Supreme Court, United Nations—What Next for Free Speech, the Free World? 

>> Speaker 1: What are you hearing kind of reaction is happening there?

>> Speaker 2: Well, on the majority of the students that I've spoken to and I've been in conversation with them for weeks leading up to this moment, they are reeling. They are devastated, and they're worried about what the culture, what the makeup of their classes, the future generations coming up behind them at Harvard, what they're going to look like in the future.

 

>> Bill Whalen: Welcome back to GoodFellows, a Hoover Institution broadcast examining social, economic, political, and geopolitical concerns. I'm Bill Whelan, a Hoover distinguished policy fellow. I'll be your moderator today, joined by two of our three good fellows. HR McMaster is not with us today, but we are graced by the presence of the international man of history, the distinguished historian, Niall Ferguson, and the very distinguished economist, winner of this year's Bradley Prize, Hoover Institution's own John Cochrane.

Gentlemen, we're going to get into two topics today. Our second portion of the show, we're going to talk about the United nations, the IMF, the who. The question being, are these international institutions job they were set out to do? But first, we're going to have a conversation about the Supreme Court, and the Supreme Court is doing the job it set out to do.

Joining us for that conversation is Eugene Volokh. Eugene Volokh is a UCLA First Amendment law professor, anchor of the Volokh conspiracy blog, and I'm happy to say, joining the Hoover institution full time as a Hoover senior fellow. Eugene, welcome to GoodFellows, welcome to the Hoover Institution.

>> Eugene Volokh: Great to be involved with both.

I've been a faithful listener, and it's cool to be on the show itself.

>> Bill Whalen: Okay, and Niall, what awaits him in Silicon Valley?

>> Niall Ferguson: Well, I think Eugene will be a force for good on our campus and at Hoover, and I think it's a huge win for us that he's coming.

I can't think of any more original and lively thinker on the kind of issues we're going to get into on this show. And I'm just delighted that he's going to be a colleague and this show is the beginning of a beautiful friendship. I'm confident.

>> John H. Cochrane: The crucial issue facing Stanford right now, like American academia, is do we stand for excellence, academic freedom, open inquiry, free debate, or do we stand for the advancement of a political cause, activism in the various names?

That is the central issue for academia and, boy, do we need you at Stanford and in the nation as a whole on these issues.

>> Eugene Volokh: Great to hear that, thanks.

>> Bill Whalen: Yes, so we're going to get into free speech with the court. But first, Gene, let's talk about a ruling this summer that had to do with affirmative action in this case.

This is a group, students for fair admissions, which sued Harvard and the University of North Carolina. And the Supreme Court ruled with students for fair admissions and what they said with the two universities were guilty of violating the equal protection clause of the 14th commandment of the Constitution.

Eugene, I'd like to get your thoughts on the court ruling, the significance of it. Do you think it's going to stand? And then, John and Niall, I want to get your thoughts on where you think universities might go next and where the affirmative action conversation is going to take us.

So, Eugene, why don't you lead off by explaining what the court's logic was here.

>> Eugene Volokh: Sure, so the court says that the equal protection clause of the 14th amendment, which guarantees every person equal protection of the laws, it was enacted shortly after the civil war. And the court says this essentially says the government can't discriminate based on race, with very few exceptions.

And it doesn't matter whether it's a discriminating against blacks or against whites or against Asians. There was a good deal of evidence of discrimination against Asians in these programs, and it doesn't matter if it's for malign purposes or benign purposes. We can't trust the courts and the government to decide what's benign and malign, and that therefore, it's unconstitutional.

Now, interestingly, Title VI of the Civil Rights act of 1964, which applies not just to the government. Remember, the Equal Protection clause says what no state can do, so it only applies to the government. Title VI applies to even private universities. Any private entity that gets federal funds just says, you can't discriminate based on race, just in so many words.

And, of course, Harvard is not a government institution. So it was really Title VI that was applied here. But in the late 1970s, the Supreme Court concluded and later kind of reaffirmed that the categorical language of Title VI, the nondiscrimination language of Title VI, again, this federal statute basically imports principles from the equal Protection clause.

So that's why it sounds it was, in fact, was litigated as an equal protection clause case, even though one of the defendants, probably the most prominent one, isn't actually covered by the equal protection clause itself. Two justices in concurrence, Justice Gorsuch and Justice Thomas, said we should have just decided this case under title vitae, which says categorically no discrimination and we should have abandoned this wrong headed interpretation, which says it somehow borrows equal protection principles.

So it's an interesting question. What would have been the better approach? But that does seem to be the conclusion. And interestingly, especially the title VI argument might also apply to race preferences in employment. That's going to be the big new frontier, because, of course, Title VI is right next to Title VII of the Civil Rights act of 1964, which deals with employment discrimination, also says no discrimination based on race also was interpreted to allow back in the seventies, allow certain kinds of race based preferences in hiring.

That could be the next main area of litigation.

>> Bill Whalen: Interesting, Niall, John?

>> Niall Ferguson: For me, it's fascinating because I can remember teaching at Harvard when it began to be a topic of conversation. And it was an article by a conservative writer named Ron Oons that first drew my attention to the odd way that Harvard admissions had evolved, that there appeared to be some implicit siAan quota.

And he'd inferred that from admissions data based on surnames. Nobody talks about it. And I remember bringing it up in class and saying, isn't this odd? Because it's not happened at Caltech, where there had been a massive increase in the asian share of the student body. And what struck me most about that little intervention on my part was the crickets that it elicited.

Nobody wanted to talk about that subject. And it's many years later that we finally bring the issue to the courts and find that there really was outrageous discrimination going on. So I think this is a very important ruling. Now, I'm just a simple immigrant who probably is missing many of the subtleties of the law.

But let me ask you, Eugene, am I right to think that this is a major and significant ruling that will bring an end to all kinds of really unhealthy practices in university admissions and going back to John's earlier point, and will strike a blow for meritocracy and excellence as the criteria for admissions as opposed to social engineering.

 

>> Eugene Volokh: So I think you're two thirds right. It is a major, insignificant ruling.

>> Niall Ferguson: I'll take that, that's good for me.

>> Eugene Volokh: That's not bad for all of us, really. And I do think it will strike a blow and some measure for meritocracy for essentially saying, look, we want students who have indications they're going to succeed, that grades and test scores are probably the best indications.

Maybe we want students who have shown their merit because they have accomplished tremendous things. Things even outside the classroom. And so I think, on balance, that, too will happen. It will most certainly not put an end to these practices. That is beyond the power of law to do generally right?

It's not like murder laws put an end to murder. We should have laws banning murder, but we need to understand their limitations. And that's especially so in this sort of area where there's going to be, I'm quite sure, a great deal of resistance, because a lot of educational institutions are deeply committed to race preferences and admissions.

And where a lot of this stuff can be hidden behind, for example, subjective standards, where we're taking a holistic approach to this and we read all these files, just so happens these are gonna be. These end up being the results but no. We were scrupulously following the law.

There's going to be resistance. This is not going to put an end to that. I do think it's a step in the right direction. Now, I say this, by the way, primarily as a policy matter. I am an opponent of race based admissions in universities. I have been since the mid 1990s, when I was involved early in my career as a legal advisor for the Prop 209 campaign, which prohibited that in California.

Now, there are interesting questions about whether this is an accurate interpretation of the Constitution, and there are interesting historical debates between the dissent, for example, here. And Justice Thomas, who was in the majority, about whether, properly interpreted, the equal protection clause should be understood in a particular way.

And don't wanna slight those debates. It may be that I like the policy result, but it turns out maybe that it is unsound as at least an interpretation of equal protection clause. I think it's quite sound if it were an interpretation of title VI, but I do think, on balance, practically, I think this is a step in the right direction.

 

>> John H. Cochrane: I'll add a couple comments. I think the widespread perception is that this is about white and black race preferences, and I don't think that's really what it's about. The racial part is largely about the Asians, which actually didn't get much mention at all in the Decisions, but the widespread anti Asian discrimination that's going on.

There's just not that many black people who apply to these colleges. And in fact, 40% of Harvard's black students were Nigerian immigrants or west Indian immigrants, not African Americans in the first place, really, this is about politics. So the vast diversity bureaucracy that exists in universities, there's only, what, 13% black people in the country?

And who gets into Harvard versus Cornell is not gonna help George Floyd's family. This isn't, there's all sorts of damages of affirmative action that we can talk about, but that's really not what it's about. It's about politics, the DEI bureaucracy, a DEI statement that you have to fill out is about fealty to a political cause, really, rather than something racial.

Yes, the universities will evade it. They've already, they all, university president sent out emails the day afterwards saying, here is exactly how we are going to get around this and keep doing what we wanna do. We're gonna stop using the sat at all so they can't prove what we're doing and keep that bureaucracy going.

The other interesting thing about this is, so first of all, they haven't been, this is about who takes federal money, not about what private institutions can do. But the interesting thing is the civil rights law embodies Martin Luther King's version of judged by the content of your character or the quality of your SAT score, not by that color of your skin.

If you write that down on a DEI statement to use CLA, You will score zero on the DEI and they will throw out your application file before it even gets to the department. It would be curious if today's progressive were to write that law, they would write it very differently.

And it's interestingly that that's what's enshrined in law, is that version of equality before the law, not equity, which is what I think they would write today.

>> Niall Ferguson: Can I make a brief intervention to plug one of our most distinguished colleagues at Hoover's contribution in this field? Thomas Sowells just published a new book, Social Justice Fallacies, which I was very excited to receive.

And it contains a pretty brilliant critique of affirmative action and something about which he's been a skeptic almost from the get go. So social justice fallacies new from Tom Sowell.

>> Bill Whalen: Let me add one more plug Thomas Sowell is on uncommon knowledge on YouTube as well. So definitely check that out Eugene, I'd like to.

 

>> Niall Ferguson: Yeah, and here's some choice things to say to Peter Rahms on the subject. So, yeah, I think credit where it's due. It was perhaps it's become easier to have these, make these objections. But when Thomas Sowell began to make critical sallies against affirmative action, it was neither a popular nor profitable position.

But it turned out to be very right, I think.

>> Bill Whalen: So Eugene John mentioned how universities will squeeze the balloon. They'll drop sats, they'll find ways to get around the Supreme Court ruling. I'm curious about next shoes to drop in terms of parents or organizations that might wanna sue universities.

And I'm particularly obsessed with legacy admissions. Now, I'm not privy to how Harvard and other elite universities do admissions in terms of if the word legacy is on the actual formula or not. But we all know the dirty secret is that very elite universities in America, I'd love to have legacies why?

Because if I have multi generations of Cochran's or Ferguson's in my school, the well endowed Cochrane of Ferguson family is more likely to give money. So, Eugene, I'm curious if you think that there is going to be any sort of legal action against universities based on legacies. And if so, what would be the constitutional argument?

 

>> Eugene Volokh: Well, so there is such action already happening and the claim is generally statutory. Claim more than constitutional is that legacies have a disparate impact based on race. That even though they're not formally based on race, and maybe not even intentionally based on race, they end up preferring certain people, white people, more than others.

Because past generations of Harvard students have been more likely to be white. It's an interesting question. I haven't seen the data on it. It may very well be that, especially if you look at a generation back, maybe there were quite a few black students at that point. In part because Harvard's fairly aggressive race based affirmative action programs.

My guess is probably the students who are least benefited by them and therefore most harmed are probably Asian students. In part because of the sharp increase in the number of Asians in America and Asian students at top, top universities. So that's the claim. Disparate impact claims aren't very easy to win.

Not all practices that have disparate impact are illegal. In fact, disparate impact are almost inevitable in very many ways. Just to give an example, a lot of universities are close to 60% female. That suggests that whatever criteria they use have a disparate impact based on sex. But that's not enough to make it illegal.

But there would be some such challenges. I don't think there'd be good equal protection clause challenges because equal protection clause generally, generally requires those challenges require showing of intentional discrimination. And I just based on race. And I just don't think that legacy admissions are this way. I will say that as a policy matter, I think it's a pretty poor kind of policy, especially when the universities are talking about, as they often do.

About the importance of universities being institutions that will kind of not just reinforce the existing hierarchy, which is in many ways socioeconomic hierarchy and that universities should be applied. Place to kind of help out people who may not have grown up with the benefits of, for example, having a Harvard grad as a parent.

So it's true they may lose a little bit of money. My guess is Harvard can afford to lose a little bit of money given the size of its endowment. So I think there's gonna be a lot of political pressure, and rightly so, against legacy admissions. But the legal case against them is not as strong as the legal case against deliberate discrimination based on race.

 

>> John H. Cochrane: I would have disparate impact itself is unquestionable legal grounds relative to equality before the law, but as a policy matter. So I want to pass along a view in favor of legacy admissions, which I don't know if I believe, but it sounds it struck me as interesting.

The point of top ten ivy universities is admission to the American elite. Look at how many Supreme Court justice came from Harvard, Yale versus UCLA law school, and what's the point? It's not the classes, as Neil will tell us, which are fairly watered down. It's joining that group of people who will go on and be the American elite.

And the legacies, if you don't get to rub elbows with the people who went to Exeter, Choate and will go on to run Goldman Sachs and the federal government, what's the point? If we're all here as socioeconomic diversity, then we haven't gotten to meet the people, the social networks, the power networks that comprise the American League.

So you gotta let some of those dummy wasps in, so long as they are part of the. I don't know if I believe it, but it's an-

>> Niall Ferguson: Don't believe it. I think it's a terrible argument.

>> John H. Cochrane: Please tell me why terrible.

>> Niall Ferguson: The opportunity afforded me by goodwill to make two points.

At first, to all professors in America, take back control of admissions. It should never have been delegated to bureaucrats. It never has been at Oxford and Cambridge, which is why there's much less of this going on. And when you're doing admissions, you wanna get the best people, and your social engineering ideals will quickly collapse when you have to make a choice between a talented person and a less talented person.

And if you start making that choice in favor of the less talented person in pursuit of some social objective, not only will you fail to achieve the objective, you'll have less good students and that won't be of much benefit to you when you teach them. My second appeal is to parents.

Parents in America, stop engaging in corrupt practices to get your children into colleges they're not good enough for. I have never pulled the string to advance the academic careers of my kids. I've told them, you've got to study hard, you've got to take the exam, and if you fail, you'll still get your breakfast and it'll all be all right.

That's the message that American parents need to give to their children. Not I will pay, not just hundreds of thousands, but it seems potentially up to a million dollars to have you coached and prepped so that you can bluff your way into Harvard where you don't belong. It's time all that stopped because its the most corrupt thing I've ever encountered.

It's the thing that I find most, actually most disgraceful about the United States, that that kind of corruption is not just tolerated, but its celebrated and it should stop. Otherwise, I think United States will slowly sink under the weight of its elite because its elite will be no good.

It will be an elite of people who don't belong in the elite.

>> John H. Cochrane: Professors teach hard classes and give seas to people who cant handle it.

>> Bill Whalen: Eugene, do you want to break the tie here between John and Neil?

>> John H. Cochrane: No, its not a tie. Neil just won

>> Bill Whalen: All right, Cochrane is surrendering the field.

Let's shift topics on the Supreme Court and lets get into Eugene's wheelhouse of the free speech and something that Dr. Cochrane is chomping at the bit to talk about. And that is a relationship between the First Amendment and a coming conflict, I guess the Supreme Court's gonna have to roll in this sooner, if not later.

And that is the question of the First Amendment, Eugene. And what social media platforms can and cannot do. This is in terms of what they can post, in terms of content, and also a couple of states efforts to control their moderation policies. One case is Biden V Missouri, which is the Fifth Circuit ruling earlier this month that the Biden administration's lobbying of social media companies removed content and accounts, ran a file, the First Amendment, the judge Eugene, saying that, quote, the government had, quote, assumed a role similar to an Orwellian ministry of truth.

And then there are two cases which the court hasn't taken up yet, Eugene, involving a company named Netchoice. They represent ISP's and these are Florida and Texas laws which moderate the content of social media outlets with more than 50 million monthly users. So they're targeting Facebook, Instagram, YouTube and X and the like.

So Eugene, this coming clash, the court having to rule on the First Amendment, what do you think is gonna happen?

>> Eugene Volokh: Well, it's hard to know for sure, and it's important that while these two issues are very closely connected conceptually as a legal matter, there are very different issues.

So Missouri versus Biden, which is a decision of a federal appellate court, and I expect we'll go to the US Supreme Court, because when the federal court says the president can't say certain things or can't do certain things, usually if the federal government says, well, we'd like the Supreme Court to resolve it, the Supreme Court says yes.

So that case, which will probably get to the Supreme Court has to do with the question of when the government can, is essentially improperly pressuring platforms to restrict certain speech. So, when is government interaction with the platforms or other entities urging them to restrict speech? When is that impermissibly coercive?

Because there's this unspoken, or else we'll go after you because we're the government and we are pretty powerful. A related question is, what if there's no coercion but there's just encouragement? They say, look, we're not gonna do anything to you if you don't do this, but could you please, please do this?

Let's tell you all the good reasons why you should do this. Let's try to set up mechanisms which will make it easier for us to talk to you and urge you to restrict certain kinds of speech. So that's one question, when can the government pressure platforms to restrict speech?

The second question, which is involved in the Netchoice cases, which I think are also coming before the Supreme Court because there two federal appellate courts disagreed on this underlying issue, is when can the government, in that case, it's state governments, tell platforms, we don't want you to restrict speech, in fact, we insist that you not restrict speech.

We will require you, I oversimplify here, to be viewpoint neutral in any moderation decision. So maybe you can block spam, but you can't block viewpoints because you disapprove them. That's a separate question, and both are very important questions.

>> John H. Cochrane: Well, I found Missouri V Biden very interesting, a 74 page scathing denunciation of what the administration had done in great detail to silence people who many of them turned out to be right.

This isn't just crazy misinformation. This is basic stuff about do vaccines work or not, including our own Jay Bhattacharya, who testified for this. And the other part that, so we live in more of a censorship state than we think, and Europe is farther down the road on this.

The other part that really struck me was the threat. The threats of we will use totally unrelated regulations to shut you down and close down your businesses. And that hasn't received much attention. But the other thing going on at the Supreme Court is the nature and reigning in the administrative state.

I mean, quite, they really got to the old barrier point, give me the man and I'll find you the crime. They can just use this alphabet soup of agencies. To close you down for anything they wanna do for political reasons. So the method struck me as scary in that larger context of what's going on with the administrative state, as well as revealing what's going on in censorship of the Internet.

 

>> Bill Whalen: Neil?

>> Niall Ferguson: Eugene, can I ask you a question because I've fallen behind like a laggard, a wayward student, with my reading. Last, I remember a lot hinged on Section 230 of the Communications Decency Act, which had set out back in the 1990s. The rules of the game for Internet platforms, and essentially gave them a kind of protection if they hosted content that was offensive and a protection if they took that content down.

And I'm just trying to understand how the net choice cases relate to those earlier debates on Section 230. And where you currently stand on this issue, because it seems to me one of the biggest issues of our time, just how much censorship or curation the Internet companies can engage in, given their scale and their influence.

It's a debate that's, of course, playing out on Twitter right now, as Elon Musk tries to make it a more free speech platform, and others would say he's turned it into a hate speech platform. Where are we, would you say, in the debate on online free speech, are we making good progress, or are the courts just muddying the waters further?

 

>> Eugene Volokh: Well, maybe the answer is both. And I should say I did write on the First Amendment Issue, an 86 page article, in the Section 230 issue, I co-wrote a 15 page article. So I'm gonna try to boil them down a little bit here. You are absolutely right that when platforms face state statutes that say you can't discriminate based on viewpoint among your users.

The platforms have at least two defenses, maybe, actually, there's a third one as well. One is First amendment, look, a newspaper is perfectly entitled to pick and choose what to publish. We're just like a newspaper, of course, the response is, well, okay, they're newspapers, they have these First Amendment editorial rights.

But there's a Supreme Court case that says that a state could require private shopping malls to allow speakers on their property. And the private shopping mall doesn't get to curate what's allowed on its property, and there are other examples on both sides. So the First Amendment question is, where do the platforms fit in the spectrum between, on the one hand, the newspapers and magazines, which have editorial discretion.

And on the other hand, telephone companies, let's say, and the shopping malls, which don't have editorial discretion. The second defense the platforms have is Section 230. There's a provision in Section 230 that allows them to remove material without fear of state lawsuits whenever they view it as harassing, or excessively violent, or lewd, or otherwise objectionable.

And they say, well, we find it objectionable because we think it's hate speech or because we think it's misinformation, or whatever else. And then there's a counter argument that, well, the statute doesn't just say objectionable, it gives these particular examples, it says, or otherwise objectionable. So there's a legal principle with a nice Latin name of ejusdem generis, I don't know if I'm pronouncing it right.

I don't know if anybody knows how to pronounce it right, but basically means if you've got a long list of these things, and then, or otherwise, you should read the or otherwise in light of that. And those happen to be all things that historically have been more regulated in telecommunications.

Where phone companies and broadcasters and such were allowed or even required to regulate certain kinds of such things, but not based on politics. Now, interestingly, what has happened right now is the challenges to the laws have been resolved as to the First Amendment issue. And that's the issue that's kind of teed up for the US Supreme Court to consider.

The Section 230 issue is still out there, it just hasn't been dealt with by lower courts. So if the Supreme Court agrees to hear the cases, it will focus solely, I'm almost certain it'll focus solely on the First Amendment issue. And then if it says, well, the platforms have a First Amendment right to pick and choose, then you don't have to reach the Section 230 issue.

But if it says no, these laws don't violate the First Amendment, then back down it goes to lower federal courts to then entertain the Section 230 issue. There's another issue, by the way, the so-called Dormant Commerce Clause question, which is whether states can apply their state laws to essentially fundamentally interstate and international communications media.

So there's a lot going on here, which is why we lawyers get paid the big bucks.

>> Niall Ferguson: Making us envious. I have a quick follow up question, because it feels to me as if what happened to Jay Bhattacharya and others who, as it were, broke ranks on the supposed consensus on COVID could happen again, if another issue arose.

 

>> Eugene Volokh: Will happen again.

>> Niall Ferguson: Nothing has fundamentally changed, and the same powers of censorship continue to be wielded by the network platforms. And that isn't likely to change anytime soon, when all is said and done.

>> Eugene Volokh: Absolutely, this is one of the reasons this is such an important issue, they have their policies about health, supposed misinformation.

They have their policies about supposed hate speech and about a variety of other things. I'm sure they'll have more policies because there are real benefits to some people, some people say to society generally. But certainly to some institutions and some politicians from restricting speech that interferes with their agendas or criticizes them personally, and the like.

And to the extent these things are validated, there are gonna be more of them.

>> Bill Whalen: We have less than 10 minutes left with Eugene, and I know John is dying to ask him a question about unenumerated rights. So, John, go for it?

>> John H. Cochrane: So I wanna ask, Bill gave me the right to ask the next question?

 

>> Bill Whalen: Neil, you could go get your cup of tea.

>> John H. Cochrane: I'll try to be brief. I was really struck in the Dobbs decision that they went on and on for page after page, went out of their way to limit unenumerated rights. Now, let me back up for our listeners, our bill of rights is not granted by the government to the people.

Our bill of rights is people have rights, and these limit the government from taking those rights. And the 9th one says, by the way, anything we forgot to talk about here that stays with the people. Now, I understand the policy conundrum, so the Supreme Court said, yeah, but only those things firmly enmeshed in tradition, and so forth as about 1790.

I understand the policy conundrum, if we say any rights not mentioned here are still with you. Progressives could stack the court and discover an unenumerated right to free housing, free health care, free money from the government, and so forth. And clearly they don't want that, on the other hand, I'm a good libertarian and I'm kinda shocked at the surveillance state.

And I see unenumerated rights, the privacy to transact freely. The state of California tracks your location from cell phone data to make sure you're paying California state tax. Taxes you know, that there's a lot of unenumerated rights that I think is a good libertarian we want. But, and it also struck me as a little bit contradictory and hypocritical, here's a court that prides itself on textual reading of the law.

Well, the 9th Amendment says unenumerated rights, it didn't say unenumerated rights, but only those ones that are in history of tradition, as of this date, 1792. And I don't hear the history well, you'll tell me more about the history, it doesn't look like that was the common understanding of unenumerated rights at that time.

So it looks like they're really vital, their own philosophy, to go after a strong limitation on an enumerated rights. So help me think about this.

>> Eugene Volokh: Sure, so first, I should tell you, this is not my core area of expertise, I've studied it a little bit and I have opinions.

But you know, more than we do.

>> Bill Whalen: That's never stopped us on the show, by the way.

>> Eugene Volokh: They are informed, but they're not as informed as those of many others who have made a career out of studying this. But I will say the 9th Amendment, it doesn't say you have, that unenumerated rights are protected.

What it says is the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people. So this court in Dobbs didn't much talk about this, but it did talk a lot about how whatever role substantive due process. Which is this weird legal doctrine that has been used to protect unenumerated rights might have, it only extends to things that are firmly rooted in history and tradition.

And that I think fits quite well with rights retained by the people, it means rights that the people have. Maybe, indeed, as of when the Bill of Rights was enacted, maybe as of 1868, when it was applied to the states through the 14th Amendment. That it's got to be rights that they retain, not rights that have since then been awarded or granted, or if you prefer, recognized by courts, they need to be rights that are very deeply rooted.

And that might also help solve a kind of a democratic legitimacy problem, which is if it's just any rights that the justices happen to think are attained by the people, then they could just make stuff up. Whether the economic, that is to say, the positive rights, John, that you were talking about, or even, well, everybody should have a right to use drugs.

Because they have a right to in just whatever they wanted to their own body. Well, it's an interesting policy question, I'm no fan of the war on drugs, I'm not sure that should be a decision for the US Supreme Court. So it makes sense, I think, I don't think it's the only sensible reading, but it makes sense to say it's got to be a right that indeed was recognized as of 1791 because that's what's retained by the people.

What's an example? Parental rights. By the way, Justice Thomas has spoken out even against parental rights because he's a big opponent of unenumerated rights. But Justice Scalia, for example, was more, more open to them, and I think his view was, look, this is indeed, it's been recognized by the Supreme Court since the 1920s.

But it's been recognized by American law since before there was America, right? It's been recognized by Anglo-American law. Likewise, some courts talk, or some supreme court decisions talk about a right to refuse life saving treatment. And the theory is you have a right not to take, you don't have a right to take drugs or take medicines that are not approved, but you do have a right not to take them, so that's an example.

You might imagine rights of self defense being protected, at least as understood throughout American history. Whereas abortion, the Supreme Court worked really hard to demonstrate, and I think probably correctly, that, in fact, abortion rights are very novel thing, they weren't a right retained by the people. So I think that's the way the justices would explain it.

I think that probably be correct as to the reading of the 9th Amendment, but again, there are other scholars whom I much admire who have a different view.

>> Bill Whalen: Niall, you wanna jump in?

>> Niall Ferguson: No, this is well above my head. Remember, one of the things that's very difficult for people who've grown up in Britain to understand is all this airy fairy talk of rights, which is such a distinctive feature of American life.

We just have our duties and obligations as subjects of the king, it's so much more straightforward.

>> Bill Whalen: We have only a couple minutes left with Eugene, I'd like to close with this question to you. The court has been under a lot of external pressures last few months now, questions of justice's ethics bill sitting in Congress.

That would create ethics councils looking over the court term limits for Supreme Court justices, adding four new seats. Now, I look at this court, and it's a six to three conservative leaning court, that's not gonna change in the next few years unless something happens, God forbid one of the justices.

Do you think this back and forth between Congress is going to continue, or do you think there will be a cooling down of sorts?

>> Eugene Volokh: You know, it's hard to tell, and I think these are very separate questions. So the questions having to do with ethics rules and recusal rules and such, there may, in fact, be some legislation on that.

I don't think it would materially affect the decision-making process of the courts, which is, I think, one reason there might, in fact, be some degree of consensus on it. It may require court, the justices to disclose more or forbid them from, from what's been in the news, accepting certain trips from rich friends and the like, maybe there might be something, too.

Now, the packing of the court, the increasing the personnel of the court, everybody recognizes that that is just a means of trying to affect the outcomes of the Supreme Court decisions. By getting more, these days, it's more democratic justices appointed. I'm pretty confident that is well within Congress's constitutional power, the Constitution nowhere says nine justices, and the number was originally six, then it has increased over time.

One point it decreased briefly so they could do that, I do think we've seen, obviously, famously during the Roosevelt administration, when Franklin Roosevelt tried to do that, there was a lot of pushback. And when it was proposed recently, there's been a lot of pushback on that, too. Now, term limits, I think, for the justices are a different matter.

I'm almost certain that they require a constitutional amendment because the constitution does say that the justices served during good behavior. Which historically has been understood as basically for life. But it may be quite a sensible rule, and if you can have it start long enough into the future, it might be something there may be a left right coalition.

Because they might say, okay, if it starts in 2040, we don't know who's gonna be on the court in 2040, we don't know who's gonna be president. So maybe that would be something we could agree on. At the same time, of course, a constitutional amendment requires basically, I oversimplify here, but basically two thirds of Congress and three quarters of the states.

It really would have to be a very solid consensus in order to get that enacted.

>> John H. Cochrane: This ethics brouhaha is, as I see it, a transparent part of a strategy to delegitimize the court, which is extremely dangerous and is gonna come back to bite the Democrats who are doing it very hard.

It's the strategy, they don't only look at Republican appointed justices, and whereas, Democrat appointed justices are doing the same thing. It's an effort to say your decisions are fundamentally illegitimate, and therefore we can simply ignore them, which is very dangerous for the court, for democracy and everything else.

And trust me, when Republicans are very good at saying, that's a nice little tool you have over there, delegitimizing elections, we'll say elections are legitimate, too, and we'll run up to the capitol. Look how good that that one runs, this is really corrosive for democracy. And as part of it, I've noticed that newspapers now, the media always when they refer to a justice, they say justice appointed by republican or democratic president.

Didn't used to do that, they don't say justice went to Yale Law School, they don't say justice wears blue suits. They say justice appointed by a Democrat, as if automatically pigeon, that means-

>> Bill Whalen: Or John, they say conservative justice.

>> John H. Cochrane: Increasingly, they name the president who appointed the justice as if that is the most important thing described, or justice who wrote famous opinion on X, Y and Z.

So that's part of deliberate effort to politicize and delegitimize the court, which is when you burn up institutions in the name of temporary partisan advantage, boy, boy, are you causing trouble.

>> Bill Whalen: Eugene, we're gonna have to cut it off there, we sure appreciate your time today. Congratulations, we look forward to having you up at the Hoover Institution, and I hope you enjoy your new life soon as a law professor emeritus.

 

>> Eugene Volokh: Emeritus, I have the gray hair to prove it, thank you very, very much for having me. And I very much look forward to joining Hoover full time just in several months now.

>> Bill Whalen: All right, let's turn our attention now to international institutions, and let's start with the United Nations, which this week had its 78th General Assembly in New York City.

For those of you who've never been in New York City at that time of the year, do not go, it is hell in terms of getting a lift, it is hell in terms of getting into a restaurant, you just don't wanna be there. Neil, I wanna start the conversation this way, and I wanna turn your attention to the words of one Volodymyr Zelenskyy, who went to Manhattan, spoke before the UN, and I wanna read you a passage of what he said.

Quote, we should recognize that the UN finds itself in a deadlock on the matters of aggression. World leaders are seeking new platforms and alliances that could reduce the disastrous scope of problems. The problems that are met here within these walls, with rhetoric rather than real solutions, with aspirations to compromise with killers rather than to protect lives.

Neil, I think what Zelenskyy was saying is short is the emperor has no clothes.

>> Niall Ferguson: Well, he's not the first to make this observation, watching the deliberations of the UN Security Council on the eve of the Russian invasion of Ukraine was a somewhat surreal experience. I was watching with my son Thomas, who I think was then 10, and he asked if it was Saturday Night Live, because the Russian member of the UN Security Council was in the chair.

And was therefore in a position to stand in the way of any action by the UN to deter Russia from the invasion that it had clearly embarked on by that point. Now, the problem with the United Nations is twofold, first, every country is represented except the ones that are not represented.

So, there's a series of arbitrary lines that are drawn, Taiwan is out because its seat was given to the People's Republic of China. And so, the UN general assembly is a really rather motley collection of very large and very small, very democratic and very undemocratic states. But they all get to be, as it were, the lower house of the parliament of nations.

The upper house is peculiar in that there are five permanent members and these five have a veto power. And they include Russia, which inherited its seat from the Soviet Union, China, which, as I mentioned, took over its seat from Taiwan. And that makes it a little tricky for the other members, the United States, the United Kingdom and France, to achieve things that the totalitarian or authoritarian states don't want.

This is not a new situation because for most of the first Cold War, as you know, I think we're in a second cold war now. But for most of the first Cold War, either the Soviet Union exerted its veto, or the United States exerted its. So, I think Volodymyr Zelenskyy's just discovered what a lot of us have known for a long time about the UN.

It's a kind of malfunctioning institution, not as a bug but as a feature, the question is, what do you do about that? The typical debate is when you have to reform the UN Security Council, either by enlarging it, adding big countries that aren't there, say India, or currently popular, shrinking it by kicking the Russians out.

I think that would give many Ukrainians a great deal of satisfaction. It's not clear to me that either of these things is very likely to happen because, of course, the permanent members like being permanent members and aren't likely to vote others into this very powerful club.

>> Bill Whalen: But Niall, I think he's giving you a roadmap here, he's saying new platforms and alliances, so what's he getting at?

New platforms and alliances.

>> Niall Ferguson: Well, of course, the Cold War was not won by the United Nations, as I said, the United Nations was mostly paralyzed, except on a very few occasions, like in 1950. When the Soviets walked out rather stupidly and allowed the United States to get resolutions mobilizing large scale support for South Korea.

There was a similar moment of truth during the first Gulf war, but most of the time the veto makes it hard for the UN to act. That means that in international relations, in geopolitics, alliances matter much more than the UN. And that's why it was so important when Ukraine was invaded by Russia last year that NATO stepped up, even although Ukraine is not a member of NATO, stepped up to deter Russia.

And indeed, to supply substantial amounts of aid to Ukraine to prevent Russia from achieving its victory. And so, I think part of what Zelenskyy was saying in the speech was, again, what we've long known, when the chips are down, alliances matter much more than the UN. And if you are a relatively small country and Ukraine's a relatively small country, it's better to be in an alliance than not.

Ukraine's tragedy, as I think I've said in this show multiple times, is that we talked about making it a NATO member without ever specifying when it would happen. So, it was a little like that New Yorker cartoon, I can't do Tuesday, can you do never? So, we essentially said, we'll make you a member of NATO never, and that, I think, explains a lot about this war.

What Zelenskyy would like would be clear pathways leading to NATO membership for Ukraine as well as membership of the European Union. There are gonna be pathways, but they won't be clear, in fact, I think they'll be rather long unwinding.

>> Bill Whalen: John, what say you?

>> John H. Cochrane: We're talking about the UN also as arbiter of great power struggles, which clearly, it's not able to do.

It also seems to me to be failing as an institution the smaller ones I forget exactly whether it was Venezuela or Cuba who's is charge of the charge of the Human rights Council for a long time. But that sort of epitomizes the UN in its-

>> Bill Whalen: John, the words on the UN website's masthead are, quote, peace, dignity and equality on a healthy planet.

 

>> John H. Cochrane: Well, those are nice aspirations, but even the smaller level companies, the UN was supposed to work together for smaller things like that. And that also got co-opted by China, authoritarian countries, sort of a general anti Americanism that swept the thing, so it seems to be ineffective even in its smaller scale operations.

 

>> Bill Whalen: So, Niall, what happens when you and an older Thomas are sitting on the couch watching the UN debate China and Taiwan?

>> Niall Ferguson: Well, I think that would be an even more dispiriting spectacle because were China to invade Taiwan or maybe just to blockade it. There really wouldn't be much to be done at the United Nations, given the Chinese veto and the absence of Taiwan.

The great many countries simply don't recognize Taiwan as an independent state, including the United States. So the UN would have absolutely no role to play if there were a crisis over Taiwan. It would be about whether the United States chose to act under its own statutory obligation going back to 1979, to prevent a violent change to Taiwan's status.

And then it would also be a matter of politics, how many countries took the American side. And you could count the number of countries that Taiwan could count on right now, probably on the fingers of one hand, cuz I'm not sure that there would be anything like the NATO response to a Taiwan crisis.

In fact, its pretty clear to me that most continental European countries would want to stay neutral, non aligned in such a crisis.

>> Bill Whalen: John, a year before we got the United Nations, the world got the International Monetary Fund, I believe it was created in 1944 at the Bretton woods meetings.

Question for you, John, the IMF, which is core mission is what macroeconomics. The IMF seems to have a Jones for climate, climate finance right now, has the IMF lost its way?

>> John H. Cochrane: Yes, and this is the tale of institutions. So the UN is an institution's rotting, and as Neil pointed out, well, for other things, we put up new institutions like alliances and NATO matter in its place.

The IMF was set up under a gold standard and fixed exchange rate regime to be a temporary source of financing for countries that get into trouble borrowing money. And keep propping up the exchange rates the same way, sort of the Fed props up banks when there's an occasional crisis, and that function got less and less important.

They were doing a reasonably good job of it in the 1990s. They would parachute into a country that has trouble, and they would point out you're printing money to finance deficits. And they would be a useful sort of like debtor in possession financing in a bankruptcy. They'd be a useful way of getting the country to overcome the political blockades, to, we need to stop printing money reform our economy, get going, pay back the debt with a little money that goes in.

But yes, all institutions love to grow and expand. And now doing that stuff, you don't get any plot. It's a diverse because you imposed a harsh austerity plan on some country that got them to pay back their debts and be able to borrow again and allow free enterprise to grow.

So now they parachute in and they say, you need to spend more money on equity and you need to spend money on climate change and that sort of thing, cuz this is the new fashion among the ECB. The Bank of England. Large international institutions want to bend your and my money to subsidies for today's popular climate policies.

And the IMF has gone in that direction as well.

>> Bill Whalen: Neil, I want to get your thoughts on a third institution, one which we haven't talked about since the early days of goodfellows, and that is the World Health Organization. The other day, Neil, the WHO director general saying that he wants China to grant full access so they can go in and find the true origins of COVID Neil, this sounds like OJ Simpson saying he's looking for the real killer.

 

>> Niall Ferguson: Well, I mean, look, one thing that I wouldn't want viewers to take away from this conversation is that all these institutions should just be scrapped. Because I've consistently argued that, flawed as they are, they're better than nothing. And every now and then, the United nations has done some good, and every now and then, the IMF has done some good.

And the same is true of the World Health Organization. It had a very bad pandemic in 2020 because I think it was too deferential to the Chinese government. But if you go back to SARS, it had a very good pandemic then. And if you go back not too far in its history, in other words, you can see the WHO doing a lot of good.

I think it's trying to make good, make amends for its poor performance in 2020. It's not gonna get any change out of Xi Jinping, who is never going to allow anybody to figure out what actually happened in Wuhan in 2019 and early 2020. International organizations are very frustrating, anybody who's ever worked for one enters a realm of bureaucratic surrealism that it's hard to really love.

But I always like to remind people who grumble about, whether it's the UN or the IMF of the World Health Organization, what the world was like when those things didn't exist. And that left a great deal more room for settling things on the battlefield than we currently see in the world.

 

>> Bill Whalen: Okay, reform them.

>> John H. Cochrane: Good for you, Neil.

>> Bill Whalen: So Doctor Cochran has talked about economic policy in the United States resembling that of late 1930s in some respects. Question for you, and let's close out the segment here. You look at the UN right now, Neil, is it analogous to the League of Nations in the 1930s in terms of in the 1930s, what the three axis powers left the League of Nations?

You have two totally pairs right now in Russia and China doing what they want because of the Security Council.

>> Niall Ferguson: No, I don't think it's like that, because in the end, the League of Nations was manifestly impotent by the late 1930s. The problem with the United nations is just that potentially, or actually aggressive countries have veto powers.

And I don't think that's a fixable problem, but it's a different problem from the one that the League of Nations suffered from. What is interesting to me is that compared with 20 years ago, there is really something quite like an axis. David Fromm came up with the phrase axis of evil after 911 for a George W Bush speech, and it was kind of made up.

Because there wasn't really an axis connecting the states that he wanted to connect, Iran, Iraq and North Korea. There is now a real axis between Russia, China and Iran. And now North Korea is clearly part of the package, judging by the Kim Jong un visit to Russia. So it is, I think, alarming, that there is an alliance of powers clearly willing to engage in aggression in defiance of international law.

And the reality is, and we shouldn't ignore it, that this alliance is both economically significant, mainly because of China. But it is also capable of a great deal of military mobilization in terms of manpower and firepower. And so there, I think the 1930s analogy is not completely unrealistic, especially as, despite the vast amounts we spend on defence in the United States.

We're not really in a position to keep pace with an arms race of the sort that China's embarked on. Nobody talks about China's nuclear program, which is odd to me. The Chinese are very rapidly building a massive nuclear arsenal. They're also building a navy that is now, if you just count the ships, bigger than the US Navy, and as John will confirm.

A country that is spending more now on debt service than on defense is not likely to be able to build up its navy or its other deterrent capabilities if there's an arms race of this sort, because it's fiscally constrained. And that does remind me of Britain in the 1930s, cuz Britain was constrained by a very heavy debt burden in the 1930s.

 

>> John H. Cochrane: I don't think in the 1930s or now one would count on the pacifying power of a large league of nations or United nations to stop a great power confrontation. But I do think there's an interesting analogy with the 1930s, and here I'm just passing on to Tom Sowell thing.

Cuz I I listened to that uncommon knowledge episode and Tom made a very accurate opposition. In the 1930s there was a widespread disarmament. In the West, in the UK and the US, which had nothing to do with League of Nations or not. It was a feeling, well, if we just stop building weapons, war will not come.

And that was a big mistake. We also cut off the oil to Japan, which put them in a quandary. And we lost the first couple of years of that war. Second World War was one allied loss after another until finally, El Alamein. I mean, depending on how you count the Battle of Britain, that wasn't a win.

But El Alamein was the first one. And we had three years of space in which to start building weapons. Also, the axis weapons were a lot better than ours. Their tanks, their planes, everything worked a lot better than ours, as their tactics, they knew what they were doing.

We had three years to wait and rebuild. And Tom pointed out, when China invades Taiwan, we won't have three years to rebuild. You'll get to that one with what you get now. I feel HR missing, and maybe we'll come back to this issue, whether we will have the space to rearm after the war or whether all the shooting will be done in six weeks.

And that's the end of that.

>> Bill Whalen: Okay, we'll pick it up with HR. And for our viewers and listeners, the second installment of the Tom Sowell and common knowledge interview should be out any day now, so look for it. So gentlemen, strap yourselves in. It's time for the lightning round.

 

>> Lightning round.

>> Bill Whalen: Okay, I've got four questions for you today. Here we go, first question, Niall and John. There is considerable angst in democratic circles these days right now over Joe Biden running for reelection. This has to do with his rather fragile appearance at times, but also his rather fragile poll numbers.

Two questions and one, Neil and John, should Biden change his mind about running in 2024? And if he does change his mind, who should the Democrats nominate, Niall?

>> Niall Ferguson: Yeah, he should change his mind. He should do what Lyndon Johnson did and pull out rather than seek reelection.

 

>> President Lyndon Johnson: I shall not seek, and I will not accept, the nomination of my party for another term as your president.

>> Niall Ferguson: He shows every sign of being unable to do the job. He's too old, it's as simple as that.

>> Bill Whalen: Who's your alternative?

>> Niall Ferguson: Well, there are Democrats whom I admire who don't show any sign of entering the race, I think of Senator Seth Moulton.

If the Democrats wanna win, I suspect what they'll do is put Governor Gavin Newsom into that, into the role of candidate. And I think he will stand a good chance, despite all the havoc that he has wreaked in California, young, plausible, cynical. I mean, that would be a formidable challenge for Donald Trump.

I'm not sure they'll do that. It sounds to me as they're gonna stick with Biden. If they stick with Biden, I think they're making a big mistake.

>> Bill Whalen: John.

>> John H. Cochrane: Yeah, there's a devilish strategy here. You can see why Biden didn't pull out early because you're a dead duck the minute you say, I'm not running.

 

>> Bill Whalen: Right.

>> John H. Cochrane: But there's a devilish strategy here. Wait till the Republicans commit themselves to Trump and then announce, there's been some health thing, I'm pulling out. And then nominate anybody vaguely competent and you've got the presidency. So there's a hope, I also hope the Republicans figure out something on the same thing as to who anybody vaguely competent is fine with me.

I can't pick democratic politicians that well. No, it depends how late it happens. There is a primary process and there is some vetting that happens there. And you can't wait too late and pull a dark horse out of the woods on this one. So good luck to them.

 

>> Niall Ferguson: John's right, actually, it's harder than it was in 1968 because anybody who wants to be in contention has to file papers for primaries next month, in the case of some states. And, of course, anybody who does that has kind of broken ranks and joined the Robert Kennedy Maverick camp.

So that's what's tricky for Newsom. I'm sure he's planning a run. He wouldn't have done the Sean Hannity interview if he wasn't. But he can't make a move until I think he's given some kind of permission. So they can't really wait until the primaries. They've gotta make this decision sooner than that.

We're kind of walking hand in hand towards the edge of this cliff. I mean, the primary system is a real part of the problem. It's in the hands of the extremes of the party. You can't really get someone who's gonna win the, an election. And there seems to be, we all see that cliff coming, and it's hard to find a way out.

 

>> Bill Whalen: All right, question for you, John Cochran, this involves your beloved Chicago. The city of Chicago is considering municipally owned grocery stores in response to Whole Foods and Walmart closing stores on the city's west and south sides. John, how does the sound of a government-run grocery store strike you?

 

>> John H. Cochrane: I remember Boris Yeltsin looking at American grocery store and saying, my God, how wonderful. How do we get this? So they'll get to see the same people running the Chicago DMV, running grocery stores, good luck to them.

>> Bill Whalen: Neil.

>> Niall Ferguson: Well, I mean, I remember those soviet grocery stores with their empty shelves.

I mean, the prospect fills one with utter dread. But this is where Illinois is going it's where Chicago is going. It's determined to kind of beat California and perhaps other states to the bottom of the league of economic opportunity and efficiency. My heart goes out to the inhabitants of Chicago.

It's in some ways worse than San Francisco. Interesting to kind of watch cities being great cities being destroyed. It's a fascinating phenomenon which future historians will struggle to explain. Why did they take these great cities amongst the world's greatest cities in the 20th century and just wreck them?

What was that all about? It didn't really seem to be anything beyond politics. Small groups of people who profit from keeping things the way they are. And we've seen doom loops before, Detroit had a doom loop. What's amazing about Chicago and San Francisco is how incredibly fast this doom loop is happening in real-time.

And certainly, we can expect, though, that no matter who the republican nominee is, that he or she will stage a lot of campaign events in scenic parts of Chicago, or San Francisco and say, you want this everywhere else in the country.

>> Bill Whalen: Speaking of small groups of people, the United States Senate has changed its dress guidelines so that Pennsylvania Senator John Fetterman can do his business on the floor of the world's most deliberate body, wearing a hoodie and shorts if he wants to.

Niall, is this just a cause for casual concern or is this a sign of America slipping?

>> Niall Ferguson: I can't approve of this. I must say I'm not dressed as smartly as I might be for GoodFellows, but in the upper house of one of the great legislatures, we can't have hoodies and shorts.

A number of my friends have recently been elevated to the House of Lords in London, and they get to wear spectacular robes when they're, at least when they start their careers in the Lords. I think that Mister Fetterman should be made to wear robes in the style of the House of Lords.

If he insists on hoodies and shorts in the Senate, it's disgraceful.

>> John H. Cochrane: I wanna agree even louder on this. I'll tell a story, Edward Lazear, one of our former Hoover colleagues, was council of economic advisors, chair of the council, and he walked into the White House one day not wearing a tie.

And George W Bush said, put on your tie, young man, because we show respect for the office and the institution that we're in. And I think it is very telling of a large part of progressive Democrats disdain for the office, the institution, the traditions, the country that they live in, that you would even dream of showing up in a hoodie and shorts to preside over the US Senate.

 

>> Bill Whalen: All right, Neil, and finally, a question For you. A London restaurant is currently getting slammed for upping its discretionary service charge, as it's called, to 15%. One Reddit reviewer going so far as to saying, quote, don't fall for this USA shit. Another reviewer saying, quote, we should be doing our very best to reject this Americanism.

Tipping has to be one of the worst cultural exports. So it's come out of here. Niall, what's next for your beloved UK? I see cold beer, herbs instead of herbs?

>> Niall Ferguson: I'm actually more dismayed by the tendency in the United States to get asked to tip people when you've just got a coffee to take out.

 

>> John H. Cochrane: Before you get the coffee.

>> Niall Ferguson: And so a 15% service charge, a tip when you've had a three course meal, I think that's fine. And anybody who doesn't tip then is a skinflint. But when you're tipping just a coffee and a Starbucks, that seems to me to go too far.

And I think we've got a kinda tipping mania now in the United States. I'm fully expecting to be tipping plumbers, tipping almost anybody. Perhaps, they'll start tipping professors ultimately. Too much tipping just for restaurant meals and I guess related services. But we need to have some kinda arms limitation on tipping.

It's out of control.

>> Bill Whalen: What is your John Cochrane philosophy for tipping?

>> John H. Cochrane: I wanna defend my country.

>> John H. Cochrane: In fact, I read a history of tipping sort of thing economists are interested in. It actually comes from the UK. When you were invited for a weekend at Downton Abbey, you better bring a lot of change.

Cuz you were expected to be sending tips off to all of that staff constantly. And should you not do so, good luck at getting your things pressed tomorrow morning for breakfast. So that's where it came from. I really admire the tipping culture of Japan, where there's no tipping.

And it would be an insult to tip because your taxi driver. I am a professional. You are professional. A relationship is among professionals. It's not, you are granting me something for your exceptional service. Tipping doesn't seem to bring about good behavior, better service. Japan, the service is great cuz there's a gnarly old guy in the back looking at enforcing good service, so.

 

>> Niall Ferguson: I should tip John Cochrane for just upstaging me as a historian on GoodFellows. I did not know that about the history of tipping. And I won't tip you. I'll just tip my hat to you, chapeau.

>> John H. Cochrane: Well, Niall, you have a historian's ability to remember things accurately.

My ability to remember things like that is I sort of read on the Internet somewhere that blah, blah, blah, which is the difference between real historians and amateurs like me.

>> Niall Ferguson: I think it's a very plausible.

>> John H. Cochrane: I keep on stories when they're too good to really look into the facts, and that one is certainly qualified.

 

>> Bill Whalen: Gentlemen, I tip my hat to both of you. And we are going to conclude this show on a happy note for a change on Goodfellow. So, Niall, John, Niall, good luck with tipping in the UK. Please don't throw America under the bus. We're not that bad. And we will be back with another Goodfellows in early October.

On behalf of my colleagues, Niall Ferguson, and John Cochrane, and Eugene Volek. All of us here at the Hoover institution, we hope you enjoy today's conversation. Thanks for watching. Thanks for your support over the years, and we will see you soon. Till then, take care. And again, thanks for watching.

>> Speaker 8: If you enjoyed this show and are interested in watching more content featuring H.R McMaster. Watch battlegrounds. Also available@hoover.org.