Show Notes
How does the administrative state impact our ability to govern ourselves? The founders built a constitutional system designed to limit concentrated power. Today, federal agencies and unelected bureaucrats govern much of our daily lives.
Constitutional expert GianCarlo Canaparo returns to Nuance to explain the complexities of federal agencies, regulatory crimes, and the recent overturning of Chevron deference. Case and GianCarlo discuss how massive government bureaucracies can stifle local ministry , limit our ability to practice virtue, and rob citizens of the shared good that comes from participating in self-governance.
Episode Resources:
GianCarlo Canaparo’s Publications at the Heritage Foundation: heritage.org/staff/giancarlo-canaparo
GianCarlo Canaparo’s Legal Scholarship: ssrn.com
Episode Transcript
Case Thorp
The founders of the United States built a constitutional system designed to limit concentrated power. Here at the 250th anniversary of our country, this conversation is still at play. Does the legislative power truly belong to Congress? To what degree does the president have executive abilities? And where do the courts and our judicial branch play a role?
Well, the structure that our founders put together was deliberate. Ambition would counter ambition. Power would check power. Liberty would survive because no single institution would hold all authority at once. Now, while the 250th does focus on the Declaration of Independence and the Constitution comes later, all of this does play into those initial principles, the founding of our country about individual liberty and self-rule and more. And then particularly as Christ-followers. You know, we see the doctrine of sin built right into our founding documents, a great awareness to what humans can do to one another. And even for the founders, as we know today, the answer for government power or lack of accountability wasn’t Christ per se, but it was checks and balances to keep the worst of humanity from compromising that liberty. Well, today we have administrative agencies that clog up our government. So I think, the blob, as it’s called in the UK, and these federal agencies write rules and force rules, interpret rules and critics argue that this concentration of power is not what our founders wanted, and is in fact dangerous. On our last episode, we had GianCarlo Canaparo here to discuss more of the principled nature of the Declaration of Independence. Well, this week, I wanted to get very specific into one way in which our government and our life together are being lived out and how that does or doesn’t reflect the founders’ original vision. So, GianCarlo, welcome again to Nuance.
GianCarlo Canaparo
Thank you so much for having me again, Case.
Case Thorp
So listeners and viewers, today we are here because we are a podcast that explores what it means to be faithful in the public square as followers of Jesus. Let me encourage you to like, follow, leave a comment, share this episode perhaps with a friend who you think would find it interesting. So my guest, GianCarlo Canaparo, what a great Italian name, dude. And you’re Roman Catholic, yes?
GianCarlo Canaparo
Thank you. No, I’m a, well as you know, my parents attend your church so they’re Presbyterian, we go to an Anglican church.
Case Thorp
Okay. Well, now, you know, our whole episode last time, I kept thinking, Roman Catholic legal thought and no, no, no, no. Okay. But interesting. Okay.
Well, friends, GianCarlo serves as a deputy assistant attorney general in the Department of Justice. He’s particularly in the office of legal policy. He’s a former senior fellow at the Heritage Foundation and cohost of SCOTUS 101 podcast. His work and scholarship sits at the intersection of constitutional law, the Supreme Court, the American founding. His scholarship has been published through Harvard, Notre Dame, and Georgetown law reviews. It’s even been cited by Supreme Court Justice Neil Gorsuch. He’s a graduate of the University of California Davis and Georgetown University Law Center. His work has even been featured at the Wall Street Journal and Washington Post. Okay, GianCarlo, I got to ask, in what way and how did Neil Gorsuch quote you?
GianCarlo Canaparo
Sure. So this is a little nerdy, nerdy law stuff. Let me give you the short version. So as you know, the Congress writes the US code, right? The US code, vast document full of Congress’s laws. Well, we have all these administrative agencies, the alphabet soup, the DOJ, the DOT, Treasury, you name it, right? They promulgate their own rules, which have the force of law under the code of federal regulations. And you thought the US code is big, the code of federal regulations is way bigger. Who knows really how many laws are in it, but there have been many attempts over time to figure out how many crimes, how many federal crimes are in those two documents. Nobody has ever succeeded.
Case Thorp
But we have AI now, right?
GianCarlo Canaparo
Yep, and still can’t do it for a whole bunch of reasons, still can’t be done. But I and some economists at George Mason University, they developed an algorithm that could sort through the US code, pick up keywords, and then I, with my legal expertise, knowledge of how legal words operate to create crimes, we could count the discrete code sections that create at least one crime and then estimate the number of discrete crimes within them. So we did something which people have been trying to do since Ed Meese was AG and never been able to do. So anyway, we came up with a number, an estimate of 5,199 discrete crimes just in the US Code, to say nothing of the Code of Federal Regulations. That’s a big, the number of crimes that are in the code is a big deal because, like as Winston Churchill said, you know, if the law, if there are more than 10,000 laws on the books, the law becomes a joke, right? You can’t know it, you can’t obey it, it becomes ridiculous. And so Justice Gorsuch has been very concerned about the growth of especially regulatory crimes and the fact that nobody can know them. And so he wrote a book about that and cited our research.
Case Thorp
Okay. So you’re in a book, which is impressive. I’m not in any Supreme Court Justice’s books, but we do, we got to get you into one of his opinions. Right? So Justice Gorsuch, when you watch this and hear this, I am respectfully asking that you quote my friend here, GianCarlo. Okay. So last episode, as I mentioned, we talked about the Declaration of Independence and particularly why it matters to people of Christian faith.
So I want to nail down some terms and concepts before we get too deep in this. So when people say the administrative state, what are they actually talking about?
GianCarlo Canaparo
Yes. The Constitution has three branches of government, like Congress, the President, and the Judiciary. But as we all know, most of the rules that govern our lives are written by various executive branch agencies, the Department of Transportation, the Department of Justice, where I work, the Department of Commerce, the Department of Energy, the Environmental Protection Agency. These are where most of our laws come from today.
And there are certain characteristics of these agencies. They usually arrive created by Congress. Congress says, there’s a problem we see out in the world. We either don’t want to deal with it or don’t have the capability to deal with it or don’t trust the states to deal with it. And so we’ve created an agency which we don’t actually want to oversee either. So we’ve given it to the president. And that agency sits under the president but wields our lawmaking authority, and thus all of these agencies are born.
Case Thorp
And born and born and more born. So how is that authority different from the constitutional structure the founders originally hoped for or designed?
GianCarlo Canaparo
Yeah, so I’ll give you the short answer, the precise technical question and then sort of the philosophical understanding of what the founders were trying to do and how we’ve deviated. The short answer is the founders gave in Article 1 Congress certain enumerated powers, right, to levy taxes, to fund the arming, etc. etc. And only those powers. And the founders’ expectation was that Congress would wield those powers and only those powers, and that anything not given to Congress would be handled by the states. What has in fact happened is over time, in part because of the Supreme Court, in part because of cultural shifts, in part because of the progressive movement of the early 1900s, Woodrow Wilson’s kind of the chief champion of this, right, the idea that people should be governing themselves, really falls out of favor, Woodrow Wilson derides the Constitution. He says the idea that these bumpkins should be governing themselves, it’s not his direct quote, but that is very much the sentiment that he expressed.
Case Thorp
Wow. Well, I’m sorry to hear that because I often brag that, you know, Woodrow Wilson was the son of a Presbyterian minister and Woodrow Wilson was at Princeton.
GianCarlo Canaparo
I’m afraid to say his father is not educating well.
Case Thorp
Well, when I was at, I went to Princeton Seminary and by golly, we were quite proud of Woodrow, but the more I’ve learned, the less excited I’ve been. But go ahead.
GianCarlo Canaparo
So what Woodrow Wilson wants, and he’s very much an originator of this idea, he’s a very influential academic, but he’s also just following a trend which is happening in the world at this time, which is very much against the idea that people should govern themselves, very much in favor of the idea that there are sort of two types of decisions that are made in the world, political ones and just administrative ones, and that they don’t actually overlap, and that you can trust all administrative decisions to a bunch of sort of enlightened experts and they will just go and do whatever they want and it will be good. And this was his view. I think we all sort of understand now, especially coming out of the COVID pandemic, right? Administration and politics are always intertwined. The decision about what is best to prevent the spread of a disease doesn’t answer the question, are we willing to bear the consequences of schools being closed for two years, right? Administration and political are linked, but certain decisions could and should be trusted to experts that he believed would be apolitical.
Case Thorp
So for somebody that’s listening and this is a new thing, they’re not familiar with this, give us an example of where a particular agency makes a rule that necessarily didn’t come out of Congress and how that plays out.
GianCarlo Canaparo
Absolutely. So, great example, back in the day, George Washington at Mount Vernon, he’s deciding what crops to raise, right? He probably raises wheat, he probably grows some amount of wheat. Now he’s probably not selling wheat, but he’s got farm animals to feed, and so he grows a certain amount of wheat just for his own consumption.
Case Thorp
Is this true or hypothetical?
GianCarlo Canaparo
It’s probably true. What I’m getting to is a real case, a real Supreme Court case that comes up later. So he grows a certain amount of wheat just for consumption, never goes to the market. The idea to the founders that that wheat would be subject to Congress’s regulation would be just nonsensical. However, in the mid-1900s, the Department of Agriculture, I assume, decided, you know what, we need to control the cost of wheat across the entire American market. So a farmer was growing wheat in much the same way, purely for private consumption, not selling it on the market, but the Department of Commerce said, Congress has the power to regulate commerce, or maybe this was a law by Congress, but I think it was a law by Congress, and Congress says, you we have the power to regulate commerce, you can’t grow that wheat for your private consumption because you’re going to have knock-down effects, knock-on effects of the nationwide wheat price, so stop that.
Case Thorp
Now, couldn’t, wouldn’t it be more specific? You can grow it, but only within your state. You can’t sell it over state line.
GianCarlo Canaparo
Well, what Congress says is this guy couldn’t do it, period. Because if he was just consuming wheat, he wasn’t buying wheat, that affects interstate commerce. That would just be crazy to the founders. But the Supreme Court upheld that law and said that Congress has the ability to regulate the consumption of farm products on your private land purely for personal use because it may affect interstate commerce. So that’s one way in which we’ve radically expanded the federal government’s power.
Case Thorp
And so this is, now we’re clearly speaking from a conservative legal perspective. And don’t worry friends. Well, that’s what I want to get to. But I want to say to our listeners, don’t worry, we’re going to get to how this applies to Christian faith. I promise. I would imagine the before we get to the progressive point of view, your answer would be Congress needs to vote a law that says this is how much wheat you can grow or not, rather than just let an agency decide this.
GianCarlo Canaparo
I’ll give you the counter argument too, if you like.
Actually, I would go a step further. I would say Congress doesn’t have that power at all. Like when I read the Constitution, the line in Article 1 that says Congress has the power to regulate interstate commerce, that doesn’t mean to set prices of goods and services. That means to make sure that the states are not discriminating against each other, which was a legitimate concern when we had the Articles of Confederation before the Constitution.
It means to impose excise taxes or tariffs, as was the sort of common revenue-raising tool of the old days. But it doesn’t mean a command-and-control economy of the sort that we didn’t even conceptualize until much later.
Case Thorp
Okay. Now, let’s then get to the faith. Well, one more point. I want to really articulate the administrative state. There’s even courts within agencies that will determine, correct, the legitimacy or the justice, what is a just rule or way of interacting with citizenry and others that are impacted by these rules. Correct? There are these courts…
GianCarlo Canaparo
Yes, they are courts of a sort. They’re not Article III courts. These aren’t federal judges in robes with life tenure. These are bureaucrats who have, in the executive branch, they answer to the president and they adjudicate very particular claims. And as is probably not surprising to you, they win 90% of the time. The government wins 90% of time when the government brings government cases to government judges.
Case Thorp
Yes. In the executive branch.
Case Thorp
Does an individual or corporation that comes up before these executive agency courts have the opportunity to go to the judicial branch for a hearing?
GianCarlo Canaparo
Yes, eventually after years of litigation you can appeal to federal courts, but that can take a decade in some cases. But, yeah, I was just going say before we move on I wanted to give the counter argument.
Case Thorp
Yes, please.
GianCarlo Canaparo
Who defends the administrative state and what’s the best argument? There was a case at the Supreme Court a couple years ago called Cedar Point Nursery versus Hassid. And this is a very short decision that gives you sort of the two best views of this debate in opposing opinions. The Chief Justice writes the majority opinion. And basically what happened in the case is California enacts this regulatory scheme that governs when unionizers can come onto private farmland and try to unionize the farm workers there. The chief justice says look, you know, there are private property rights, there are free speech rights, this, just letting somebody come onto somebody else’s land and speak to their workers violates those rights, you know, sort of grounded in ancient understandings of property and free speech, and those rights haven’t changed over time. C.E.G., the Declaration of Independence, inalienable and eternal rights. In dissent, Justice Breyer says, okay, okay, I see your rights, I get it, but look, the world is really complicated today. We can’t govern ourselves the way that we used to govern ourselves. We need vast governing entities with significant powers because the world is so complicated that we need all these levers and controls and frankly, the rights just have to give in the face of the modern complexities of life. So that is basically the core counter argument, which is life is so complex, the economy is so complicated, and frankly, we don’t have the ability to make these decisions well for ourselves, so give them to an executive agency.
Case Thorp
Okay, and so we hear, I hear the word Chevron, that particular case, quite a bit. Help us understand that case.
GianCarlo Canaparo
Sure. So all these agencies, as I mentioned before, they don’t have power from nothing, right? Congress has to give them power. And what power Congress gives them is basically a tiny share of Congress’s ability to make law. And by putting them in the executive branch, they therefore have a little tiny share of the president’s power to execute the laws. So they’re doing both.
Case Thorp
Why not put them under the legislative branch?
GianCarlo Canaparo
Great question. Well, the real reason is because Congress wants them to have both, right? Congress ultimately doesn’t really want to be responsible for what these agencies do. It wants to say, we are solving this problem. Look, we’ve created a whole agency over here that knows everything about it. They’re going to do a great job. Fantastic. Don’t blame us if it goes bad, right? But they don’t want to do the oversight. And they also want these agencies to be able to prosecute people that violate the rules.
Case Thorp
Sounds familiar.
GianCarlo Canaparo
And so for that, they need the president’s ability to execute the laws.
Case Thorp
Got it. Okay, so Chevron though?
GianCarlo Canaparo
Yes, so Chevron. When Congress gives these agencies power, it says the agencies have the power to do X, Y, and Z. Well, sometimes those statutes are written really clearly, and it’s very clear that the agencies have exactly this power and only this much. But more often than not, Congress is a little vague or ambiguous or little wishy-washy, or the agency just sort of decides over time, yeah, I’ve been given the power to do X, Y, and Z but I really want power to do A, B, and C. And if I squinted the statute really hard, can squeeze the power I want into the words which are already there.
Case Thorp
Yeah, and if nobody’s watching.
GianCarlo Canaparo
Yeah, right. And that is a temptation. I mean, the will to power always grows. And so the question is, what do you do when the…who gets to decide, basically? When the statute seems to be unclear, who gets to decide whether the agency is right or not, especially when it’s trying to expand its power? The rule under Chevron was that the agency gets deference. What’s that? The deference. The judiciary will listen to what the agency says and basically, as long as that’s reasonable, the agency gets to determine what the scope of its own powers are. Now that raised some problems, some pretty obvious problems. Again, the will to power. The agency will always want more power. They are in the position to wield the…probably not wise to give somebody in the position of wielding power the ability to determine what that power is. But Chevron was the rule for a long time until just a couple years ago the Supreme Court said no, actually the judiciary, which has the power to interpret the laws, gets to decide what the law is. So the agencies get to be listened to, but the judges will decide what the law really is.
Case Thorp
Okay, so I am handing you a magic wand. And if GianCarlo was the king, which completely contradicts everything we’ve discussed, how would you design the system? Because I think, wow, America is an enormous, 300 plus million, diverse, complicated place. Surely 535, isn’t that the number, congressional elected officials can’t possibly manage all the complicated things going on. So what would you do if you had a magic wand?
GianCarlo Canaparo
Yeah, that’s true. But it doesn’t follow from that, that the system we have right now is the right one. But let me…actually, do you mind if I go on a sort of long explanation of why I think what I think and then that will lead us into what I think is the right answer?
Case Thorp
Preach. Go. And then we’re going to talk about why this matters for a Christian. So hang on people. because your convictions are very much rooted in your faith.
GianCarlo Canaparo
Yes, correct. So when we think back, again, with the founders and how much they were willing to sacrifice to do good for the whole, what the founders knew is that there is immense good to be had by participating in your self-government. Right? The act of going to city council meetings, of serving there, is good and is magnified by the number of people who participate in it and it’s shared. It’s not a finite good, right? It’s an infinite good and there’s more good the more people are participating in it. We see this in the Bible about the story of manna from heaven when the Israelites are in exile, right? They need food and God rains food down from heaven on them. So think about the good that has been done there. Good has been done for the Israelites. They now have food. But think about another scenario, playing off the story of the widow who gives a mite, right? Who gives her final mite to the poor box in the temple.
She has given a might and eventually, let’s say, the priest takes that might and gives it to a poor person who is starving. The amount of good that has been done there is immense because she has given and it is good to give. She’s been faithful. The priest has taken the might and in due faith given it to somebody who needs it, who now has food. And then all of us, either standing in the temple with Jesus or reading the New Testament, witness this good, and are all now participants in the good. That is what representative self-government offers us all. It is an ability to participate in the good and therefore to magnify the good that is ultimately done. It’s the same reason that a great violinist will play in an orchestra and not always just play, you know, as a soloist because the good of creating together is an immense good.
What I so admired about the founding is that the founders were deeply aware of this, whether they rooted in their Christian faith the goodness that comes from participating, that good is magnified, that the good that is ultimately done is magnified and shared by all the people who participate. They knew this either because they were consciously aware of it because it comes from the Bible or because it’s just sort of rooted in our nature. We know this.
If your mom has to move, and you say, Mom, I’ll be there. I’ll help you move. Pack your boxes and move. And if she says, no, no, no, don’t worry. I’ll just hire a mover. What are you going to say? No, no, no, of course. I’m going to come. I’m going to help. And she says, no, I refuse to let you come. You’re going to be offended. Why? Because she’s denied you an opportunity to participate in the good, which is her moving, and in so doing to show your love for her.
Case Thorp
Don’t steal my joy of serving you.
GianCarlo Canaparo
Exactly. Right. That’s the impulse. But that is the impulse which animates the whole Constitution, the desire to get as many people involved and participating as possible, not only because it results in good governance, but it results in good governance because it’s good for you.
Case Thorp
And it shapes good citizens.
GianCarlo Canaparo
Exactly right. And this is my big critique of the administrative state, is that it denies all of us citizens on the outside any ability to participate. The only ability that we have to affect what the administrative state does is to elect the president who has some control over some of what the administrative state does. But we have a lot more ability to shape what our members of Congress do, and we have a whole lot more ability to shape what our state representatives do, and way more ability to shape what the members of our town council do, and even more to shape what the members of our local school board or homeowners association do.
Case Thorp
Or the church, let me tell you.
GianCarlo Canaparo
Or the church, yes exactly right. I mean if you vote for the president, your and my vote is an infinitesimal drop in a bucket. You vote for your deacon, that matters. And in some sense, all the good that that deacon does after being elected is yours. You share in that because you were part of the creation of making that person a deacon and therefore the good that flows from that. Yeah, so my great criticism of the administrative state is that it has funneled all of our avenues for participating in that shared good up and out to a group of people with whom we have no interaction. They don’t answer to us, they don’t answer to anybody really. So what I would do, getting to finally the ultimate answer to your question, there are some things that do have to be done at the federal level. Airplanes need to be federally directed. There needs to be a federal central database. Nuclear standards probably need to be set by the federal government. But there is a lot that the federal government does that it doesn’t have to do, that state and local governments can do and should do, if for no other reason than because it means that we get to participate.
Case Thorp
Well, and I wonder, I throw in this, I think, de Tocqueville noticed in his visit to the states, guilds and professional associations, the way in which like accrediting bodies give marks of approval to universities and schools that the government doesn’t necessarily have to. The state governments outsource accrediting to hold that authority. So would that be another way that could make some of the administrative state disappear.
GianCarlo Canaparo
Yes. I mean, just in general, Congress, I think, should really seriously think about how much that the federal government does must be done by the federal government and how much could be done by the states and done better. You know, the Department of Agriculture or actually the Department of Education, which has been targeted by the Trump administration for being eliminated, is a great example. Your schools, your local school is your local school. You know the teachers, you know the parents, you know the kids, and what those particular parents and kids and teachers want and need is probably going be very different than what the parents and teachers and kids want and need, to some extent, in New York City, right? There is no reason why a federal entity needs to come in and impose a one-size-fits-all standard on all the schools across the entire country. In fact, there doesn’t seem to be any good coming from that because for all the billions of dollars the Department of Education has spent, educational outcomes in America have only ever fallen since its creation.
Case Thorp
Okay, I agree with you on that. But we recognize there are wonderful Christians who are all about the Department of Education. So now I want to shift to well, why should this conversation and why should the degree to which we do or don’t have a heavy administrative state impact our faith? And I want to think more of it also in terms of our witness and our ability as Christians to bear witness and lead in the public square.
GianCarlo Canaparo
Yeah. So, I mean, one thing that we all know, if ultimately the goal of any Christian is to help, to partner with God in the saving of souls, right? That’s sort of our mission. That’s done through loving people, one-on-one. It’s never a bureaucratic enterprise. No church saves souls through bureaucracy.
Case Thorp
Through receipts. I hate receipts. I gotta turn them in. And I do. But by golly, I don’t know that any person has come to faith in Jesus through my receipts.
GianCarlo Canaparo
No, I think, I suspect that’s probably right. But, you know, whether it is the good that flows from participating more and more with the people around us, taking advantage of the opportunities to participate in all ways with the people around us, which the administrative state diminishes and denies, or it’s the vast regulatory burdens that are imposed on people without much thought about whether this particular group or entity or individual or even industry needs these particular regulatory burdens means all that time and energy taken away from other things. And then of course there’s the flip side of regulatory burdens, which is that they tend to eliminate small businesses, to eliminate small churches, to eliminate small faith-based hospitals or what have you because the only people who can comply with the infinite morass of regulations are people who can hire armies of lawyers. And for every person in a Google or Amazon who wishes to be running a small business and meeting people face to face, there is all that good which is denied and taken away without any thought to those ancillary consequences.
Case Thorp
Okay, this is good. And I’ve been writing this down to make sure I’m hearing you right. So I hear you just articulate three reasons a Christ-follower might not want such a heavy administrative state. One, it takes away the human to human engagement that our founders hoped for. It’s within that human to human engagement, you get to bear witness, you get to talk about faith, you get to together grow through your citizenship, which is building the kingdom, as well as the society.
Number two, energy is taken away in administration from the more virtuous aspects of what government can do in terms of helping the poor, et cetera. Did I hear you right?
GianCarlo Canaparo
I think so. Let me make that point clearer. So if you are operating a small charity and you are, say, feeding the homeless and the government comes along and says if you want to feed the homeless you need to meet certain food quality standards, you need to have the food, you know, bring the food, truck the food in in such and such a way, guarantee that it’s prepared in such and such a way and not expired, etc. etc. You’re going to have a hard time complying with that. There was a news article that I just read recently, there was a man who just passed away at 94, I forget where he lived, but he had been arrested several times. This was his personal ministry. His wife died in his retirement, he spent his money and his time feeding the local homeless and the government arrested him because he wasn’t complying with food safety laws. This is silly, but it’s also worse than that, it cuts off an avenue of ministry.
Case Thorp
GianCarlo, do you want the homeless to be eating moldy refried beans? Come on then, why not?
GianCarlo Canaparo
Well, no, of course not. But this is a false choice, right? This is a false choice. It is not a vast government bureaucracy or moldy refried beans. It is people being trusted to exercise common sense and to, with care and charity, go out into their communities and do what is reasonable and good.
Case Thorp
Now, could your view of humanity be a little too positive?
GianCarlo Canaparo
Well, probably not actually. I take a pretty dim view of humanity sometimes. I’m kind of a pessimist. But here’s the insight that keeps me on the side of more freedom than less freedom, which is that God has given us freedom with the full knowledge that we’re going to blow it, right? But the only way that you can choose good is if you have first chosen not evil. And you must have choice.
Case Thorp
Dude, you’re a great Presbyterian. You don’t even realize it. We gotta get you in the right church, I tell ya.
GianCarlo Canaparo
You know, I do love First Pres in Orlando. Whenever we come to visit my parents, boy, I just love that church.
Case Thorp
Yeah, well, we love other denominations as well. But okay, but keep going. I mean, you’re so right about our view of humanity and how it plays out in our governmental structures. Go ahead, keep going.
GianCarlo Canaparo
Yeah, well, so take that one step further, which is, you know, if you want people to be virtuous and to self-govern and to take upon themselves and through their civic institutions the sort of burdens that the government now purports to handle the way we used to, you know, it was the women’s orgs or local churches or you read histories of the founding, but boy, everybody was involved in something. Ben Franklin and his group of friends built the first public library and filled it with their own books.
Case Thorp
That’s crazy. And then our Andrew Carnegie comes along and advances libraries in ways that the government never could.
GianCarlo Canaparo
Right. Part of that, part of why that’s good is not only because goods are being delivered, right? Because if you believe in a strong administrative state and you believe that it does do good, and it does sometimes, I don’t get them wrong, there’s a lot of things that I think it probably hurts more than it helps, but you can make the argument the other way. But the ultimate provision of particular good is not the end of the question, right? The ultimate question is mixed.
Is the good delivered? Is it delivered well? Are the costs associated with it worth bearing? And this is critical if you are in the business of thinking about how to organize a government and a virtuous people. What’s the knock on effect for the people themselves? Is a particular law, a particular arrangement of powers good for the people? And by that I mean, is it making them good? And a system of government which denies to its people the ability to participate, to debate, to give, to serve, is a system of government that denies them all sorts of opportunities to realize virtue together.
Case Thorp
So thank you. Wow. I mean, I love this. How can a Christ follower be more faithful in their particular situation in the ballot box, say they’re running a business or have responsibilities that are bumping up against the administrative state? What advice would you give?
GianCarlo Canaparo
Yeah. I mean, my advice really is to participate in whichever way makes the most sense in your circumstances, whether that is, you know, in one sense that maybe, you know, whether it’s writing letters, whether it’s organizing your friends and peers, whether it’s litigating against the government. But the focus of those things should be, you know, not only advancing your particular interests, but also think about them all as an opportunity for ministry. The more you are participating, even if it’s fighting litigation against an administrative state, you are participating in something with other people. And that gives you opportunities to share with those people and anyone who may be watching why you’re doing it, why you believe what you believe. Think of, say, for instance, the Masterpiece Cake Shop case that went to the Supreme Court.
Case Thorp
Summarize that for folks real quick if they don’t know about it.
GianCarlo Canaparo
Yeah, Jack Phillips is a cake artist, right? He’s not just a baker, he’s truly an artist.
Case Thorp
Well, you know, I did think that was creative legal moves there.
GianCarlo Canaparo
But I think it’s correct, right? He’s not making sheet cakes at Publix, right?
Case Thorp
Sure. I’ll get the case out there and then we’ll. Yeah.
GianCarlo Canaparo
Yeah, we’ll get the case out there. So he says, look, if you want a cake, anybody can come and get a cake for me. But I’m not going to make a cake that celebrates a gay wedding. I’m not going to put two men on top of the cake. But like, if two gay people want to buy a cake for a straight wedding, I’ll do that. But I’m not going to use my talents to celebrate something that I believe is immoral. Anyway, Colorado prosecutes him, or litigates against him civilly, for violating the anti-discrimination statute. And he goes to the Supreme Court a couple times and ends up winning on the basis that this was a violation of his religious freedom.
Case Thorp
Yes, and I was very much in favor of him winning.
GianCarlo Canaparo
But remember, so remember, the cake case is not really the First Amendment case. The First Amendment case is the website case which comes later. So whether or not you really think he’s a cake artist or not doesn’t actually matter for the call-up.
Case Thorp
That’s right. Later the website developer was asked to do something that was against a woman, I believe her moral code. But yet the artist thing still wins.
GianCarlo Canaparo
But yeah, but let me finish my thought, right? Which is that here we saw a Christian man fighting for his Christian faith in the public sphere. And it provided for Christians who agreed with him, here is a figurehead who’s willing to take slings and arrows in the public sphere for his beliefs. And that gives people confidence. It gives him the ability to tell people what he believes and to share the gospel with them.
It means though, you know, that he is under the gun and going to take more slings and arrows, you know, such is our calling. But it has put him in front of people and given him opportunities to share the gospel with people that he wouldn’t otherwise have.
Case Thorp
Well, I know as a pastor, I’m protected by religious freedom in terms of if asked to do a same-sex wedding and I refuse to do that. I wondered, where does the line begin and end with the creative artist argument because, all right, you can’t refuse to rent a hotel room to an African American because of, is it equal access ideas? Between making a cake and renting a commodity or hotel room, where in the middle is this line between where a vendor can be selective in their customer?
GianCarlo Canaparo
Yeah, there’s two lines here that the Supreme Court has drawn. The one is the line on race. And basically the Supreme Court has said, the 14th Amendment means that race just sort of is in a special category. You just don’t get to do that. You don’t get to discriminate on the basis of race if what you’re doing falls within one of the many civil rights statutes that the federal or state governments have. But then there’s the question of creativity, right?
I suppose that line is going to be fuzzy. I mean, it’s pretty clear between, say, a hotel room and a website. In the website case, it was very similar to the cake case. It was a woman who made custom websites for weddings. The line that the court draws there is a certain amount of…and it’s going to be fact dependent. I can’t write it for you now in sort of a bright line fashion, but…there is a test to decide, is this really expressive? How much of yourself are you pouring into this? Is it custom or are you just sort of cookie cutter? Those are all factors that a court considers in determining whether really what’s happening is you’re selling a cookie cutter product or you are injecting some amount of your personal speech and artistry into the thing.
Case Thorp
Okay. Well, so have you finished your magic wand? Would you be so aggressive as to say get rid of anything in the government that has the word agency on the end of it?
GianCarlo Canaparo
No, what I would do is, unfortunately, a magic wand won’t do it. What you’ve got to do, so in our last episode we talked briefly about prudence, right? Prudence in the context of the declaration. And prudence is the ability, that virtue which lets you see far off in the distance the principles, the eternal principles of good at which you aim and then considers the swirling world and circumstances you’re in and figures out how to chart a course from here to there. So what’s necessary with respect to the administrative state is for somebody of immense prudence or many people of immense prudence, frankly many people, we could call it a body of elected representatives, we could call it people in Congress, I don’t know, but people of immense prudence to sit down and look at all of the authorities that every agency has and decide is this agency…is what the agency does something which would bring more people more good if they were doing it locally and together? Is what the agency does something that is just sort of uniquely federal and must be done federally? So for instance, I think a good example is like the standards for remediating nuclear waste, probably something that ought to be done federally, right? Also something that if done federally probably isn’t going to hurt you and me in our towns very much not having a say in it, right? I don’t want a say in how to remediate nuclear waste. I’m not to be trusted, right? I don’t know. Is the thing which the agency has been given to do something that it is actually capable of doing well? There are many things that agencies do that they actually don’t do very well. And then ultimately, you know, if giving this particular authority to an agency, what effects does that have on our politics and on the souls of the people, right? So for instance, one dynamic we haven’t talked about is the way, what happens to the president and the presidency when the president has, through his agencies, lawmaking power. So you remember Obama’s very famous line, I have a pen and a phone, if Congress won’t, I will.
The impulse that any president faces, especially when he wants to get reelected or he’s worried about his legacy, is to do stuff, to do good stuff that he thinks is good and that will reflect well on him in front of the American people. If you tell the president, well, you’re the executive, the Congress, the Constitution says you have the power to execute the laws, not the power to make laws, and then some national crisis comes up, what’s his incentive? His incentive is not to say, oh, sorry, American people, I can’t do anything about it. I don’t have lawmaking power.
He’d be crazy, right? He’s going to say, I don’t have this power by way of the Constitution, but by God, I’m going to do it one way or the other because Congress isn’t, and I got to think about reelection. That’s not good. It’s not good for the presidency. It’s not good for the president himself, whoever that happens to be. And it’s not good for the American people to think about the president like a king.
It’s not good for them to think about the federal government as, and the president in particular, that one and only man, as the great problem solver. That’s not good for the national character. It’s not good for self-government. It’s not good for representative republicanism.
Case Thorp
Okay, so this episode, we’ve done this great deep dive, jumped in the rabbit hole on the administrative state. I hope listeners and viewers will appreciate in you, particularly an individual who thinks deeply and intentionally and Christianly, if that’s a word, to bring one’s full faith to the conversation and have it inform it along the way.
And hey, whether you lean to the left or lean to the right politically, progressive, conservative on whatever spectrum and issue we’re looking at, it matters, and you do it well, where did you get and how did you get and why do you want to do that well?
GianCarlo Canaparo
Great question.
I mean, in some sense, my parents have to have responsibility, right? I mean, they raised me. And whether they intended to or not, and I know in many ways they did and probably in some ways they did not, they taught me to care about these kinds of things. And then, you know, part of it, I think, too, it didn’t necessarily, I wasn’t always like this, I think. In some sense, I think my parents did a wonderful job of instilling in me certain virtues.
I think chief among them, probably what was especially, as a kid, a hyperactive sense of justice, particularly when I was the victim of injustice. But I think over time, going to law school, I think focused that in a particular direction to suddenly think about justice in terms not only of like what do I get and what do I want and is it fair, but also like how does the whole system of laws, the whole arrangement of laws and government, inure to justice. But then Christianity provides a much richer sense of what justice is than Aristotle, right? Justice in Aristotle is like, you know, what do you get? And Christianity teaches us that we owe to our fellow citizens a much deeper sense of justice. Ultimately our duty to them is nothing less than doing whatever God calls, whatever part God gives us to save their souls. We owe them an immensity of a duty and that manifests itself in a lot of ways, not least of which is that nobody can be made good. They have to freely choose to be good. They have to freely choose to choose God. Every time that you, as somebody in government or in a position of leadership, denies to somebody else a choice on the basis that what’s left for them is what’s good for them, you run the risk of denying them a choice to choose good, forcing them down a path which they don’t actually choose and which they won’t actually believe. Sometimes, like, look, there is a line to be drawn. We don’t let people choose murder so that they will choose not to murder. There is a prudential line to be drawn where sometimes you deny people a choice. We do this with kids all the time. This is about to be my full-time job, figuring out where that line is. But we do it with our kids. But when we’re dealing with adults, you’ve got to be much more careful to force somebody down a path that you think is good for them. You may be wrong.
But even if you’re right, you may not get the result you want. You may not lead them. They may not choose good. They may rebel. They may resent you. They may resent the government you represent. They may resent the God you represent. And so every time you take freedom away from somebody, whether that’s through a vast bureaucracy or whatever, or your instruction to your child, obviously, adults and children have a little bit of difference in terms of how much they can be trusted. But every time you do that, in the back of your mind has to be the consideration, will this actually lead them to choose good, or will it only let them…will they simply act good, but not choose it?
Case Thorp
We’re here to help them move in the Lord’s direction. GianCarlo, thank you so much for your time.
GianCarlo Canaparo
Yeah, thank you, Case. It’s been really a pleasure to be with you.
Case Thorp
This is great. Friends, we’re going to leave in our show notes a variety of links where you can read more of GianCarlo’s legal scholarship, public lectures, interviews, etc. Well, these questions, friends, may feel abstract, but they’re not. Our attempt here is to not only demonstrate people of faith, exercising that in a helpful way for the common good, but also for us to even pick at and dissect and understand our world and our country. Here at the 250th anniversary of the Declaration of Independence, these questions still remain very much alive. If this episode has helped you think more deeply about freedom, government, and the American experience, share this with someone who might need or want to hear it.
The Collaborative creates content and unique experiences for Christ centered professionals in the public square. Check out our website, wecolabor.com to see our work. Leave us your email and we will send you Zeitgeist, our journal on faith, work and culture. Many thanks to today’s episode sponsor, Mike and Chandy Kelley. I’m Case Thorp, and God’s blessings on you.
