July 2021 - Deseret Magazine by Utah Media Group

MAG AZ INE

THE

DIVINELY

INSPIRED CONSTITUTION By Dallin H. Oaks

CAN JOHN ROBERTS

SAVE THE COURT By Sarah Isgur

THE

END OF

TRIBALISM By Jon Meacham

A CRISIS OF TWO

CONSTITUTIONS By Charles R. Kesler

THE

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CONSTITUTION ISSUE

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THE VIEW FROM HERE

AMERICA’S POLITICAL RELIGION BY HA L B OYD

n january 1838, Abraham Lincoln stood before the Young Men’s Lyceum of Springfield. Then a member of the Illinois General Assembly, Lincoln was concerned with America’s “mobocratic spirit” — what he described as a “growing disposition to substitute the wild and furious passions, in lieu of the sober judgment of Courts.” If America was to die, he mused, the fatal blow wouldn’t come from some foreign enemy. Not even Napoleon with the combined forces of Europe, Asia and Africa could “take a drink from the Ohio,” he said. No, if destruction came upon the United States, “we must ourselves be its author and finisher.” For the country to resist self-destructive forces — slavery, mob lynchings, social disintegration — Lincoln called for a renewed reverence for “the political religion of the nation”: the U.S. Constitution. “Let reverence for the laws be breathed by every American mother, to the lisping babe, that prattles on her lap,” he declared. “Let it be taught in schools, in seminaries, and in colleges; — let it be written in Primmers, spelling books, and in Almanacs; — let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice.” Just as the founders had pledged their lives and loyalty to the Declaration of Independence, so, too, he demanded, every American ought to “pledge his life, his property, and his sacred honor” to the nation’s “Constitution and Laws.” This special edition of Deseret Magazine is dedicated to the United States Constitution. The essays in this month’s issue extol and revere the Constitution’s virtues, but they also examine and seek to, like Lincoln, diagnose and address the challenges that face continued constitutionalism in 21st-century America. President Dallin H. Oaks, first counselor in the First Presidency of The Church of Jesus Christ of Latter-day Saints and a former justice of the Utah Supreme Court, delves into what it means to believe in Phil-

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adelphia’s miracle. Pulitzer Prize-winning historian and bestselling author Jon Meacham outlines the strands of progress that keep the nation together, even in the most tumultuous of times. Thomas B. Griffith, a former federal judge, highlights national moments that exemplified civic charity. Stephanie Barclay, a professor and constitutional scholar at Notre Dame, looks at originalism as a nonpartisan endeavor. Justin Collings, the associate dean of Brigham Young University Law School, responds to the idea that the U.S. Constitution is losing its influence abroad. Political writer Sarah Isgur gives an in-depth profile of Chief Justice John Roberts. Charles Kesler, a senior fellow of The Claremont Institute, describes two competing visions of the Constitution that currently divide the country. And Denise Posse-Blanco Lindberg — a Cuban- born American and former Utah judge — has the last word on what the U.S. Constitution means to her. The Constitution is the written form of how we constitute ourselves as communities and as a country. The words on parchment only become flesh as we live up to their lofty ideals and aims. As a junior in high school, Martin Luther King Jr. entered a public speaking contest sponsored by the Black Elks, a fraternal organization. Contestants spoke on the theme of Black Americans and the Constitution: “Today,” the young man said, “13 million Black sons and daughters of our forefathers continue the fight for the translation of the 13th, 14th and 15th amendments from writing on the printed page to an actuality. We believe with them that ‘if freedom is good for any it is good for all.’” And then, as if the 15-year-old caught a glimpse of the mystical role he might play in American history, he continued: “My heart throbs anew, in the hope that inspired by the example of Lincoln, imbued with the spirit of Christ, (America) will cast down the last barrier to perfect freedom.”

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CONTENTS

A CONSTITUTION AM ONG CO NST ITUTIONS

BY J U STIN C OL L IN GS

LETTER OF TH E L AW

BY ST EPHA NIE BA RC L AY

M AL ICE TOWA RD NO NE

BY T H OMAS B. G R IFFITH

SACRIFICIA L L A ND

OUR INSPIRED CONSTITUTION

It is the foundation for a well-ordered government of laws, and not men. by dallin h. oaks

OH, THE PLACES YOU’LL GO ... TO WORK

The freewheeling life of the digital nomad. by sofia jeremias

BEAR IN MIND

What are the consequences of private wildlife ownership? by erica evans

BY S OFIA J ER EMIAS

TH E L AST WORD

BY ERIC A EVA NS

FOR THE SAKE OF A CINNABON

Our personal indulgences at the airport aren’t a secret. They’re a design. by fendi wang

THE MORAL UTILITY OF HISTORY

The American story is sustained by a belief in progress during the gloomiest of times. by jon meacham

THE MAN IN THE MIDDLE

John Roberts isn’t the conservative darling he was expected to be. by sarah isgur

HERE LIES T HE

PUBLIC

I N TE L L E CTUA L 2021

THE FUGITIVE AND THE CHAMELEON COVE R ILLUSTR ATION BY M ALI K A FAV R E

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A story of family, identity and one of the longest manhunts in U.S. history. by ciara o’rourke

TH E C R I S I S O F TWO CO N STI TU TI O N S Can America’s cold civil war be resolved? by charles R. kesler

THE RISE AND FALL OF THE PUBLIC INTELLECTUAL An elegy for a shrinking class of thinkers. by jennifer graham

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CONTRIBUTORS

DALLIN H. OAKS

STEPHANIE BARCLAY

SARAH ISGUR

Dallin H. Oaks is first counselor in the First Presidency and the president of the Quorum of the Twelve Apostles for The Church of Jesus Christ of Latter-day Saints. He is a graduate of Brigham Young University and of The University of Chicago Law School, where he taught law. He was president of Brigham Young University from 1971 to 1980 and a justice of the Utah Supreme Court.

Stephanie Barclay is an associate professor of law and the director of the Religious Liberty Initiative at the University of Notre Dame. Her research focuses on the role democratic institutions play in protecting minority rights, particularly at the intersection of free speech and religious exercise. Barclay’s academic writing has been published or is forthcoming in publications such as Harvard Law Review, Washington University Law Review, Notre Dame Law Review and Boston College Law Review.

Sarah Isgur has worked on three presidential campaigns and in all three branches of the federal government. She most recently served in the Department of Justice as the director of the Office of Public Affairs and senior counsel to the deputy attorney general. A graduate of Harvard Law School and Northwestern University, Isgur is a staff writer and host of the legal podcast “Advisory Opinions” for The Dispatch and an ABC News contributor.

THOMAS B. GRIFFITH

JUSTIN COLLINGS

Thomas B. Griffith was a judge on the U.S. Court of Appeals for the District of Columbia Circuit from 2005 to 2020. Prior to his appointment, he was the nonpartisan chief legal officer of the U.S. Senate. He currently is a lecturer on law at Harvard Law School, special counsel to the law firm of Hunton Andrews Kurth, and a member of the Presidential Commission on the Supreme Court.

Justin Collings is a professor of law and associate dean at Brigham Young University Law School, where he teaches and writes about constitutional law, including comparative constitutionalism and constitutional history. He is the author, most recently, of “Scales of Memory: Constitutional Justice and Historical Evil” (Oxford University Press, 2021). He holds a JD and Ph.D. in history from Yale University.

JON MEACHAM

Jon Meacham is a writer, reviewer, historian and presidential biographer. A former executive editor and executive vice president at Random House, he is a contributing writer to The New York Times Book Review, a contributing editor to Time magazine and a former editor-in-chief of Newsweek. In 2009 he won the Pulitzer Prize for “American Lion: Andrew Jackson in the White House.”

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It will get brighter. OPTIMISM

CONTRIBUTORS

MAG AZINE

PRESIDENT & ROBIN RITCH PUBLISHER EDITOR JESSE HYDE CREATIVE DIRECTOR DAVID MEREDITH MANAGING EDITOR ARIANA DAWES DEPUTY EDITOR CHAD NIELSEN EDITOR-AT-LARGE HAL BOYD CONTRIBUTING JAMES R. GARDNER EDITORS LAUREN STEELE CORRESPONDENT MICHAEL J. MOONEY

CHARLES R. KESLER

MALIKA FAVRE

Charles R. Kesler is editor of the Claremont Review of Books. He is the author of “I Am the Change: Barack Obama and the Crisis of Liberalism” and co-editor with William F. Buckley Jr. of “Keeping the Tablets: Modern American Conservative Thought.” He is a senior fellow and professor of government at Claremont McKenna College.

Malika Favre is an artist and illustrator based in Barcelona. The governing principle in her design is “less is more.” She studied graphic design at ENSAAMA, in Paris, before moving to the United Kingdom. In 2006 she joined the multidisciplinary studio Airside, where she worked as a designer and illustrator and directed animation projects. Favre launched her own business in 2011 and has since worked with The New Yorker, Penguin Books and Apple.

STAFF WRITERS ETHAN BAUER ERICA EVANS SOFIA JEREMIAS CONTRIBUTING LOIS M. COLLINS WRITERS KELSEY DALLAS JENNIFER GRAHAM MYA JARADAT D. HUNTER SCHWARZ FENDI WANG ART DIRECTOR PIERCE THIOT DESIGNERS KEVIN CANTRELL MIA MEREDITH ALEC FRANCIS DESIGN INTERN S.M. KNOERNSCHILD COPY CHIEF TODD CURTIS COPY EDITORS CHRIS MILLER WHITNEY WILDE RESEARCH ETHAN BAUER ERICA EVANS SOFIA JEREMIAS CONTRIBUTING LUKE BROKAW ARTISTS MIRKO CRESTA HANNAH DECKER MALIKA FAVRE CRAIG FRAZIER RANDY GLASS SPENSER HEAPS DAVID PLUNKERT ANDREW ZUCKERMAN HEAD OF SALES SALLY STEED

CIARA O’ROURKE

Ciara O’Rourke is a journalist based in Austin, Texas, and former reporter for the Austin American-Statesman. She’s also written for The Atavist Magazine, The Atlantic, The New York Times, Seattle Met and Politico, among other publications.

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DAVID PLUNKERT

David Plunkert’s illustrations have appeared in major newspapers, magazines and recording labels. His work has been collected by museums and private collectors and has been exhibited internationally. He has received gold medals from the Society of Illustrators NY and his August 28, 2017, cover for The New Yorker was awarded Cover of the Year by the The American Society of Magazine Editors.

Deseret, which was proposed as a state in 1849, spanned from the Sierras in California to the Rockies in Colorado, and from the border of Mexico north to Oregon, Idaho and Wyoming. Informed by our heritage and values, Deseret Magazine covers the people and culture of that territory and its intersection with broader culture.

ISSN PP324 - Deseret Magazine is published 10 times a year by Deseret News Publishing Co. The principal office is 55 N. 300 West, Suite 500, Salt Lake City, Utah. To subscribe visit pages.deseret. com/subscribe. Copyright 2021 Deseret News Publishing Co. All rights reserved.

V I T MO Headphones in. Worries out. Take a 5-minute spiritual break to reconnect with your soul and experience God’s light.

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A CONSTITUTION AMONG CONSTITUTIONS HOW THE U.S. CONSTITUTION BECAME A MODEL FOR A WORLDVIEW NOW UNDER THREAT BY J USTI N COLLI N GS

decade ago, the Arab Spring raised the startling prospect that, in short order, a half-dozen Arab nations might draft and adopt new democratic constitutions. That isn’t, of course, how things played out, but the heady prospect of such rapid-fire constitution- making spurred robust and widespread discussion and debate. Into that global conversation stepped Ruth Bader Ginsburg, a sitting justice of the U.S. Supreme Court, with some surprising advice. “I would not look to the U.S. Constitution,” Ginsburg observed in an interview, “if I were drafting a constitution in the year 2012.” She might, instead, look to South Africa, or to some other constitution more recent, more relevant and more refined. Ginsburg’s comments shocked some Americans and delighted others. But apart from the question of where new democracies should look for inspiration lies the practical question of where they do look for inspiration. To hear these observers tell it, the U.S. Constitution has, in the eyes of other nations, become a museum piece — a curiosity, a period drama, irrelevant to our times. These observers have half of a small point that obscures a large one. Developing democracies frequently look outside the U.S. for constitutional guidance and models. But the constitutions to which they look wouldn’t exist at all absent the American example, by which those other models were themselves heavily influenced. The very idea of a written constitution — a fundamental law, enforced by an independent judiciary, that both creates and limits government power — is an American original. And yes, other constitutional cultures look to one another. But, by doing so, more often than not, they are looking indirectly to America.

In 1934, Hans Kelsen was a demoralized, depressed and devastated

man. His life’s work lay in ruins; Kelsen himself was in exile. In 1920, he had drafted a republican constitution for his native Austria and had designed a newfangled “constitutional court” to enforce it. Now, for all practical purposes, Kelsen’s court and his constitution were no more. The rise of totalitarianism had crushed both.

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Kelsen soon left Austria — first for Germany in 1930 and later, after Hitler’s seizure of power, Switzerland. Kelsen’s Jewish ancestry made it unsafe for him to remain in either Austria or Germany. In 1940, the great thinker emigrated to the United States, where he lectured at Harvard before landing at Berkeley. When Kelsen fled Europe, democratic constitutionalism was on the retreat all over the planet. Only the United States had a written constitution with a bill of individual rights enforced by an independent judiciary. Other countries might have nominal constitutions, but these, by and large, could be altered by simple legislation whenever the parliament pleased. The decade that followed Kelsen’s arrival in the United States witnessed an unprecedented storm of state-sponsored butchery. Millions were murdered in Nazi death camps; millions more perished in Soviet gulags. But these are only the most notorious examples. Scores of millions in dozens of nations experienced the perversion of basic rights on a staggering, sickening scale. The prospects for democratic constitutionalism, for Hans Kelsen and others, looked bleak. Since 1945, however, constitutionalism has swept the planet. Virtually every sovereign state on earth now has a written constitution, including Kelsen’s native Austria. Many have departed from the American model in crucial particulars — including by embracing Kelsen’s more narrow model of what judges could review — but all have embraced a fundamentally American idea: a written constitution, backed by an independent judiciary and bolstered by structural constitutional protections. In the relatively short space of 76 years, an American original has now become a global phenomenon. What made the constitutionalist model so alluring wasn’t just the guarantee of basic rights — as important as they are — but also a structure and ordering that promised to prevent the concentration of power in a single tyrant’s hands. That structural promise appealed powerfully to a world still reeling from the untamed government powers of totalitarian regimes.

Those observers who downplay the desirability of American con-

stitutional influence often fall prey to two related errors. They are

D EN V ER PO L I C E ACAD E MY CAD E T DAR I L “DAR I O” CI NQUANTA, 1970

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wrong about what a constitution is for and how it does its basic work. Start with the Constitution’s purpose. A constitution does not exist to right all wrongs or to enshrine every worthwhile policy as fundamental law. In this regard, I often warn students of the Constitution None of this is to say that the U.S. Constitution has always been, or against two related fallacies. ought to be, the primary influence for other constitutions. It would be The first is the “Vanilla Ice Theory of the Constitution.” Most reada sad commentary on human ingenuity if other nations had not learned ers remember the rapper’s famous boast: “If there was a problem, yo, from and improved upon the American example. But to downplay I’ll solve it.” The Constitution makes no such promise, nor should it. America’s constitutional influence is to ignore the reality of the counSimilar is “The Sound of Music” fallacy, by which each reader scans try’s most important contribution to world history. the Constitution’s text and finds therein “a few of my favorite things.” Consider a literary analogy. Dante, who couldn’t read Greek and There is, and should be, a gap between what the Constitution guaranhad limited access even to Latin translations of Greek texts, was surely tees and what each citizen desires. more directly influenced by Virgil than by Homer. But without HoThe Constitution is a framework, not a substitute, for democratic mer, Dante never would have written an epic — nor Virgil either. The politics. To serve that purpose, the Constitution U.S. Constitution is to modern governance what must guarantee a limited range of rights that are Homer is to Western literature: the influence that truly fundamental — rights of conscience and exinfluenced all other influences. pression, fair procedures and equal treatment. But At the same time, Americans should be humble courts and citizens should tread cautiously. Paraenough — and curious enough — to learn about doxically, every time a constitution enshrines — other countries’ constitutions. “These countries,” or a court invents — a new fundamental right, the observed Guido Calabresi, a judge on the federal scope of political freedom actually narrows. And appeals court in New York, “are our ‘constitutional A CONSTITUTION that, over time, can be unhealthy for a democracy. offspring’ and how they have dealt with problems DOES NOT Many politically engaged citizens applaud when analogous to ours can be very useful to us when we EXIST TO RIGHT courts recognize attractive entitlements as constiface difficult constitutional issues. Wise parents do ALL WRONGS tutional rights. But, as John Marshall, our greatest not hesitate to learn from their children.” OR TO ENSHRINE EVERY chief justice, once wrote, a constitution is “intended In 2019, Frank-Walter Steinmeier, the president WORTHWHILE to endure for ages to come.” One should always apof the German Republic, gave a speech honoring POLICY AS proach constitutional questions by taking the long the 70th anniversary of the German Constitution FUNDAMENTAL view. One should ask how things might look when in Berlin. “Exactly 70 years ago today,” he intoned, LAW. the other party is in power. One should always “on May 23, 1949, there transpired nothing short of imagine the shoe being placed on the other foot. a miracle.” If the German Constitution looks miWhat a court gives, it can also take away. And it raculous seven decades on, the U.S. Constitution can always put something different — perhaps someseemed miraculous even to those who drafted it. thing very much not to your liking — in its place. George Washington and James Madison both A focus on novel rights also obscures the real used the term miracle in describing the convention’s source of constitutional freedom, which lies less work to contemporary correspondents. But Washwith rights provisions than with structural protecington did not think, by any stretch, that he and his tions. In the United States, a greater sum of liberty has been secured fellow framers had spoken the final word. “I do not think,” he wrote to his by the Constitution’s structural features — by federalism and the sepnephew, and future Supreme Court justice, Bushrod Washington, “that we aration of powers — than by its rights guarantees. “Every banana reare more inspired, have more wisdom, or possess more virtue than those public,” observed the late Justice Antonin Scalia, “has a bill of rights.” who will come after us.” Not the least miraculous product of the “mirSome are quite lavish. North Korea’s constitution charmingly enacle of Philadelphia” has been the U.S. Constitution’s role in spreading shrines the “right to rest and leisure.” But without structural guaranconstitutionalism and constitutional principles around the world. That, tees, such succulent rights are worthless. “Structure,” Scalia insisted, “is too, remains a work in progress. “The power under the Constitution,” as everything.” Structure is certainly the realm where the U.S. ConstituWashington reminded his nephew, “will always be in the People.” tion has exerted its greatest influence — globally as well as domestically, even if that influence often goes unappreciated or unacknowledged. Justin Collings is a professor at Brigham Young University Law School. 14 DESERET MAGAZINE

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LETTER OF THE LAW CONSTITUTIONAL ORIGINALISM IS NOT PARTISAN BY STEPHA N I E B A R CLAY

In other words, originalism done correctly should lead to rulings that uring confirmation hearings in recent years, the judicial are less likely to reflect the mere partisan preferences of a jurist. And philosophy known as originalism has faced nearly as much media one particularly striking example of this phenomenon comes from over scrutiny as the judicial nominees themselves. half a century ago, involving a judge who Harvard law professor Noah When asked to explain this philosophy, then-Supreme Court nominee Feldman argues was the “first to frame originalism as a definitive conAmy Coney Barrett explained, “in English, that means that I interpret stitutional theory.” the Constitution as a law, and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.” Supreme Court Justice Neil M. Gorsuch wrote in Time magazine that the originalist school of thought In December 1952, nine justices sat in a private conference to decide “seeks to conserve the meaning of the Constitution as it was written.” what they likely knew would be the most important case of their careers: Put another way, originalism teaches that the Constitution’s meaning is Brown v. Board of Education. The case turned on whether the equal fixed at the point it was ratified by “We the People.” protection clause of the 14th Amendment made And when that meaning can be discerned, a judge’s racial separation inherently unequal. Though the job is to faithfully apply that law to the case at hand. court ultimately issued its famous unanimous Originalists argue that this principle is necessary to opinion a year and a half later, the court’s delibTHE ORIGINALIST have a “government of laws, not of men.” erations began with the justices deeply divided on SCHOOL OF But some have argued that originalism is simply how to rule. THOUGHT “SEEKS a stalking horse that allows conservative justices to Chief Justice Fred M. Vinson began the conTO CONSERVE “rule in accord with their personal politics.” Aziz ference by saying that he did not think the court THE MEANING OF THE Huq, a professor of law at the University of Chicawould put an end to segregation. He said he was CONSTITUTION go, said that originalism is often used on the right as worried about the consequences for the country AS IT WAS WRITTEN.” a philosophical fig leaf for a conservative political if a judicial decision mandated an immediate end IT PURPORTS agenda. “The political discourse of originalism is to segregation. The Southern states might abolish TO BE OUTSIDE OF closely aligned with the policy preferences of the their entire school systems. And this turned out to POLITICS. Republican Party that has promoted judges who be a realistic concern, as a few cities and towns did happen to take this perspective,” Huq said. “It purclose their schools or other public services rather ports to be something that is moving outside polthan allow integration. itics, but it is — in its origins, and in the way that Besides the chief justice, there were three other it has been applied in the courts — it is tightly linked to a particular sitting justices on the court who had experience with segregation: Stanley partisan political orientation.” Reed from Kentucky, Tom Clark from segregated Dallas and Hugo Black, Given this allegation, it’s worth noting cases where originalism a former Ku Klux Klan member from the Deep South. In this December did not result in right-of-center outcomes. Gorsuch has highlighted 1952 conference, none of these Southern justices were willing to hold seginstances where originalism leads — or should lead — to outcomes regation unconstitutional. None, except for Black. considered left-leaning, such as upholding protesters’ right to burn the Black agreed with Vinson about the reality of an inevitable and overAmerican flag, preventing the government from putting a GPS tracking whelming Southern backlash to a desegregation ruling from the court. He device on your car without a warrant, or providing more robust protecknew that the consequences would likely include violent riots by Southern tions for criminals or illegal aliens. Indeed, originalist methodology has liberals and destroy some political careers. been employed at one time or another by all nine of the sitting justices. Yet despite this outcome clashing with what one might have expectAs Justice Elena Kagan noted in her confirmation hearing remarks, “We ed of Black’s personal politics, Harvard Law School’s Feldman described are all originalists.” Black as “the strongest internal voice on the Supreme Court” for ending

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engr av e d s i g n at u r e o f G e o r g e Wa s h i n gto n

“separate but equal” racial segregation. His ruling took “exceptional bravery, Benjamin Robbins Curtis relying on historical evidence to the conmore so than for any of his colleagues.” How to explain this counterintuitrary. Or Plessy v. Ferguson, a case that ignored both prior precedent tive contradiction? and the text of the 14th Amendment to uphold the nefarious “separate Black was convinced that “the original meaning of the 14th Amendbut equal” doctrine, which marshaled in a shameful era of Jim Crow ment and its two Reconstruction-era companions,” the 13th and 15th discrimination. amendments, required ending this discriminatory regime. Black believed Indeed, for a modern foil of originalism, progressives need look no these amendments required the abolition of racial caste. And the purpose further than the recent common-good constitutionalism movement of segregation was to subordinate African Americans, and thus to perpetchampioned by professors like Adrien Vermeule, the Ralph S. Tyler uate a racial caste. This was in direct violation of the original meaning of Jr. professor of constitutional law at Harvard Law School. Vermeule the Constitution, and Black believed the court had no choice but to say so. argues, “originalism has now outlived its utility, and has become an A justice’s role, Black believed, was to give effect to the original meanobstacle to the development of a robust, substantively conservative ing of constitutional text without regard to consequence. Fidelity to that approach to constitutional law and interpretation.” Under this theory, constitutional meaning had to be elevated above shifting partisan politics conservative judges should interpret the law with outcomes that help and fluid policy preferences. direct government and society toward the judges’ view of the “common Though few now, progressive or conservative, good,” based on moral reasoning. take issue with the holding in Brown, at the time it One might ask a progressive individual whether was a major progressive victory. And the ideal that they really prefer a common-good constitutionalist animated Black’s courageous defense of desegreto an originalist conservative judge. Empowering ON THE FLIP SIDE OF gation continues to animate the originalist judicial judges to engage in thick moral reasoning even in the ARGUMENTS THAT philosophy today. face of clear, determinate meaning may sound nice ORIGINALISM IS when judges share our values. But that framework is TOO PERMISSIVE antithetical to a government of laws, and not of men. OF CONSERVATIVE When William Roper famously said that he’d OUTCOMES, OTHERS ARGUE “cut down every law in England” to get to the devOn the flip side of arguments that originalism is IT IS TOO il, Sir Thomas More responded, “Oh? And when too permissive of conservative outcomes, others RESTRICTIVE, the last law was down, and the Devil turned ’round such as Sen. Angus King Jr. and historian Heather LIKE A on you, where would you hide, Roper, the laws all Cox Richardson argue that originalism is too re“STRAITJACKET.” being flat? This country is planted thick with laws, strictive, like a “straitjacket” or a “derelict sailing from coast to coast, Man’s laws, not God’s! And if ship locked in the ice of a world far from our own.” you cut them down, and you’re just the man to do Under this view, originalism prevents jurists from it, do you really think you could stand upright in turning the Constitution into a “sturdy vessel of our the winds that would blow then? Yes, I’d give the Devil benefit of law, ideals and aspirations.” These judges should instead be able to “recognize for my own safety’s sake!” that our understanding of our principles and values has expanded over Giving the devil the benefit of the law is the genius of originalism. time,” and judges must “interpret the law in the context of that growth.” Sometimes it leads to results that are unpopular. And often, originalism The sonorous rhetoric of this approach sounds appealing. At least, it leads to outcomes that cut across partisan divides. As Barrett explained, does if the sitting justices share the same “ideals,” “aspirations” and “val“courts are not designed to solve every problem or right every wrong in ues” of the proponents of this approach. our public life. The policy decisions and value judgments of government But what if the judges don’t share these values? Worse yet, what must be made by the political branches elected by and accountable to the if the values of the judges are wrongheaded or even unjust? Some of people. The public should not expect courts to do so, and courts should the most infamous, anti-progressive Supreme Court decisions in U.S. not try.” Indeed, if an originalist judge likes and politically agrees with history were written by justices who eschewed an originalist form of all of her rulings, that almost certainly means she’s not doing it right. interpretation in favor of their own view of what the optimal outcome in the case would be. These include Dred Scott v. Sandford, where Chief Justice Roger B. Taney ruled that African Americans were not Stephanie Barclay is an associate professor of law and the director citizens of the United States, despite a vigorous dissent by Justice of the Religious Liberty Initiative at the University of Notre Dame. 18 DESERET MAGAZINE

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NATIONAL AFFAIRS

MALICE TOWARD NONE THE CASE FOR CIVIC CHARITY BY THOMAS B . GR I FFI TH

am a political junkie. My ancestors have roots in the Washington, D.C., area that go back generations. It’s perhaps an understatement, then, to say I’ve been shaped by living in the nation’s capital. Indeed, much of my career as a lawyer on the Hill or as a judge on the federal bench has given me a front-row seat to a few fairly dramatic political contests. From that vantage point, politics can sometimes feel like a blood sport driven by partisan contempt. But there is a better way, and as Matthew Holland points out in his book, “Bonds of Affection: Civic Charity and the Making of America,” a vital part of the DNA of this nation is “civic charity,” a deliberate decision to set aside personal interests and seek the well-being of others and the nation. The transformative progress the United States has made in creating “a more perfect union” has most often come when citizens recognize, in the words of one religious leader, “that we are in this together, we need each other, and we can resolve our differences through mutual respect, mutual understanding, and ... collaboration (in which) both sides ... seek a balance, not a total victory.” The success of our republic is never guaranteed, and our divisions today bring us perilously close to transgressing Benjamin Franklin’s charge to “keep it.” Yet, a careful student will recognize civic charity as the hopeful, animating spirit of the U.S. Constitution. The document itself was born out of reasoned deliberation and compromise, and it demands the same for its continued vitality. Certainly, the nation has not always lived up to the full measure of civic charity. But, if we look closely, we can all see breathtaking flashes of goodness when Americans have come together to make history. In our darkest days, we should look to such moments. Even today we have not altogether squandered the capacity to call upon these “bonds of affection.” In fact, whether we choose to do so in our own time may be our generation’s greatest test of patriotism. Here we reflect on six notable moments of civic charity in history. “A CITY UPON A HILL” One hundred and forty-five years before the first shots of the Revolution, a band of English Puritans sailed in search of freedom aboard the ship Arbella. Their destination was the trading outpost of Massachusetts Bay Colony, but they viewed their mission as much more than an economic enterprise. In what has been described as the most fundamental expression of what would become the American experiment in self-government, John Winthrop told the group that the eyes of the world would look to them as a “city upon a hill.” They were founding their society not on the legal structures of their homeland but on the covenant of “brotherly affection,” and they would be “knit together” in unity and “uphold a familiar 20 DESERET MAGAZINE

commerce together in all meekness, gentleness, patience and liberality.” Winthrop’s lofty ideals — which were by no means easy to live by — would nonetheless set the stage for a revolutionary experiment in self-government that was to follow, a project that derived its power, first and foremost, from mutual trust in one another. THOMAS JEFFERSON’S FIRST INAUGURAL ADDRESS The political contest of 1800 birthed the nasty electioneering all too familiar to voters today. Federalist John Adams was seeking a second term in the White House while his friend-turned-rival Thomas Jefferson led the Democratic-Republicans in their contrasting vision of government. Both campaigns traded barbs, slandered the other and spread rumors in the press. It wasn’t until a tense, tiebreaking vote cast in the House of Representatives that Jefferson became the country’s third president. After the ordeal, Jefferson had every justification to skewer his opponents and capitalize on the momentum that won him the White House. Instead, he used his inaugural address to bind the nation’s wounds: “Let us then, fellow citizens, unite with one heart and one mind, let us restore to social intercourse that harmony and affection without which liberty, and even life itself, are but dreary things. ... We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists.” ABRAHAM LINCOLN’S PRESIDENCY Abraham Lincoln entered the White House with rumors of civil war about to spill onto the battlefield. The burden clearly weighed on his mind, as he spent ample portions of his first inaugural address outlining legal arguments against secession and urging the states to “think calmly and well upon this whole subject.” Beyond the legal arguments, however, Lincoln made an appeal to the hearts of his fellow countrymen, reminding them of their “bonds of affection” toward one another. “We are not enemies, but friends. We must not be enemies.” Still, the war came, taking the lives of more than 600,000 Americans. Lincoln’s entire presidency was consumed with bloodshed and dissension, but when the time came to address the nation at the start of a second term, he rejected the calls for retribution and vengeance against the rebellious states and reaffirmed his commitment to unity. “With malice toward none; with charity for all,” he promised to work at reconstructing a government energized by a “new birth of freedom” that extended to all. Lincoln asked of Americans the most radical challenge: that enemies embrace as friends to “achieve and cherish a just and a lasting peace.”

General George Washington and his military commanders during The Revolutionary War

CIVIL RIGHTS MOVEMENT The social climate of the Reconstruction quickly suppressed the constitutional gains afforded African Americans after the Civil War. Racism embedded itself into public laws and private hearts. Yet, across decades, the perseverance of those who clung to a brighter future chiseled through the lynchings, segregation, distorted juries and denial of the right to vote to help America once more reach toward its ideals. Far from repudiating America’s founding ambitions, Martin Luther King Jr. embraced them and called upon all Americans to work for their realization. “All men are caught up in an inescapable network of mutuality, tied in a single garment of destiny,” he wrote from a Birmingham jail. A year later, legislation codified protections for equality in employment, schooling, civic and political life. Slowly the cultural tide inched toward Lincoln’s charge given 100 years earlier: “Let us strive on to finish the work we are in,” and to do so with an abundance of charity. AMERICANS WITH DISABILITIES ACT It’s difficult to imagine a society in which, a little more than 30 years ago, a qualified job applicant could be denied employment because of blindness or a paraplegic couldn’t readily enter a museum if it didn’t have a ramp. The Americans with Disabilities Act of 1990 rectified those legal gaps for people with disabilities in an effort to help pull them from the margins of society. When once it was assumed that poor educational or employment opportunities were an inescapable result of disability, Americans

started to make good on John Winthrop’s admonition to “make others’ conditions our own.” Much of the opposition to the ADA’s mandates hinged on the cost of transforming structures or systems to reasonably accommodate all Americans. When contextualized within the dignity of life that a virtuous society ought to uphold, such arguments seem small. Civic charity won the day. UTAH COMPROMISE While the nation’s pundits fought about the merits of a Christian baker declining to make a wedding cake for a same-sex wedding and speculated on the forthcoming Supreme Court ruling on gay marriage, Utah lawmakers, religious groups and LGBT community leaders convened to announce a one-of-a-kind nondiscrimination law that achieved a balance between certain legal protections for LGBT Utahns and tailored religious exemptions. Most called it a compromise, but curiously others didn’t. “We didn’t compromise,” said Stuart Adams, a Republican state senator. “We found a way forward where each entity was given additional rights and protections, but no one’s core values were compromised.” It flummoxed national observers. One of the country’s most contentious logjams was broken. Regardless of where one stands on the particulars of the law, the lasting result of the civic charity continues to be indispensable to the nation’s founding and future. Thomas B. Griffith is a former federal judge on the U.S. Court of Appeals for the D.C. Circuit. JULY/AUGUST 2021 21

NATIONAL AFFAIRS

OUR INSPIRED CONSTITUTION IT IS THE FOUNDATION FOR A WELL-ORDERED GOVERNMENT OF LAWS, AND NOT MEN BY DA LLI N H. OA KS

eorge washington was perhaps the first to use the word miracle in describing the drafting of the U.S. Constitution. In a 1788 letter to the Marquis de Lafayette, he said: “It appears to me, then, little short of a miracle, that the delegates from so many different states (which states you know are also different from each other in their manners, circumstances, and prejudices) should unite in forming a system of national Government, so little liable to well-founded objections.” It was a miracle. Consider the setting. The 13 colonies and 3.5 million Americans who had won independence from the British crown a few years earlier were badly divided on many fundamental issues. Some thought the colonies should reaffiliate with the British crown. Among those who favored continued independence, the most divisive issue was whether the United States should have a strong central government to replace the weak “league of friendship” established by the Articles of Confederation. Under the Confederation of 1781, there was no executive or judicial authority, and the national Congress had no power to tax or to regulate commerce. Congress could not even protect itself. In July 1783, an armed mob of former Revolutionary War soldiers seeking back wages threatened to take Congress hostage at its meeting in Philadelphia. When Pennsylvania declined to provide militia to protect them, the congressmen fled. Thereafter Congress was something of a laughingstock, wandering from city to city. No wonder the first purpose stated in the preamble of the new United States Constitution was “to form a more perfect union.” That they accomplished it was indeed miraculous. After I began teaching law at the University of Chicago in the 1960s, an older professor asked me a challenging question about Latter-day Saint beliefs regarding the U.S. Constitution. Earlier in his career this professor had taught at University of Utah’s College of Law. There he met many students who were members of The Church of Jesus Christ of Latter-day Saints. “They all seemed to believe that the Constitution was divinely inspired,” he said, “but none 22 DESERET MAGAZINE

of them could ever tell me what this meant or how it affected their interpretation of the Constitution.” I took that challenge personally. I believe the Constitution is divinely inspired because it contains principles and rights that bless not only this nation but also the world. That’s not to say that the document is perfect, but from its attributing sovereign power to the people, and its vital Bill of Rights, to its application of the separation of powers and balancing of powers between the federal government and the states, the Constitution is the foundation for a well-ordered government of laws, and not of men.

I have studied the U.S. Constitution for more than 60 years.

As a law clerk to the chief justice of the United States Supreme Court; as a professor of law for 15 years; and as a justice on the Utah Supreme Court for three and a half years, the Constitution was a central focus of my work. And as an apostle in The Church of Jesus Christ of Latter-day Saints, I’ve spent 37 years studying the meaning of the U.S. Constitution as it relates to my own faith and how it protects diverse religious traditions in America. To facilitate moral agency — the power to decide and to act — is an important divine purpose for the Constitution. The most desirable condition for the exercise of moral agency is maximum freedom for men and women to act according to their individual choices. Then, as it says in Latter-day Saint scripture, “every man may be accountable for his own sins in the day of judgment.” (Doctrine and Covenants 101:78.) The scripture continues: “Therefore, it is not right that any man should be in bondage one to another.” (Doctrine and Covenants 101:79.) This obviously means that human slavery is wrong. And according to the same principle, it is wrong for citizens to have no voice in the selection of their rulers or the making of their laws.

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NATIONAL AFFAIRS

The U.S. Constitution is one of the oldest written constitutions in the

world. It has enhanced freedom and prosperity during the changing conditions of more than 200 years. Frequently copied, it has become the United States’ most important export. After two centuries, every nation in the world except three have written constitutions, and the U.S. Constitution was a model for nearly all of them. The U.S. Constitution is unique because God revealed that he “established” it “for the rights and protection of all flesh.” (Doctrine and Covenants 101:77.) The original impetus for what became the Constitutional Convention was to discuss amendments to the Articles of Confederation. James Madison and Alexander Hamilton, two farsighted young statesmen still in their 30s, favored a strong national government and promoted the meeting. They persuaded a reluctant George Washington to attend and then used his influence in a letter-writing campaign to encourage participation by all the states. As the delegates assembled in Philadelphia, there were already ominous signs of disunity. The states were in debt. The national treasury was empty. Inflation was rampant. The various currencies were nearly worthless. Rebelling against their inclusion in New York state, prominent citizens of Vermont had already entered into negotiations to rejoin the British crown. In the Western territory, Kentucky leaders were speaking openly about turning from the union and forming alliances with the Old World. Instead of reacting timidly because of disunity and weakness, the delegates boldly ignored the terms of their invitation to amend the Articles of Confederation and instead set out to write an entirely new constitution. They were conscious of their place in history. For millennia the world’s people had been ruled by kings or tyrants. Now a group of colonies had won independence. They had a unique opportunity to establish a constitutional government Abraham Lincoln would later describe as “of the people, by the people, and for the people.” The success of the convention was attributable in large part to the remarkable wisdom of the delegates. As James Madison wrote in the preface to his notes on the Constitutional Convention: “There never was an assembly of men, charged with a great and arduous trust, who were more pure in their motives, or more exclusively or anxiously devoted to the object committed to them.”

My belief that the U.S. Constitution is divinely inspired does not mean that divine revelation dictated every word and phrase, such as the provisions allocating the number of representatives from each state or the minimum age of each. The Constitution was not “a fully 24 DESERET MAGAZINE

grown document,” said J. Reuben Clark, who served as the U.S. undersecretary of state and as a leader in The Church of Jesus Christ of Latter-day Saints. “On the contrary,” he explained, “we believe it must grow and develop to meet the changing needs of an advancing world.” For example, inspired amendments abolished slavery and gave women the right to vote. The nation struggled to live up to the lofty principles espoused in the nation’s founding documents, including the words in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal.” But, thankfully, the Constitution has over time inspired citizens to treat each other on a more equal basis. As a young lawyer in Chicago during the late 1950s I observed a pattern of employment among large law firms in which Jewish law graduates were hired by Jewish firms, and non-Jewish graduates were hired by non-Jewish firms. The firm where I worked, Kirkland, Ellis, Hodson, Chaffetz & Masters (known today as Kirkland & Ellis) followed that same pattern. My colleague, Robert H. Bork, who was later nominated to be a justice on the Supreme Court, sought to change that. In 1957, Howard G. Krane, who is Jewish, interviewed for a job at Kirkland. On his merits, Krane — who had been a classmate and on the law review with me at the University of Chicago — should have received an offer. Instead, he was brushed aside because he was Jewish. When Bork learned about Krane’s rejection he was incensed. He talked to me about his intention to change the firm’s practice of excluding Jewish graduates from employment. I assured him that Krane was an outstanding prospect, and I promised my support. We went together to the managing partner of the firm, Howard Ellis. Though only young associates, we took a strong position: Failing to hire Krane because he is Jewish was not only extremely shortsighted for a firm that was interested in top talent but was also deeply offensive to some young lawyers the firm was obviously grooming for future leadership. Krane was immediately hired and much later became that large firm’s managing partner. America has been blessed by an inspired Constitution that aims at equal justice and the advancement of all on the basis of merit. In addition to equal justice, in my judgment the U.S. Constitution contains at least five divinely inspired principles. First is the principle that the source of government power is the people. In a time when sovereign power was universally assumed to come from the divine right of kings or from military power, attributing sovereign power to the people was revolutionary. Philosophers had advocated this, but the U.S. Constitution was the first to apply it. Sovereign power in the people does not mean that mobs or other groups of people can intervene to intimidate or force government action. The Constitution established a constitutional democratic republic, where the people exercise their power through their elected representatives. A second inspired principle is the division of delegated power between the nation and its subsidiary states. In our federal system, this unprecedented principle has sometimes been altered by inspired

amendments, such as those abolishing slavery and extending voting rights to women. Significantly, the U.S. Constitution limits the national government to the exercise of powers granted expressly or by implication, and it reserves all other government powers “to the States respectively, or to the people.” Another inspired principle is the separation of powers. Well over a century before our 1787 Constitutional Convention, the English Parliament pioneered the separation of legislative and executive authority when it wrested certain powers from the king. The inspiration in the American convention was to delegate independent executive, legislative and judicial powers so these three branches could exercise checks upon one another. A fourth inspired principle is in the cluster of vital guarantees of individual rights and specific limits on government authority in the Bill of Rights, adopted by amendment just three years after the Constitution went into force. A bill of rights was not new. Here the inspiration was in the practical implementation of principles pioneered in England, beginning with the Magna Carta. The writers of the Constitution were familiar with these because some of the colonial charters had such guarantees. Without a Bill of Rights, America could not have served as the host nation for the establishment of my own faith tradition, which was founded just three decades later. There was divine inspiration in the original provision that there should be no religious test for public office, but the addition of the religious freedom and anti-establishment guarantees in the First Amendment was vital. I also see divine inspiration in the First Amendment’s freedoms of speech and press and in the personal protections in other amendments, such as for criminal prosecutions. Fifth and finally, I see divine inspiration in the vital purpose of the entire Constitution. We are to be governed by law and not by individuals, and our loyalty is to the Constitution and its principles and processes, not to any officeholder. In this way, all persons are to be equal before the law. These principles block the autocratic ambitions that have corrupted democracy in some countries. They also mean that none of the three branches of government should be dominant over the others or prevent the others from performing their proper constitutional functions to check one another.

Despite the divinely inspired principles of the U.S. Constitution, when exercised by imperfect mortals their intended effects have not always been achieved. For example, people of faith need not view every Supreme Court interpretation of the Constitution as inspired. And important subjects of lawmaking, such as some laws governing family relationships, have been taken from the states by the federal government. The First Amendment guarantee of free speech has sometimes been diluted by suppression of unpopular speech. The principle of separation of powers has always been under pressure with the ebb and flow of one branch of government exercising or inhibiting the powers delegated to another.

There are other threats that undermine the inspired principles of the U.S. Constitution. The stature of the Constitution is diminished by efforts to substitute current societal trends as the reason for its founding, instead of liberty and self-government. The authority of the Constitution is trivialized when candidates or officials ignore its principles. The dignity and force of the Constitution is reduced by those who refer to it like a loyalty test or a political slogan, instead of its lofty status as a source of authorization for and limits on government authority.

We have a unique responsibility in these times to uphold and defend the U.S. Constitution and principles of constitutionalism. We should trust in God and be positive about this nation’s future. We must pray for the Lord to guide and bless all nations and their leaders, even when we might oppose individual laws or policies. We must exercise our influence civilly and peacefully within the framework of our constitutions and applicable laws. On contested issues, we should seek to moderate and unify. There are other duties that are part of upholding the inspired Constitution. We should learn and advocate the inspired principles of the Constitution. We should seek out and support wise and good persons who will support those principles in their public actions. We should be knowledgeable citizens who are active in making our influence felt in civic affairs. In the United States and in other democracies, political influence is exercised by running for office, by voting, by financial support, by membership and service in political parties, and by ongoing communications to officials, parties and candidates. To function well, a democracy needs all of these, but a conscientious citizen does not need to provide all of them. There are many political issues, and no party, platform or individual candidate can satisfy all personal preferences. Each citizen must therefore decide which issues are most important to him or her at any particular time. Then we should seek inspiration on how to exercise influence according to individual priorities. This process will not be easy. It may require changing party support or candidate choices, even from election to election. Such independent actions will sometimes require voters to support candidates or political parties or platforms whose other positions they cannot approve. We should never assert that people of faith and goodwill cannot belong to a particular party or vote for a particular candidate. The Constitution of the United States is inspired. Through embracing its principles, we can enhance unity and tranquility among citizens, and we can continue to face the future with faith as one nation, under God. President Dallin H. Oaks is the first counselor in the First Presidency of The Church of Jesus Christ of Latter-day Saints. This essay draws on previously published articles and addresses by President Oaks. JULY/AUGUST 2021 25

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SACRIFICIAL LAND A NEVADA TOWN IS POWERING A GREENER FUTURE. CAN IT SURVIVE? BY SOFI A J ER EMI AS

eople rarely talk about the quiet on northern Nevada’s Thacker Pass, although besides the rolling, sage-filled hills below the Double H and Montana mountains and the empty, so-blue-it-hurts-a-little sky, the quiet demands your attention. The silence awes Wendelyn Muratore, who lives about five miles away from Thacker Pass on an alfalfa farm in Kings River Valley. The land surrounding her home is so quiet that after snow falls she can hear her neighbor’s footsteps crossing his yard a mile away. “It’s a little tiny place on the map, but it’s beautiful,” Muratore said. “The solitude. The quiet. The beauty of the desert.” There’s nothing like the spicy smell of sagebrush after a rain. But since hearing about the Thacker Pass open-pit lithium mine proposal and all the traffic it would bring in from hauling raw materials, plus the hundreds of workers who would commute from Winnemucca, she’s been having trouble sleeping. She doesn’t want the quiet to break, doesn’t want this place she calls home to change. “I can’t tell you how many nights I’ve laid in bed at night, just staring at the ceiling, wondering what horrible things they’re going to do.” By “they,” Muratore means Lithium Nevada, a subsidiary of Lithium Americas. And by “what they’re going to do,” she means the tailings pile that could be left behind, the sulfur that will be trucked in, and the arsenic and antimony she fears will leach into the groundwater as a result of the lithium mine. This corner of northern Nevada is not often the subject of both local and national news stories. But the valley has erupted in controversy the past few months as Lithium Nevada moved 28 DESERET MAGAZINE

onto the next stage of its proposed lithium mine on Thacker Pass. As the country tackles ambitious new climate change goals, lithium — a mineral in the batteries that power electric vehicles, backup systems for wind and solar generation, and everyday cellphones — is a crucial resource. But people like Muratore are beginning to question the cost for a community they believe could be destroyed in the process. Ranchers now talk about “greenwashing,” Elon Musk and how their opinions on

RESIDENTS LIKE WENDELYN MURATORE ARE BEGINNING TO QUESTION THE COST OF AN ELECTRIC FUTURE FOR A COMMUNITY THEY BELIEVE COULD BE DESTROYED IN THE PROCESS.

environment -friendly electric vehicles have changed. They even talk about the once- dismissed sage grouse and hearing the sounds of the bird with the early morning light. On the other side, advocates of the mine are focused on the ticking clock of climate change and the potential for electric vehicles to be part of the solution. With construction set to begin this fall,

ranchers in the communities of Orovada and Kings River are fighting the mine (Muratore joined Great Basin Resource Watch, an environmental group that filed a lawsuit) and activists have been rotating in and out of the proposed site, staging an occupation. Lithium Nevada said it has been consulting with the community, with both ranchers and tribes, but within the Quinn River Valley support for the project is hard to find. In Nevada, mining has a long legacy of offering economic opportunity, giving it an influential voice among policymakers eager to accommodate the industry’s interests. It appears that may remain the case when it comes to mining the state’s lithium resources. After Muratore’s husband graduated high school, they were living in California and he rented “every little piece of ground that he could get his hands on to get his foot in farming.” An opportunity to farm in Kings River came up, and they were eventually able to purchase the land. Other people think of Nevada as empty, deserted. To them, it is home, where they raised their children, the place they hoped to pass on to the next generation. Now they are contemplating where they might relocate, where they could afford to go, if the mine moves forward. They are not alone in their fear and frustration. Edward Bartell, a rancher in Orovada, has found himself fielding a lot of calls from reporters and directing photographers to the parcel of land where he grazes cattle — the land Bartell worries would go barren if the proposed lithium mine goes forward. He is also Continued on page 33 PHOTOGR A PHY BY SPEN SER HEA PS

Wendelyn Muratore worries about the impact of a proposed mine in Kings River Valley, Nevada

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Wendelyn and Martin Muratore’s farm in Kings River Valley

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A group called Protect Thacker Pass has occupied the proposed lithium site since January

Martin Muratore jumped at the opportunity to farm in Kings River Valley in the 1980s

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M ax W ilb ert is a p rot e st e r w i t h t h e P r ot e c t T h ac ke r Pa s s g r o u p

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The sun sets over a protest camp at the site of the proposed lithium mine

Continued from page 28 dealing with the challenge of suing the Bureau of Land Management. Tall and lean with a deep but soft voice, Bartell said he doesn’t mind dealing with reporters. But Lithium Nevada and the bureau are another matter. In his lawsuit against the government, he claims that both the Endangered Species Act and the National Environmental Policy Act were violated in the environmental assessment process. According to the complaint filed in Nevada’s U.S. District Court, the project could potentially endanger Lahontan cutthroat trout, which Bartell said he’s put in a lot of effort to protect — building fences around streams to keep cattle out and implementing rotational grazing. The lawsuit claims the BLM failed to properly consult with the U.S. Fish and Wildlife Service about the impacts to the endangered species. It also describes the agency’s environmental impact statement as “a one-sided, deeply flawed, and incomplete analysis and characterization of the proposed project and its likely adverse environmental impact.”

In between tending to his cattle and raising his two children, Bartell spends his weekends and what little free time he has on the lawsuit, combing through the mine proposal’s environmental impact statement, wrapping his head around complicated analysis and mining operations plans. “The more I found out about the mine, the more troubling it becomes,” he said. He leases a total of 50,000 acres and believes part of the land he leases and owns will be impacted by the mine operations. He said the environmental impact statement process was rushed (it took place in roughly a year instead of three), and due to COVID-19, not enough people in the community were consulted. “A lot of it was all online, and several people are elderly, and they don’t have access or know how to do that.” He said that the final statement contained many errors — among them are claims about the existence (or lack thereof) of groundwater. “The project consultants relied upon grossly inaccurate, incomplete and inadequate data for constructing baselines and models purporting to estimate impacts to water resources caused

by the groundwater pumping that would be associated with the mine,” the lawsuit states. After meeting Bartell at the local Shell gas station, I followed his blue flatbed truck down the highway leading out to Thacker Pass. We paused at a dirt road, turning right so he could show me the land he’s worried about. Bartell explained that if his water table is drawn down as a result of the mining operations, the land now populated with grasses would go barren — leaving his cattle with little to nourish themselves and making the property worthless. “It would substantially devalue our property and transform grassland into dusty, dry land.” When reached for comment, Lithium Nevada responded in an email: “We’ve worked hard to gain approval through the public process that now allows us to move forward while following a detailed monitoring and mitigation plan. Our project is based on 10 years of data collection and numerous meetings with the surrounding communities and other interested parties. We welcome the newly created community committee and look forward to many Continued on page 37 JULY/AUGUST 2021 33

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Deer graze at the site of a proposed lithium mine

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Will Falk and Max Wilbert eat dinner at a protest camp

Martin Muratore surveys one of his alfalfa fields in Kings River Valley

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Continued from page 33 years of working closely with our neighbors.” The company’s spokesperson referred me to Maxine Redstar, chairwoman of the Fort McDermitt Paiute Shoshone Tribe, which entered into a “project engagement agreement.” In early March, Redstar said she had no immediate comment as they were still evaluating the project and had not yet made up their minds about whether they supported it. On March 29, the tribal council voted to end the project engagement agreement.

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The U.S. has so far relied on other countries,

from China to Chile, for its supply of lithium. The U.S. currently produces and processes just 1% of lithium in the world and there is only one operational mine in the country, also in Nevada. That leaves roughly 6.8 million tons of lithium deposits largely untapped as the extraction process has been too costly to profit off the investment. But that calculation is changing with the rising demand for electric vehicles — lithium, the lightest of the metals, is a critical component in the batteries that charge electric vehicles. Big name financiers from Bill Gates to Warren Buffett are investing in companies developing new lithium extraction methods, according to the Wall Street Journal. In North Carolina, a once-abandoned lithium mine is being revived, and several projects are in the works in the West. But many of the proposed lithium sites in the West are drawing the ire of a diverse and unexpected cross section of opponents, from ranchers to environmentalists. In California, after the initial exploration phase in 2019, a lithium project in Panamint Valley generated public backlash. The director of the California and Desert programs for the National Parks Conservation Association told the Los Angeles Times, “This is a misplaced mining project in an area that the public has already agreed should be protected for generations to come.” The irony is not lost on the environmentalists. “It’s a difficult political position to be in,” said Stephen Hoffman, a former senior environmental scientist who led mining efforts within the EPA. If the U.S. wants to transition away from oil and gas, and toward electric, the batteries used to store power have to be made from materials that come out of the earth. They have to be mined.

“Should we be bearing some of the burden? That’s the issue. And yes, a community someplace is going to bear the burden,” Hoffman said. That tension is manifested in the opinions of two Nevadans who usually stand on the same side: John Hadder, of the Great Basin Resource Watch, and Glenn Miller, a retired professor from the University of Nevada who has spent most of his life opposing mining operations across the world. He believes the potential good that could come from lithium mining outweighs the costs. Unlike gold — one of the dominant minerals mined in the state — lithium is necessary, Miller reasoned. “I considered climate change probably the biggest threat to the global environment,” Miller said. “I think that the lithium mines are much less damaging. All mining is damaging to the environment, but this is much less damaging than some of the other projects we’ve permitted in Nevada.” Hadder, on the other hand, is deeply skeptical of the mine and the environmental impact statement. “If we’re going to ask communities to shoulder the effects, negative and positive, of mining projects so that we can use a mineral, we owe it to those communities to at least have an independent assessment so they can understand the full range of consequences.”

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“In the last two years they’ve picked up

on the exploration part of this, and so I knew it was coming,” said Ron Cerri, Humboldt County commissioner and owner of a ranch 10 miles away from the proposed mine. “Then I also knew that they were working with the BLM to get an environmental impact statement completed.” Cerri said he can think of two times the company came to the commission to discuss the project. He is not optimistic about their chances of stopping the mine. No one I speak with is. Hoffman said that legal challenges to environmental impact statements are hard to win as long as the basic procedures were followed, and it’s difficult to convince a judge that shoddy scientific work is an issue. “I think we have kind of acknowledged now that we may not stop it. So how do we make the best of it? And that’s what we’re trying to do,” Cerri said. “We know that our community will change forever, it will never be the same.”

When I visit the site in the spring, things are mostly the same, aside from the awkward positions that some locals have found themselves adopting. “I have never thought of myself as an ‘environmentalist.’ You know, we’re farmers,” Muratore said with a little bit of a laugh when asked if the term applies to her. On an early March day at Thacker Pass, the view is still unobscured for miles. Protesters have been occupying the site since Jan. 15, when the BLM issued its final record of decision for the mine. Lynsey Piccolo, a full-time activist for the time being, wears a headlamp loosely slung around her neck, is holding down camp alone. The founders of the Protect Thacker Pass protest had to leave after the bureau threatened to arrest them. A sign attached to a fresh wood post stands guard at the dirt road leading up to the pass outline occupation rules for the protesters: “Camping is allowed for up to 14 days in a 28 day period. ... You must relocate at least 25 miles away after 14 days.” Signs decorate the fencing surrounding the weather tower set up by Nevada Lithium. “Protect Thacker Pass.” “Respect the sacred.” And, maybe a bit on the nose, “ANTI-MINE PROTEST.” Pallets form a makeshift kitchen station, surrounded by gallons of water, cast iron pans, a bottle of hand sanitizer and a sign that says “HOME to sage grouse, pronghorn antelope, burrowing desert owl, horned lizard, loggerhead shrike, pygmy rabbit, prairie falcon. …” A man named Paul, who said he drove here from Walnut Creek, California, and has been exchanging emails with a woman at the site, shows up. He takes pictures, leaves a few wash tubs and other supplies the mysterious woman has requested and leaves. I wander the site, trying to picture the industry in place of calm. It is beautiful in the way that many parts of the arid West are, silent in a way that is getting harder to find. It seems like a nice place to camp in the summer, when the snow has melted and the temperatures no longer dip below freezing. The quiet. The solitude. The beauty of the desert, as Muratore said. It’s what makes many here want to call this place home. If Thacker Pass becomes a lithium mine, the occasional Tesla driver some day might speed down I-80, past Winnemucca, without ever knowing that, if they turned on U.S. 95 and headed north, a metal so light and crucial to the batteries that make their motion possible was being pulled from the earth. That in the hopes of saving the land, one piece had been sacrificed. JULY/AUGUST 2021 37

THE WEST

OH, THE PLACES YOU’LL GO … TO WORK THE FREEWHEELING LIFE OF THE DIGITAL NOMAD BY SOFI A J ER EMI AS

uke brokaw lives in a school bus, and he does it by choice. The 35-yearold left Michigan three years ago and set out West. Landing in San Diego, he worked as a delivery driver for Amazon. But he wanted even more freedom, so he started freelancing as a graphic and web designer — and roaming. When I reach him, he’s outside Zion National Park, using his cellphone as a hot spot. “There’s so much red,” he says of the bluffs and canyons around him. “Everything is red.” Living on the road, he says, “does get stressful from time to time. But it’s still a lot better than working a nine-to-five somewhere.” After buying his “skoolie” in 2018, he built it out, putting in a full kitchen and solar panels. It was painted like an American flag. He painted it black — a choice he later came to regret. “When I parked in residential areas, it looked creepy,” he says. So he repainted it teal and added a landscape of mountains, trees and a sunset. Now random strangers knock on the door, saying they recognize the bus from his YouTube channel. He goes by “The Digital Nomad Guy” on Instagram and sometimes wraps his long red beard in rubber bands. Millions have embraced this lifestyle since the advent of COVID-19. As companies responded to the pandemic by making office jobs remote, they also untethered their employees from geographic limitations, at a time when housing costs are skyrocketing. According to a report from MBO Partners, a company that recruits independent professionals to do contract work for businesses, 7.3 million Americans described themselves as “digital nomads” in 2019; a year later, that number increased by half. Digital nomads have become a common sight across the West, especially in small towns near national parks or ski resorts, where they 38 DESERET MAGAZINE

rely on a hot spot or cafe Wi-Fi to get through the workday, then explore the outdoors once 5 o’clock hits. They’re part of a growing class of transient professionals who use the internet to work remotely and travel at the same time, eschewing traditional roots and responsibilities. But that kind of freedom does not come without a cost, or an impact on the places they visit. Culturally, they occupy a space between “Zoom Town” movers (similarly remote professionals who’ve resettled in smaller or cheaper towns) and #vanlifers (wealthy hobbyists who might sink $100,000 into a

MANY DIGITAL NOMADS RELY ON BORROWED WI-FI TO GET THROUGH THE WORKDAY, THEN EXPLORE THE OUTDOORS ONCE FIVE O’CLOCK HITS.

decked-out Mercedes-Benz Sprinter van and retire early). A quick Instagram search reveals millions of images tagged #vanlife or # digitalnomad, showcasing customized vehicles replete with light wood cabinetry and string lights. The glamorous images can be unnerving in a time when many are living in their vehicles out of economic desperation, with ingenious modifications made out of necessity. Each group adapts in its own way. Aside from the mode of transportation, this lifestyle is not exactly new. In 2007,

Timothy Ferriss published a book titled “The 4-Hour Workweek,” which promised to teach disenchanted corporate denizens how to “Escape 9-5, Live Anywhere, and Join the New Rich.” The idea was embraced by a generation of globe-trotting entrepreneurs, creatives and young professionals. Even if they didn’t find wealth, they found they could work anywhere, settling down for months at a time in “hubs” like Chiang Mai, Thailand, or Mexico City — places with the infrastructure they needed, where their dollars went further. By 2014, a website called Nomad List offered an online community and advice on the best destinations. Bali was a favorite. Sociologist Rachael Woldoff flew to the Indonesian island in 2016 to talk to digital nomads. They weren’t hard to find. She went to an open-air lounge. A thin man with a shaved head, billowy white pants and a skin-tight white shirt sat beside her. Soon he was telling his “Goodbye to All That” story, she says. In the book “Digital Nomads: In Search of Freedom, Community, and Meaningful Work in the New Economy,” she and co-author Robert Litchfield — her husband — describe a subculture of people who value sharing, positivity, minimalism and freedom from societal norms. Some readers may see echoes of other alternative lifestyles that are common in the West. Anybody who skis enough will interact with a “ski bum,” someone so obsessed with the sport that they build their life around low-paying jobs at resorts, trading creature comforts for free lift tickets. “Dirtbags,” on the other hand, tend to alternate intense periods of work with vagabond intervals, spending their days rock climbing and their nights at crash pads to make their savings last until they have to surrender to another temporary job. Even some sponsored athletes live this way, repping outdoor PHOTOGR A PHY BY LU KE B ROKAW

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JULY/AUGUST 2021 39

brands from the back of a van. But this past year, van life has become an option for many who don’t want to quit their jobs.

• Rather

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than pay Bay Area prices during lockdown, Brant Hysell left Oakland for the eastern slope of the Sierra Nevadas. He found he could do his job in food product sales from a bedroom he rented in Truckee, with plenty of free time to snowboard the surrounding backcountry. Then he took that freedom on the road, spearfishing in Southern California, rock climbing in Denver and camping for months in Yosemite, without burning vacation time. For about a third of the past year, he slept on a bouldering crash pad in his Chevy Equinox, a small SUV crossover. “I can manage my life better if I have the flexibility,” he says. Many digital nomads are young professionals and outdoor enthusiasts, talented people who love to climb, ski, fish or bike, and have jobs they can honestly do anywhere with internet access. Living your life in the most beautiful places you can drive to has an undeniable romantic appeal. Even Nellie Bowles, a tech reporter for The New York Times, found herself dreaming of “getting rid of all my possessions, breaking the apartment lease, and moving with my dog and my girlfriend into a tricked-out van.” I, too, was swept into the craze, building out the back of my Toyota Tacoma into a rolling hotel room and striking out across the deserts of Utah and Nevada. For many nomads, the West is a vast and sublime playground. But in March, I found I wasn’t the first to wash up in Escalante, a southern Utah town with less than a thousand residents, and a de facto base camp for visitors to the Grand Staircase- Escalante National Monument. I wasn’t even the first at the natural grocery store with outdoor seating and public Wi-Fi. A 20-something man typed away on his laptop. An older couple from Miami peppered him with questions. “So, are you a digital nomad?” the woman asked. “I try to avoid the term,” he replied, but went on to tell them he’d been living off chicken fingers and Wi-Fi,

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spending as little money as possible, and driving across the West. Down the street at Escalante Outfitters, I saw a woman with gold-rimmed glasses and long blond hair taking a Zoom meeting in the corner of the restaurant’s sunroom. It’s odd to find the same dynamics that play out in city cafes transplanted to the desert — to places that I once considered an escape from the daily grind but are now becoming a scenic backdrop for it. I felt sheepish when I, too, had to ask for the Wi-Fi password to file a story before heading out on a weekend backpacking trip. Bryce Clendening, who’s lived in an RV on and off for nine years and loves it, warns that the images on social media don’t match real-

HARROWING BREAKDOWNS, WEEKS WITHOUT SHOWERS AND IMPROVISED MEALS FOR DAYS ON END COMPLICATE LIFE ON THE ROAD.

ity. “It’s not even close,” he says. Harrowing breakdowns, weeks without showers and improvised meals for days on end complicate life on the road. One nomad put in a full workday from the front seat of his Chevy, caught in a snowstorm. A couple parted ways after two years in an RV, because she was ready to settle down, while he was not. Just figuring out where to sleep each night can be exhausting, and sometimes a good spot must be sacrificed to search for a reliable Wi-Fi signal. “You’re not buying a house and laying down roots,” says Alex Autran, a 29-year-old information technology consultant who has been living in a vehicle of some sort for the past four years. You can’t own many possessions if you don’t have anywhere to store them, and it’s dif-

ficult to develop relationships — although he’s continued to date his high school sweetheart who doesn’t seem to mind his time on the road. This summer, Autran will be parked outside a coworking space in Bellingham, Washington — an area renowned for its mountain biking trails — but he’ll still be passing through. “You’re much less part of a community.” Perhaps that’s what drives a wave of pickups, vans and RVs to descend on Quartzsite, Arizona, every January for the Rubber Tramp Rendezvous, an annual gathering of vehicle dwellers of all classes. Among them, Brokaw arrives in his teal skoolie. “As far as making friends,” he says, “that’s a little tricky to do.” He once got stranded for a week outside of a Walmart in Missouri, repairing his broken- down bus, but loneliness can be a bigger challenge, if somewhat mitigated, he says, by the fact that he’s not much of a people person to begin with. Cautionary tales about the nomad life arose early on, reflecting the pitfalls of constant relocation and a much-longer-thanfour-hour workweek. As far back as 2013, Mark Manson — who once traveled to 17 countries in a year — wrote “The Dark Side of the Digital Nomad,” bemoaning what he described as unchecked narcissism, vice and a strained social life among his global cohort. But mostly, he missed having friends. “The price of overwhelming freedom is often my isolation,” he wrote. It’s hard to reconcile that with the sheer volume of remote workers who cycled through Bali over the past decade, but their impact is visible to someone who lived a remarkably similar lifestyle before it had a name or a hashtag. In a piece for Lonely Planet titled “Digital nomads are ruining travel,” Geena Truman called her recent return to Bali the “most harrowing experience” of her life. While the local economy benefits from tourism, there are trade-offs, from environmental degradation to kerfuffles with ill- behaved influencers and dilution of the local culture. Now “trendy Instagram cafes serving smoothie bowls and eggs Benedict lined the streets.” Bali is overrun, the city of her memories gone forever. But the American West is still an open field, for better or worse.

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THE WEST

BEAR IN MIND WHAT ARE THE CONSEQUENCES OF PRIVATE WILDLIFE OWNERSHIP? BY ER I CA EVA N S

ellowstone bear world is not like other zoos. In fact, it doesn’t brand itself as a zoo at all. Google Maps lists it as a “park offering close-up wildlife views.” The owners call it a “private animal exhibition.” Located past the Snake River on the way to Yellowstone National Park on Idaho’s Highway 20, the family-owned business attracts thousands of visitors a year, each paying around $24, unless your age qualifies you for a discount. It’s hidden in a grove of trees, surrounded by farm fields fed by wheel line irrigation. The place is as classically Mountain West as the hillside geoglyph, visible in the distance, that marks the city of Rexburg with a big letter “R.” Inching through the park in our car at five miles per hour on a recent afternoon in May, a young woman in a red staff shirt opens a metal gate and signals for us to drive through. There, only a matter of yards away, sits a 1,000-pound grizzly bear gnawing on a pile of seafood and beef scattered atop a concrete feeding platform. He’s the first animal that park founder Michael Ferguson acquired in 1998 — a retired Hollywood bear named Chorky, now 30 years old. He’s one of nearly 75 bears housed at the 120-acre park, where visitors can drive their cars straight through the bears’ outdoor habitats, throw them bread and jerky, and hand-feed bottles of formula to the babies — a controversial practice that serves as one of the park’s main attractions and costs $55. The park rounds out its business opportunities with a petting zoo, gift shop and mini-amusement park. But Yellowstone Bear World — also known simply as “Bear World” colloquially — started with an entrepreneurial man passionate about local wildlife who

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set out to own a collection of wild animals he could display to the public. At its heart, Bear World is a for-profit business — not a conservation club or refuge. All of the animals there have been captive-bred, born and raised. None are ever reintroduced to the wild, and over the years dozens have been sent to other zoos or private facilities, U.S. Department of Agriculture records show.

BEAR WORLD INHABITS A PRECARIOUS PLACE AT THE CROSSROADS OF COMMERCIAL INTERESTS, ETHICS AND CONSERVATION.

As a private animal exhibit — one of about 2,000 similar facilities registered with the USDA — Bear World inhabits a precarious place at the crossroads of commercial interests, ethics and conservation. In the eyes of its owners, keeping animals captive serves the greater good of wildlife appreciation and family fun, but according to some ecologists and animal rights activists, owning captive wildlife is an unethical practice. With certain studies showing people become more interested in conservation after close-up encounters with animals and other, opposing, research concluding that people view animals as less valuable after seeing them in captivity compared to the wild,

the question is: Does a private wildlife park do more harm or good for the species displayed behind its fences?

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When Meriwether Lewis and William Clark launched their westward expedition in 1804, there were more than 50,000 grizzly bears roaming the lower 48 states, according to the U.S. Fish and Wildlife Service. After extensive hunting and human expansion, however, the species faced near extinction. By 1975, there were just 136 grizzlies left in the Greater Yellowstone area — where forests, meadows and a healthy supply of cutthroat trout have provided a lush home for the animals for generations. As a little boy in the 1960s, Michael Ferguson loved to pile with his family into a station wagon and drive through Yellowstone National Park to get a glimpse of the wildlife, says his son, Courtney Ferguson, who now runs the business. The young Idahoan was charmed by the animals he saw, especially the grizzly bears. Even though numbers were dwindling, it was common at the time for bears to wander along roadsides and developed sections of the park, drawn in by food and trash, according to the National Park Service. “Although observing these bears was very popular with park visitors, it was not good for people or bears,” the National Park Service website reads. By the time Ferguson was taking his own kids to Yellowstone, a bear protection program had successfully redirected the grizzlies and black bears to natural food sources. In light of fewer opportunities for wild bear sightings, Ferguson wanted to re-create I LLUSTR ATI ON BY MIRKO CRESTA

JULY/AUGUST 2021 43

the thrill of close-up wildlife encounters for others. The Bear World founder set out to create a menagerie. First, he had to work with state officials to find an exception to a ban on the commercial importation of bears, which was meant to protect local wildlife from diseases and crossbreeding. Today, Bear World is a thriving business and wild grizzlies have made a heroic comeback. There are now close to 1,400 in the lower 48 states, including over 700 in the Greater Yellowstone area, thanks to wildlife management and conservation efforts led by groups like the Interagency Grizzly Bear Committee. But threats remain — including climate change, which is jeopardizing food sources and pushing animals into new habitats. In 2018, a federal judge restored protections for grizzly bears within the Greater Yellowstone ecosystem under the Endangered Species Act, after they had been delisted as a threatened species just one year earlier. Courtney Ferguson says Yellowstone Bear World isn’t directly involved in ongoing conservation efforts, but he sees his family’s private park playing an important role in supporting wildlife education and appreciation. Bear World’s website encourages visitors to the nearby national park to keep a safe distance from wild animals. “That doesn’t mean you can’t see or feed a bear during your Yellowstone vacation. That’s what Yellowstone Bear World is all about,” a page on conservation reads. Most importantly, Courtney Ferguson says, Bear World brings families together and provides enriching experiences for kids and adults alike. But according to behavioral ecologists like Marc Bekoff, professor emeritus at the University of Colorado, that mission of helping families appreciate animals may be in direct conflict with what is best for the animals themselves.

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Decades before the first U.S. zoo opened in

Philadelphia in 1874, wild animals, including black bears and grizzly bears, had been kept captive in the U.S. and used in roadshows, circus acts or bear fighting rings. Captive bears have been found in dismal conditions, with cages so small they can’t turn around and arthritis caused from standing on metal or concrete, says Debbie Metzler, PETA’s associate director of captive animal law enforcement.

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Gradually, these cruel practices have become illegal or unpopular, she says. Many circuses have stopped forcing wild animals to perform, experts have developed higher standards for the treatment of animals in captivity, and the U.S. government has introduced laws to help protect animals, like the Endangered Species Act and Animal Welfare Act. But with limited oversight of privately owned wildlife, abuses still happen. Private animal exhibitions like Bear World are held to lower standards than other animal- caretaking businesses, such as zoos and sanctuaries, which have their own agencies for accreditation. USDA rules ensure that animals have clean enclosures with food, water and enough room for “adequate freedom of movement.” Metzler says, “When we see violations, it’s extremely concerning because the protections are so minimal.” Multiple researchers have recorded “zoochosis” or stereotypic behaviors in captive bears, like pacing and rocking back and forth, which indicate an animal is experiencing stress and depression. Studies like a 2003 paper by researchers at the University of Oxford and a 2016 paper by scientists in Taiwan suggest these behaviors are related to a lack of natural stimuli and roaming space. In the wild, male black bears’ natural habitats consist of areas ranging from 10 to 59 square miles. Male grizzly bears cover even bigger territories, from 200 to 600 square miles — larger than any enclosed habitat. The Association of Zoos and Aquariums, the country’s leading body for establishing standards for animal welfare, has more detailed rules when it comes to animal care, including requirements for nutrition and “enrichment activities” that stimulate an animal’s natural behavior — such as climbing, burrowing, foraging or hunting — as much as possible. A 2007 review of animal welfare in zoos conducted by researchers at universities in Poland showed that bears have advanced cognitive abilities and can solve complex tasks requiring abstract thought. Therefore, they require frequent sensory stimulation in captivity, via changes to their environment or varied food delivery methods. Certified animal sanctuaries are held to the highest standards of all. Noelle Almrud is senior director of the Black Beauty Ranch in Texas, which is accredited by The Global Federation of Sanctuaries and houses 800 animals, including four bears. Some were seized from the wild because of safety concerns and

cannot be released. Sanctuaries like Black Beauty Ranch provide homes for animals that have nowhere else to go and seek to end the practice of captive breeding that perpetuates life in captivity, Almrud says. The property hosts some tours but prohibits all public contact with the animals. That’s because myriad studies evaluating species from South American sea lions to captive koalas have found that proximity to humans can prompt stress and aggression. The four bears at Black Beauty Ranch are individually housed, or are housed with cub and mother together, because they are solitary in the wild. Research published in the Journal of Applied Animal Welfare Science in 2006 suggests enclosures for solitary animals should be built to allow the animals to keep their distance. Bear World is not accredited as a zoo or sanctuary but operates as a private business under the supervision of the USDA, which regularly inspects the facility and provides health certificates for the animals. At Bear World, bears live on a natural surface of dirt and grass, with the ability to roam freely, burrow and hibernate in the winter when the park shuts down. However, the bears have limited opportunities to perform some natural behaviors, like climbing, because the trees are wrapped in metal sheets to prevent it. The bears are also constantly exposed to humans and kept together in close proximity to each other. All of these factors can cause psychological and physical stress, Almrud explains. Ben Williamson, programs director at animal welfare organization World Animal Protection, says wildlife should not be kept in captivity at all, regardless of accreditation standards. He says it is unnatural and only benefits the people making money from the operation. Unlike domesticated animals, like dogs, cats and farm animals — which have been bred over tens of thousands of years to rely on humans for their care — bears maintain their wild instincts and have needs that cannot be met in an enclosure. “These are still wild animals. They haven’t undergone genetic changes,” Williamson says. If zoos were serious about conservation, he says, they would be paying for park rangers and habitat protection instead of breeding animals. “All you are doing is bringing more babies to draw in more willing tourists to gawk at them in captivity,” he adds. Liz Tyson, another animal rights advocate and program director at Born Free USA, said one of the most harmful practices is breeding bears for profit. Twelve baby bears were

born at Bear World this year. Six stayed and will be the center of the park’s bottle-feeding experience. The others were sent to zoos, sanctuaries and “places like that,” a tour guide explained during our visit. Casey Anderson, a naturalistwho previously worked at Bear World and has told his story in a book and on National Geographic shows, said animal handlers at the park would confiscate the babies at a few weeks old after tranquilizing the mother bear while she was sleeping. A public petition to the USDA written by eight animal welfare groups in 2012 argues the separation of big cats or bears shortly after birth for the purpose of cub-petting or bottle-feeding is distressing for both mother and baby, and prevents the development of key survival tactics. Deseret did not receive a comment from Bear World regarding this at the time of publication. “From a developmental position, from an emotional position, they need to be with their mothers for the natural period of time; they need to not be handled by humans, because that will potentially cause psychological, emotional and behavioral issues for them for their entire lives,” Tyson says, before also noting that most breeders don’t remove puppies and kittens from their mothers before they are weaned. Annual breeding is not sustainable at a facility with limited space, and because Bear World does not raise all the bears it breeds, animal transfer records cite where some baby bears have been sent away from Bear World. USDA animal transfer records show that in addition to sending a bear to Joe Exotic in 2013, Bear World sent several bears in 2000 to Troy Hyde of Animals of Montana, whose captive animal permit was revoked last year after more than a dozen Animal Welfare Act violations — including violations against bears and other animals. In 2003, Bear World shipped a cub to Predators in Action in California, which hired out the cub for film appearances. The business no longer provides animals to the entertainment industry after the bear killed a handler in 2008. And over the last decade, Bear World has sent Bear World has sent at least 65 cubs and 19 adult bears to Gregg Woody — an animal broker in Illinois who has been cited for sending bears to slaughter — with some bears transferred while Woody’s license was suspended by the USDA. However, the federal Animal Welfare act places full responsibility on the sus-

pended exhibitor when it comes to obtaining animals during their suspension, so Bear World is not considered at fault. Courtney Ferguson says Bear World only trades animals with USDA-certified institutions and the primary purpose is to keep genetics diverse and prevent inbreeding. “It’s standard practice in the industry,” he said. “I see nothing wrong with it.”

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Animals are just one part of the equation when it comes to zoos and private animal exhibits. Humans are the other half, and some experts, like Rob Vernon, senior vice president of communications and strategy for the Association of Zoos and Aquariums, say that accredited facilities — which Bear World is not — are a boon to people and help conservation efforts by supporting research and education. For example, more than 130 AZA- accredited zoos provided over $220 million in funding for conservation initiatives in 2019, not to mention contributing $16 billion a year to the U.S. economy, according to AZA. The research is divided on how people’s attitudes are affected by seeing and interacting with captive animals. Two long-term studies published in the International Zoo Yearbook in 2013 showed how public involvement in reintroduction programs for native freshwater fish, including behind-the-scenes aquarium tours and classroom experiences, piqued public interest and fostered appreciation and compassion for these species. Another 2016 study from the scientific journal Zoo Biology showed that visitors who had up-close encounters with elephants at the San Diego Zoo reported greater importance of having elephants in the wild and scored higher on willingness to do conservation actions. Two earlier studies from 1978 and 1989 showed people experienced increased fear of animals after a zoo visit as well as the tendency to describe them as “less graceful, less dignified, and of less value” than students who saw them in a natural setting. And a 2011 report published in the journal Plos One demonstrated that people who saw pictures of humans with chimpanzees were more likely to assume they are not an endangered species and think they would make good pets. Bekoff, the behavioral ecologist from Colorado, says there is a huge value in learning about animals, but there are better ways to

do it than viewing wildlife in captivity. Curious people can gain just as much, if not more, from watching documentary footage of animals as they live in the wild, he suggests. Increasingly, zoos from Houston to the Bronx are using interactive, virtual experiences to increase access to wildlife education and capture an audience’s attention. “The vast majority of people, even if they learn something, don’t contribute to future conservation projects in terms of money,” Bekoff says. “That’s the bottom line.”

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A group of Bear World workers enters the cub enclosure at the center of the park. The baby bears, kept separate from the adults, cling to their human caretakers with all four limbs, like human children holding onto their mothers. “This one has to be cuddled before he will eat,” a woman with a blond ponytail says as the six-month-old cub sucks on her neck. The animals already have long claws they use to paw at each other and their human feeders, reminding me for a moment that, though born and bred at a park, these animals are wild. When the handlers finally pull out the baby bottles, the bears are better behaved, sitting still on wooden platforms while they guzzle the white formula. The crowd, including an older couple from Rexburg with season passes and a young family from Washington state that is road-schooling its children, ogles the baby animals. There’s no denying, they are absolutely adorable. I’m smiling and so is everyone around me. Leaving the park, the sound of carnival rides wanes in the distance. I can’t help but wonder, what happened to the six babies that were shipped out of the park? And what will happen to the 75 other bears as new cubs are added to the collection every year? The animal experts and activists I talked to are clear: Private wildlife exhibits do not benefit the animals enclosed. Whether or not the experience of seeing wildlife up close can prompt support for conservation comes down to the individual. Opinions about Bear World and its practice of breeding bears for business depend on where a person’s opinions fall on the spectrum of animal rights. But I wonder how many people come to Bear World and don’t ever consider the ethics. Bear World is not a zoo. But whatever you decide it is depends on what you want to see. JULY/AUGUST 2021 45

LETTER FROM THE FIELD

FOR THE SAKE OF A CINNABON OUR PERSONAL INDULGENCES AT THE AIRPORT AREN’T A SECRET. THEY’RE A DESIGN BY FEN DI WA N G

ith the pandemic waning, airline travel is back in full swing. That’s good news for the Salt Lake City International Airport, which opened a new expansion in September. Once the expansion is complete, it will be large enough to accommodate 32 million passengers annually as they fly around the globe. Of all the places that coerce us into a state of designated idling, few offer the anonymity and transience to behave in ways we would not otherwise if we were not soon launching 30,000 feet into the air. Being inside an airport terminal is to experience a blip in human ambition. On the other side of a security check used to detect metal and our ability to follow instructions, we become nonessential, tasked to find a restroom, browse, eat, shop and sit. Our surroundings, short of an anthropological “place,” prompt us to act accordingly — arbitrary, hedonistic and apt to do things a little differently from our “normal” selves. I call this “Secret Airport Behavior.” If you’ve paged through a magazine that you’d never subscribe to while eating a snack you’d normally turn your nose up at, that’s Secret Airport Behavior. If you’ve tested out varied seating configurations from gate to gate before settling on one near a window that seems optimal for productivity or paid to get into an airline lounge, that’s Secret Airport Behavior. If you’ve sauntered down halls debating whether to pick up geographically enthusiastic merchandise — “I Heart Dallas!” — or grab a Starbucks beverage worth half your daily caloric intake, that’s Secret Airport Behavior. It feels secretive because we think no one is watching us. But no one has to. The architects and designers who built airport terminals

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knew how we’d act inside of them when the blueprints were being drawn, long before passengers walked into the terminal. Matt Needham, director of aviation and transportation at HOK — an architecture, engineering and urban planning firm that oversaw the design for the new, $4.1 billion Salt Lake airport — knows not every passenger on a flight will sit at a gate at the same time. “Some percent of customers

A CINNABON MAY PRESENT AS A REWARD, BUT IT’S NOT AN INDULGENCE AS MUCH AS IT IS AN ACT OF AUTONOMY.

are going to be dining or shopping until 15 minutes before the flight,” he says. That shouldn’t make sense considering no one goes to the airport to eat or shop or have their nails painted, and yet, many of us do all those things before rushing to our gate at the last minute. It’s all by design. According to InterVISTAS, an aviation consulting company founded in Vancouver, British Columbia, modern concourses (meaning concourses built since the ’90s) are wider for comfort, as well as curvy and directionless to pique curiosity. They are also optimized to attract right-handed cus-

tomers (that’s 90% of us) by placing concessions to the right, where we tend to look first. Shops are clustered to create a “marketplace” ambiance and encourage “pinballing” between vendors. “If you’re walking to your gate and see one store, you might just pass by, but if all of the sudden you’re flanked on either side by a series of storefronts, you feel like you’re in a shopping district and subconsciously are more willing to shop,” Needham says. He admits that his Secret Airport Behavior is finding an out-of-the-way spot to people-watch, “both fellow travelers and the operations folks on the ramp below.”

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In almost every airport in the United States, we’re inundated with familiar boutiques, logos, restaurants and even duty-free shopping centers we must pass through to find our gate. Maximizing “dwell time” (as it’s known in airport lingo) is critical to airport designers, specifically the first 60 minutes post-security when they know we feel most spendy. That “golden hour” is meant to convert us from stalled, frantic passengers into valued, relaxed customers. “Flying is stressful,” environmental psychologist Dak Kopec says. “And unfortunately, every step has an unknown variable that adds to that level of stress.” There’s the risk your shuttle breaks down. That your overweight luggage forces you to rearrange piles of laundry, hunched over, exposing impatient bystanders to your underwear. All the while, your personal space is compromised, civilian virtue is put to the test and your bladder is yielding to the remaining liquids you chugged while power walking to the check-in. For most of us, travel-

related stress is well-tolerated, but Secret Airport Behavior proves it’s not inconsequential. “I have never bought a Cinnabon outside of the airport,” Kopec, a person who values health and fitness, says with a laugh. He divulges that

his other Secret Airport Behavior is walking laps, preferably in Chicago O’Hare’s underground tunnel between the B and C concourses in Terminal 1, where moving walkways churn beneath mirrors and rainbow-colored neon

lights give off a “nightclubby feel.” His Cinnabon, gooey and searingly sweet, may present as a reward, but Kopec knows it’s not an indulgence as much as it is an act of autonomy. “There are so many things out of my control, JULY/AUGUST 2021 47

so many restrictions put on me now,” he says. “I’m going to have that Cinnabon and I’m going to make sure it’s loaded with butter, because I would never eat that in my normal life.” Sally Augustin, an environmental psychologist and principal at consultation firm Design with Science, says our purchases — uncharacteristic or not — could be our way of distinguishing ourselves from the herd. “A Cinnabon can even be used to claim territory,” she says. Its pungent scent creates an olfactory zone around its carrier, an overlooked but common technique used to stake ground. “We also manipulate visuals by putting our sweater on the seat next to us so no one else can sit,” she says. This behavior is called “nesting.” Associated with birds collecting sticks and mud, “nesting” is our instinct to create protected space — and it kicks in while we wait to board our flights. Nesting gives us a sense of control, which we lose the moment we step inside an airport. Whether we try to regain that control by buying something frivolous or acquiesce by paying for something necessary — $5 for a bottle of water hurts our conscience more than our wallets — airports are designed to make us shell out.

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L ast year, the Airports Council International found the average revenue per passenger was $17.95, with $7.03 of that being nonaeronautical revenue — meaning it’s not related to your ticket. The total cost per passenger, however, was $13.76, “illustrating the importance of developing sources of nonaeronautical revenue to bolster the revenue collected from aeronautical activities.” In other words, airports need more ways to take our money. Concession and retail space in Salt Lake City’s new airport will be 120,475 square feet after phase three of construction is completed — more than five times the concessions space of the previous airport. “It used to be coffee shops and a place to grab a book, but the idea of a concession is becoming more like an amenity,” Salt Lake airport designer Needham says. Inside San Francisco International Airport, which has the highest per-passenger spend in the country, you can buy a Montblanc pen for $285, he says. In Singapore Changi Airport, there are two movie theaters and a butterfly garden. Airports like Dallas/ Fort Worth International and Vancouver International boast high-end day spas where you can hydrate your skin before climbing into a cabin with less than 20% humidity. “It’s not stuff you 48 DESERET MAGAZINE

need anymore — it’s stuff you may be interested in,” Needham says. “The quality of our time is more important now than ever.” Designers and environmental psychologists know how quality can give us both the experience we want, and also subtly make us better travelers and customers. According to reciprocal determinism theory, our actions are influenced by where we are — and vice versa. If you’ve ever splurged in London Heathrow Airport or studied a 19th-century Dutch masterpiece at Rijksmuseum in Amsterdam Schiphol Airport, your Secret Airport Behavior is designed to be elite and proper, thanks to help from your surroundings. “If you’re in an international terminal seeing luxury brands and nice things, you’re likely to behave with greater civility and think, ‘How do I fit into this?’” K opec says. “In a lesser environment, you start to see poorer behavior.” Adult tantrums evidence another theory: the frustration-aggression hypothesis. People are more likely to act up if there are frustrations in attaining their goals. What’s worse — when the source of frustration cannot be challenged, the aggression is displaced onto an innocent target. Ticket agents, flight attendants and survivors of any customer-facing job know this better than anyone.

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Today, concessions and retail dominate air-

port terminals. But it didn’t used to be this way. Until the 1990s, holding areas were small and bare, optimized for aircraft efficiency and ambivalent to passenger joy. Many U.S. airports are owned by state and local governments, which contract out numerous services, such as retail, to private firms. Part of the business model requires airlines to pay rent to lease space. It wasn’t until airports, which act as landlords, realized concessions could help offset operating costs that an emphasis on customer experience drove airport design. In Europe and Asia, where some airports operate as for-profit businesses and are often publicly traded, owners have even larger incentives to make money. In 1951, Shannon Airport in Ireland became the first airport to offer duty-free shopping — an invention by its own catering comptroller, Brendan O’Regan, after international travel bounced back from World War II. By the ’60s, duty-free hit the States, first in Hawaii. Today, global travelers spend $77.87 billion in duty-free and travel sales annually ($155 billion is projected for 2027), and

40% of all airport funding comes from nonaeronautical revenue like retail, concessions, rental car operations and in-airport advertising. Pat Askew, director of aviation at international design firm HKS, who’s collaborated with planners at most major airports in cities including Los Angeles, Chicago, New York, London, Tel Aviv, Doha and Dubai and is currently updating Terminal 1 at San Francisco’s airport, says his basic philosophy in leading a design team is to minimize choice. Remember, we want the illusion of variety, but having too much of it stresses us out — fickle, aren’t we? “You shouldn’t come to a fork in the road and have three similar options,” he says. “My ideal terminal is one where I know where I’m going without having to look for a sign.” Surprisingly, signs in airports are not meant to stand out, leaving you to intuitively weave your way to shops and — eventually — to your gate. Signage typefaces are in one of three sans-serif fonts in 75% of airports worldwide: Helvetica, Frutiger or Clearview. Look them up and be stunned at their plainness. As it turns out, in a transitory environment where a captive audience needs to feel in control of themselves, simplicity is king. That’s why Askew’s design mantra is such: It’s all about the passenger. In the future, he wants to see more areas for children to play, for busy people to work and more functions of convenience so you can have a burger delivered to your gate. Or in his case, a McDonald’s breakfast sandwich. It’s on brand, considering that a “bacon, egg and cheese on a bagel” is his Secret Airport Behavior, he says. “Nothing scandalous!”

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Steven Spielberg’s 2004 film “The Termi-

nal” stars Tom Hanks as Viktor Navorski, a stranded Eastern European traveler forced to live inside John F. Kennedy International Airport after a revolution back home renders him stateless and unable to enter the U.S. Navorski walks around panicked and confused, he scarfs down junk food, he falls asleep where he isn’t meant to, and he catches the eye of an attractive stranger. The plot — dire as may be — is balanced by his wit, charm and creative resourcefulness. “How will he not only survive but entertain himself inside an airport terminal for so long?” becomes the question scene after scene. Navorski prevails in a unheroic, yet relatable way. It’s Secret Airport Behavior at its finest.

YEARS EST 2001

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SECTION

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BY J ON MEACHAM

T H E A M E R I CA N STO RY I S S U STA I N E D BY A B E L I E F I N

P R O G R E S S D U R I N G T H E G LO O M I E ST O F T I M E S

ILLUSTR ATI ON S BY CRAIG FRAZIER

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Like many of his countrymen, Harry Truman was no saint on matters

of race. He used racial slurs in private, and in 1911 while courting his future wife, Bess, he wrote to her that he was “strongly of the opinion that Negroes ought to be in Africa, yellow men in Asia and white men in Europe and America.” A child of border state Missouri, he was the descendant of enslavers who loved Robert E. Lee and hated Abraham Lincoln. And after his White House years, Truman at times sounded reactionary, dismissing the March on Washington as “silly” and speculating that demonstrations against Jim Crow were inspired by Communists. But as president of the United States, he saw his duty whole. Truman’s work on civil rights, including his focus on ending lynching and his decision to integrate the American military, was in part driven by his horror over brutal attacks like one in South Carolina, where a severe police beating to the face of a newly discharged Black soldier had blinded the man. “My God!” Truman said. “I had no idea it was as terrible as that! We’ve got to do something!” In his public capacity he transcended the limitations of his personal background. “My forebears were Confederates. … But my very stomach turned over when I learned that Negro soldiers, just back from overseas, were being dumped out of Army trucks in Mississippi and being beaten,” he told Democratic leaders. “Whatever my inclinations as a native of Missouri might have been, as President I know this is bad. I shall fight to end evils like this.” Hence the need for federal action to fulfill the nation’s promise on voting, employment, housing, criminal justice and public accommodations. Southerners, in particular, were aghast; the speaker of the Mississippi House of Representatives, Walter Sillers Jr., said Truman was proposing “damnable, communistic, unconstitutional, anti-American, anti-Southern legislation.” At a White House luncheon for the executive committee of the Democratic National Committee, a committee woman from Alabama, Mrs. Leonard Thomas, confronted the president. “I want to take a message back to the South,” Mrs. Thomas said to Truman. “Can I tell them you’re not ramming miscegenation down our throats? That you’re for all the people, not just the North?” The president thought the moment was right for a history lesson. Then and there, in front of the leaders of his party in a contentious time just ahead of a closely fought presidential election, Truman reached for American scripture — the Bill of Rights. Taking a copy of the Constitution from his pocket, the president, in his flat Missouri accent, began to read. “‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,’” Truman said, then moved on from amendment to amendment, enumerating the

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liberties of the people — all of the people. When he finished, he declared himself immovable on civil rights. “I’m everybody’s president,” Truman told Mrs. Thomas. “I take back nothing of what I propose and make no excuses for it.” A White House waiter, an African American, was said to have become so animated by the tense exchange that he inadvertently knocked a cup of coffee out of Truman’s hands. “Those — the Bill of Rights — applies to everybody in this country,” Truman said, still addressing his visitor from Alabama, and “don’t you ever forget it.” Recalling the moment years later, Truman laughed. “I was just thinking of that old woman’s face when I started reading her the Bill of Rights,” he said. “It was quite a sight. … But you know something? It’s not a bad idea to read those 10 amendments every once in a while. Not enough people do, and that’s one of the reasons we’re in the trouble we’re in.”

In his long retirement in Independence — he lived for nearly 20 years after leaving the White House — Truman often mused about history and the presidency. Dictating to his secretary or to his wife or daughter and in scribbled notes to himself, the 33rd president was characteristically plainspoken. “You never can tell what’s going to happen to a man until he gets to a place of responsibility,” Truman observed. “You just can’t tell in advance, whether you’re talking about a general in the field in a military situation or the manager of a large farm or a bank officer or a president. … You’ve just got to pick the man you think is best on the basis of his past history and the views he expresses on present events and situations, and then you sit around and do a lot of hoping and if you’re inclined that way, a certain amount of praying.” You just can’t tell. Sobering words, but we still have to try, or else the whole democratic enterprise becomes even less intelligible than it already is. History — which is all we have to go on — suggests that a president’s vices and his virtues matter enormously, for politics is a human, not a clinical, undertaking. So, too, do the vices and virtues of the people at large, for leadership is the art of the possible, and possibility is determined by whether generosity can triumph over selfishness in the American soul. It’s easy to be cynical about, and dismissive of, such a view. But if natives and newcomers alike can live up to the American idea of inclusion, then our best instincts will carry the day against our worst. To think this angle of vision hokey fails to take the common sense of our history into account. As a matter of observable fact, the United States, through its sporadic adherence to its finest aspirations, is the most durable experiment in pluralistic republicanism the world has known. Other national revolutions have descended into dictatorship and persecution; ours has produced enviable, if fragile, democratic institutions.

T im e a nd ag a in, L i n c o l n ’s b et t e r a n ge ls h av e f o u n d a way to p r eva i l JULY/AUGUST 2021 53

In the main, the America of the 21st century is, for all its shortcomings, freer and more accepting than it has ever been. If that weren’t the case, right-wing populist attacks on immigrants and the widening mainstream wouldn’t be so ferocious. A tragic element of history is that every advance must contend with forces of reaction. In the years after Lincoln, the America that emancipated its enslaved population endured an uneven Reconstruction and a century of regional revanchism. Under Theodore Roosevelt and Woodrow Wilson, the America that was rapidly industrializing and embracing many progressive reforms was plagued by theories of racial superiority and fears of the “other” that kept us from acting on the implications of the promise of the country. In the age of Franklin Delano Roosevelt and of Harry Truman, the America that rescued capitalism redefined the role of the state to lift up the weakest among us and defeated fascism fell victim to racial hysteria and interned innocent Americans of Japanese descent. Truman and Dwight D. Eisenhower played critical roles in building an America of broadening wealth, and there was the beginning of progress on civil rights, in roughly the same years the country was roiled by McCarthyism and right-wing conspiracy theories. The only way to make sense of this eternal struggle is to understand that it is just that: an eternal struggle. And the only way to come to that understanding is by knowing the history that’s shaped us. “The next generation never learns anything from the previous one until it’s brought home with a hammer,” Truman once said. “I’ve wondered why the next generation can’t profit from the generation before but they never do until they get knocked in the head by experience.” So what can we, in our time, learn from the past, even while we’re getting knocked in the head? That the perfect should not be the enemy of the good. That compromise is the oxygen of democracy. And that we learn the most from those who came before not by gazing up at them uncritically or down on them condescendingly but by looking them in the eye and taking their true measure as human beings, not as gods. Which brings us to the moral utility of history. It is tempting to feel superior to the past. But as Arthur Schlesinger Jr. once said, “Righteousness is easy, also cheap, in retrospect.” When we condemn posterity for slavery, or for Native American removal, or for denying women their full role in the life of the nation, we ought to pause and think: What injustices are we perpetuating even now that will one day face the harshest of verdicts by those who come after us? One of the points of reflecting on the past is to prepare us for action in the present. As Truman knew — and the visiting Southerner, to her discomfort, learned at that White House luncheon — the presidency offers possibilities for such action that are both dazzling and daunting. “The President,” Woodrow Wilson wrote, “is at liberty, both in law and conscience, to be as big a man as he can.” In an echo of that point, in his speech at American University in June 1963 proposing a ban on nuclear testing, John F. Kennedy said, “Man can be as big as he wants.”

In his post-presidential notes, Harry Truman was candid about the tricky nature of democracy. Yes, much of the nation’s fate lies in the 54 DESERET MAGAZINE

hands of the president, but the voters have the ultimate authority. “The country has to awaken every now and then to the fact that the people are responsible for the government they get,” Truman wrote. “And when they elect a man to the presidency who doesn’t take care of the job, they’ve got nobody to blame but themselves.” As usual, the old man was on to something. Truman had immense regard for FDR’s longtime adviser Harry Hopkins, who also believed the followers mattered as much as the leader. Hopkins told Robert Sherwood on the day of FDR’s White House funeral, “now we’ve got to get to work on our own.” Hopkins and Sherwood, though, were working in a national context of hope; FDR and Truman came out of the best of the American tradition of leadership. To those presidents the nation was rising, not falling. It was already great, and could be made greater. In our own moment, fears of American decline are pervasive. Every generation tends to think of itself as uniquely challenged and under siege. The questions of the present assume outsize and urgent importance, for they are, after all, the questions that shape and suffuse the lives of those living in the moment. Humankind seems to be forever coping with crisis. Strike the “seems”: Humankind is forever coping with crisis, or believes it is, and will until what William Faulkner described as “the last red and dying evening.” We have managed, however, to survive the crises and vicissitudes of history. Our brightest hours are almost never as bright as we like to think; our glummest moments are rarely as irredeemable as they feel at the time. How, then, in an hour of anxiety about the future of the country can those with deep concerns about the nation’s future enlist on the side of the angels?

The battle begins with political engagement itself. It involves resisting

tribalism, respecting facts and reason, while also finding a critical balance and keeping history in mind. Theodore Roosevelt put it best: “The first duty of an American citizen, then, is that he shall work in politics; his second duty is that he shall do that work in a practical manner; and his third is that it shall be done in accord with the highest principles of honor and justice.” Those who disdain the arena are unilaterally disarming themselves in the great contests of the soul, for they are cutting themselves off, childishly, from what Oliver Wendell Holmes Jr. called the “passion and action” of the age. One need not become a candidate (though that’s certainly an option worth considering) or a political addict hooked on every twist and every turn and every tweet. But the paying of attention, the expressing of opinion and the casting of ballots are foundational to living up to the obligations of citizenship in a republic. To believe something creates an obligation to make that belief known and to act upon it within the arena. Politicians are far more often mirrors of public sentiment than they are molders; that is the nature of things in a popular government and should be a source of hope for those who long for a change of presidents or of policy. In “The English Constitution,” Walter Bagehot defined public opinion as “the secret pervading disposition of society” that reveals itself in elections. But of course how we participate in those elections and disposition shaping is of equal importance.

A M E R I CA N P R E S I D E N T S A R E N OT M Y T H I CA L . T H EY A R E

H U M A N B E I N G S W I T H G O O D A N D BA D DAY S

RESIST TRIBALISM Engagement, especially at a time of heightened conflict, has its perils: Those motivated by what they see as extremism on the other side are likely to view politics not as a mediation of difference but as total warfare where no quarter can be given. The country works best, however, when we resist such tribal inclinations. “We know instinctively,” Jane Addams wrote, “that if we grow contemptuous of our fellows and consciously limit our intercourse to certain kinds of people whom we have previously decided to respect, we not only tremendously circumscribe our range of life, but limit the scope of our ethics.” Ever practical, Eleanor Roosevelt offered a prescription to guard against tribal self-certitude. “It is not only important but mentally invigorating to discuss political matters with people whose opinions differ radically from one’s own,” she wrote. “For the same reason, I believe it is a sound idea to attend not only the meetings of one’s own party but of the opposition. Find out what people are saying, what they are thinking, what they believe. This is an invaluable check on one’s own ideas. … If we are to cope intelligently with a changing world, we must be flexible and willing to relinquish opinions that no longer have any bearing on existing conditions.” If Mrs. Roosevelt were writing today, she might put it this way: Don’t let any single cable network or Twitter feed tell you what to think. “I have been fiercely partisan in politics and always militantly liberal,” Harry Truman recalled. “I will be that way as long as I live. Yet I think we would lose something important to our political life if the conservatives were all in one party and the liberals all in the other. This would make us a nation divided either into two opposing and irreconcilable camps or into even smaller and more contentious groups.”

RESPECT FACTS AND DEPLOY REASON There is such a thing as discernible reality. Facts, as John Adams once said, are stubborn things, and yet too many Americans are locked into their particular vision of the world, choosing this view or that perspective based not on its grounding in fact but on whether it’s a view or perspective endorsed by the leaders one follows. “The dictators of the world say that if you tell a lie often enough, why, people will believe it,” Truman wrote. “Well, if you tell the truth often enough, they’ll believe it and go along with you.” To reflexively resist one side or the other without weighing the merits of a given issue is all too common — and all too regrettable. By closing our minds to the even remote possibility that a political leader

with whom we nearly always disagree might have a point about a particular matter is to preemptively surrender the capacity of the mind to shape our public lives. Of course, it may be that you believe, after consideration, that the other side is wrong — but at least take a minute to make sure. FIND A CRITICAL BALANCE Being informed is more than knowing details and arguments. It also entails being humble enough to recognize that only on the rarest of occasions does any single camp have a monopoly on virtue or on wisdom. American presidents are not mythic figures. They are human beings, with good days and bad days, flashes of genius and the occasional dumb idea, alternately articulate and tongue-tied. If we are sympathetic rather than blindly condemnatory or celebratory, we will, I believe, help create a more rational political climate. One evening in 1962, as part of a series of what the Kennedys called “Hickory Hill seminars” (they had started at Robert F. Kennedy’s house in McLean, Virginia) in which a small group of high-ranking officials would have dinner and listen to an informal lecture by a visiting scholar, the historian David Herbert Donald was chatting with President Kennedy and other guests in the Yellow Oval Room. The conversation turned to presidential rankings, and Kennedy burst out: “No one has a right to grade a president — even poor James Buchanan — who has not sat in his chair, examined the mail and information that came across his desk, and learned why he made his decisions.” Fair enough, but this injunction of Theodore Roosevelt’s remains resonant: “To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public.” Even with their manifold failings, journalists who seek to report and to illuminate rather than to opine and to divide are critical to a democracy. “Publicity is the very soul of justice,” the English philosopher Jeremy Bentham wrote. “It is the keenest spur to exertion, and the surest of all guards against impropriety. … Without publicity, all other checks are fruitless: in comparison with publicity, all other checks are of small account.”

KEEP HISTORY IN MIND A grasp of the past can be orienting. “When the mariner has been tossed for many days in thick weather, and on an unknown sea, he naturally avails himself of the first pause in the storm, the earliest glance JULY/AUGUST 2021 55

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of the sun, to take his latitude, and ascertain how far the elements have driven him from his true course,” Sen. Daniel Webster said in 1830. “Let us imitate this prudence, and before we float farther on the waves of this debate, refer to the point from which we departed, that we may at least be able to conjecture where we now are.” To remember Joe McCarthy, for instance, gives us a way to gauge demagoguery. Writing in 1959, five years after the senator’s fall, Richard Rovere reflected on the meaning of McCarthy. “I cannot easily conceive of circumstances in which McCarthy, either faulted as he was or freed of his disabling weaknesses, could have become President of the United States or could have seized the reins of power on any terms,” Rovere wrote. “To visualize him in the White House, one has, I think, to imagine a radical change in the national character and will and taste.” There was, though, no guarantee against such a radical change. “But if I am right in thinking we have been, by and large, lucky,” Rovere wrote, “there is no assurance that our luck will hold.” And it didn’t. The past and the present tell us, too, that demagogues can only thrive when a substantial portion of the demos — the people — want him to. In “The American Commonwealth,” James Bryce warned of the dangers of a renegade president. Bryce’s view was not that the individual himself, from the White House, could overthrow the Constitution. Disaster would come, Bryce believed, at the hands of a demagogic president with an enthusiastic public base. “A bold president who knew himself to be supported by a majority in the country, might be tempted to override the law, and deprive the minority of the protection which the law affords it,” Bryce wrote. “He might be a tyrant, not against the masses, but with the masses.” The cheering news is that hope is not lost. “The people have often made mistakes,” Harry Truman said, “but given time and the facts, they will make the corrections.” Lincoln, who gave us the image of our better angels, should have the last word. “He was a president who understood people, and when it came time to make decisions, he was willing to take the responsibility and make those decisions no matter how difficult they were,” Truman wrote. “He had a good head and a great brain and a kind heart. … He was the best kind of ordinary man, and when I say that he was an ordinary man, I mean that as high praise, not deprecation. That’s the highest praise you can give a man, that he’s one of the people and becomes distinguished in the service that he gives other people. I don’t know of any higher compliment you can pay a man than that.” 56 DESERET MAGAZINE

In the summer of 1864, the 166th Ohio Regiment called at the White House. The volunteer infantry had seen action some weeks before when Confederate general Jubal Early — the Jubal Early who would, after Appomattox, become one of the most influential defenders of the Lost Cause — had moved against Washington. Headquartered at Silver Spring, Maryland, Early was, he recalled, “in sight of the dome of the Capitol.” The federal troops mounted a stand and held their ground. Lincoln, who observed the battle firsthand, came under enemy fire; “a man,” his secretary John Hay wrote, “was shot by his side.” Lincoln never flinched. “He stood there with a long frock coat and plug hat on, making a very conspicuous figure,” one observer recalled of the commander in chief. “Get down, you damn fool!” a young officer, Oliver Wendell Holmes Jr., of the 20th Massachusetts, was reputed to have snapped at the president. To the veterans returning to Ohio after the battle, Lincoln made some brief remarks as they prepared to go west. No one knew when the war would end; no one knew if Lincoln, who was facing reelection in November, would even be president in a matter of months. He spoke not with the poetry of Gettysburg, but his words on that August day said much about why the salvation of the Union would repay any price in blood and toil and treasure. The tall, tired president, his face heavily lined, his burdens unimaginable, was straightforward. “It is,” he said, “in order that each one of you may have, through this free government which we have enjoyed, an open field, and a fair chance for your industry, enterprise, and intelligence; that you may all have equal privileges in the race of life with all its desirable human aspirations — it is for this that the struggle should be maintained, that we may not lose our birthrights — not only for one, but for two or three years, if necessary.” And, finally: “The nation is worth fighting for, to secure such an inestimable jewel.” For all of our darker impulses, for all of our shortcomings, and for all of the dreams denied and deferred, the experiment begun so long ago, carried out so imperfectly, is worth the fight. There is, in fact, no struggle more important, and none nobler, than the one we wage in the service of those better angels who, however besieged, are always ready for battle. This essay is an adapted excerpt from Pulitzer Prize winner Jon Meacham’s book “The Soul of America.”

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THE MAN IN THE MIDDLE MANY ON THE RIGHT DON’T LIKE CHIEF JUSTICE JOHN ROBERTS. OTHERS SEE HIM AS PROTECTING THE INSTITUTION. IS HE THE LAST BULWARK AGAINST RANK PARTISANSHIP? BY S A RA H ISG UR ILLUSTRATIONS BY DAV ID PLUNKERT

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Here’s something you may not know unless you’re part of the insu-

lar world of Federalist Society shindigs or closely follow the Supreme Court: Legal conservatives of a certain stripe don’t like Chief Justice John Roberts. Despite being nominated by George W. Bush, and despite his previous job as a clerk for conservative stalwart William Rehnquist, Roberts has few allies among the people you might expect to champion him. I don’t mean in a behind-his-back, frenemy sort of way. It’s more of an all-out “you can’t sit with us” Regina George in “Mean Girls” way. They don’t like the reasoning in his legal opinions. They don’t like his style of writing in legal opinions. They don’t think his jokes from the bench are funny. They think he’s arrogant, self-important and, well, “chiefy.” In short: They don’t think he’s one of them. Take this scene from a few years back. A half-dozen or so men and women in business attire file into the Mayflower Hotel. About six blocks from the White House, the place is about as old-school Washington as you can get. Dark corners. High-backed leather booths. The men and women, all conservative legal scholars — the kind that Republican presidents turn to when it’s time to nominate judges — engage in a parlor game. Who would you rather have on the Supreme Court today: Chief Justice John Roberts or Harriet Miers — the long-forgotten Bush nominee booted from confirmation after senators deemed she didn’t have the constitutional law chops. The laughter that booms through the Mayflower bar makes the answer clear. At least Miers would vote “the right way.” I talked to more than a dozen former clerks and colleagues going back to the Reagan administration, as well as court watchers and leaders in the conservative legal movement to try to elaborate on why Roberts has become persona non grata to many on the right. Though he rolled in on the high tide of the conservative legal movement — under the auspices of a conservative White House just as the enormous influence of the Federalist Society was coming into full view — to many of the conservative legal observers I interviewed, Roberts seems more concerned with protecting the court’s reputation than interpreting and applying the law. Most of the people I spoke with did so on condition of anonymity — D.C. is a small town after all. As is the custom, the chief justice himself declined to comment. While his harshest critics believe that he is undermining the rule of law and further politicizing the court, others can’t help but see something more noble in his efforts to hold together one of America’s most important institutions, a last bulwark in preventing the court from descending into rank partisanship. On one point, everyone seemed to agree: John Roberts has his own way of putting the “chief ” in chief justice.

In 2010, observers noticed something odd in the standard court press release announcing the newest justice: “Elena Kagan will be sworn in as the 100th Associate Justice of the Supreme Court.” (Emphasis added.) Just the year before, Sonia Sotomayor was announced as the 111th justice to the Supreme Court. But, according to multiple people I spoke with, the chief justice thought the distinction important enough to order the change himself. Indeed. The Supreme Court website currently 60 DESERET MAGAZINE

says, “The Honorable John G. Roberts, Jr., is the 17th Chief Justice of the United States, and there have been 103 Associate Justices in the Court’s history.” The change was much noticed inside the court, ruffling his colleagues as well. When Roberts joined the court in 2005, the other eight justices had served together at that point for 11 years and some for longer — then justices John Paul Stevens and Sandra Day O’Connor had served together since she joined the court in 1981. Roberts hadn’t been promoted to chief from the associate position as predecessor Chief Justice William Rehnquist had. He’d only even been a judge for two and a half years at that point. And now this upstart justice wasn’t just changing a line in a press release; he was announcing that he stood somehow separate from them. But what if John Roberts was trying to explain his own judicial philosophy? Perhaps he changed the website because, in his view, lumping together the jobs of chief justice and associate justice is like comparing the attorney general to the postmaster general. I’ve puzzled over Roberts and the way he operates on the court myself. As a first-year law student, I joined the Federalist Society in the midst of the Roberts nomination. By my second year, I was elected president of the Harvard Federalist Society and later clerked for Edith Jones, a Federalist Society mainstay considered by many to be one of the most conservative judges in the country. By statute, the chief justice is chancellor of the Smithsonian, chairman of the judicial conference and — as we’ve been reminded recently — is constitutionally charged with presiding over an impeachment trial of a sitting president in the Senate. And as Roberts is fond of saying, “the most important difference is that I get 10,000 extra dollars.” The role of a chief justice is best described as primus inter pares — first among equals. He may only have one vote, but he opens and moderates the conversation in the justices’ internal deliberations after a case is heard. If he is in the majority, he alone decides which justice writes the opinion — a process he has said he enjoys and describes as “a riddle or a puzzle to try to get everything to fit together.”

If a screenwriter tried to sell a script with a fictional John Roberts figure as chief justice, it would likely be rejected as a little too on the nose. After graduating from Harvard Law School and clerking for then-Associate Justice William Rehnquist, a young John Roberts was hired into the Reagan administration, becoming a favorite of Attorney General William French Smith before ascending to the deputy solicitor general under Ken Starr during the elder Bush’s presidency. In private practice, he was and is considered the best Supreme Court advocate of the modern era. It’s not just his resume. His piercing blue eyes, strong jawline, dimpled chin and perfectly coiffed hair made him look like a Federalist Society lab experiment titled “judicial conservative.” As he sat across the dais from the grizzled senators in a town that is often referred to as “Hollywood for ugly people,” he stood out. If they ever do make a movie about John Roberts from those days, he could easily be played by Jeremy Northam who, in the Showtime series

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“JOHN ROBERTS IS WHAT GOT US AMY CONEY BARRETT,” A WHITE HOUSE OFFICIAL INVOLVED IN CONFIRMATIONS TOLD ME.

“The Tudors,” played Thomas More — another lawyer who found his conscience did not fit in too well with the politics of his era. Roberts wasn’t the favored choice among legal conservatives, especially members of the Federalist Society, which law students had founded in 1982 and was coming of age by 2005. It was no longer a few acolytes of Justice Antonin Scalia in a basement at the University of Chicago. By the time Roberts was nominated that fall, the Harvard chapter alone boasted 500 members and thousands of lawyers, judges and academics from around the country attended the national conference. Out of its awkward adolescence during the late ’90s — when Starr’s team comprised members the likes of Alex Azar, Rod Rosenstein and Brett Kavanaugh — the Federalist Society finally had an opportunity to weigh in on a Supreme Court nomination during a friendly administration. It came down to two people: John Roberts and Michael Luttig. They were the same age. They’d both clerked on the Supreme Court and worked in the Reagan administration, but Luttig was clearly the more impressive of the two on paper. He’d been a federal appellate judge for 14 years by that point, after being nominated when he was only 37 years old. Roberts had been nominated back then but the Democratic- controlled Senate never even moved to vote for his confirmation — perhaps giving a false sense that he’d been blocked because of his conservative credentials. Nearly every single one of Luttig’s clerks had gone on to work for justices Scalia or Clarence Thomas — a singular sign that Luttig himself was destined to join them. By the time he was nominated, Roberts had only been on the D.C. Circuit for two years. His closest brush with hot-button constitutional issues was a case about a 12-year-old girl handcuffed for eating a french fry on a subway platform. But Bush himself was highly involved in the process and after meeting with both men, it wasn’t a close call. He “fell in love with John Roberts,” said one person closely involved in the process. In an era in which they needed 60 votes in the Senate, it was a no-brainer. Roberts would shine on camera as “the golden boy from Bethesda,” said David Lat, the founder of Original Jurisdiction, a newsletter and website about law and the legal profession. Passed over for the main event and increasingly frustrated with the Bush administration, Luttig left the bench altogether the next year. After it became fait accompli, the conservative legal eagles in D.C. gave breathless statements to the press. Ted Cruz — who had clerked for Luttig — wrote that Roberts was “undoubtedly a principled conservative,” a “brilliant” lawyer, who would “carefully, faithfully apply the Constitution and legal precedent.” Behind closed doors they were less certain. “There were enough warning signs that smart people in the White House detected it,” added Lat. “People were concerned he was a squish but there was no real way to know,” said a person who was involved in his confirmation, “We had people at the Reagan library going through everything they could find.” There just wasn’t evidence either way. “He was … sassy … and some of his memos were hysterical from those days,” this person continued, “but the thing that gave me pause: He was just too slick. He had so carefully cultivated an image to ensure confirmation.”

Conservatives are associated with two methods of interpretation: originalism and textualism. Originalism is considered “the one true faith” for legal conservatives, as one longtime Supreme Court advocate put it. It is the idea that, according to Scalia, the Constitution “means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.” Textualism is another conservative methodology — as textualist and Fifth Circuit Judge Don Willett described it, “Text is the alpha and the omega of the interpretive process.” The two schools aren’t in tension exactly, but they aren’t the same either. An originalist is always a textualist, but a textualist doesn’t necessarily have to be an originalist. And so this brings us to the question at hand: What is the judicial philosophy of John Roberts? At his confirmation hearing, he described the role of a judge “to call balls and strikes, and not to pitch or bat.” Conservatives at the time interpreted it as code decrying the liberal methodology of judicial activism, and so did liberals. It was assumed he’d be no different than his conservative brethren already on the court: Scalia and Thomas. Then came the Affordable Care Act. In 2010, after Obamacare went into effect, 26 states sued the federal government, arguing that the individual mandate — which required those who failed to purchase and maintain a minimum level of health insurance to pay a tax penalty — exceeded Congress’ constitutional power “to regulate commerce … among the several states.” As the case wound its way through the courts, it became clear it would be decided in the run-up to the 2012 presidential election and became a flashpoint for both sides. President Barack Obama didn’t hesitate to weigh in — signaling that he would run against the court itself if his signature legislation wasn’t upheld in its entirety. After oral arguments in March, CBS News reported, the chief had sided with his conservative colleagues, wanting to strike down the mandate. But by May, a steady drumbeat in the press and from the Oval Office warned of “damage to the court” — and to Roberts’ reputation — if the court were to strike down the mandate.” He switched his vote. He announced the opinion of the court in June 2012 — just over four months before the 2012 presidential election. His majority opinion was joined by justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan upholding the law — his first time siding with the four Democratically appointed justices in a 5-4 decision — but his reasoning stunned even the closest court observers. “The way Roberts delivered his bench statement … the guys from the SGs (solicitor general’s) office thought they’d lost,” said someone who was in the courtroom that day. “Their body language looked crestfallen. And then he said, ‘However.’” Roberts wrote that Congress did not have the power to compel people to buy health insurance under the commerce clause. But that the mandate was a lawful exercise of their taxing power, despite Obama himself denying that the mandate was a tax back in 2009. The outrage from the right was immediate and it burned hot. “We JULY/AUGUST 2021 63

Chief Justice John Roberts

had not yet experienced the kind of betrayal from someone who looked the part,” said one person involved in the chief justice’s confirmation. “Obamacare was where he announced to the world that he was willing to base his vote on an analysis that he couldn’t possibly have arrived at but for the overriding influence of some felt obligation to protect the institution by controlling the outcome of the decision,” as one legal conservative said. But then, three years later he not only sided with the dissenting conservatives in the landmark 5-4 ruling that the 14th Amendment required the legalization of same-sex marriage, he also did something he’d never done before: He read out loud from his dissenting opinion, a rare act reserved only for the most strongly held disagreements. “This Court is not a legislature,” he wrote. “Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.” In 2016, he voted with the conservative dissenters to uphold a Texas law that would have restricted access to abortion facilities in the state. Four years later, he flipped sides to join the liberal justices to uphold a Louisiana abortion law nearly identical to the Texas one he’d just voted to strike down. He upheld President Donald Trump’s highly politicized travel ban in 2018. But then he refused to allow the Trump administration to add a citizenship question to the census or roll back the Obama-era Deferred Action for Childhood Arrivals executive order, holding that the Trump administration had failed to give clear enough reasons for the rollback in its rescission letter and that it would need to issue a new letter. “The chief takes seriously his role as the keeper of the Supreme Court flame,” Starr, Robert’s old boss, told me. “I think that effort to protect the institution may explain some of his more controversial decisions.” One former Roberts colleague put it more bluntly: “He has very deliberately and purposely chosen not to bring a judicial philosophy to his position of chief justice. If one has no judicial philosophy or chooses not to bring it to the job, he is ‘free’ to decide each case as he wants, unteth64 DESERET MAGAZINE

ered and unconstrained by any method of principled decision-making. The law becomes whatever that one wants it to be.” Predicting the outcome of cases became even harder. While the other justices often show their cards in the questions they ask the advocates for each side, Amy Howe, co-founder of Scotusblog, noted that the chief is consistently the “hardest to read at oral argument” and pondered whether “minimalism is a philosophy or strategy.” The golden boy from Bethesda was now an enigmatic swing vote on the court.

In the run-up to 2016 election, Roberts seemed to be hedging his bets, assuming he was just as likely to be the chief of a liberal majority court as a conservative one. He certainly looked prescient. “The chief was sitting there thinking, ‘I’m going to be on the losing end of a 5-4 court, and I need to figure out a way to retain my influence with the people who may end up becoming the five,’” as one former clerk described the sentiment. But the shadow of John Roberts loomed large in the judicial selection process for the Trump administration. “The goal was to find people who would not be like him,” one White House official put it, “The utter frustration around Roberts meant we had to get it right this time.” Once Anthony Kennedy retired, Roberts would be the swing vote and so the pick to replace Kennedy needed to be reliably conservative but also able to woo Roberts. Someone like Brett Kavanaugh. “A virtue of (Kavanaugh) was the perception that he would have a meaningful relationship with the chief and keep him on the reservation,” as someone involved in Kavanaugh’s selection put it. Kavanaugh was perfect — for starters, he’d been on the Bush team that worked to confirm Roberts as chief justice in 2005. During Kavanaugh’s time on the D.C. Circuit, a good portion of the chief justice’s

clerks had worked for him at the lower court — a reliable sign of respect and friendship between a Supreme Court justice and his “feeder judge.” Kavanaugh’s brutal confirmation process only further cemented the relationship. The chief gave a speech just a few weeks later and opened his remarks by “touching upon the contentious events in Washington of recent weeks” going on to quote the newly sworn-in Kavanaugh that “we do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest, we serve one nation.” And when Sen. Chuck Schumer attacked justices Kavanaugh and Neil Gorsuch by name on the steps of the court, the chief issued a rare public rebuke, saying “threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous.” And it seemed to be going to plan. In his first full term on the court, Kavanaugh voted with Roberts 94% of the time — more than any other pairing — and put the two of them in the majority more than any of the other justices as a new conservative middle. In that first year, they joined with the conservatives to uphold partisan gerrymandering and they joined with the liberals to stay the execution of a Buddhist man who wanted his spiritual adviser to be present — arguably a win for religious liberty even if it was a liberal one. But when liberal icon Ginsburg died on a Friday night in September 2020, everything stopped in Washington. Scalia had died with nine months until the 2016 election — more than enough time to confirm the judge nominated as his successor, Merrick Garland. Republicans controlled the Senate, however, and then-Majority Leader Mitch McConnell wouldn’t budge. It was an election year, Republicans argued, and the voters should get to decide, knowing that they had nothing to lose if Clinton won — a liberal vote was a liberal vote even if she picked someone to the left of Garland — and everything to gain if an open Supreme Court seat motivated even a few more Republicans to head to the polls in November. Now, in 2020, history was repeating itself, except only 45 days remained until the election. “John Roberts is what got us Amy Coney Barrett,” a White House official involved in confirmations told me. If conservatives had already had a reliable fifth vote on the court — once Kavanaugh had replaced Kennedy two years earlier — Republicans may not have been able to overcome the political cost of hypocrisy for filling Ginsburg’s seat so close to a presidential election. Roberts’ days as the fifth vote were over.

With the Biden administration under pressure to “pack the court” by adding new justices to counter the conservative majority, the institution hasn’t been so imperiled since the days of Franklin Delano Roosevelt — when the progressive president felt a conservative court was unfairly striking down his ambitious New Deal programs and threatened to add liberal justices. Roberts may have hoped that his most recent abortion and DACA cases would deny the left the rallying cry they needed to get buy-in from Democratic leadership. So far his bet is paying off — Biden has only gone so far as to create an exploratory commission, and most political pundits agree that little else will come of it. “The chief has guided the court in such a way that makes it hard for one party just to say this place has become absolutely political and we need to change it,” one former clerk said. “This attempt (to add seats to the court) has died, so that may not be unrelated to his stewardship of the court.” But that was before Barrett joined the court and the chief became the superfluous sixth vote. And before Roe v. Wade was on the chopping block. In the last months of the term, the court has agreed to hear its

first Second Amendment case in a decade and to decide whether Mississippi’s ban on abortions after 15 weeks is constitutional — a direct challenge to Roe v. Wade. Roberts’ court may be set to decide the most controversial case since Bush v. Gore next year. And it’s not at all clear where the chief will land — or whether his voice will matter. While the right may hope his vote is irrelevant, he has handed them plenty of wins through the years. And even his most heretical opinions provided plenty for conservatives to feast upon. Sure, he upheld the individual mandate in Obamacare, but only after narrowing Congress’ use of the commerce clause for the first time in nearly two decades. He struck down Louisiana’s abortion restrictions but, in doing so, he also considerably narrowed the court’s legal test on abortion — arguably the biggest Supreme Court win for the anti-abortion movement in a decade. As one longtime advocate explained it: “He is trying to protect the court as an institution while doing the least amount of violence to conservative principles.” But elevating such institutional considerations comes with a cost. If the political branches see the lengths to which the chief is willing to go to keep the court out of the political fray — as they surely do — then they’re further incentivized to ratchet up their threats to do just that. And as the pace of credibility-preserving outcomes necessarily picks up to meet the ever-increasing peril, the actual credibility of the court may well decrease. “The chief justice has made abundantly clear that foremost in his mind is whether a particular decision the court makes or does not make will further or lessen the public’s perception of the Supreme Court as essentially a political institution,” one longtime leader within the conservative movement told me. “This has predictably had the polar opposite effect from what the chief mistakenly thought; the court is perceived as much more political today than when he arrived.”

John Roberts’ judicial legacy will be written by history — perhaps by the 18th or 19th chief justice who can look back and definitively answer whether Roberts saved the rule of law by shielding it from the harsh winds of our early-21st-century political polarization or whether his political machinations undermined the very institution he was charged with protecting. But he doesn’t seem too concerned at this point. After all, he’s still got a job to do. He eats salads on most weekdays and indulges in a nearby burger and milkshake when he works on the weekends. The wit that he displays on the bench is even more apparent in chambers. He’s quick to return phone calls and emails from former clerks eager to tell him about their latest career moves or family updates. He tells anyone who visits his office about the couch in his inner office where John Quincy Adams died. Most Americans, of course, will never know that John Roberts, and he seems fine with that. In a rare public appearance, Chief Justice Roberts said that he wasn’t bothered that Americans couldn’t name justices on the court. “In some sense, I think that’s probably a very good thing. We wear black robes to convey the notion that our individual views (and) personality (do) not have anything to do with the function we have to play in terms of coming to a correct decision on the law.” On his deathbed, perhaps the chief justice will say some version of what Thomas More said before him: “I die the Law’s good servant, but the Court’s first.” JULY/AUGUST 2021 65

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D EN V ER PO L I C E ACAD E MY CAD E T DAR I L “DAR I O” CI NQUANTA, 1970

TH E FU GITIV E A ND T HE C H AM EL E ON FIFTY YEARS

AGO, A POLICE SHOOTING SET

IN MOTION A THE

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AMERICAN

FAMILY,

WEST. A STORY OF

IDENTITY

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MANHUNTS

ACROSS

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THE HISTORY

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The fishing rods were already in the van when Mario Montoya and

his father, Ramon, pulled out of the driveway. An elementary school in northern New Mexico, where the Montoyas lived in the late 1980s, had once used the vehicle, an old, powder-blue Ford Econoline, for deliveries, so there were no back seats. Mario often rode on the floor, leaning against a wall as the Econoline creaked around corners. But on fishing days like this, when father and son ventured to the lakes north of Santa Fe or along the Rio Grande, Mario sat up front, next to his dad. Radio tuned to a local Spanish-language station, the van’s faded plaid orange curtains swaying as Ramon cranked the wheel, they reached this day’s spot. A bank near the river’s bend. The Black Mesa loomed nearby, rising from the desert shrubs. Mario, 10, knew how to catch a fish. How to gut it and clean it. The Montoyas didn’t have a lot of money. Ramon cobbled together odd jobs, laying flagstone, building fences, fixing cars. He and Mario often spent entire days trying to catch their next meal. Dinner that night could be meager if they didn’t, so both were attuned to the familiar tug on the line when their prey had taken the bait. But this afternoon the tug at Ramon’s line didn’t come from a trout. Instead, an eel, slick and spectral, maybe two feet long, zagged just below the water’s surface. “Get the net,” Ramon yelled, “get the net.” The boy scooped the black, squirming creature out of the river only to watch it slide through a hole in the nylon net and writhe at his feet. Ramon quickly dropped his rod and grabbed the eel with two hands. But it escaped again, slipping from Ramon’s grip. As the eel disappeared back into the water, Mario stood wide-eyed and, not for the first time, in awe of his father. Ramon Montoya was always quick to action. Yet he was a careful man, so slow to trust other people, watching strangers warily, listening quietly. He hated to draw attention to himself. Mario would eventually develop the sense that his dad was always looking over his shoulder. What Mario didn’t know at the time, as they stood at the river’s edge, stalking their own quarry, was that, beyond the Black Mesa and the desert, up north in the Rockies, someone was hunting Ramon Montoya.

--Not

Ramon Montoya exactly. Mario’s father had gone by many names. Luis Archuleta. Lawrence Pusateri. The man the son knew as Ramon was just a fraction of his way into what may be one of the longest fugitive runs in U.S. history — a 50-year game of cat-and-mouse that played out across the West, from the streets of Colorado to the shores of California and many dusty, sun-bleached points in between. In this saga of mixed identities, not even the identity of Ramon’s pursuer is fixed. Daril Cinquanta, a one-time “super cop” who waged a half-century campaign to collar Mario’s father cultivated a crime-thrillerready persona he characterized as “chameleon.” Over time, one thing became certain, a part of verifiable history, stamped into the public record. In the fall of 1971, the man eventually known as Ramon Montoya shot the man known then as officer Daril Cinquanta during a brief encounter in Denver. Cinquanta bled in the street. Montoya ran. Like a modern Inspector Javert, forever in pursuit of his Jean Valjean, the cop didn’t let up. And just as in Victor Hugo’s famous tale, the two men became locked in a chase that spanned decades, each changing through the years to adapt to the circumstances. Caught in the middle was a son whose own identity would come 68 DESERET MAGAZINE

unglued. Because Mario Montoya, who grew up listening to Spanish- language radio and identified as Hispanic, whose surname suggests a Latino ancestry, had another lineage. His father, it turned out, wasn’t Hispanic at all.

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Depending on which record you consult, an FBI bulletin or the recol-

lections of an old friend, Mario’s father was born Lawrence Pusateri in Brooklyn or the Bronx, on Jan. 6, 1943. Italian immigrants like his parents settled in both New York boroughs. But the Pusateris didn’t stay. When he was still a child he moved to California, where his mother, Ida, remarried a man from East Los Angeles. That part of the city drew immigrants from around the world, but it was slowly becoming a Mexican American neighborhood. Many migrants to the United States were drawn to the affordable housing and jobs in East LA, which had a reputation for being more welcoming to outsiders than elsewhere in the city. Pusateri learned Spanish and assimilated with the culture. He started to identify as a Chicano. The word was once a pejorative for someone of Mexican descent born in the United States, but by the 1960s, it had been embraced by political activists seeking social justice. Pusateri believed in this movement advocating for civil rights for Chicanos. But he also got in trouble. Arrested before he turned 16, he dropped out of high school. In June 1964, at age 21, he was convicted of burglary. In 1966, and again in 1967, he was convicted of possession of narcotics. In 1970, he was convicted once more of both burglary and drug charges and sentenced to up to 15 years in prison. More than a year into his sentence, at a low-security facility for nonviolent offenders in Vallecito, Pusateri hatched what would be the first of two escapes. One spring day in 1971, he tucked pillows under a blanket so that it looked like he was lying in bed and slipped away. Maybe he walked 80 miles to Sacramento or disappeared into the pine trees to the east. By the time anyone noticed he was missing, Pusateri was far enough away that authorities couldn’t find him. Eventually, he made it to Denver, where Crusade for Justice, a Chicano rights organization, was based. Both Italians and Mexicans lived in the Sunnyside neighborhood in North Denver. A small green space in the community was called Columbus Park, named for the Italian explorer. But it was central to the Chicano movement, and even the police called it “La Raza Park.” When Pusateri showed up, he introduced himself as Luis Archuleta. No one suspected he was Italian. Everybody liked the eager newcomer. He wore a Crusade for Justice pin on a green cap. They called him Tingo. He was out one night in October 1971 with another activist when the men met two women. They decided to go to the Quigg Newton housing project not far from La Raza Park. The next morning, Archuleta and the women were sitting and talking outside the project in a Chevy that one of the women owned. That’s when patrolman Cinquanta drove by.

--Half a century earlier, another family embarked for the United States

from Italy. Joseph Cinquanta and his wife moved to Ridgway, Pennsylvania, where, in 1917, they had a son, Frank. He married another Italian

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immigrant, Rosetta. In 1948, Dario Francis Cinquanta was born. But Frank and Rosetta’s love story wasn’t a long one; she left, and he leaned on his mother and brothers to help raise his son. When Dario was seven, they all moved together to Riverside, California. A few years later, they settled in Colorado. The Cinquantas were a restaurant family. In Riverside they ran an Italian spot called the Alpinian, and in Boulder, Dario helped his dad and uncle haul rocks to cobble together a new establishment. He peeled potatoes for the family recipes the Matterhorn served. At night, they all slept upstairs. Dario was a mischievous boy, sneaking Communion wafers and wine at the Catholic school where he attended elementary school. The nuns ruled with yardsticks and rubber-tipped pointers, and they twisted Dario’s ears and slapped his hands, but it didn’t inhibit his increasingly wild behavior. In fourth grade he was expelled for sneaking to the neighboring junior high school and getting into a fight. Public school didn’t suit him any better. He got into more scuffles and was kicked out of Fairview High School, bouncing to Boulder High School for his senior year. But before he could get his diploma, he was expelled again, “for being wild, drag racing, drinking beer and smoking in the parking lot,” he later wrote. He wasn’t a likely candidate to become a police officer; he had racked up so many tickets that he lost his driver’s license. But a cousin encouraged him to apply to police academies. He got his GED and when he started as a cadet at the Denver Police Training Academy, in March 1970, he was no longer Dario, a name he had always hated. He was Daril. In a photo the department took of the 21-year-old recruit, Daril Cinquanta smiles shyly, eyes cast to something outside of the frame, hair swept neatly to the side. A badge gleams on his breast — number 7014. He was excited. Back then, he recalls, police were treated with respect and were “liked by citizens and feared by bad guys.” Cinquanta wanted to catch “bad guys.” Patrolling District One in North Denver one day, he thought he saw one.

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Cinquanta’s shift was almost over on Oct. 3, 1971, when he stopped to

get doughnuts and chocolate milk at Winchell’s. It was a gloomy, cold morning, and he wanted to pick up a newspaper at Sunnyside Drug. He planned to go to his dad and stepmother’s house later to see the brothers and sisters who came along after his dad remarried. Most Sundays, they gathered for a spaghetti dinner. He was about a block from the drugstore when he passed a black Chevy parked outside of the Quigg Newton project. The man in the passenger seat was sporting sunglasses and a green cap that Cinquanta thought looked like something Fidel Castro would wear. He had a goatee. And, Cinquanta would later say, the man didn’t turn to look at him. Cinquanta parked, walked up to the front passenger window and asked the man for identification. He acted like he didn’t understand, speaking with what Cinquanta thought was a Mexican accent. Then he handed the officer a wallet. Inside was a Social Security card. The name on it, “Luis R. Archuleta.”

Cinquanta told him to get out. He wanted to pat the man down to make sure he didn’t have any weapons. That’s when the man drew a revolver, he said. Cinquanta punched him. The sunglasses and hat went flying. Then there was a shot and the man sprinted away. Cinquanta crawled, bleeding, to the radio in his cruiser and called for help. Collapsed in the car, he listened for the sirens. The bullet had ripped through his uniform, his liver, out his back. Medics rushed him to Denver General Hospital and he was wheeled into surgery in critical condition. The mayor and police chief stopped by. His dad and stepmom brought spaghetti and meatballs. By Wednesday, Cinquanta had recovered enough to give interviews. He told the Denver Post he was touched that so many people had inquired about his health. He said he was eager to return to police work. And when a Rocky Mountain News reporter asked if he would feel animosity toward Chicanos, considering the man who had shot him had been identified as one, he shook his head. “I don’t think so,” Cinquanta said. “That would be like hating all cops, because a person had a run-in with a bad one.”

--Archuleta slipped across the U.S.-Mexican border, where he was ar-

rested in Monterrey in December 1971, two months after the shooting. He said he was tortured as a suspected soldier in the guerrilla army of a Mexican revolutionary — according to Chicano historian and activist Ernesto Vigil — but court records state that he was picked up on drug trafficking charges. He spent about six months in jail there before Mexican authorities delivered him to Denver police officers waiting on the other side of the Rio Grande in Laredo, Texas. In photos taken around that time, the goatee was gone. A thick mustache hung heavy over his lip. The Denver County District Attorney’s Office charged Archuleta with assaulting a police officer with a deadly weapon and assault with the intent to murder. Prosecutors alleged that he had shot Cinquanta with “no considerable provocation” and that the circumstances of the shooting “showed an abandoned and malignant heart.” They had also figured out who he was. The criminal complaint against Archuleta included an alias: “AKA Lawrence Pusateri.” He pleaded not guilty to the charges, and at one point his public defenders sought unsuccessfully to change his name in the case. His actual name, according to the motion that was filed, was Lorenzo — not Lawrence. His lawyers argued that he had only ever used the name Lorenzo Pusateri, and that charging him as Luis Archuleta denied him his constitutional right to a fair trial. It was the prosecution’s job to prove that he was Luis Archuleta if the state wanted a conviction, they said. Among the witnesses Denver County paid to fly to Colorado for the trial was a woman from Montebello, California: Pusateri’s mother, Ida Ortado. Prosecutors asked her to identify a child in the photo found in the wallet handed to Cinquanta before the shooting. According to the officer, who was in the room that day, Ida said it was Larry Jr., a son Pusateri had back in LA. Cinquanta also testified during the trial, and the jury listened to a recording of him crying for help when he radioed dispatch after he was shot. He showed jurors where the bullet tore through his body. On

C I N Q UA N TA C R AW L E D, B L E E D I N G , TO T H E R A D I O I N H I S C R U I S E R A N D C A L L E D F O R H E L P. CO L L A P S E D I N T H E C A R , H E L I ST E N E D F O R T H E S I R E N S . 70 DESERET MAGAZINE

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March 13, 1973, the jury found Archuleta guilty of assaulting a police officer with a deadly weapon but acquitted him of assault to murder. His lawyers appealed to the judge. In the weeks after the shooting, they said, Cinquanta initially identified another person as the shooter. He also said during a cross-examination that he didn’t even see a gun until after “he had struck the person who later assaulted him,” according to the lawyers. The judge nevertheless sentenced Archuleta to nine and a half to 14 years in prison. He would be eligible for parole in 1978. He wasn’t going to wait around that long.

--In Aug. 15, 1974, Pusateri and four other incarcerated men arrived at Colorado State Hospital in Pueblo for medical appointments. There were only two corrections officers accompanying them, but Pusateri and at least one other man, Sidney Riley, were shackled with irons around their arms and legs. One of the officers, Henry Schulze, had left the room where the men were waiting when the second officer, Stanley Thomas, told Pusateri he could use the restroom. One minute passed and then another. Thomas noticed that the restroom door was open but Pusateri didn’t emerge. As he approached he heard Pusateri asking for help. But when he reached the door, Pusateri was pointing a weapon at him. Somehow the inmate had acquired a revolver. He ordered Thomas into the restroom and used the arm and leg irons he had been wearing to restrain him. Then he stuffed a handkerchief in Thomas’ mouth.

Schulze was returning to the waiting room when he encountered Riley, who had also obtained a gun. As he marched Schulze down the hallway, Pusateri joined them and they nudged Schulze into the restroom with Thomas and then fled through a back door. How Pusateri and Riley got their weapons, and whether they had help, is unclear. But a witness said they saw a brown sedan pull away with the men in it. Police in Pueblo recovered the stolen car, and a few days later, Denver officers arrested Riley. But Pusateri got away again.

--Lawrence Pusateri — Luis Archuleta — vanished. But another man

emerged: Ramon Montoya. And within a few years, around the time the FBI was putting out a wanted poster for the prison escapee, Montoya had met and married his wife, Darlene. The couple had three children. Mario, the eldest, and two girls. The family moved again and again and again. One house didn’t have running water, and Mario would splash himself with well water to bathe. Their food came from fish they caught or animals Ramon would slaughter in the yard. If they needed wood to warm their home, Ramon would chop it. Sometimes, if Mario misbehaved, his dad would send him to swing the ax instead. But Mario loved splitting the logs outside. Ramon, meanwhile, never seemed quite content. As a kid Mario was often left alone. His parents didn’t ask him how school went, he says, and if he needed help with his homework, he would read and reread the material to try to understand. Like his father, he could be solitary. Like his father, he didn’t like to stand out. Still, JULY/AUGUST 2021 71

Daril Cinquanta nearly three years after the shooting

Ramon kept a close circle of friends, and he was loyal to them. Sometimes, they would play music; Ramon took his guitar nearly everywhere. He loved to play “Stand by Me,” by Ben E. King, and he crooned “Amarillo by Morning,” a bittersweet tune about a down-on-his-luck rodeo cowboy still holding his head high. Mario’s parents separated around the time he was in third grade, and he moved in with his grandmother, though he still saw his dad on weekends. The contrast between the two homesteads was stark. In his grandmother’s fridge, Mario would find deli meat from the grocery. At his dad’s, he might get sent outside to kill a chicken. When Mario graduated from high school, his dad bought him his first car, a three-cylinder Subaru Justy. Ramon was always working on cars; he had a red Ford Festiva that he kept running for more than 500,000 miles. The Justy didn’t make it so long. Mario got a job working for a law firm, where he was responsible for procuring bottled water and soda for clients. On one trip to Sam’s Club, he overloaded his car and cracked the transmission. It was the sort of thing his dad maybe could have fixed, but not Mario, who was visiting Ramon less and less. The son was growing up, and as he did, his life forked away from the life of his father.

--Daril Cinquanta liked to catch fugitives. “That’s what his specialty was,”

says Larry Britton, a former Denver police captain. As he made more and more felony arrests, and his profile grew, Cinquanta reveled in the attention. He clipped newspaper stories about his cases and hung them in

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frames on a wall in the home office that he called his “Ego Room.” In October 1977, he made detective. Within a year, Denver Magazine published a profile that called him the city’s “toughest” and “mostfeared” officer. By then Cinquanta had become known in the media as a “super cop” and he looked the part — prodigious mustache, hair grazing his shoulders, pant legs flared wide. He carried around what he called his “Bad Guy Book,” a collection of mug shots and notes about suspects and informants, what kind of car they drove, how they walked. Cinquanta was prolific, but he wasn’t universally beloved. One man, a person who identified as Mexican, told Denver Magazine he felt harassed by Cinquanta in front of his kid. There was tension in the police department, too. Cinquanta had printed personal business cards that said, “Crimefighter,” drawing the ire of a division chief who called him arrogant. Jerry Kennedy, another former division chief, was warned against bringing Cinquanta into his unit. “This guy is nothing but trouble, Jerry,” Kennedy recalls the colleague saying. Kennedy disagreed — Cinquanta was a racehorse. “And my theory was you have to put a racehorse in with the rest of them and then they have to keep up with him, otherwise they’re just a bunch of plough horses,” he says. Cinquanta would later dismiss the blowback as petty jealousy, resentful people threatened by his success. And he blames that ill will for the 17 felony charges that were brought against him and another officer accused of perjury, doctoring evidence and entrapment in 1989. The case stemmed from a burglary and allegations that Cinquanta helped set it up. He’s backed up by Kennedy, who calls the whole thing a “humbug deal.”

“They never proved a thing on Daril,” he says. “But they had an opening and they wanted to get him and they got him.” Cinquanta pleaded guilty to two misdemeanor counts of official misconduct and retired on disability due to a lupus diagnosis. But he was sad to leave policing behind, and he felt abandoned by some officers he had considered friends. Soon, however, he was forging a new persona. Cinquanta started a business he called Professional Investigators Inc. He sent letters to defense lawyers soliciting work, digging up dirt that could help their clients. And though it paid nothing, he kept chipping away at a case that first put him in the public eye. He was still looking for Pusateri. He had come close once, the year after his shooter escaped prison. He got a tip that Pusateri was staying in a hotel in San Jose, California, but by the time police arrived, he was gone. As Cinquanta continued investigating, reaching out to informants, calling Pusateri’s friends and relatives, Cinquanta heard he had traveled to Denver and Los Angeles but also New Mexico. Cinquanta sent three letters to “America’s Most Wanted,” asking if the TV show would feature the case. In 2009, the host, John Walsh, traveled to Denver to interview Cinquanta and film a fictionalized shooting. The actor playing Cinquanta wore the exact uniform the officer was wearing when he was shot. The episode shows Cinquanta at his computer, working on his forthcoming memoir, “The Blue Chameleon: The Life Story of a Supercop.” Walsh appealed to viewers to help Cinquanta finish it. “There’s one chapter of Daril’s book that he’d really like your help on,” he said. “You see, right now he’s not real happy with what he’s got to work with for an ending. The bad guy in this chapter is the only man who ever got the drop on Daril.”

--Ramon Montoya was driving outside of Española, New Mexico, one

night in November 2011 when a state police officer pulled up behind him, lights flashing. Montoya kept driving. The officer then turned on his siren, but Montoya still didn’t stop. He heard the crackle of a loudspeaker. The officer’s voice blared on the street as he ordered Montoya to pull over. Finally, he hit the brakes. Someone had reported a red Ford Festiva hitting a curb and running a light. Montoya claimed he had only had two beers, according to an arrest affidavit. But the officer thought his eyes looked bloodshot and watery. In his police report, he said Montoya slurred, couldn’t walk straight during a field sobriety test and smelled strongly of alcohol. The officer cuffed Montoya’s hands behind his back and put him in the patrol car. He was booked at the state police office in town on a charge of driving while intoxicated. Later that day, he was released, and the following year he got lucky. The case was dismissed after the officer failed to show up for the trial.

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The day Daril Cinquanta turned 72 — June 24, 2020 — his phone

rang. It wasn’t one of his siblings calling to wish him happy birthday or a grandkid chirping hello. “I thought about it,” the caller said. “And I decided to tell you where he is.” Then the person suggested Cinquanta look up Ramon Montoya in Española, New Mexico.

Soon Cinquanta found himself squinting at the mugshot from Montoya’s 2011 drunken driving arrest. He had bags under his eyes and his face was creased with age. A white goatee was trimmed close to his face and below thick black eyebrows, his gaze was unfocused. Court records said he was born in February 1944, only a year after Lawrence Pusateri. Cinquanta hadn’t laid eyes on the man who shot him in nearly five decades. But he was sure. Cinquanta told Española police what he had pieced together: Pusateri, aka Luis Archuleta, was living in Española under the alias Ramon Montoya with a woman named Esther Chacon, his common-law wife. He gave them an address. Two FBI agents were assigned to investigate Cinquanta’s tip. They searched for Archuleta in a national crime database and found three arrest warrants. One of the agents and an Española officer drove to Santa Fe to interview a woman named Darlene Montoya. They showed her an old FBI wanted poster for Luis Archuleta. There were three photos of the same man, all taken in the early ’70s. The poster listed his tattoos and known aliases. Ramon Montoya wasn’t among them but the words “True Name” were printed in parentheses next to “Lawrence Pusateri.” At first Darlene said she didn’t recognize the man in the photos. But as they kept talking she admitted that she did; she had lied because she was scared, a federal criminal complaint says. The man in the photos was her ex-husband, Ramon. She said they had divorced because he was mean and violent, according to the criminal complaint. (Efforts to reach Darlene Montoya were unsuccessful.) She suggested that the officers talk to her son. Of her three children, he would have the best recollection of their father, she said. On June 29, the officers showed Mario Montoya the FBI poster. Yes, he said; the man in the photos was his dad. He had last seen him around Christmas, at his father’s home in Española. Ramon Montoya’s “true name” was also familiar to the son. He told the officers that several years earlier, his father had revealed his last name was actually Pusateri, according to the criminal complaint. He had wanted Mario’s help finding his mother, Ida. But he was too late. Social Security records show that a woman named Ida Ortado died a few days after her 90th birthday, in 2004. On Aug. 5, officers approached a tan, 1,000-square-foot house owned by Esther Chacon. A chain-link fence separated the property from the street. Pots blooming with flowers lined the covered porch. Pusateri was inside.

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In October, I read a news article about the arrest and about the retired

police officer who tracked down an escapee who had shot him nearly 50 years earlier. After searching for a number, I picked up the phone and called Professional Investigators Inc. Cinquanta answered. He told me he had already given more than 20 interviews about the case and I could see some of them if I searched for his name on YouTube. But that afternoon he agreed to at least one more. He told me about his book, which came out in 2017. “The Blue Chameleon” is 400-plus pages of romantic conquests, professional triumphs and perceived slights. Again and again the author prickles at moments when either he or a colleague did not get their due. It’s why the walls of the office at his Denver suburb home are crowded with framed commendations and yellowed news stories. “I started hanging up because I got no recognition,” Cinquanta says, “or very little, I should say.”

C I N Q UA N TA S E N T T H R E E L E T T E R S TO “A M E R I C A’ S M O ST WA N T E D,” A S K I N G I F T H E T V S H OW WO U L D F E AT U R E T H E C A S E . JULY/AUGUST 2021 73

In February 2021, he gave me a virtual tour of the “Ego Room,” turning the camera away from his face, grayer and older than that shy cadet. He panned over a photo of the police chief shaking his hand in 1972, when Cinquanta got a medal of honor after the shooting. Another with John Walsh from “America’s Most Wanted.” The FBI poster seeking Luis Archuleta. Cinquanta’s old uniform. He pushed his phone forward so I could see the bullet hole, the dried blood that soaked into the cotton like a wine stain. When he enrolled in the police academy, he says, he didn’t even like to speak in front of people. But he grew defiant in the face of a department that he thinks tried to foil him, and he’d go out of his way to make headlines so that his “detractors” would have to read about him in the paper the next day. I wondered if they had seen the same stories I’d read about the ex-cop who helped catch the man who once shot him. “Oh, they went nuts!” Cinquanta says. “Are you kidding? They thought I was dead and gone.” About two decades ago, he married Chris, “a wonderful gal” who cut his hair for years before he proposed at a restaurant in Boulder. He often watches her grandchildren, who are now his grandchildren, too. He still has a spaghetti dinner on Sundays. “Family, family, family,” his brother Matt says, “that’s what makes Daril tick.” But he still keeps working. “He refuses to go away like the rest of us,” Kennedy says. Cinquanta told me that an FBI agent reached out and said that no fugitive had been on the run as long as Pusateri before he was arrested. In fact, at least two men were wanted for longer before they were captured: A Pittsburgh man convicted of murder had posed as a traveling pharmacist and was on the lam for 49 years before he was caught in 2020; an Ohio man who pleaded guilty to manslaughter slipped away from an honor farm in 1959 and hid out for 56 years before authorities apprehended him in 2015. But Pusateri’s case stands out for his multiple escapes and multiple identities over the course of 49 years — 46 of them evading Cinquanta. When it came time for the accolades Cinquanta sought, though, he missed out again. Instead, he lamented to me, the FBI presented a special award to the Española Police Department for its help arresting Pusateri. But the agency snubbed Cinquanta, he says. “They never even said, ‘Hey, nice pinch.’”

closely he’d need to be supervised in custody. He was frequently unemployed. He had been suspended or expelled at least once. He had financial problems. He had suffered from alcohol and drug abuse. He was considered “a social isolate.” Over the course of several months, I tried to reach Pusateri, his partner Esther Chacon, and his lawyer by phone, email and mail, but I didn’t receive a response. A plea hearing was scheduled for June 29. Court filings show that prosecutors floated a deal: two years to be served concurrently with the remainder of his sentence in the 1971 shooting. When I told Cinquanta about the agreement, he exhaled. “Is that all? For being gone 46 years? That doesn’t seem fair, does it?” Next year, Pusateri will be 79. I asked Cinquanta if he believed in redemption, if Pusateri could have changed in the years since he drew that gun and shot him. No, he said. He doesn’t believe in rehabilitation. “A lot of people thought it was just pathetic, I chased a poor, old, sick man and arrested him for escaping,” Cinquanta says. “They thought I was terrible, and they told me to get a life, that I needed help. … If you think he’s led a pure life, no he hasn’t. Has he done anything for society? Not that anyone’s told me.” In some fundamental ways, though, Cinquanta and Pusateri don’t seem so different. Two Italian Americans, the descendants of immigrants, who reinvented themselves in the American West. Pusateri guarded his history, folding up his past and stuffing it away where he hoped the wrong people wouldn’t find it. Cinquanta, meanwhile, has tried to control his legacy. Nearly everyone in this story is suspicious of something, and the more I reported I counted myself among them. I didn’t know if I could trust the names and birthdates in government records; the Colorado Bureau of Investigation lists 21 aliases for Pusateri, four birthdates and two places of birth. Contemporaneous news accounts of the shooting contradicted each other. After 50 years of secrets and faded memories, the truth felt elusive. I’ve wondered about the words “True Name” printed next to Lawrence Pusateri on the FBI’s wanted poster. Cinquanta was born Dario, but for most of his life, he’s gone by Daril. Does Pusateri identify as Ramon, or has he always felt like Lawrence? In the Colorado criminal justice system, he is Luis Archuleta, an alter-ego calcified in court records. When I wrote to him in jail, I wasn’t sure how to address him. Eventually, I just started thinking of him as Mario’s dad.

In the booking photo taken after his most recent arrest, Pusateri’s chin

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is tilted up in defiance or exhaustion or both. He wears what looks like a green hospital gown; a clear plastic oxygen tube hooks over both ears, tracing a line over his mustache, still thick all these years later. His beard has grown longer and whiter. His hair is thinner. The first court date, held virtually over video because of the COVID-19 pandemic, was in August 2020. The next day, in a shaky, cursive hand, he waived his right to an identity hearing and signed a name he hadn’t used in years: Luis Archuleta. He was released from federal custody to face charges from the state of Colorado. Before officers brought him from New Mexico, he asked for medical personnel to be available en route for undisclosed health reasons. Authorities have taken stock of Pusateri’s life, measuring his education and employment history and criminal record to try to gauge how

After his father was arrested, Mario Montoya ordered two books:

Daril Cinquanta’s memoir and “The Crusade for Justice: Chicano Militancy and the Government’s War on Dissent,” written by Ernesto Vigil. He was trying to make sense of what had happened — to understand who his father is, and who he, Mario, is. The books complement and contradict each other. Cinquanta describes thinking that Pusateri looked tough the day he saw him parked outside the housing project. But Vigil’s account of the Chicano experience in Denver made Mario suspect that Cinquanta had racially profiled his father. Lots of men look tough, Mario says, “but that’s no reason to pull them from their car.”

“ FA M I LY, FA M I LY, FA M I LY,” H I S B R OT H E R M AT T S AYS , “ T H AT ’ S W H AT M A K E S DA R I L T I C K .” B U T H E ST I L L K E E P S WO R K I N G . 74 DESERET MAGAZINE

F B I b ulletin f or Ar c h uleta ( A KA Pu s at e r i ) , f o u r y e a r s a ft e r h i s s e c o n d p r i s o n e s c a p e

Mario has always considered himself a Hispanic man, but he has lately found himself grappling with this identity. The first thing he sees when he enters his home is a family coat of arms bearing his name: Montoya. He doesn’t know what to make of the revelation that his father’s name is actually Pusateri. A few years ago, he told Mario some memories of New York, describing his school and the streets he walked down as a child. Mario opened Google Maps and followed along, toggling in and out of street view to show his dad places he hadn’t been to in decades. “Everything he told me, go here, turn here, this is the corner of such and such, this was school and I walked down this street,” Mario said. “He nailed it all without fail. It was one of the cooler moments I ever had with my dad.” He cherishes other memories. He loves the smell of tire stores because they remind him of the times his father would bring home small black bouncy balls made from rubber scraps he had melted. He cooked the best breakfasts, frying up eggs, potatoes and bacon. For years, they would talk about the night they saw a shooting star arc overhead.

But he’s also questioning other aspects of his childhood, reframing what he remembers with the newer information he’s obtained. If he tripped and fell when he was a boy, his father would get upset. Mario didn’t understand why. He wonders now if his dad was worried about what it foretold. “Maybe he felt that if I was clumsy as a child, then I would grow up to be clumsy and possibly make a stupid mistake like he did,” Mario says. A lifetime of missteps, looking over your shoulder even as you try to move forward. Mario’s father, like so many fathers, tried to protect his son. One day, when Mario was maybe eight, he remembers his dad brought home a small film canister of black powder. He shook a little into a line on a piece of paper or foil and then laid down a stick and rolled it up tight, wrapping it with tape. “He was making a bottle rocket,” Mario says. They stood together in the backyard and his dad lit the rocket. It slowly lifted off the ground, sparks snapping in the air. But just as it was about to clear the house, it turned and landed on the roof. His dad rushed to get water, and then he scurried up to make sure their house didn’t burn down. JULY/AUGUST 2021 75

IDEAS

THE CRISIS OF TWO CONSTITUTIONS CAN AMERICA’S COLD CIVIL WAR BE RESOLVED? BY CHA R LES R . KESLER

e have come a long way from Barack Obama’s debut on the national stage at the 2004 Democratic convention, when he assured the delegates, “There is not a liberal America and a conservative America. There is the United States of America.” At last year’s virtual Democratic convention, Michelle Obama corrected the record. “We live in a deeply divided nation,” she warned. “If you think things cannot possibly get worse, trust me, they can.” That was one point at least, on which both sides could agree. In Donald Trump’s words, “We’re in a fight for the survival of our nation and civilization itself.” Angelo Codevilla was not the first analyst to describe our political disorders as a cold (i.e., nonshooting) civil war, but after him the term resonated. A cold civil war, of course, is better than a hot one. But it’s not a healthy situation for a country to be in. Underlying our cold civil war is the fact that America increasingly is torn between two rival cultures, two constitutions, two ways of life. This mutual estrangement has been going on for a long time, but the pace accelerated beginning in the 1960s and again after the end of the Cold War era. The consequence of these changes is that today’s America may be leaving the world of normal politics and entering a dangerous world of regime politics — in which our political loyalties diverge more and more, as they did in the 1850s, between two contrary visions of what constitutes the country. One vision is based on the founders’ Constitution — written in 1787 and ratified in 1788, grounded in the natural rights and practical wisdom of the Declaration of Independence, interpreted in The Federalist Papers and expounded by subsequent American jurists and statesmen. In keeping with its own provisions, this Constitution has been amended — some vital improvements, some not — but broadly recognizable as the founders’ handiwork. The other vision is based on what progressives and liberals for nearly a century now have called “the living constitution.” The term implies that the original Constitution is dead — or at least on life support, in which case, in order to remain relevant, the old frame of government must continually receive life-giving infusions of new meaning, new duties, rights and powers. 76 DESERET MAGAZINE

The doctors who are qualified to diagnose our constitutional maladies and to prescribe and administer these transfusions form a nascent elite or ruling class who attended the best colleges and universities, and who trust themselves and people like themselves to wield almost unchecked power. For example, under the living constitution they favor new kinds of administrative agencies, which concentrate legislative, executive and even judicial power in the same expert hands, even though the founders warned that such concentrations would satisfy “the very definition of tyranny.” But why worry about the misuse of power if your motives are pure, your degrees Ivy League and yours is the right side of history? The resulting constitution — the progressives’ constitution — is not a regime of unchanging natural rights or equal individual rights, but of rights that travel in groups and that vary with the historical moment. The right to health care, for example, is emphatically part of the evolutionary constitution: It is impossible to imagine such a moral claim outside of our stage of economic and social development in a very rich country in a largely peaceful world with doctors, drugs and hospitals in what is fancied, at least, to be surplusage. To borrow from the late constitutional law professor Walter Berns, the founders tried to keep the times in tune with the Constitution; the progressives want to keep the constitution in tune with the times. Until the 1960s, most American liberals believed it inevitable that their constitution would overtake and absorb the founders’ Constitution in a kind of evolutionary convergence. Their progressivism was more postthan anti-constitutional for that reason. But when this didn’t happen, the progressives’ constitution became more aggressive, more eager for Supreme Court justices to overrule popular majorities and precedents, more openly contemptuous of the perceived limits of the founding constitutional order. American conservatives set out at first to limit and then reverse the damage from liberalism’s excesses. Ed Meese put forward his epic call, as Ronald Reagan’s attorney general, for a return to a jurisprudence of “original intent.” Long before that, however, conservatives had contemplated a return to the founders’ Constitution, via both jurispru-

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but wasn’t able to make the GOP the majority party. Since 1968, the dence and elective politics. But the multiplying varieties of originalism norm has been divided government: The people have preferred to split showed that, for all of the conservatives’ supposed determination to recontrol of the national government between Democrats and Republicans turn to the founders’ Constitution, they couldn’t agree about the conrather than entrust it for the most part to a single, majority party. tent or principles of that Constitution, nor about how to recover them. Neither Trump nor President Joe Biden has so far been able to break As for elective politics, the greatest of conservative statesmen, Ronout of this new pattern of stalemate. Both parties continue to lust after ald Reagan, repeatedly urged a return to the old constitutional consenold-fashioned overwhelming victories, but the American people seem sus, but the means to that end eluded him. Amid the great and enduring disinclined to make those dreams come true. If the new pattern holds, the successes of the “Reagan revolution,” its failure to rise to the level of “a parties will continue to alternate control of the presidency and routinely second American Revolution,” as he called it, stands out. It haunts his share control of the government, which means that otherwise sunny farewell address. embittering conflict between the two constitutions When it became clear to liberals and conserwill continue. vatives alike that neither was going away anytime But how long can believers in the country’s syssoon, the cold civil war was on. As a result, the gap temic injustice and believers in its systemic justice between the two constitutions became a gulf, to continue to keep house together? the extent that today we are two countries — or AMERICA If Americans can’t change one another’s minds, we are fast on the road to becoming two countries INCREASINGLY then there is the second possibility of changing the with divergent ways of life. IS TORN subject. Reagan used to say that when the little We increasingly read different books and newsBETWEEN TWO green men arrive from outer space, all of our politpapers, watch different shows, get our news from RIVAL CULTURES, TWO CONSTITUTIONS, ical differences will be transcended and humanity different networks, worship in different churches TWO WAYS will unite. Similarly, if some jarring event occurs and synagogues, live in different parts of the counOF LIFE. like a major war or a natural calamity, it might try, attend different colleges and study different change the focus of, and thus reset, our politics. disciplines, admire different sports and sportsmen, But the COVID-19 pandemic was a pretty seand may even have to eat at different restaurants in vere shock to the system, and it didn’t succeed in order to avoid ugly, partisan harassment. The traredrawing our political lines. On the contrary, it dition of the loyal opposition — meaning opposed quickly became captured by the ongoing political to the party in power but loyal to the same Constiwar. Now the two sides may disagree about face masks, quarantines, tution — is yielding to a new norm of fierce and implacable resistance vaccines, lockdowns and reopenings in addition to the usual issues. So to the other party’s very legitimacy. if we can’t change our minds and won’t change the subject, we are left Our polarization is pervasive and deepening, though it isn’t yet, I with but three ways out of the conflict between the two constitutions. hope, at the point of no return — and therefore, it is still possible that The happiest of these would be a vastly reinvigorated federalism. If America’s cold civil war could be dialed back or even resolved. we had a reflowering of federalism, some of the differences between blue states and red states could be handled at the state level. The most disruptive issues could be denationalized. Let New York have a permissive abortion policy and let Utah have a very restrictive one. But having built a national regulatory state and spent the last cenThere seem to me five possibilities for resolving our contemporary tury doing everything it could to create a national political communicold civil war. The most obvious would be victory by one side or the ty — with interest and identity groups sharing in a national agenda of other. Perhaps liberals or conservatives could persuade a majority of consciousness-raising and programmatic rights — it’s hard to see how, their fellow citizens to embrace their party’s agenda and constitution. at this late juncture, liberalism could imagine, much less accede to, a In the past, that’s how Americans settled their swelling differences, in revival of federalism. so-called realigning elections that handed control to a majority party That leaves two possibilities. One, alas, is secession — a danger to for a generation or two, as in Thomas Jefferson’s breakthrough in 1800 any federal system, as Alexander Hamilton and James Madison exor Andrew Jackson’s in 1828. plained long ago. The Czech Republic and Slovakia went their sepaIn the 20th century, however, only two presidents were able to make rate ways peacefully, just within the last generation. Great Britain via enduring changes in public opinion and voting patterns — Franklin Brexit seceded, in effect, from the European Union after much to-ing Roosevelt and Ronald Reagan. FDR reaped an electoral realignment that and fro-ing. In America, despite the so-called “Great Sorting,” liberals lasted for about two generations, lifting the Democratic Party to majority and conservatives remain intermingled in many regions of the country; status. Reagan effected a realignment of public policy and voting blocs 78 DESERET MAGAZINE

secession would be messy, and therefore would probably not be entirely been torn by a disagreement, often bloody, over whether God’s grant voluntary. In other words, secession might be more an intensification of lawful authority for human government ran through kings or popes. than a termination or alleviation of the cold civil war. Our founders argued that it ran through every human being equally. Years ago I saw a bumper sticker that read: “If at first you don’t secede, They discovered the basis of political obligation in the right of each try, try, again.” The United States did try it once, which led to the fifth and individual to consent to a just government. Thus was natural-rights and worst possibility, namely, bloody civil war. I doubt we want to try it again. divine-right democracy born. Which is why, under present circumstances, America seems to be apAt the same time, religious liberty for all was secured by virtue of proaching some kind of crisis — a crisis of the two constitutions, from the limited nature of the resulting social contract. This new civil govwhich none of the possible exit ramps offers a sure escape. The crisis could ernment did not seek to dictate true religion or the conditions of eterbe triggered by a disputed election, a Supreme Court nal salvation in the world to come. Freedom of the decision (on abortion, gun rights, immigration polimind cannot be alienated: It is impossible to grant cy, etc.) that many state governments refused to acto government the power or right to compel the cept and sought to nullify, an ultimatum over trade mind to believe something about which it is not or foreign policy, an impeachment gone very wrong persuaded by the evidence and arguments pre— any number of causes. Nor is simply protracting sented to it. THE TERM the cold civil war until the people get sick of it necEspecially is this true of religious questions, “THE LIVING CONSTITUTION” essarily a better outcome. As the conflict has gone for faith above all cannot be forced or extorted. IMPLIES on the disagreements, generally speaking, have gotChurches therefore became an eminent part of THAT THE ORIGINAL ten worse, not better. The tectonic plates of the two “civil society,” free of government control but supCONSTITUTION IS constitutions, already grinding away at each other porting a common or public morality, namely, “the DEAD — OR for more than a century, may eventually produce a laws of nature and of nature’s God.” By virtue of AT LEAST ON LIFE SUPPORT. “Big One,” but certainly will produce in the meanthese principles, people could be at the same time time many lesser but severe shocks to the country. good members of their religious community, i.e., Yet the original basis of American greatness and good citizens of the City of God — and good citunity is still available to us. Civility and citizenship izens of their particular earthly city or country — are still possible between our factions if we could without prejudice to either. recover some of the fundamentals we used to agree “Civil government” and “civil liberties” are on. To appeal to the better angels of our nature, however, we must first made possible precisely by excluding questions of revealed truth from reacquaint ourselves with that nature and with how the founders tried determination by political majorities. Thus, for the American regime, to encourage it. the purpose of American constitutionalism was to produce a certain kind of human being and citizen — an American, whose character reflects the ends of our republicanism, combining political and religious freedom with moral seriousness. America’s founders sought both law and liberty — that lawful liberThe Declaration pointed out that tyranny is destructive to the ends ty blending rights and duties, which over time would help Americans for which government is instituted, namely the securing of equal “unmake good on that “promissory note” so movingly invoked by the Rev. alienable rights,” among which are “Life, Liberty, and the pursuit of Martin Luther King Jr. on the steps of the Lincoln Memorial. In the Happiness.” The ends of government include the people’s “safety and words of The Federalist Papers, “the fundamental principles of the happiness,” and it is the people’s right to decide when their safety and Revolution” point to “the transcendent law of nature and of nature’s happiness have been violated and what they wish to do about it. God, which declares that the safety and happiness of society are the Thus, on the one hand, the consent of the governed is a basic princiobjects to which all political institutions aim and to which all such instiple upon which the American Revolution was fought and the Constitututions must be sacrificed.” tion founded. On the other hand, the founders realized that trusted paOur rediscovery of this America is our best hope of uniting the triots elected to public office were necessary to help counsel and steer nation in freedom and civil liberties, but also in cultivating the far- the republic. But how would such patriots be formed, and how would reaching virtues of citizenship and patriotism, which constitute the the republic forge citizens wise enough to elect them? true founding DNA of our nation’s Constitution. For this, a new education in self-government was needed, based on the principles of civil and religious liberty. The Americans understood these liberties in terms of the doctrine Charles R. Kesler is a professor of government at Claremont McKenna Colof natural rights. For more than a millennium Western civilization had lege. This essay is adapted from his book “Crisis of the Two Constitutions.” JULY/AUGUST 2021 79

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THE RISE AND FALL OF THE PUBLIC INTELLECTUAL AN ELEGY FOR A SHRINKING CLASS OF THINKERS BY J EN N I FER GR A HA M

is physical remains were interred in Connecticut, but the virtual resting place for William F. Buckley Jr. is the website of the Hoover Institution, which maintains an archive of some 1,500 episodes of “Firing Line.” There, when one gets wistful for an erudite conversation with “presidential hopeful” Ronald Reagan or a nuanced discussion on U.S. policy in Rhodesia, Buckley still holds forth with the formidable brain, respectful demeanor and tweedy, bow-tied look that put him at the forefront of a seemingly vanishing class: the public intellectual. When Buckley died at his desk in 2008, he left his papers, weighing seven tons, to Yale University. He also left a world in which there was still an ample stock of public intellectuals. Now, in the shockingly short span of 13 years, the public intellectual seems to have ceded the floor to the thought leader, who is more educated than the influencer (but not by much) and makes up for a lack of advanced degrees with multiple social media accounts. Not that there’s anything wrong with thought leaders. But many lack the “polysyllabic exuberance” ascribed to Buckley in his New York Times obituary. In their TED Talks, thought leaders are generally just exuberant, leaving those of us who yearn for ye “Firing Line” of old with a question: Whither today’s public intellectuals? I put the question to George F. Will, the venerable Washington Post columnist who shares Buckley’s penchant for $10 words, old-school politeness and an august middle initial. Artfully dodging the question, Will said he first wanted to discuss what a public intellectual is. I suggested that a public intellectual is an unusually erudite person with advanced degrees; someone who spoke to the public, not just the academy; someone who made arguments so thoughtful and convincing that they rarely made anyone angry, and might actually change someone’s mind. To my mind, Will fits the description. Also, the University of the Arts’ Camille Paglia in Philadelphia and Thomas Sowell, whose remarkable career is chronicled in the new book “Maverick,” by Jason Riley. In his 2001 book “Public Intellectuals: A Study of Decline,” Richard A. Posner spent multiple pages trying to define a public intellectual but eventually broke the term down to its simplest components: an influential thinker who writes for a general audience on political and cultural matters. The occupation, Posner said, has become “less distinctive, less interesting, and less important.”

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That didn’t stop him from devoting a full chapter to people he considers “distinguished ornaments of American public life,” among them Henry Kissinger and the late James Q. Wilson and Patrick Moynihan. The public intellectual, according to Posner, peddles both entertainment and information. He believes their shrinking ranks are due, in part, to the increasing specialization of knowledge; meaning, a scholar might devote his whole career to the philosophical implications of quantum theory and thus lack the breadth of knowledge that public intellectualism demands. (Posner does not require impressive degrees of his public intellectuals. He says Charles Dickens was one in the 19th century, George Orwell in the 20th; neither went to college.) Will said the term was initially used to distinguish intellectuals of the academy from those whose audience was the ordinary American. “But I guess you want names.” He paused. “I’m having trouble,” he said. Will offered that there was “a critical mass” of public intellectuals in Manhattan, beginning in the 1950s, writing for journals such as Partisan Review and The Public Interest. “But I don’t think they’re out there now, and I don’t know why.” I asked if the proliferation of think tanks could have subsumed the individual thinker. “That’s an interesting theory,” Will said. “It’s analogous to the great industrial labs like Bell Lab taking over innovation and invention from the lonely Edison-type inventor. … Perhaps they’ve been absorbed by AEI or Brookings.” But the talk of think tanks led Will to a name: “Jonathan Rauch, at Brookings, is constantly interesting, constantly germane, constantly intelligent. He would count, I think.” And that led to others: Andrew Sullivan, “extremely talented,” and Bari Weiss, “who left The New York Times for greener pastures.” Will then mentioned a Stanford University podcast that he’d recently been on: “GoodFellows,” featuring Hoover Institution senior fellows Niall Ferguson, H.R. McMaster and John Cochrane.

L ee Drutman, a political scientist named one of Washington’s most in-

fluential people of 2021 by Washingtonian magazine, recently published a scholarly book with a populist title: “Breaking the Two-Party Doom Loop.” In praising the work, one Brookings Institution scholar described Drutman as “first-rate scholar and public intellectual.” ILLU ST RAT IO N BY HANNAH DECKER

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“Some of these writers are impressive; some less so,” Douthat wrote, While Drutman was appreciative of the praise, he’s a little embaradding, “Will many of them adorn a Great Books curriculum in 2075, if rassed by the designation. “It strikes me as a little pretentious, and I such an antiquated thing exists? I’m doubtful.” suffer from enough pretentiousness as it is,” he told me. Like Will, Drutman hesitated when asked to come up with names of people he considers to be public intellectuals. He finally settled not on a person, but on a genre: Podcasts. That’s where the public intellectuals are intellectualizing. Drutman mentioned “The Ezra Klein Show” in particular. “There are One might argue that the smartest people among us have finally figa lot of really thoughtful ideas being discussed in podcasts,” he said. (Full ured out, some 2,420 years after Socrates drank the hemlock, that it’s disclosure: Drutman is part of a podcast called “Politics in Question.” better to keep their intelligence to themselves. Be an intellectual if you That reminded me of the Rev. Albert Mohler Jr., president of The want, but stay out of the public square. Southern Baptist Theological Seminary, who probes the minds of in“There are psychic costs for thin-skinned academics who have skelfluential thinkers like Ryan T. Anderson, Joseph Bottum and Martin E. etons in their closets and so dare not invite publicity,” Posner wrote. Marty on his podcast “Thinking in Public.” “There are also reputation costs, since the risk of error in public intelAnd of Christian apologist Justin Brierley, whose “Unbelievable?” lectual activity is very high.” podcast in the U.K. features scholars politely picking apart each other’s That’s even more true now than in 2001, when those words were writarguments on social issues, as well as what a famous public intellectual, ten. Even Paglia, who always seemed willing to come out of the ivory towsadly long dead, once called “mere” Christianity. er for a good fight, has been quiet since 2019, when a group of students All that’s missing for that “Firing Line” vibe tried to get her fired for incendiary views that she for these shows is a live audience and the opening had been expressing for more than 30 years. notes of a Brandenburg concerto. That said, it’s hard to imagine Milton Friedman But here’s the thing: Podcasts, while generally or C.S. Lewis backing slowly away from the lecfree and available to anyone with a computer or tern, even if there had been Twitter mobs in their THE BIGGER PROBLEM SEEMS smartphone, aren’t quite as public as public televiday. The bigger problem seems to be that the exTO BE THAT sion was when Buckley’s “Firing Line” was on the air isting field of public intellectuals is aging without THE EXISTING from 1966 to 1999. equivalent numbers storming the field to take their FIELD OF PUBLIC Competition acts to obscure them. A critical place. Will is 80. Sowell is 90 as I write this. Paglia, INTELLECTUALS mass of people may be listening to Klein; less so, a youthful 74. IS AGING WITHOUT EQUIVALENT “GoodFellows.” In one last bid for hope, I reached out to ChrisNUMBERS TAKING topher Buckley, William F. Buckley Jr.’s only son, THEIR PLACE. who could have been a public intellectual had he not made a career writing satirical novels such as “Make Russia Great Again.” While podcasting may be a hiding place for pub“The answer, tout court, as WFB might say is: No, lic intellectuals, the internet in general has not I don’t think there’s an equivalent of ‘Firing Line’ been good for their kind, according to historian these days,” the younger Buckley wrote in an email. “There is, I hasten to George Marsden, professor emeritus at Notre Dame University, and a point out, a ‘Firing Line’ show, hosted by the able Margaret Hoover, but bona fide public intellectual himself. it’s very different from its namesake. “There may be more good public intellectuals out there than ever. “I have to say that I miss Charlie Rose. The excellent George Will But the internet means that there are also more bad ones that can nonegot canceled off Fox News for being critical of Donald Trump. And my theless get attention,” Marsden said in an email. “So, the extent or the beloved Christopher Hitchens is long gone. How does the line go? ‘Bare impact is probably a good bit less than in the days of Walter Lippmann, ruined choirs, where late the sweet birds sang.’” John Dewey, Reinhold Niebuhr, etc.” “Cheers,” Buckley said, although his message had not been one bit The New York Times’ Ross Douthat was even gloomier writing for cheery, leaving me to YouTube and a Thomas Sowell Twitter account, New Statesman about what he deems “intellectual torpor” in the world which has over 700,000 followers. today. “I can’t imagine anyone making a confident claim about conThe popularity of the account, though, does offer a small, wispy temporary philosophers, religious thinkers and would-be scientists of hope that the market still exists among the general public for high-level human nature that ranks them with Friedrich Nietzsche or Karl Marx critical thinking. At least up to 280 characters. or even Sigmund Freud, with Søren Kierkegaard and John Henry NewBut then I searched for a similar William F. Buckley Jr. account and man,” he wrote. found one. It was the right Buckley. It said he was Christopher’s father Douthat then came up with a list of the people he considers the most and the founder of National Review. Among the most recent tweets was important thinkers of the past 20 years, “assessed purely for their ina video of a dog jumping rope at a park, retweeted from WeRateDogs. fluence, with no comment on quality.” Among them: Ibram X. Kendi, On second thought, will the last public intellectual in America please Peter Thiel, Steven Pinker, Michelle Alexander, Richard Dawkins, Sam turn off the lights? Tout court. Harris, Peter Singer, Samantha Power and Thomas Friedman. 82 DESERET MAGAZINE

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THE CONSTITUTION IS A COVENANT HOW A CUBAN EXILE BECAME A JUDGE AND FELL IN LOVE WITH THE FOUNDING DOCUMENT BY ER I CA EVA N S

udge denise posse-blanco lindberg knows that the law — like life — can be complicated. She was born a U.S. citizen in Havana, since her mother was Puerto Rican. She was nine years old when she left Cuba with her family in 1960, after the revolution, fleeing to Puerto Rico with nothing but a suitcase full of photographs and a change of clothes. Three years later, they sold their belongings to make a new start in New York. That path would lead her to five degrees in higher education from the University of Utah and Brigham Young University, including a Juris Doctorate that introduced her to her life’s passion. In 16 years as a judge at Utah’s Third District Court, she handled high-profile criminal cases and at least one unique example centered on religious liberty, before retiring at the end of 2014. She is now a senior fellow at Brigham Young University’s International Center for Law and Religion Studies, where she advocates 84 DESERET MAGAZINE

for religious freedom in Latin America and the Caribbean. She reread all 4,440 words of the Constitution to prepare for this interview, and tearfully relayed what it means to her personally as a political refugee. She calls the document “a covenant among the people.” How do your childhood experiences in Cuba influence the way you see the law? As someone who has lived in countries where the rule of law is a nice phrase that means little, it’s something I value deeply. I watched the Watergate scandal as it happened, and a case went through the Supreme Court about whether (Richard) Nixon had to turn over the recordings made in the Oval Office. I remember fearing that Nixon would call out the Army, because that’s what I was used to. That’s what I’d seen. That’s what I’d grown up with: “Might makes right.” When he turned over the I LLUSTR ATI ON BY RA N DY GL ASS

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tapes on the order of the Supreme Court, that’s when I fell in love with this country.

saw her get misty-eyed. She got up and gave me a hug and said, “You’re what this country is about.”

You also seem rather fond of education, with a bachelor’s degree in communication, master’s degrees in social work and educational psychology, a doctorate degree in health sciences and a law degree. What motivated you to keep going back to school? For an immigrant, education is the surest path for advancement. And it has been highly prioritized in my family, almost excessively. Our motto is: Learning never ends. But I didn’t set out to get five degrees. My mom always said, “Make a plan for your life but don’t be wedded to it.” If opportunities present themselves, be flexible enough to take advantage of those. That’s what I did.

I’ve heard you use the word “covenant” to describe the Constitution. Why is that? The Constitution is a covenant that we as a people make to govern ourselves. At its best, it represents a commitment to create a society that is fair and just. That closely parallels the society I believe God would want for us. Reading the preamble never fails to move me, thinking of the founders’ faith, trust and commitment to submit of their own free will — not to a king, but to a new system of government they were creating. I am not blind to the myriad problems this country still has to overcome. I also know our Constitution is no guarantee we will do so or that its promise will be fulfilled. But I have faith in the system, however flawed it is.

Did that unique career path shape your decisions on the bench? A lot of my training came into play working with defendants. I did social work for ab0ut 10 years, trying to help people with drug and alcohol addictions. I realized we were intervening too late, so I became interested in preventive work, which led me to pursue a Ph.D. studying how preventive care can avert problems with addiction. Later, as a judge, I had an even bigger tool set and a team of people, and therefore a greater ability to impact somebody’s life.

I REMEMBERED GETTING ON A PLANE FROM CUBA — AND MY NEXT THOUGHT WAS, “NOW YOU ARE IN AMERICA HELPING SHAPE THE LAW OF THE LAND.”

You clerked for Justice Sandra Day O’Connor at the Supreme Court. How did that experience impact you? I felt the weight of representing Brigham Young University as the first woman from the school to clerk at the Supreme Court. All of my coclerks came from schools like Harvard, Yale and Stanford, and some of them were outright geniuses. I didn’t know if I could swim in that pool, and every day I thought I might get fired. In the end, it was wonderful to realize that I could hold my own and learn from people much brighter than myself. That’s a long way from flying over the Caribbean with nothing but your clothes. Was there ever a moment when the gravity of your journey hit home for you? One day, I was walking up the Supreme Court steps and all of the sudden, I realized it was the 31-year anniversary of the day I left Cuba. I started crying because I remembered my nine-year-old self getting on a plane wondering if I would ever be back — and my next thought was, “Now you are in America helping shape the law of the land.” I was emotional and confided in Justice O’Connor. It was one of the few times I 86 DESERET MAGAZINE

You’re now an advocate for religious liberty, which is one area where people still argue about what the Constitution means. But you also had to navigate those questions as a judge. Can you tell us more about that? As a person of faith, it saddens me when people say that religious liberty is just an excuse to discriminate. I don’t believe true religion does that. It’s important that we talk about religious liberty in loving and civil ways and recognize how important it is to protect. The irony is, I was the judge that for more than 10 years controlled the land trust of a polygamous community in southern Utah, after allegations of mismanagement. The United Effort Plan was made up of land consecrated by members of the Fundamentalist LDS Church, and redistributed by their bishop. After Warren Jeffs, their leader, became a federal fugitive, the state attorney general asked the court to take over the trust so that Jeffs would not steal from it. I was very conscious that I was dealing with First Amendment issues, and I believe the courts must respect the autonomy of churches. I tried to look at the law and not the doctrine and cautiously draw the line between religious freedom and using belief as a blanket excuse for abuse. Have you ever returned to Cuba? I finally got the chance to go back in 2017. After my husband and I arrived in Havana and dropped off our luggage, the first thing I wanted to do was walk to my grandmother’s house. I was amazed I was able to get us there, but it had been knocked down. Still, it was a sweet closing of a door. The city is a beautiful ruin. You can see the skeletons of these beautiful old, Spanish homes that are just falling apart. It was different enough that it didn’t feel like home, and yet it was familiar.

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