was we are now draining professionals, medical professionals, and nurses from that African country. And that’s not right. And my reaction was my first obligation, and Senator Schumer’s first obligation is to the people of New York and to the United States, and we’re not forcing anyone to come here. And if we can figure out a way to solve our problem, that’s not only good politics, that’s not only good for the constituents, that’s also morally reasonable, justified and righteous. And he had a more universalist view who was right.

Michael Sandel:

I think there was some right on both sides of that.

Preet Bharara:

Oh, you’re so diplomatic.

Michael Sandel:

Well, I do think so because on the one hand, the person who worried about brain drain from the developing world, that’s a legitimate moral concern because doctors and nurses who are trained largely at the expense of their countries in the developing world where the needs are very great, there is a moral question about whether… Well, in the first instance, whether they having achieved their medical education at the expense of their country have an obligation to their country. Now maybe there are ways consistent with their moving to another place of repaying that debt for the receiving country as well as for the individual.

Preet Bharara:

But what was Senator Schumer’s moral and public obligation and how does it compare against that other moral obligation to the other country? In other words, what advice, not just pragmatic and political but moral, would you have given Senator Schumer in that circumstance?

Michael Sandel:

That it’s admirable for Senator Schumer to care above all about his people and their medical needs. And yet if meeting those needs does harm to the fragile medical infrastructures of the developing countries from which the nurses come, then maybe there should be in that bill some provision for compensating the fragile medical infrastructures of the countries from which the targeted medical practitioners come. How would that have gone down, Preet?

Preet Bharara:

Not well.

Michael Sandel:

Not well.

Preet Bharara:

I don’t think so. Well, let me ask a different question, and this is maybe unfair. Because I thought you said that there is a moral value to having borders and for caring about your community and helping them more than others. I mean, one could suggest that the point of view that you just articulated my counsel in favor of, to the extent there is an open border or it’s more open than closed, that the United States should consider compensating the countries from whom those migrants come as an acknowledgement that in some way America owes moral obligations to other countries as opposed to caring first and foremost about its own country. Now I know that’s, when you say America first, that’s a slogan that has a certain nefariousness to it in the minds of some, but stripped of its sloganeering appeal. Is it morally acceptable for public officials in this country to put America first in terms of policy? Again, there’re going to be specific exceptions, but generally speaking, is there anything wrong with that?

Michael Sandel:

Well, I would put the question slightly differently. Do we as American citizens have a special obligation to our fellow citizens that goes beyond the obligations we have to everyone else in the world? And I would say the answer to that is yes. So that’s the underlying moral point that you’re going for just now.

Preet Bharara:

And why is that and how do you justify that philosophically?

Michael Sandel:

Well, it depends whether you think that the only relevant moral responsibility we have is the universal duty of respect for humanity as such, or whether you think that we do have a universal duty to respect persons as persons, whoever they are, wherever they live. But we also have special obligations to those with whom our identity is bound to those with whom we share a common life. And beginning with our family members, a thorough going universalist, cosmopolitan ethic that acknowledged no special responsibilities would have a very hard time explaining why if my aging mother has medical needs and somebody else’s aging mother has similar needs half a world away, should I flip a coin to decide to whose side I go?

No, we would think that there’s something morally missing if I didn’t recognize an obligation to my ailing parent or to my child. And so if family obligations have some moral weight, if they’re more than merely a prejudice, a prejudice born of proximity, then by extension, so do other forms of community including national community have moral weight? Now the hard question is if that’s right, what do we do when there’s a clash or a tension between the universal duties we owe to humankind as such and the special responsibilities we have to members of our family or people or community or country?

Preet Bharara:

Part of the reason I’ve raised this was there’s a little bit of a public debate between the vice President JD Vance and a former British MP, Rory Stewart J.d Vance said, and he was cloaking this in theology, but let’s talk about it outside of theology and in the mode of morality and philosophy and ethics. JD Vance said, quote, “There’s a Christian concept that you love your family, then you love your neighbor, then you love your community, and then you love your fellow citizens. Then after that, prioritize the rest of the world.” A lot of the far left has completely inverted that. Rory Stewart replied to that saying, “A bizarre take less Christian and more pagan tribal. We should start worrying when politicians become theologians assumed to speak for Jesus and tell us in which order to love.” And then JD Vance responded, “Does Rory really think his moral duties to his own children are the same as his duties to a stranger who lives thousands of miles away?” Does anyone who’s right morally in that back and forth?

Michael Sandel:

Well, on that last part of the quote, JD Vance is right this because this is just an argument against cosmopolitan or universal duties always trumping more particular or even parental duties. So he’s right in that last passage, but I think he’s wrong to suggest that there is the fixed hierarchy of moral claim that he seemed, and I haven’t read the exchange that he seemed to be setting out in the first part of the quote that you read. I don’t think that it’s possible to decide what moral obligations should govern any particular situation by setting out in advance a hierarchy of communities from the nearest… The most particular to the most universal or the other way around. We have to look at the content of the duties and obligations and the needs that are at stake. So he’s right in the last part, but he’s mistaken if he’s suggesting there is a fixed hierarchy that applies to all cases.

Preet Bharara:

What grade would you give his answer?

Michael Sandel:

I’d have to read it to mark it.

Preet Bharara:

I just wanted to make a small trivia point. You mentioned Harvey Mansfield earlier with whom you taught a class famously conservative at Harvard. I did not take a class with him in part his name was Harvey C. Mansfield, and his nickname was Harvey C- Mansfield. I didn’t have enough confidence in my scholarly abilities to get higher than a C.-, so I did not take that class. Professor Michael J. Sandel. It’s an honor and a privilege always to have you. Thanks so much.

Michael Sandel:

Thank you, Preet.

Preet Bharara:

My conversation with Michael Sandel continues for members of the CAFE Insider community, how do we measure social progress? In the bonus for insiders, Professor Sandel responds to a listener question to try out the membership head to cafe.com/insider. Again, that’s cafe.com/insider. Stay tuned. After the break, I’ll answer an important question.

Now let’s get to your questions. So, folks, I’m just going to tackle one topic this week that arises from multiple listeners asking a version of the same fundamental question. And that is, in light of President Trump taking power for the second time, what are the limits on his authority to direct the military to do his bidding? And then relatedly, when if ever, can a member of the US military lawfully refuse to follow the President’s orders? Presumably this is on people’s minds because President Trump has repeatedly suggested he would use the military for his domestic agenda. For example, his inauguration day executive order declared a national emergency at the border and seemed to authorize the deployment of troops. He has also said he would use the military to carry out mass deportations and to quell protests. He even refused to rule out using the military to take control of Greenland and the Panama Canal.

There are also reports that some migrants deported by the Trump administration are being held at Guantanamo Bay. So they’re being held not by ICE, but by the military. So these questions are important ones and may before we know it become highly relevant. Now to be clear, some of the law in this area is relatively undeveloped, and that’s because it doesn’t come up that often because generally speaking, presidents for their part and military officers for their part understand what the guardrails are, what the limits are, and try not to test those waters too much. Now, as a general matter, as you know, the President of the United States has another very, very important title commander in chief. So he is allowed as interpreted by the courts all the way up to the Supreme Court, a very wide berth in how he uses his powers as commander in chief.

But even the Supreme Court has ruled famously on more than one occasion that the president’s authorities and powers even in wartime are not unlimited. A prime example is one that every law student probably remembers well, it’s called Youngstown v. Sawyer, a Supreme Court case that offers important lessons about executive overreach. In 1952, during the Korean War, president Truman faced a looming steel worker strike that threatened to disrupt steel production that was crucial to the war effort. So to prevent this, he ordered the Commerce Secretary to seize and operate the steel Mills. Sawyer, the Commerce secretary, directed the mill operators to continue production under federal oversight, effectively placing private industry under government control, all in the name of the war effort. But years later, the justices ruled that Truman overstepped his authority, emphasizing that even during wartime, even as commander-in-chief, the president cannot unilaterally take control of private property without congressional approval.

So it’s a case that shows that the military and federal agencies must critically assess the legality of presidential directives, especially when such orders lack clear legal grounding. So where does that leave individual service members? Whether you’re talking about soldiers in the field or generals in the theater of battle, the general rule is service members have a duty to obey lawful orders, but also have a duty to disobey manifestly unlawful orders that is orders that a person of ordinary sense and understanding would know to be unlawful. The problem is that sometimes orders don’t fall into a black and white category, they exist in illegal gray area. Some might exceed the President’s executive authority while others might violate an individual’s constitutional rights. It’s a difficult question, and in some ways, as you’re probably thinking, as you’re hearing me say these words, soldiers in the field are often between a rock and a hard place.

On the one hand, if you affirmatively disobey an order that is later found to be lawful, you risk court-martial. On the other hand, if you obey an order that is later found to be unconstitutional and unlawful, you face criminal exposure as well. So, ultimately, it’s up to the individual service member receiving the order, be it from their immediate superior or the president himself to make a decision. They can and often do also rely on input from legal advisors and military commanders. Historically, the military has almost always carried out presidential orders even when there were questions about their legality. Challenges usually come after the fact in the form of lawsuits that reach the Supreme Court or in terms of congressional pushback. But some examples should be fairly easy for service members to figure out if a commander or a supervisor orders a service member to shoot someone who was already in custody, who was restrained into my hypothetical with their hands behind their back, that clearly is an unconstitutional and unlawful order.

One can imagine almost no circumstance in which that would be a lawful order and it should be disobeyed. On the other hand, think about one of the scenarios that people have painted that might actually be a reality in the near future. Say Trump orders the military to stop protests against his administration. Normally, the law known as the Posse Comitatus Act bars troops from domestic law enforcement, but there’s an exception and it’s called the Insurrection Act. So military service members upon receiving an order to do such a thing would’ve to think to themselves, well, does this fall under the Insurrection Act? And the first question you would ask is, has the President of the United States invoked the Insurrection Act? Which as I understand it, is a legal precursor to ordering the military to engage in this kind of conduct on domestic soil. Then the question becomes, is it up to the individual service member to make a determination of whether or not the invocation of the Insurrection Act was lawful and constitutional?

And it seems, whatever we might think about it from the sidelines, a bit too much to ask of individual service members. So, generally, if the question is, can I as a service member take action in my capacity as a member of the military on domestic soil after the President has invoked the Insurrection Act, I probably do have to engage in that conduct. It would be chaos if every individual service member could on his or her own conscience decide whether or not the legality of the Insurrection Act will withstand legal scrutiny one day. On the other hand, if you have been given the order to behave as a soldier might in connection with a protest on domestic soil, there might be particular orders that still are unlawful and should be disobeyed. Remember, Trump’s own defense secretary, the former defense secretary, Mark Esper, has disclosed that Trump suggested that protesters who were part of the George Floyd marches maybe should have been shot in the legs by the military.

So one would hope that an individual service member, even if that person believed that the Insurrection Act had been invoked properly and couldn’t be questioned, would disobey a clearly unlawful order like that. So as you can see from just a couple of examples, it’s a pretty fact-specific inquiry and it pits two values against each other, both important to the preservation of democracy and the protection of national security. On the one hand, you can’t just have individual service members deciding case by case every time they get any order. Should they obey it, should they not obey it? The presumption, I think, appropriately, is in favor of obeying the orders, but in certain cases to avoid severe and extreme harm and miscarriages of justice and harm to the reputation of the United States of America. As we’ve seen with the Abu Ghraib incident and some of the enhanced interrogation techniques that have been used, sometimes that individual judgment has to be brought to bear.

It’s a difficult question and one that fortunately doesn’t come up all that often. In fact, historically instances of the US military defying presidential orders are rare and typically not based on the orders being considered unlawful. Sometimes there are other reasons for the dispute. In 1948, for example, president Truman lawfully mandated the desegregation of the armed forces in that order faced significant resistance from military leadership who were opposed to the idea of desegregation. There was an Army secretary by the name of Kenneth Royal, who delayed the implementation of the desegregation order and his refusal to comply led to his forced resignation.

Another notable example from history of insubordination, you can call it occurred during the Korean War, general Douglas MacArthur publicly criticized President Truman’s strategy of limited warfare and advocated for more aggressive approach against China. His challenge to presidential authority, not with respect to any particular concrete wartime action, but overall opposition to the strategy of the President, led also to his dismissal in 1951. The bottom line and what’s at the heart of the issue is this tension that I mentioned between the duty to Obey and the duty to the Constitution. Every service member takes an oath, not to the President, but to quote, “Preserve, protect and defend the Constitution of the United States against all enemies, foreign and domestic.” And we will see perhaps sooner than we want that tension to the test.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Michael Sandel. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @Preet Bharara with the hashtag #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rhoads. The editorial producers are Noa Azulai and Jake Kaplan. The Associate producer is Claudia Hernández, and the CAFE team is Matthew Billy, Nat Weiner, and Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, stay tuned.