Administrative State • America • Congress • Conservatives • Donald Trump • Economy • Libertarians • Silicon Valley • taxes • Technology • The Resistance (Snicker)

Let’s Bust Some 21st Century Trusts

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During the Gilded Age, so-called “captains of industry” such as Andrew Carnegie, John D. Rockefeller, and J.P. Morgan led an industrial revolution that transformed the nation with technological innovation, creating for Americans unparalleled improvements in the average standard of living and amassing great personal fortunes in the process. The spectacular success—and enormous power—of these newly minted tycoons earned them the sobriquet “Robber Baron,” even as their ruthless business tactics, such as Rockefeller’s cartelization of the oil industry through trusts, fostered new laws to regulate anti-competitive business practices, notably the 1890 Sherman Act. These measures are called “antitrust” laws, an often-forgotten tribute to the dynastic Standard Oil Trust, which at its peak controlled the refining of 90 to 95 percent of all oil produced in the United States.

The Progressive Era was devoted in significant part to curbing the predatory conduct exhibited by large corporations, especially those with monopoly power, such as railroads. Railroad mogul William H. Vanderbilt—at the time the richest man on earth—typified the arrogance of some industrialists when he reportedly exclaimed, in 1882, “The public be damned.” Historians sometimes depict the Robber Barons as villains, but this ignores the tremendous contributions these entrepreneurs made to the creation of the world we take for granted in the 20th century: urban living with nationwide transportation and communication, skyscrapers, electricity, mass-produced goods, recorded music, the automobile, and the consumer economy.

Notwithstanding the considerable benefits of “Big Business,” there were also abuses, including price-fixing, restraint of trade, and political corruption. Laissez-faire economic theorists and devotees of classical liberalism tend to minimize these and the likelihood that businesses, when left to their own devices, will abuse their economic power; reasoning that free market dynamics—price competition and market entry—will suffice to constrain predatory conduct.

One cannot fairly review the history of the late 19th century, however, without acknowledging the truth of Lord Acton’s dictum: “All power tends to corrupt, and absolute power corrupts absolutely.” Among free market absolutists, this aphorism is generally applied only to political power, but the principle—based as it is upon human nature, and not merely the workings of politics—applies to all human activity. Concentrations of economic power also qualify, and whether due to artificial or “natural” barriers to entry, monopolies can and do exist.

Antitrust analysis associated with the University of Chicago (the “Chicago School” developed by Aaron Director, Robert Bork, and Richard Posner, among others) tends to be unconcerned with companies’ unilateral action and is skeptical of the existence of barriers to entry, believing that market dominance is ultimately an indication of economic efficiency. If the benchmark for government intervention is maximizing consumer welfare, the Chicago School asserted, then the only conduct deserving antitrust scrutiny is inter-firm (or “horizontal”) collusion.

I don’t wish to challenge the premises of the Chicago School’s antitrust theory (although others have), but the categorical assumptions that informed its analysis may need to be re-examined in light of the markedly different conditions evident in certain industries dominated—not just domestically, but globally—by a single firm.

Consider Silicon Valley, the cradle of the so-called “gig economy.”

The New Robber Barons
In terms of stock market value, the top five companies worldwide are the technology giants Apple, Alphabet (Google’s corporate parent), Microsoft, Facebook, and Amazon. In the technology industry, these firms—although hardly interchangeable—are the new Robber Barons.

Apple’s famously based its business model on a “closed platform,” compelling users to accede to its vertical integration of software, parts, apps, and iTunes inventory. Amazon, with sales exceeding its 12 largest online competitors combined, captures 46 percent of all online shopping.  Aggressive pricing—to the extent of consistently sacrificing profitability—and sharp competitive practices such as below-cost pricing of ebooks to promote its Kindle sales have enabled Amazon to swamp its competitors in an expanding array of product lines.

Regardless of profitability, investors value these firms primarily because of their sheer scale—market dominance within the relevant segments. Uber and Tesla, each with a market capitalization exceeding General Motors, have never earned even a single penny of profit, defying traditional models of valuation. Investors presumably anticipate that monopoly (or near-monopoly) status will eventually yield monopoly profits.

And how have the new Robber Barons been behaving with their sky-high market valuations, overwhelming market shares, and hoards of cash? In a word, poorly. If actions were words, they would be parroting Vanderbilt’s infamous declaration.

Amid great controversy, Google summarily fired an engineer, James Damore, for thoughtfully questioning the assumptions of the company’s diversity policies. More recently, Google appeared to direct the dismissal of a scholar from the New America Foundation, a progressive Washington think tank backed by Google, for praising fines levied against the company by European regulators for antitrust violations. These are the actions of an intolerant bully.

In our digital world, the Internet and websites have become the indispensable medium for both commerce and political expression, serving as the modern equivalent of the printing press, Yellow Pages, mail delivery, checking account, and public library—combined. Companies servicing the Internet—and especially search engines—are de facto public utilities, with an obligation to operate fairly, responsibly, and without viewpoint discrimination. Unfortunately, the new Robber Barons have fallen appallingly short of this ideal.

For example, social media platforms such as Facebook and Twitter have been accused of censoring users’ posts; Google (through its ad placement service) has bullied conservative websites to alter their content or face financial retribution; online payment facilitator PayPal and domain administrator GoDaddy have banished or withdrawn funding services for websites whose content they disapprove of; and Google has reportedly skewed search results to omit references objectionable to certain Islamic organizations.

Most ominously of all, as reported by Paula Bolyard in PJ Media, Google is working with a coalition of liberal groups—including the discredited Southern Poverty Law Center—to monitor conservative websites for “hate events.” In reality, they’re policing expression of views they find disagreeable, such as opposition to the LGBT agenda, criticism of radical Islam, or support for more stringent immigration controls. The goal is to blacklist “offensive” sites, smear them as “hate groups,” and ultimately to deny them access to digital advertisers, online donations, domain registrars, or similar tech support necessary for sites to function. In other words, Google is conspiring with Left-wing activists to suppress their political opponents.  

‘Regulate Them Into Submission’
With the unprecedented ability to control the content and operation of websites, a handful of tech companies wield greater power than governments do, with little transparency and no accountability. This astonishing concentration of power should concern all citizens, regardless of political persuasion. Yet, with a few exceptions, liberals have been strangely quiet. The reason is obvious: The Left has given the new Robber Barons a pass, because they share a Progressive political agenda, as reflected by Apple’s $1 million donation to the SPLC, and the hyper-partisan direction of the Washington Post since its purchase by Amazon founder and CEO Jeff Bezos.

Should conservatives, blinded by their allegiance to the free market, condone this partisan perfidy? Increasingly, commentators on the Right recommend treating Silicon Valley behemoths as the monopolies they are and, in Kurt Schlichter’s words, either break them up or “regulate them into submission.” President Theodore Roosevelt earned the nickname “trustbuster” for breaking up James J. Hill’s and J. P. Morgan’s notorious railroad monopoly, the Northern Securities Company. In the same vein, Attorney General Jeff Sessions should investigate the nefarious conduct of the new Robber Barons.

Silicon Valley’s leftist business leaders have a peculiar notion of “creative destruction”; rather than rendering prior paradigms obsolete, they apparently seek to eliminate free speech instead.

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American Conservatism • Conservatives • Education • History • Libertarians • political philosophy • The Culture

The Black Hole of Modern Conservative Rhetoric

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At one of the big summer events that enthrall those who dwell inside the D.C. bubble, interns from Conservatism, Inc. square off against interns from Libertarian, Inc. at a debate hosted by the libertarian Cato Institute. The annual event, which occurred earlier this month, once again exposed a problem that has hounded conservatives for quite some time: they’ve forgotten how to persuade. They speak in clichés. And even the youngsters sound like old fogeys.

“From what I observed,” writes Maria Beiry, an editorial assistant for the American Conservative who reported on the event, “millennials at this debate—many of whom will go on to be leaders in Washington—were not taking to conservatism.”

Why not? While the libertarians “favored data” and used it “to not only drive home their points but also to call into question the conservative argument,” conservatives spurned those arguments and “favored philosophy.”

“At the mention of philosophers such as Aristotle,” Beiry reports, “audible ‘what’s’ and ‘heh’s’ could be heard among the students.”

Jargon and Checklists
These difficulties flow from a central problem: conservatives seem to go out of their way not to be understood. More and more, there appears to be nothing of substance behind the jargon they employ.

Just as “Christianese”—used increasingly in Evangelical Christian circles—has had a tendency to crowd out biblical orthodoxy, “conservatese” has similarly tended to push aside anything of intellectual substance in political conservatism. Words and phrases that have been carefully crafted in the conservative echo chamber sound a false note when they’re used in front of audiences who aren’t predisposed to nod their heads in agreement.

And over time, such language has had a wearing and wearying effect on those who use it, dulling their minds in the process. Conservative rhetoric has become full of slogans and shortcuts for arguments—mere boxes on a checklist—rather than invitations to dialogue and debate.

As Paul Gottfried points out, vague sentiments such as “the permanent things” and words like “values” appropriated and defined in the popular imagination by Progressives have come to define conservative rhetoric. It’s become a bit of a joke that’s apparently over the heads of those who regularly speak in such dreary ways.

Modern conservative rhetoric also has a penchant for the non-political, attempting to drain political life of its vitality and seeking to replace it with the contemplative life simply.

For instance, the notion that “beauty will save the world” heard on many a serious liberal arts campus offers no real guidance for politics and can be harmful for the young, especially because they are so likely to misunderstand it. Children, after all, are typically moved by their untutored passions rather than by reason and often mistake ugliness or fads for beauty. On an intellectual level, this kind of rhetoric is imprecise, sloppy, and undermines the philosophical foundations upon which the conservative project is built. Cut it out, already.

Conservative Rhetoric on Race
Not all conservative rhetoric, however, is quite so self-defeating.

The argument from some conservatives that the “Democrats are the real racists” should not be so easily dismissed. It is an understandable attempt to turn the tables on their foes, pointing out that Republicans have a much better track record on civil rights and simultaneously laying bare the Democrats’ grim legacy on race.

Gerard Alexander, for example, has demolished the narrative that the Republicans’ rise in the South in the latter half of the 20th century was due to racism. In a deep dive into the research, he shows  

the GOP finally became the region’s dominant party in the least racist phase of the South’s entire history, and it got that way by attracting most of its votes from the region’s growing and confident communities—not its declining and fearful ones.

The GOP, of course, was founded on anti-slavery principles. The Republican Party platform of 1856 opposed both slavery and, interestingly, polygamy, calling them the “twin relics of barbarism.”

Democrats, in contrast, historically have been more opposed to the principle of natural human equality than not. From Alexander Stephens, who as the vice president of the Confederacy argued that the principle of equality was an “error,” to Barbara Norton, a Louisiana state representative who said that the founders were “teaching . . . a lie” when they wrote “all men are created equal,” Democrats have habitually been on the wrong side of human equality.

And Democrats today, just as the Confederates of yore, are driven by a form of identity politics that makes race the central feature around which their project revolves. However ironic it may be, there is something in common between the doctrines of critical race theory voiced by Black Lives Matter and the pro-slavery political theories of John C. Calhoun.

But such an argument quickly can be taken too far. The modern Democratic Party is different in many obvious respects from its partisan forebearers. Franklin Delano Roosevelt, for instance, would have had no time for transgender bathrooms. Uber-progressives such as Woodrow Wilson and John Dewey would have rejected the modern Left’s war on marriage as inimical to the basic foundations of civil society.  

The “Democrats are the real racists” argument can also have the unintended consequence of furthering the Left’s war on history. Why would a liberal tearing down statues care what Andrew Jackson thought about race? Point it out to him and he would happily denounce Jackson’s racist past and want you to help dismantle his sordid history brick by brick. Simply consider the fervor among liberals for getting rid of Woodrow Wilson’s name and image at Princeton. They have no solid intellectual foundation in the thinking of their forebears. Progress marches. It does not pause or ponder.

Whatever good past Republicans did, it wouldn’t come close to satisfying the modern Left’s view of justice today.  

The argument, then, depends heavily on the prudence of the one making it, and the level of progressive commitment of the person hearing it. It is an argument that is particularly vulnerable to abuse and misunderstanding. While it should not be employed in the sweeping form that many today use it, much like Aristotle’s discussion of the virtues, it can still be useful at the right time and stated in the right way—that is, if the person making it knows his stuff and if the person hearing it is still open to reason.

Breaking Out of the Echo Chamber
In order to reverse the steady decline of conservatism since Ronald Reagan left the White House, conservatives need to make clear arguments bolstered by evidence and unencumbered by “conservatese” argot. Though appeals to philosophers or the fathers of the modern conservative movement may strengthen an argument, they should not be invoked in lieu of an argument.

Prudential judgment, which takes into consideration the audience, current realities, and the ends of rhetoric in a democratic republic, is vital if conservatives want to have any sustained success in the future. The concerns of voters (i.e., those who are sovereign and whom you wish to persuade) need to be in the forefront of their minds, not those of the ruling class (which, in any case, is not numerous enough to do more than assert their authority).

The key for cultural conservatives is to argue forthrightly for unpopular positions such as traditional marriage and not mince words. Pastor Tim Keller, for example, has seen exponential growth in his church in the heart of liberal New York City by preaching orthodox biblical positions that go against the grain of modern culture.

By its very nature, the argument to conserve civil society for future generations is going to be much harder to make than simply affirming the libertarian ethos that currently consumes us. To meet this challenge, conservatives need to do hard intellectual work but they also have to find the courage to say what they mean and mean what they say, without assuming obtuse jargon is going to substitute for either work or courage. There are no shortcuts ahead.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities of our original content, please contact licensing@centerforamericangreatness.com.

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America • American Conservatism • Americanism • Deep State • Democrats • Donald Trump • Economy • EU • Foreign Policy • Libertarians • Trade • Trump White House

Tariffs, Trade, and the NeverTrump Nightmare

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In his brief but thoughtful piece, “Raise Tariffs, Secure the Nation,” Spencer P. Morrison recently asked a vital question: “[W]hy the disconnect over tariffs between academics and businessmen, the media and the public?”

That is, what is the nature of the widening divide between academics and the media, on the one hand, and businessmen (like Trump) and the public, on the other, over whether tariffs are a legitimate tool of public trade policy?

The overall point of his article is spot-on. There really can be “no political independence without economic independence.”

This is the crux of the matter: Can we still be economically and politically independent from the rest of the world—and if so, how? Have our Founders left us any clues?—or must we become, as our NeverTrumper friends insist, one with the world?

Our Founders were far more clearer-headed about this issue than are our D.C. policy establishment—or in any case, they were far more honest and explicit about their ultimate policy objectives.

 

“In [Congress’] first act, a national revenue must be obtained; but the system must be such a one, that while it secures the object of revenue, it shall not be oppressive to our constituents. Happy it is for us that such a system is within our power, for I apprehend that both these objectives may be obtained from an impost on articles imported into the United States.”—James Madison

Case in point: one of the first laws on the books of the very first Congress was the Tariff Act of 1789. It established a national revenue based not on income taxes—that choice was considered and consciously rejected—but rather on an ad valorem tariff on foreign-made goods.

This same policy also aimed explicitly to protect our economic independence in what our Founders saw as the least oppressive public policy means possible. By any definition of the term, they were protectionists, and it is time conservatives stopped worrying that the label does any harm to the cause of preserving our national independence and system of republican self-rule. Read the debate over the Tariff Act!

Businessmen and the voting public who know nothing of U.S. tax history generally seem to understand the practical necessity of protective borders, walls, and even tariffs, in their bones. Why are the elite so differently wired on the issue of trade and immigration?

 

“First principles, Clarice. Simplicity. Read Marcus Aurelius. Of each particular thing, ask:  What is it, in itself, what is its nature…?  What does he do, this man you seek?” —Hannibal Lecter

Morrison chalks up support for free trade among intellectuals to “myopia.” They look at things, he contends, through a narrow economic lens, and miss the forest of the public good for the trees of abstract socio-economic utility.

There is some truth to this, to be sure, at least among a subset of the advocates of so-called free trade who are more drawn to the mathematical complexities of the issue than they are driven by philosophical certitudes. Yet while I share Morrison’s interdisciplinary approach to the problem, we differ perhaps on what is really motivating the dogmatic philosophical advocates of free trade.

An unthinking commitment to an abstract notion of “free trade” is a myopia guaranteed to destroy American exceptionalism, the very thing American conservatives say they want to conserve.

Regardless, we both agree that it is time for American conservatism to reassess its dogmatic support for free trade and its ideological doppelganger, “fair trade,” espoused by many on the modern Left. This assessment must be based on a clear-eyed view of what the debate is—and isn’t—all about.

An unthinking commitment to an abstract notion of “free trade” is a myopia guaranteed to destroy American exceptionalism, the very thing American conservatives say they want to conserve. Free trade, understood in this way, also happens to be the one topic that curiously unites the D.C. NeverTrumpers—both Left and Right—who loathe President Trump’s approach to trade even more than they do his tweets.

It is past time for conservatives to reevaluate free trade from first principles. Such an effort, though not easy, should lay bare several distinctly modern misconceptions about political economy that have deceived many Americans, but especially conservatives, into reflexively supporting a dogmatic and unthinking notion of free trade.

 

When asked by his disciples what he would do to solve all the problems of the world, Confucius replied, after a moment of quiet reflection, “I would see to it every term have a precise meaning.” – The Analects of Confucius

What exactly is “free trade” and why does it unite the NeverTrump establishment against the millions of American workers who brushed aside both the ruling class’s admonitions, and their preferred candidates in both parties, and voted instead for Donald Trump in 2016?

The first thing to understand about free trade as it is presented today is that the name does not describe it.

Free trade is about neither freedom nor trade, but in reality is an instrument of macroeconomic policy designed to create a single-world wage and price structure and, thereby, a global division of labor. It has nothing whatever to do with the traditional concept of trade, which is negotiated exchange of domestic surplus between sovereign nations.

Free trade understood in this way necessarily requires doing away with the idea of the nation-state itself and replacing it with alternate world governance models. This is where free traders disagree amongst themselves, mainly over means, not ends—some preferring a centralized, command-and-control structure, others looking in the direction of heretofore unproven decentralized contractual models (this is what Bitcoin is about, at bottom).

Advocates of global free trade fundamentally believe that the world would be a better place if nations no longer existed as independent geographic entities vying for global natural resources. Traditional nation-states, they contend, must be abolished.

If “free traders” were to be successful in achieving that goal, there would no longer be an economic phenomenon called “trade” because the premise of such a term—i.e., the existence of sovereign nation-states engaging in trade of their domestic surplus—would no longer exist as such.

The first thing to understand about free trade as it is presented today is that the name does not describe it.

Free trade is about neither freedom nor trade, but in reality is an instrument of macroeconomic policy designed to create a single-world wage and price structure and, thereby, a global division of labor. It has nothing whatever to do with the traditional concept of trade, which is negotiated exchange of domestic surplus between sovereign nations.

More can (and later, will) be said about Adam Smith’s articulation of international trade in the wider context of his overall theory of national wealth, which modern free traders tend to argue,  disingenuously, is the basis of their theory. In their correct context, we will see that Smith’s ideas about trade and theirs are very different.

The next thing to know about it is that its philosophical goal—a one-world wage and price system—is neither inevitable nor driven primarily by economic forces.

It requires active, conscious, and continual political choice, as Brexit demonstrated; and in fact, the odds of its success are historically abysmal. From ancient Babel to Brexit, attempts to create a “one-world, ecumenical union of the peoples of the world,” as Frédéric Bastiat put it, have never ended well, and for good reasons.

The economic theory behind such an amalgamation purports to derive from a “law”—specifically, Ricardo’s theory of “comparative advantage.” This is the actual economic doctrine upon which modern arguments for free trade stand (or fall), and it is in fact a refutation of Smith’s justification for international trade on a very profound level, as we will demonstrate.

There is a lot of evidence that America’s Founders deeply understood Smith’s economic rationale, and did something innovative with it, something even Smith didn’t contemplate that is seriously undervalued and often completely misunderstood, for lack of grasping the essential difference between Smith’s and Ricardo’s motivations for international trade. The latter, we will prove elsewhere, is entirely at odds with our Founder’s objectives.

 

“Men, upon too many occasions, do not give their own understandings fair play; but, yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties.” —Alexander Hamilton, Federalist #31

Ricardo’s theoretical framework for free trade arose as a challenge to Smith’s, which was rooted in what economists call called absolute advantage.

Absolute advantage says that if, given a unit of economic resource, Country A is three times more efficient than Country B in the production of Product X, Country B would have the incentive to obtain Product X from Country A in some kind of trade deal, rather than produce it themselves.

If, for Product Y, Country A is even just two times more efficient than Country B, then Country A would at this point still have no motive to trade with Country B, unless there were other products for which Country B had an advantage—products that could then be traded with A once demand of B’s home market for those products was satisfied.

This is the canonical, Smithian concept of international trade, which we will elaborate upon elsewhere. Modern free trade is not based on this model, but rather Ricardo’s.

Ricardo sought to find an answer that would not preclude trade between wealthy and poor nations, when no particular advantage might be found on behalf of a poor nation. The idea in Ricardo’s time that Country A, superior in the production of every product given the same unit of economic resources compared to Country B, would ever want to trade with Country B was ludicrous.

In his clever scheme, though, the focus shifts to comparative, and away from absolute, advantage. That is, assuming the same fact pattern above, Country A enjoys a greater advantage over Country B in the production of Product X, than it does compared to its advantage in Product Y.

Modern textbooks—starting with Paul A. Samuelson’s—“prove” Ricardo’s genius by showing with simple arithmetic that, if Country A just “shifts” certain units of economic resource away from B and to A, and if Country B commensurately “shifts” resources away from A to B, then mathematically the two combined produce more total of X and Y than they would have done if they produced them separately, again, given the same quantity of capital.

And the math works, no doubt about it—you can grab a textbook, almost any will do, and prove this to yourself in five minutes using only basic arithmetic. In fact, do that before reading further.

The underlying assumption when we’re reasoning only with our pencils is that by “removing all obstacles to trade” this constant shifting around of economic resources would happen naturally, without government intervention. But why should we conservatives, averse as we are to arid abstractions, assume this?

For this reason Samuelson calls the theory behind free trade “irrefutable” on its own carefully reasoned terms. And all our modern politicians believe it, even if they disagree on the particulars of “how much” free trade is a good thing, or what global governance model is best to achieve it.

To what could one possibly object in this analysis? As with most cunning sophisms of the royal elite, only a small amount of common sense is required to denude them.

The objections fall into two categories:

  1. Objections based on the practical application of the theory;
  2. Objections to the effect these practical applications would have on liberty.

Both are equally damning, but I can only summarize them here.

In terms of practical application, you have the fundamental reality that there are not two, but more than 100 countries in existence; and there are millions—not just two—products that enter and leave existence like so many species of fauna. How now to apply this “irrefutable” arithmetic proof?

It is entirely possible to imagine a scenario where, given three countries, the advice for a particular country is contradictory. What if, compared to Country C, Country A was twice as efficient in producing Product X, but three times as efficient in the production of Product Y?

Now what should Country A do? In relation to Country B, it should “shift” units from B to A, but in relation to Country C, it should do the opposite. Really?

Moreover, Ricardian analysis would have to be performed constantly, as the “comparative” advantage of each and every nation would have to change over time as all countries “shift” all these units of economic resource around based on continual “comparative” analysis.

In other words, the reality that shifting capital investment into different industries will have an impact on domestic labor productivity over time is a consideration completely lacking in the simple Ricardian model. It is, however, a central consideration in the Smithian model, and affirmed by modern Austrian theory—and American history.

The underlying assumption when we’re reasoning only with our pencils is that by “removing all obstacles to trade” this constant shifting around of economic resources would happen naturally, without government intervention. But why should we conservatives, averse as we are to arid abstractions, assume this?

As a practical matter, this model requires an army of econometrics majors authorized by nations to tell individuals in each country which economic resources they shall invest in the labor of which country, and that these pencil pushers should be able to compel them to do so in order to ensure “optimal” global economic distribution. Does this sound like a “free” market?

This is why NAFTA, TPP and other so-called “free trade agreements” have to be thousands of pages in size, and negotiated behind closed doors.

But the answer isn’t a “one page” treaty that simply removes all barriers. Rather, as our Founders proved, it is a pragmatic, federal constitution permitting a free people to engage in division of labor within well-defined borders without interference from domestic regulators, or foreign powers. This is the unhampered free market, about which Adam Smith could only have speculated.

Free trade, properly conceived as our Founders envisioned it and perfected by our federal union, is nothing more than division of labor within a national, federated system.

Which leads us to the second line of objections—those regarding liberty.

How can the Ricardian model possibly work in the real world without assuming that authorities exist to compute, and then enforce, these “comparative” advantages? How do individuals decide their own fate, when what must be done is to be fathomed by entities with the power to redirect their capital investments through various inducements?

Free trade, properly conceived as our Founders envisioned it and perfected by our federal union, is nothing more than division of labor within a national, federated system. Not only is such a scheme amenable to mutually beneficial trade with other nations, our Founders saw it as essential to the task. They considered regulation of foreign trade so important that it warranted the immediate attention of the first Congress, and depended on it for the entire national revenue.

Under what conditions does division of labor make more sense than traditional trade relations? The answer to this key question is the answer to whether and how far political and economic union makes sense for a population, because “free trade”—as our Founders understood after the failure of various confederate schemes—requires both to work.

Modern free trade agreements essentially try to have a kind of economic union without real political union. When political union is foisted on the populations after the fact, things fall apart, as they are with the EU after Brexit.

There is now an awakening realization that this could only be a temporary arrangement, a kind of “living in sin” through regional quasi-economic unions negotiated in the dark. That people are discovering these treaties are designed to promote the eventual unification of all the nations of the world—requiring the abolition of national sovereigns, including the United States—is what terrifies the NeverTrumpers, the bipartisan duopoly in D.C., and the global elite in New York and Brussels.

 

“Poverty befalls any nation that neglects and abandons the care of its own industry, leaving it exposed to the action of foreign powers . . . There is a remedy, and that consists in adopting a genuine American system accomplished by the establishment of a tariff—with the view of promoting American industry . . . The cause is the cause of the country and it must and it will prevail.” —Henry Clay

A truly “America First” economic policy reserves “free trade,” as our Founders did, for ratified states in the federal union, and engages in negotiated trade according to the Smithian model with everybody else.

A return of this traditional American paradigm, more than anything else, is what the establishment fears from a successful Trump presidency, because for them it’s not about America’s political and economic prosperity.

Rather, it’s about the unification of all labor and capital into a single world wage and price structure and a global political union to the exclusive but mutual benefit of the international corporate and bureaucratic elite. These two goals—American economic greatness and international political union under a global division of labor—are not compatible.

There is much more yet to say, and to prove. But for now, let the conservative reassessment of this very foreign ideology begin.

 

 

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America • American Conservatism • Center for American Greatness • Conservatives • Donald Trump • Greatness Agenda • History • Libertarians • political philosophy • self-government • The Leviathian State • The Resistance (Snicker)

The Mournful Nostalgia of the Conservative Intellectual Elite

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Writing think pieces filled with a mournful nostalgia for the conservatism of yesteryear seems to be one of the core requirements of being a member of the conservative intellectual elite.

Though Yuval Levin has argued that a suffocating nostalgia was the foundation of Trump’s campaign, conservatives like Levin and others eager to write off Trump’s rise in this way have been less than willing to discuss their own, actually blinding, nostalgia. “Why do you see the speck that is in your brother’s eye,” the Apostle Matthew once wrote, “but do not notice the log that is in your own eye?”

Commentators pining for the years following William F. Buckley’s founding of National Review (without his opposition to the Civil Rights Act, of course) are now such a ubiquitous phenomenon that it hardly seems necessary to point out that what they really long for is a time when a few scions of the movement could purge certain groups deemed to be deplorable (even as Buckley kept back channels open with Robert Welch, the head of the John Birch Society) and a chance to deem themselves among today’s gatekeepers. They desire a simpler time when different coalitions on the Right were united against the Soviets abroad and attempted to counter the New Deal at home.

A recent column by Matthew Continetti, editor in chief of the Washington Free Beacon, is yet another in a long line of pieces that traffic in such nostalgia.

In his sweeping review of the history of modern conservatism, Continetti discusses Buckley and James Burnham, Friedrich Hayek and Milton Friedman, and Norman Podhoretz and Irving Kristol. Barry Goldwater got crushed in 1964, which somehow led to Ronald Reagan’s victory in the 1980 election. After Reagan’s exit from the national scene, there were some swells, but no sustained successes.

In 2016, movement conservatism was smashed by the speeding freight train known as Donald Trump and currently finds itself in utter disarray.

Continetti’s revisionist historiography, however, serves as a set of past triumphalist myths conservatives rehearse in order to cheer each other up. This narrative has the same function as the shadows on the wall of Plato’s cave: to make the observer mistake illusion for truth. They would prefer to look at the shadows that whisper Trump is the source of their political troubles because turning their heads toward the light that exposes conservatism’s inherent and long-standing political troubles is too painful to bear.

Asking whether movement conservatism might be getting something wrong, even in the face of so many on-going losses for the movement seems, somehow, preposterous?

The Real Reagan
Thankfully, not all observers of the political scene on the right have their eyes fixed on these shadows. For example in his new book, Working Class Republican: Ronald Reagan and the Return of Blue-Collar Conservatism, Henry Olsen shows that Ronald Reagan won in 1980 largely by rejecting the kind of conservatism that Barry Goldwater and National Review had been trying to advance for decades.

To be sure, Reagan had much in common with and admired men like Goldwater and Buckley. He and Buckley were very good friends, despite their occasional public disagreements. And until Reagan ran for the Republican nomination for president in 1976, he and Goldwater were on friendly terms and frequently exchanged letters. (Goldwater castigated Reagan for splitting the Republican Party in his run against Gerald Ford in the primaries.)

But their ways were not his ways; their ideas were not Reagan’s. Neither, as it happens, were they the ideas of the American people who elected him twice, even as they overwhelmingly rejected Goldwater.

Rather than being a rigid ideologue who was concerned with “maximizing individual liberty” above all else, Reagan ran as a conservative who was comfortable using government to help achieve the common good—particularly on behalf of the average working people that he rightly considered to be the backbone of the country. As Olsen argues,

Reagan was against returning to the America before the New Deal. He was for interpreting Roosevelt’s legacy in a way that maximized freedom and minimized bureaucratic control and the direction of Americans’ lives. Reagan could be for these things because he was for addressing “the realities of everyday life,” not simply implementing an abstract theory.

Contra George Will’s famous quip that Goldwater actually won in 1964 and “it just took 16 years to count the votes,” Reagan spurned Goldwater’s libertarian conservatism and won two landslide elections.

Conservatives Need to Look in the Mirror
The Conservative Triumphalist Narrative™ also too easily serves as a way for current elites tacitly to absolve themselves of any blame for the current state of conservatism.

Continetti deplores the “[i]nfighting, dogmatism, cliché, conspiracy theories, animosity, confusion, and the absence of authority” that “characterize the present moment.” Unlike most conservatives, however, he is well aware that these various problems plagued conservatism a long time before Trump’s most recent presidential aspirations were made apparent.

In a piece late last year, Continetti contrasted Trump’s “Street corner conservatism” with the theoretical, Ivory Tower conservatism imbibed by conservative elites who inhabit the D.C. Beltway. These conservatives have too often forgotten about the concerns of the living, breathing people of this particular nation that their project was instituted to help secure. Continetti rightly points out that regarding immigration policy, “They prefer not to recognize—or, in some cases, they celebrate outright—the erosion of nationhood by lax enforcement of border controls and immigration policy.”

In contrast to Continetti, the bulk of elite movement conservatives haven’t demonstrated the slightest bit of introspection on what caused Trump’s rise, preferring instead to blame Fox News, A.M. talk radio, or anything else that does not implicate themselves. They prefer to keep blasting away at Trump for his defects, real or imagined, without any seeming consideration of what would happen to the country at large were he to fail.

With their disastrous record and inability to form a constituency outside of Conservatism, Inc., they continue to exhibit the kind of wishful thinking divorced from reality the British novelist Kingsley Amis hilariously skewered in his book, Lucky Jim.

In the words of another Brit, Theodore Dalrymple, conservatives have “considered the purity of their ideas to be more important than the actual consequences of their ideas. I know of no egotism more profound.”

A Return to Our Roots
As Donald Trump has shown, the only way to begin doing the hard work of returning the government to the people was to reject modern movement conservatism in toto. Any power conservatism now possesses is due to Trump, which is likely the chief reason he is the target of so much animosity from the Right.

Because of Trump’s habit of smashing through conventions of the both the Left and Right, there is quite an opportunity at the present moment for thinking anew about the conservative project. As the editors of American Greatness stated in their founding charter:

The soil of the conservative movement is exhausted. It needs fertilization, re-sowing, and diligent cultivation if it is to thrive again. And while we will always owe a debt to the giants of the movement who have gone before us, we cannot slavishly attempt to relive the politics of 40 years ago. 

Although understandable, paeans to the past are not going to get the job done. Instead, in order to secure the blessings of liberty for ourselves and our posterity, we must do the hard work of re-focusing conservatism on the things it once knew but has largely forgotten.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities of our original content, please contact licensing@centerforamericangreatness.com.

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Milo Yiannopoulos’ ‘Dangerous’: A Manifesto for the Transgressive Right

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When the Richard Strauss opera “Salome,” based on Oscar Wilde’s play of the same name, first premiered in the United States, critics dismissed it as tasteless and boring: nothing but schlock produced for the shock value.

The truth, as composer and academic Robert Greenberg observes in his “Great Works” course on “How to Listen to and Understand Great Opera,” was quite different: the critics were scandalized by the opera, but knew that they couldn’t possibly say so, for fear of their outraged reactions selling tickets. So the best option was to pretend the show was boring, which couldn’t possibly warrant an audience’s interest.

I suspect that precisely the same impulse is at work in the liberal reviews of Milo Yiannopoulos’ new, self-published book, Dangerous. “Oh, Milo. You’ve done the impossible. Written a book that’s largely…boring,” yawns USA Today with practiced condescension. “Ironically, in helping elect Trump, Milo and those like him made themselves obsolete: America now faces greater problems than the mean-spirited s—tposts of a preening hack,” concludes Gizmodo in its own incredibly bitter take on the book. I presume CNN did not get the memo on this last bit.

Nevertheless, if Oscar Wilde himself is watching from the afterlife, one can only suspect it pleases him to see another ostentatiously transgressive gay man’s provocations meet with this obviously fake yawning by equally obviously triggered people. For myself, having read Dangerous, I can say conclusively that if this book didn’t scandalize its Leftist readers, they must have either skimmed it or not paid attention. This book is many things, but it is most definitely the opposite of boring.

Not that the liberal reviewers are being completely dishonest. There is merit to their claim that parts of the book feel recycled from Yiannopoulos’ speeches, or that he goes to great lengths rehashing some old controversies. For the sake of full disclosure, in fact, I should admit that I came to know Yiannopoulos personally through one of those old controversies: namely, #Gamergate. And while I remain as tickled as ever by Milo’s searing and accurate takedown of the “fourth wave feminists” who tried to turn their shameless baiting of socially awkward and largely powerless men into a noble struggle against Patriarchy, or harassment, or something, it is certainly true that the case against the likes of, say, Anita Sarkeesian probably needs no repetition in 2017. When it comes to the anti-#Gamergate feminists and their SJW allies, I can only echo Gizmodo’s sentiment that the mean-spirited s—tposts of such preening hacks are now mercifully beneath our notice.

However, despite the occasional bit of recycled material, Dangerous is still worth reading: not just for college-age would-be Milos looking for a hefty repository of “hate facts” and skillfully presented right-wing argumentation to employ against the sensitive Leftist souls and/or not-so-sensitive Leftist brickbats in their local Antifa I mean, college—but also for seasoned right-wing ideologues. That said, the two groups will not benefit from the same sections of the book. The teenage and college-age s—tlords will be most enamored with Yiannopoulos’ volleys against the Left, which older right-wing intellectuals will probably find too obvious and familiar (if still terribly funny), and thus, the younger readers will probably get the most out of those sections of the book. However, for those who have been on the Right for a while, I would argue that Yiannopoulos is even more worth reading, and it is to them that I will address the rest of this review. Because it is in his sections detailing his disagreements with various factions on the Right, from CPAC, to the alt-right, to “establishment conservatives,” where Yiannopoulos really attempts to do something daring and original: he crafts the first manifesto for a Right that has shed being conservative in favor of being transgressive.

One of the most interesting points in the book comes early on, when Yiannopoulos fingers one man who he sees as his antecedent. And unlike what you might expect from other right-wing authors, he doesn’t choose, say, Bill Buckley, or Rush Limbaugh, or Ronald Reagan, or even (given his British roots) Margaret Thatcher. Who does he pick?

Well, here’s Yiannopoulos: “If you want white nationalism, go listen to Richard Spencer. I’m the conservative Lenny Bruce, finding boundaries and raping them in front of you. (Lenny Bruce would overdose all over again if he saw what stuffy prudes we consider controversial comedians today.)”

Later on, in his chapter on trolls, Yiannopoulos laments a trend among his “heroes,” one of whom, once again, turns out to be an unexpected sort for a normal conservative:

Even the rebellious heroes of my youth have gone soft. In 1997, Marilyn Manson was outraging Christians and social conservatives. The Antichrist Superstar should have been a Trump fan. He was practically built for it. It was a real let down when he came out with a music video in which he decapitated a Trump look-alike.

Now, needless to say, Lenny Bruce and Marilyn Manson are far from the people your average college Republican would cite as inspirations for their current political views. And really, there’s no particular reason why anyone in decades past would think they should have been.

Were those people wrong? Yiannopoulos certainly thinks so, as his chapter on “Why Establishment Republicans Hate Me,” or more specifically, in his absolutely vicious evisceration of a group he refers to as “Debate Club Conservatives.” Milo defines that group this way:

There’s something…noble about trying to preserve the standards of decorum that existed prior to the 1960s, when a single swear word on TV could lead to a boycott campaign. That worldview is completely understandable for conservatives (and even most liberals) over 65.

If you’re under 40, however, it’s likely that you fall into the unfortunate, slightly laughable group I call Debate Club Conservatives. And it’s time to snap out of it.[…]

There’s another reason why the DCC attitude is so damaging to the conservative movement: most people aren’t political obsessives. They don’t care about your 14-point refutation of Obamacare. They want to hear things that relate to their own experiences, not abstract policy debates.

And what in people’s own experiences does a transgressive Right understand that the Debate Club does not? Yiannopoulos explains, using the example of Ben Shapiro:

Shapiro is thinking of a world where only politics matter. To him, political correctness is a problem because it suppresses facts relevant to current affairs—and that’s it. For most other people, the stultifying rules of political correctness go far beyond the suppression of facts; it’s the suppression of jokes, banter, and yes, the suppression of rudeness.

Political correctness interrupts everyday human experiences, threatening to turn every single personal matter into a public one. You can no longer slip up in conversation without worrying if the person you’re talking to is going to tell the whole world what you said, potentially ruining your life forever (need I provide a personal example?). The internet’s erosion of privacy with the resurgence of politically correct taboos is a terrifying combination. That’s why so many people are drawn to Trump. 

Now, Yiannopoulos doesn’t delve into history to make his case as much as he could, which is unfortunate. But what this point seems to suggest, and I believe correctly, is that the instant modern day political correctness became a dominant cultural force (most likely during the ’90s), conservatives were effectively gang pressed into common cause with figures like Marilyn Manson, Lenny Bruce, and every other person who laid siege to good (i.e., politically correct) taste.

The instant public virtue was weaponized by the Left, it became necessary to defend public vice, because otherwise the definition of “vice” would be expanded to cover anyone its new politically correct masters didn’t like. The Left actually understood this when it was in the transgressive position, and implemented it by having groups like the ACLU stand up for the rights of neo-Nazis and Communists in the same breath.

Conservatives, by contrast, seem reluctant to do the same, or even to acknowledge the necessity. One very notable exception, aside from Yiannopoulos, currently sits in the White House. Further, while Yiannopoulos most likely wouldn’t care for the association with a figure like Samuel T. Francis, given his oft-professed disdain for practitioners of white identity politics, nevertheless he more or less adapts Francis’ idea of “anarcho-tyranny” for a cultural rather than a political context in his argument that the Right and the merely deviant now share the same interests. And after seeing the disgraceful #CNNBlackmail episode, can anyone doubt that he is at least partially correct?

Now, lest you think that Yiannopoulos wants to run the DCC’s or the purveyors of propriety out of the GOP completely, I do have to let him reassure you before proceeding:

Conservatism needs its great thinkers and its brilliant minds—the Debate Club brigade —to persuade voters who are already open-minded. But we also need provocateurs and clowns, to grab the attention and challenge the biases of those who don’t want to be challenged.

No movement has ever survived with just moderates and intellectuals, and no movement has ever survived with just hellraisers.

As the dubious episode surrounding Yiannopoulos’ own so-called “fall from grace” shows, however, the conservative movement is scarcely in danger of being overrun by its hellraisers. Rather, its established guardians in Conservatism Inc., seem absolutely determined to force the Right to remain a Debate Club brigade dominated by only moderates and intellectuals, or to die trying. It is only thanks to the hellraiser in the White House that they are not getting their way.

For Conservatism Inc., figures like Yiannopoulos are what the original (and I would argue, superior) American mascot Brother Jonathan was to the caricatured British John Bull: a clown of English origins who nevertheless proves to stand for the pluckiest parts of the American mind. And by the way, isn’t it interesting that the original, pre-Uncle Sam symbol of America was the 19th century equivalent of an internet troll? Along with the anonymous s—tposter Publius, I’d say Yiannopoulos and his followers are in good company.

To be sure, not all right-wing hellraisers have to like the same people Yiannopoulos does, or even like Yiannopoulos himself. But for those of us who want a hellraising contingent on the Right, we must ask ourselves whether we can tolerate forming a coalition of people whose deviance from the politically correct norm is inspired by everyone from Lenny Bruce and Marilyn Manson, to Joseph de Maistre and Julius Evola, to Abraham Lincoln and Harry Jaffa? That is a question I can hardly answer in this (already overlong) review, but I can offer one simple observation:

If such a coalition were to form and congeal, then from the perspective of the Left, it would be truly Dangerous.

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Plain Talk about Law School Rot

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The legal academy is a strange place.

It differs from other intellectual disciplines in that legal scholarship is published mainly in student-edited law reviews, not peer-reviewed journals. Most faculty members at elite law schools have never practiced law, or have done so only briefly and usually without professional distinction. The curricula at many of the nation’s law schools are larded with trendy courses devoted to identity politics and social issues du jour. Elite law schools eschew the teaching of “nuts and bolts” fundamentals, deriding such practical instruction as resembling a “trade school.”

Law professors are the courtiers to the imperial judiciary, and “constitutional theory” is the vehicle for counter-majoritarian social change.

Even the most widely-followed ranking of American law schools (one compiled by U.S. News & World Report) relies mainly on “peer assessment” (that is, ratings by other law schools) so that it is something akin to a popularity contest. Nevermind graduates’ placement rates, bar exam passage, average starting salaries, and other objective metrics that might correlate with the tangible value of the legal education provided.

Legal academia is an inbred ivory tower with little intellectual diversity, inhabited by would-be mandarins, separated from the “real world” by a wide moat brimming with abstract concepts, abstruse theories, and an overweening sense of self-regard. Law professors are the courtiers to the imperial judiciary, and “constitutional theory” is the vehicle for counter-majoritarian social change.

This peculiar confluence yields two distinctive (but somewhat related) phenomena: First, law school faculties are much more liberal than the already leftward-skewed higher education establishment as a whole; and, second, “constitutional theory” is the most popular subject of legal scholarship, even though few students will ever have occasion to apply it upon graduation. Topics like family law, contracts, real estate, personal injury law, and other “mundane” areas of legal education are shunned by most academics.

What explains this turn of events? Simple: Constitutional law has become the primary tool used by the post-modern cadre of elite intellectuals to supplant representative self-government with rule by the legal professoriate. Since the 1960s, we essentially have been governed by the federal courts (and an out of control bureaucracy) instead of by our elected representatives.

 

Legal scholarship is used by the elites to justify activist judicial decisions that thwart popularly-enacted laws or depart from the original meaning of the Constitution. Much of it is theoretical mumbo-jumbo designed to obfuscate its true aim: putting the elites in charge. The mandarins are convinced that their policy choices should prevail over those of the uninformed masses, because the mandarins believe they are wiser and more enlightened. The republican form of government is regarded as backward and outmoded, especially if it stands in the way of the currently-fashionable policy goals and “settled science” desired and advocated by the professoriate.

Activist judges, enabled and encouraged by the legal academy, frequently override the effects of elections and legislation with which the “chattering classes” disagree, effectively allowing a privileged clique to govern the nation by judicial fiat. For decades, gloomy prognosticators such as the late Robert Bork and University of Texas law professor Lino Graglia (sometimes joined by the departed Justice Antonin Scalia in his witty dissents) have darkly warned that in the guise of “constitutional interpretation” a cultural elite seeks to wrest control of public policymaking from the American public, whose bourgeois values and beliefs they openly disdain. Although Bork and Graglia were sometimes dismissed as modern day Jeremiahs their dire predictions have proven to be uncannily accurate.

In recent decades, academics have constructed many different theoretical justifications for a more expansive judicial role. Graglia has described contemporary legal scholarship as a “cottage industry… in the production of ever more esoteric theories of constitutional interpretation.” Graglia also notes that most constitutional litigation involves just four words, “due process” and “equal protection,” leading him to conclude that “The 14th Amendment has to a large extent become a second constitution, replacing the original.” As Northwestern University law professor John McGinnis has written, “Sometimes there seem be as many theories of the [14th Amendment] as there are theorists.” New theories are spawned every day, straying further and further from the original meaning of the Constitution and even from that particular amendment.

Writing for both academic and lay audiences, Bork was a tireless proponent of the view that judicial decisions purporting to interpret the Constitution must—in order to be legitimate—comport with the original understanding of the Framers. After all, that understanding is the only understanding to which the people have had an opportunity to give their consent. Bork’s unrelenting criticism of “noninterpretive” theories of constitutional law in the 1970s and ’80s paved the way to the modern embrace of “originalism” as the dominant mode of constitutional decision-making by principled conservatives.

As Bork famously observed, “The truth is that the judge who looks outside the Constitution always looks inside himself, and nowhere else.” This was anathema to the legal establishment’s social engineers, who had devised elaborate theories justifying the “discovery” of new rights in the “living Constitution.” Judicial restraint would clip the wings of the narcissistic legal professoriate, and with it the New Class they serve.

Heresy has a price. In 1987, when President Reagan nominated Bork for the U.S. Supreme Court, he was shamefully denied Senate confirmation—but not filibustered—in retaliation for his unfashionable advocacy of judicial restraint. Graglia was dealt a similar fate, when his nomination to the Fifth Circuit was derailed in the face of fierce opposition by the American Bar Association.

In the ensuing 30 years, as the courts have increasingly asserted themselves as the final arbiters of national policy, confirmation battles have—predictably—become even more politicized. The recent Senate battle to confirm President Trump’s nominee to the Supreme Court, Neil Gorsuch, requiring elimination of the filibuster, will seem like a chorus of “Kumbaya” when the pivotal seats now held by Justice Anthony Kennedy or Justice Ruth Bader Ginsburg become vacant.

The mandarin class in the legal academy cannot resist the urge for power, and as our culture becomes ever more polarized, the legal professoriate grows ever more estranged from the rest of society—Hillary’s “deplorables.” This is not necessarily a partisan phenomenon. On the left and the right, constitutional theorists—sometimes claiming the mantle of originalism—busily concoct elaborate rationales for disregarding the electoral majority’s wishes regarding traditional marriage, immigration, border security, capital punishment, and a host of other issues, in lieu of the theorists’ own policy agenda.

The real irony, however, is that few voices in today’s legal academy advocate judicial restraint, even among so-called “originalists.” Although it still holds sway among conservative political scientists such as Georgetown’s George W. Carey (author of In Defense of the Constitution), the once-influential Bork/Graglia position has seemingly—and inexplicably—fallen out of favor in the law schools. I am old enough to remember when constitutional theory could be divided into two camps: originalism (restraint) and non-originalism (activism). Restraint is no longer “cool”; it leaves power in the hands of the detested proles.

Now, in Baskin-Robbins fashion, there are at least 31 different flavors of originalism, some of which—like the libertarian theory of “judicial engagement”—would grant to courts more discretion to review laws than the most extravagant “living Constitution” theories. Federalist Society co-founder and Northwestern University law professor Steven Calabresi has apparently had a mid-life libertarian epiphany and now—purporting to apply originalist techniques—concludes that the Constitution protects same-sex marriage. Creative “originalism” can also be stretched to reach free-market outcomes Ayn Rand would applaud. George Mason University law school professor Michael Greve has archly referred to libertarian scholars who presume to “read the Constitution as a municipal code for Dagny Taggart’s valley.”

This is not necessarily a partisan phenomenon. On the left and the right, constitutional theorists—sometimes claiming the mantle of originalism—busily concoct elaborate rationales for disregarding the electoral majority’s wishes regarding traditional marriage, immigration, border security, capital punishment, and a host of other issues, in lieu of the theorists’ own policy agenda.

It is no coincidence that some self-styled “originalists,” such as libertarian Georgetown University law professor Randy Barnett, dismiss Bork and Graglia as “old school” proponents of a view that “used to be the dominant strain in conservative circles,” in “years past.” Barnett crows that Bork and Graglia used to “rule the roost,” but that “Times have changed.” Is judicial restraint really passé? Barnett contends that “as originalism has assumed an increasingly powerful hold on the legal culture … one must either reject judicial restraint, or attempt to redefine it so it is compatible with originalism.” (Barnett has gone so far as to claim that appeals for judicial restraint are a form of conservative “living constitutionalism,” inverting the very terminology that launched the originalism debate!)

The “originalism” Barnett speaks of is not the originalism espoused by Bork or Attorney General Ed Meese. Barnett has in mind a fashionable new variant of originalism that would empower judges to evaluate the necessity and efficacy of laws to determine if they infringe “unenumerated” (that is, unwritten) rights purportedly lurking in the Constitution. Any sound “originalist” conception of the Constitution must accept that judges should confine themselves to enforcing the express provisions of the Constitution. No matter how exotic the theoretical justification, judicial review does not authorize courts to divine invisible rights or serve as Delphic Oracles pronouncing judgment on the wisdom of laws.

Shifting intellectual fashions do not alter the original meaning of the laws, or the role of judges. Trend-setting law professors may think that government by judiciary is de rigueur, but most Americans properly view it as lawless usurpation.

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Why Republicans Cannot Bear Trump’s Spending Plan in One Easy Lesson

The White House on Thursday released what officials variously described as a “skinny budget,” a “hard power budget,” and—most memorably—an “America First” budget that begins “a New Chapter of American Greatness.” (I’m partial to the last one.)

As flattering as that sounds, the truth is President Trump’s first budget outline is far from “great.” The $54 billion defense component represents only a 3 percent increase over current spending—not 10 percent as the administration says.

Even with the wholesale elimination of programs and double-digit cuts to departments to offset the defense hikes, the plan does remarkably little to reduce the overall $7 trillion in federal spending and has nothing whatsoever to say about the towering $20 trillion national debt.

But as a way to begin chiseling away at the Leviathan State at the margins? Not a bad start.

The Left has responded with its usual irrational exuberance. Everything is vital. Nothing is extraneous. All cuts are “Draconian.” Children and old people will die.

Miles Kampf-Lassin of the hard-Left In These Times called the spending plan, “a cruel and inhumane document that would gut programs that protect the environment, fund medical research, defend workers and help the poor.”

“The administration’s proposals are heartless and prioritize building a border wall over diplomacy and housing the poor,” said U.S. Rep. Adriano Espaillat (D-N.Y.) in a press release.

And New York Times columnist Nicholas Kristof must have felt mighty proud of himself when he tweeted: “Reading through the Trump budget, I feel as the Romans must have felt in 456 AD as the barbarians conquered and ushered in the dark ages.”

Uh . . . huh.

Permit a brief bit of remedial civics. Presidents may propose budgets, but they don’t actually write them. Congress does that. Or at least Congress is supposed to do that. Congress hasn’t really passed a proper spending bill in many years. Appropriations begin in the House of Representatives and are approved or amended in the Senate. The two houses work out any conflicting provisions in a conference committee. Then the president either signs or vetoes the resulting bill.

Again, that’s more or less how it’s supposed to work. Instead, we’ve had a long series of “continuing resolutions,” interrupted by the occasional shutdown, that keep the federal government running, but not in any way James Madison or the framers of the Constitution would recognize as legitimate.

Although the response from the Democratic side of the aisle was predictable, the Republicans haven’t exactly acquitted themselves well, either. Republicans, in truth, have never deserved their reputation as the party of fiscal responsibility. Certain members may boast of their consistent (safe) votes against certain spending bills, and the party’s leadership still crows about the ban on earmarks (even though the pork barreling never really stopped). But in the end, our current batch of Republicans spends as ably and profligately as any ward-heeling Democrat.

Here is just one small but telling example of how unserious congressional Republicans are about ever reining in federal spending.

The Hill newspaper on Thursday published a story purporting to identify a flip-flop in President Trump’s pledge to invest upwards of $1 trillion in infrastructure.

The White House plan would cut $2.4 billion, or 13 percent, from the Department of Transportation. According to the White House, “The Budget reduces or eliminates programs that are either inefficient, duplicative of other Federal efforts, or that involve activities that are better delivered by States, localities, or the private sector.”

Journalists, being clever-minded folk, can clearly see that “minus $2.4 billion” is not “plus $1 trillion.” That must mean something. But what?

The story highlights the proposal to zero-out the Transportation Investment Generating Economic Recovery (TIGER) grant program. Republicans are very upset about this for some reason. Sen. Susan Collins (R-Maine), who chairs the Senate Appropriations transportation subcommittee, has vowed to protect the program at all costs. Rep. Mike Johnson (R-La.) says the program has been vital for bridge and road repair in his state.

In case you weren’t aware, TIGER grants are of a fairly recent vintage. They first appeared in the American Recovery and Re-Investment Act of 2009—the $890 billion stimulus loaded with one-time expenditures that somehow turned into sacrosanct spending. The program has doled out around $5.1 billion since that time.

“If [TIGER grants] were to be cut, then it’s big time trouble,” Sen. Bill Nelson (D-Fla.), ranking member on the Commerce, Science and Transportation Committee, told The Hill.

“Department of Transportation TIGER grants are something that are considered essential to rehabbing our infrastructure,” he added.

No, they aren’t. But we’d expect to hear that from a Democrat. It makes you wonder how on earth we built or fixed highways and bridges prior to 2009, doesn’t it? Most transportation projects are funded through a combination of federal, state, and local tax dollars and fees. Trump’s infrastructure proposal, which is still in the works, would potentially add hundreds of millions of dollars in private financing to the mix.

Anyone wishing to delve into the grim particulars of why this particular half-billion-a-year discretionary grant program is at once ineffective and perfectly dispensable may find enlightenment in a 2012 report by the libertarian Reason Foundation. There the interested reader will learn all about the program’s “vague metrics,” “inconsistent modal funding,” and “poor documentation,” as well as how—surprise, surprise—“Democratic congressional districts receive more funding than Republican congressional districts.”

The grants also fund local and regional projects that have no obvious national impact. Which sounds an awful lot like “earmarks” by another name. Except instead of legislators tucking special projects into appropriations bills they no longer pass, political appointees in the federal transportation bureaucracy exercise “discretion” to pick winning projects.

Nobody should expect President Trump’s first spending proposal to survive intact and unamended. But nobody can seriously contend that every program is essential, every agency budget is lean, every federal employee is indispensable, or that the disappearance of any them would cause irreparable harm to the republic.

Bear in mind, the TIGER grant program is a $500 million line item in a $18 billion department budget. And prominent Republicans want to go to the wall to save it.

If this is what we get from Republicans, then why bother with the GOP?

2016 Election • America • Big Media • Conservatives • Cultural Marxism • Defense of the West • Donald Trump • Economy • First Amendment • Free Speech • Hillary Clinton • Hollywood • Libertarians • Republicans • The Culture • The Left • The Resistance (Snicker)

Three Ways to Fight Back Against the Left

Not long ago, I heard a conversation on a nationally syndicated radio program between the host and a writer for the New York Post. Both were supporters of President Trump. Referring to the relentless intensity of the opposition to the president from the Left, the host asked his guest whether  the madness will soon have to come to a head. The Post writer replied, in time, when the country improves materially, Trump will get the credit that he deserves and a calm will settle over the land.

I wish that I could believe that’s so.

Even if they are certain that he is entitled to it, Leftists will never give this president his due. And for as long as Trump is in office, and probably even long afterwards, Leftists will spare no occasion to manipulate other Americans into seeing things their way.

The American Left has been traumatized by Trump’s upset victory. For that matter, it isn’t just the American Left that remains shocked to its core, but Leftists around the world. It is telling that in spite of Trump’s massive rallies and the personal connection that he established with his supporters, Leftists apparently could not so much as conceive of the possibility that Hillary Clinton might lose to the Republican nominee.

Although fake news outlets and their phony polls consistently showed Trump losing in a landslide to Clinton, the President won 2,623 American counties compared to Clinton’s 489. If we subtract that bluest of blue states, California, Trump would have won the popular vote by more than 1 million votes (and this is assuming, counterfactually, that there was no voter fraud). If we also subtract New York, he would have won by 3 million votes over 48 states.

Trump swept most of the country, making it painfully obvious to Democrats that their party is now largely a coastal party. As far as the Electoral College goes—and this, let us not forget, is how presidential elections are supposed to be decided in the United States—Trump crushed his opponent with 306 votes to Clinton’s 232.

The Left’s collective head exploded. After a month or so of waxing outrage over Trump’s refusal to say in advance of the election whether he would automatically accept the outcome if Clinton won, Leftists still refuse to accept the outcome after Trump actually won. First they demanded phony recounts. Then they tried to coerce the electors of the Electoral College to deny Trump the votes that he earned. When this dirty tactic failed, leftists contrived a conspiracy theory of epic proportions: Trump, they tried to convince the country, had won in an immense landslide because Vladimir Putin wanted him to win.

Now, as left-wing millionaires and billionaires (like the contemptible George Soros) finance massive anti-Trump protests and violent Leftist, neo-communist and anti-American terrorists wreak havoc in the name of “demonstrating” against Trump and “fascists,” Democrats in Congress are on a quest to create any opportunity that they can to impeach the president and bring about his downfall.

Trump and his army of some 63 million or so “Deplorables,” against overwhelming odds, defeated the elitists of both parties and the Regime that they constitute. As a bonus, he is well into his project to defeat the media, academia, and Hollywood and to reclaim the culture for partisans of America. Hard left and alt-leftist (neo-conservative) Regimists threw every weapon in their arsenal against the Donald—all to no avail.

The Regime didn’t just go down to defeat. It suffered a humiliating defeat.

Democrats already had lost more than 1,200 seats at the national and state levels since Obama was elected (yes, he’s not only been terrible for the country, he’s been terrible for his party). Republicans control the legislatures in some 32 states and the governorships in about two-thirds of the states.

And then along came Trump.

The whole world is crashing in around the Left. They will never accept their losses—even if that means dispatching thugs to terrorize innocents, destroy property, attack police, set fires, issue calls for “punching” their opponents “in the face,” organize demonstrations, and lie through their teeth to delegitimize and/or impeach President Trump.

But here’s the question that, to my knowledge, no prominent Trump-supporter in national media has yet to ask:

What are the rest of us going to do about all of this?

It’s true that in writing, talking, and thus exposing the hysteria, deception, and violence, commentators go some distance toward combating left-wing rage. Yet given the fever-pitch of the times, this has begun to feel inadequate. More needs to be done.

First, conservatives and others who are appalled by the hostility of the Left should organize boycotts of every commodity produced by those who make known their regard for them as, well, “deplorable.” The Left doesn’t hesitate to engage in boycotts. Neither should we. Those who make an effort to repudiate our values must be made to pay a steep price for their actions.

Second, while “conservative” talk radio hosts like Rush Limbaugh and some others deserve credit for effecting important changes in the media landscape, they—especially—could do more than they currently are doing. These top-tier hosts have abundant resources at their disposal. It’s hard to imagine that it would cost them very much at all to organize some pro-American, anti-left demonstrations.

They could help bus in hundreds of thousands (and maybe more) exacerbated, yet proud, Second Amendment-availing patriots to Washington, D.C. Perhaps Bikers for Trump and Truckers for Trump could join them, bringing the city to a standstill. Uniformly dressed in, say, red—the color for courage—or maybe dark blue—the color for justice—the sea of pro-American demonstrators, hoisting their American flags high, could put the leftist thugs, terrorists, and bullies on notice that a new day has indeed dawned and they are no longer going to tolerate being pushed around

Finally, shows of force and determination and courage are necessary.

Any violence-prone, “antifa” terrorists would enter these zones at their own peril.

Since the Left will never stop fighting, the Right must wake up to the fact that it must start fighting with the same tenacity.

America • American Conservatism • Conservatives • Democrats • Donald Trump • Government Reform • Libertarians • Neil Gorsuch • Republicans • The Constitution • The Courts • The Leviathian State • Trump White House

With Gorsuch, Trump Picked the One Man Who Would Check His Power

The day after a Supreme Court nomination announcement is like Christmas morning for court watchers. It’s even more special, really, because we only get a Supreme Court nomination every five years or so. We spend the day analyzing the nominee from every imaginable perspective—contemplating what his academic credentials, legal experience, judicial record, or even biographical information can tell us about the jurisprudence the nominee is likely to display on the High Court.

We also while away the hours asking silly questions like: What can we tell from the fact that President Trump’s pick to replace the late Antonin Scalia, Neil Gorsuch, clerked for Justice Anthony Kennedy back in the 1980s? Does that mean the 10th Circuit judge also favors a constitutional right to same-sex marriage? How about the fact that Gorsuch has a British wife? Is he therefore in favor of unrestricted immigration? And he is an Episcopalian. Does that mean he will take a middle-ground position between precedent and text?

While that can be a fun way to spend the day, asking such questions is largely a futile endeavor. Nominees change once they’re safely on the court. The issues change, too, pushing justices in directions that even they could not have foreseen.

For example, when President Reagan nominated Kennedy in 1987 and the Senate confirmed him in 1988, no one would have expected that he would become the court’s leading voice on gay rights issues. That was something that became part of Kennedy’s legacy as a result of a unique confluence of his own evolving views on government authority and sexual identity.

That said, when something really sticks out in a nominee’s record, there is reason to be more confident that this issue will become a major part of the nominee’s legacy if appointed to the Supreme Court. With Scalia, it was his commitment to originalism that defined his legacy. Indeed, Scalia’s views on many issues evolved during his 30-year tenure, but throughout that time he was consistently the most outspoken and committed originalist on the court.

What is likely to be the issue for Gorsuch? What sticks out most in his record is his willingness to reconsider the Chevron doctrine—the 1984 Supreme Court decision calling for extreme deference to administrative agency discretion, thus opening the path for virtually unlimited executive authority. Yesterday, I compared the doctrine to the Hydra of Lerna and mentioned how Gorsuch, more than any other federal judge to my knowledge, has demonstrated an eagerness to lop off a few of the heads on that judicial doctrine he once described as a “behemoth.”

This part of Gorsuch’s record will no doubt be picked up by the mainstream media, but I can guarantee what will not be picked up—and that is what this says about President Trump. Of the 22 candidates Trump considered, Gorsuch is unmistakably the most hostile toward executive discretion and overreach. No one would mistake Trump for a constitutional scholar, but it is clear that the president was acutely aware that skepticism of agency power is central to Gorsuch’s judicial philosophy. Put more starkly: Trump chose the one judge most likely to limit his executive authority.

That is remarkable. Past presidents have selected nominees, primarily, for the purpose of advancing their particular agendas. There is indeed substantial evidence that President George W. Bush passed over many highly qualified jurists because they seemed insufficiently deferential to his view of the commander-in-chief authority as it applied to the War on Terrorism. Likewise, President Obama clearly selected Elena Kagan in part because of her outspoken support of gay rights at Harvard and Sonia Sotomayor for her commitment to racial justice, an issue that has been at the core of her jurisprudence on the Supreme Court.

So what does Gorsuch tell us about President Trump? This chief executive whom scholars and pundits deride as a “fascist” and “tyrant” appears committed to choosing a jurist who will limit executive discretion, which suggests that Trump’s call to “drain the swamp” will be a critical part of his Supreme Court legacy. It may behoove some of us today to spend less time thinking about what trivial details from Gorsuch’s personal life can tell us about Gorsuch, and more time considering what Gorsuch can tell us about Trump.

American Conservatism • Big Media • Conservatives • Defense of the West • Donald Trump • Free Speech • Libertarians • Terrorism • The Culture • The Media • Trade • Trump White House

A #NeverTrump Libertarian Wakes Up

I was a “Never Trumper” libertarian almost from the beginning. (That’s actually a bit of a misnomer. I have hated to call myself a libertarian for years; “classical liberal” is a better fit.)

I declared in December 2015 that I would not support Donald Trump if he won the Republican nomination. I also wrote many articles criticizing Trump’s demeanor and his policy proposals. I even attacked Trump and accused him of attempting to set up a dictatorship.

The day before the November election, I predicted that Trump would be crushed by Hillary Clinton. Obviously, I was wrong—by a lot. That left me with two choices: I could be smug and indignant like the rest of the pundits and commentators who got it wrong, or I could take a good, long look at myself and try to figure out what I had missed. I decided on the latter course, first writing a “what I got wrong” piece followed by some serious self-examination.

Why did I get the election wrong? Because of my irrational Trump hatred. While I attended a couple of Trump rallies, I could never get behind the man. Despite knowing that many of the people there were looking for more economic security and a sense of purpose, I allowed myself to be convinced by many in the media that this was a racist movement first and foremost. In an attempt to be accepted by many who live in the East Coast media bubble, I bought their narrative on Trump.

One of the main reasons I opposed Trump was that I saw him as a threat to my principles. But it turns out that my own way of thinking about politics was a greater threat to those principles than anything else.

I failed to realize the importance of culture in maintaining liberty. Liberty has always meant both freedom and responsibility. Right now, we do not have a culture that is conducive to liberty in America. The Left has perpetuated a cult of victimhood that allows some people to avoid taking responsibility for their bad decisions.

If you’re a racial minority, it’s not your fault that you don’t succeed in life. It’s the fault of white privilege. If you’re a woman, you’re being held back by the patriarchy. These lies we tell ourselves are not only soul crushing for the individuals who believe them, they are liberty crushing for a nation that perpetuates them.

Meanwhile, the Left, which dominates the media and academia, has imposed a speech code on the country and declared certain topics off limits. We cannot have an honest discussion about the role of Islam behind terrorism or whether it needs reform. The Left (and many libertarians for that matter) also seem unable to distinguish between a legal and an illegal immigrant. Finally, the cosmopolitan elite have decided that Americans who don’t agree with their view of the world are racists and bumpkins whose views should be discarded.

Victor Davis Hanson recently defined Trumpism as a movement aspiring to:

…an America that emulates (even if hypocritically so) the lost culture of the 1950s; exploits fossil fuels; is run by deal makers who make money ostensibly to achieve a GDP that can fund the niceties of American civilization; opposes unfettered free trade and is united by race and class through shared material success; assesses winning as what’s workable rather than what’s politically correct or doctrinaire; makes ‘tremendous’ cars, air-conditioners, and planes; has the largest and most powerful and least-used military; and is loyal to our allies and considerably scary to our enemies. All that seems to be Trumpism (at least for now).”

Essentially, it’s a commitment to keeping America a safe, secure, and wealthy country that builds and exports things. Wealthy, secure nations are also freer nations than those that are poor and less secure. I’m sorry to disappoint many libertarians, but sometimes force is necessary to preserve freedom. Trump seems to understand this. Finally, it’s a sense of bringing the country back together again for a common purpose. It provides a chance for Americans to be greater than themselves.

Finally, Trump has done something vital. He has swept aside the failed ideologies of the Right. Neoconservatism and social conservatism are dead (or dying), the Beltway conservatives are largely on the run, and the libertarian fringe is discredited. This has allowed a much needed clearing of the deadwood and the rise of new and better ideas.

Does this mean I support all of Trump’s agenda? No. I’m still a committed free trader and am skeptical of large government programs. I still also have concerns about his stances on civil liberties. But I’m willing to give Trumpism a chance.

It’s not just America that is threatened, but all of Western Civilization that is under threat from the far-Left and radical Islam. It is my hope that Trumpism can lead to the fusion of conservatism, libertarianism, and nationalism that will be needed to save the West.

 

 

2016 Election • America • American Conservatism • Conservatives • Cultural Marxism • Democrats • Government Reform • Jeff Sessions • Libertarians • Republicans • The Constitution • The Courts • Trump White House

Law Professors Not “Above the Fray” in their Opposition to Sessions

Attorney General-nominee U.S. Sen. Jeff Sessions (R-Ala.) is sworn in at his Senate confirmation hearing on January 10, 2017. More than 1,500 law professors signed a letter opposing him—as if it matters.

The U.S. Senate this week will almost certainly vote to confirm Jeff Sessions of Alabama as the next attorney general. One can hope that the vote would create more unity within Congress, and across the nation, but it will not heal the deep wounds that the legal academy has inflicted on itself over the past two weeks.Just as the legal academy came out in near uniformity against Donald Trump, they have now repeated the performance with the Sessions nomination, as nearly 1,500 law professors from around the country joined a letter opposing the junior U.S. Senator’s appointment to lead the Justice Department. It also led some prominent libertarian law professors who did not join the letter to write separately to declare that Sessions should “trouble libertarians, conservatives and others who care about protecting liberty, constitutional federalism and property rights.”

Rushing to Sessions’ defense were three law professors—Stephen Presser, Scott Gerber, and Michael Krauss—who took the position that the legal academy’s attack on Sessions was “transparently partisan,” even accusing the law professors against Sessions of making a “scandalous statement” betraying “extraordinary arrogance and presumption.” In this academic Battle of Thermopylae, the vastly outnumbered Spartans actually prevailed.

Last week’s hearings focused on Sessions’ record on  anti-discrimination law and voting rights, the two principal areas that law professors alleged disqualified him from serving as attorney general. Yet the questioning on these points only underscored Sessions’ fitness for the job—and the frivolity of the claims against him.

The heart of the first issue is that in 2013 Sessions voted against expanding the Violence Against Women Act to include, among other things, federal protection against private discrimination on the basis of sexual orientation. Overlooked here, however, is that in 2000 and 2005 Sessions had voted for the VAWA, even after the Supreme Court had invalidated part of the 1994 law in U.S. v. Morrison (2000) as an improper use of federal power.

While one may reasonably disagree with Sessions on the 2013 amendment and believe that the LGBTQ community is entitled to the same federal protection as women, that does not mean that Sessions is ill-equipped to be attorney general. That’s simply a disagreement on the role of the federal government, not evidence of Sessions’ unfitness to serve. All that should matter is whether Sessions is able and willing to enforce the laws of the United States, to the fullest extent and for all Americans. That is the standard by which previous attorneys general have been examined and that is an obligation Sessions appears firmly committed to honoring.

The core of the second argument against Sessions is that he expressed agreement with the Supreme Court’s decision in Shelby County v. Holder (2013). That decision invalidated the use of a 50-year-old formula, originally established under the Voting Rights Act of 1965, to require only Southern states to obtain federal approval if they wanted to change their voting procedures. Even though Southern states had long since corrected their discriminatory voting regulations so there were no longer disparities in access to the polls, Congress continued to reauthorize the outdated formula based on 1960s voting data, keeping the South under federal oversight in a way no other part of the country was. Sessions, that “deplorable” man now compared to a Klan member, is apparently so racist that in 2006 he was among those who voted for placing these more onerous burdens on the South.

Nevertheless, various Senate Democrats jumped on Sessions because, after the Supreme Court held that it was arbitrary for Congress to impose such geographically discriminatory restrictions, Sessions acknowledged it was a reasonable decision. That’s right—his moral shortcoming was that he simply observed that the Shelby County decision “was good news . . . for the South, in that [there was] not sufficient evidence to justify treating them disproportionately than say Philadelphia or Boston or Los Angeles or Chicago.”

If voting for the Violence Against Women Act twice, and for the very Voting Rights Act formula that the Supreme Court tossed in Shelby County, makes Sessions a bigot, then what does it say about Justice Anthony Kennedy, that frequent darling of the Left who voted to invalidate both statutes?

Some of the allegations against Sessions have highlighted the inconsistencies wrought by the identity politics that have come to dominate the progressive Left. For example, Civil Rights Era icon Rep. John Lewis (D-Ga.), who doesn’t see president-elect Trump “as a legitimate president,” lectured Sessions on his legal provincialism, proclaiming, “We need someone as attorney general who’s going to look out for all of us, and not just some of us.” That is surely true, but nothing in Sessions’ record should draw that commitment into question—including his strict prosecution of a Klan member when he was a U.S. Attorney in Alabama.

Sadly, some recent U.S. attorneys general have not satisfied this minimal requirement, even refusing to enforce voting rights law based on whether the alleged violators were members of “[his] people.” Some attorneys general have even refused to enforce national security law based on whether the alleged violators were elite members of their party.

Such provincialism, however, did not arouse concerns from the legal academy. To the contrary, that very approach led President Obama to consider nominating Eric Holder for the Supreme Court and California to hire Holder as a “legal bulwark against Donald Trump.” In fact, Holder’s partisanship even inspired Above the Law, a leading law blog, to nominate Holder “to lead the resistance,” a movement that apparently involves acquitting all black people accused of committing crimes, including rape and murder, against white people. Oddly enough, people are terrified that Sessions is the one who will look out for just some of us.

Sen. Dianne Feinstein (D-Calif.)  likewise reminded Sessions of his special obligation to protect African-Americans. “There is so much fear in this country,” she said—a fear Feinstein sees and hears “particularly in the African-American community.” This is particularly relevant, given the escalating crime rate in many cities, not to mention the recent Chicago kidnapping and torture of a mentally disabled young man, but it is hard to see how an attorney general who declares that “[i]t is a fundamental civil right to be safe in your home and your community” would choose to exacerbate rather than alleviate this fear.

In his dramatic and unprecedented testimony against his Senate colleague, Sen. Cory Booker (D-N.J.) harped on Sessions’ insufficient empathy on illegal immigration and insufficient vigor in seeking to expand civil rights. As Booker eloquently put it, appropriating a Martin Luther King quote that originally came from transcendentalist Theodore Parker, “[t]he arc of the universe does not just naturally curve toward justice.” To resist this natural curve, Booker proclaimed, “America needs an attorney general who is resolute and determined to bend the arc.”

What this boils down to is that Booker believes that the law must be used, and even bent, as a means to achieve progressive ends—particularly, to empathize with law-breakers and to expand civil rights protections beyond their textual commands. That may be an admirable position for a political activist to take, but it is definitively not the attorney general’s obligation in upholding the rule of law.

Law professors, of course, should be concerned about any political official they believe may be insufficiently committed to equal protection under the law. But how can anyone take the professors seriously when they are so nakedly partisan? More than anything, the legal academy’s attack on Sessions appears to be animated by an irrational hostility toward the sound of Sessions’ Southern twang. This coastal chauvinism is dressed up in legally objective reasoning, but that is only a veneer. That they would use this particular veneer is ironic, given the decades of effort these very same progressive law profs have put into deconstructing law, objectivity, and reason—insisting that legal interpretation is inescapably political and thus cannot be based on shared national values or objective rationality.

This irony is particularly sharp when, in order to condemn someone like Sessions, these same law professors distance themselves from their own legal nihilism and invoke the prestige from the halcyon days of the legal academy, harking back to a time when law schools were, at least in spirit, insulated from political agendas. The problem with their making law schools political, however, is that law professors can no longer trade in the intellectual currency that impartiality carries.

But the fact that 1,500 law professors in 2017 have signed a statement against Sessions simply means that 1,500 people employed by the nation’s 200 law schools don’t like Jeff Sessions. That shouldn’t surprise anyone who knows anything about American legal education. What is surprising is that anyone would think this says anything about Jeff Sessions.

 

2016 Election • America • Conservatives • Donald Trump • Government Reform • Libertarians • Republicans • The Constitution • The Courts • Trump White House

A Fractured Coalition on Judicial Nominees

Mark Pulliam, a prolific legal writer and commentator on American conservatism, recently provided a Kirkian assessment of libertarians, wherein he argued that libertarians have exercised too much pull over the legal conservative movement. Pulliam exhorts President-elect Trump to resist the libertarian temptation in nominating federal judges.

In particular, Pulliam objects to the endorsement of “judicial engagement” by several prominent libertarian scholars—an endorsement made most prominently by Georgetown’s Randy Barnett in his most recent book, Our Republican Constitution. Roger Pilon, vice president of legal affairs at the Cato Institute and a libertarian legend, responded to Pulliam’s essay with a vigorous defense, alleging that Pulliam’s argument for judicial restraint essentially amounts to a repudiation of natural law and an abdication of judicial duty.

What prompts me to wade into this dispute is not so much to take a position but to highlight what this illustrates about the withering traditionalist-libertarian coalition in the legal conservative movement, an already-torn partnership that, after Trump’s election, appears on the verge of dissolution.

First, some background on the traditionalist-libertarian coalition, which dates back to Frank Meyer’s “fusionism,” a linking of tradition and liberty as the twin pillars of the American Right. The coalition has always been like visiting a relative you don’t really like: There is some faint affection bringing the two together, but both sides generally endure the experience by avoiding topics that will reveal that, other than some weak lineal connection, there is not much holding them together. If traditionalists can avoid topics like culture and religion, and if libertarians can put down their bong and stop watching pornography, the coalition can work.

The problem, of course, is that, just like with family disputes, the issues have a way of creeping back into the conversation. That is what Donald Trump represents—he is a reminder of what divides traditionalists and libertarians.

This most recent fracture in the coalition comes down to the three particular issues that propelled Donald Trump to the presidency: trade protectionism, immigration restrictionism, and foreign policy isolationism. Traditionalists tend to favor all three, whereas some libertarians loathe these stances as violations of the free market, expressions of racial chauvinism, and abandonment of American exceptionalism.

I emphasize some libertarians. Often overlooked in these debates is the fact that many libertarians—people who align with the Mises Institute, for example, as opposed to the Reason, Cato, and Institute for Justice crowd—see the North American Free Trade Agreement and the Trans-Pacific Partnership as technocratic restrictions on free trade, secure borders as essential to sovereignty, and military interventionism as unjustified except in narrow circumstances dictated by national interest. It is not libertarianism that Pulliam opposes, but a certain brand of libertarianism, a brand that exercises a significant influence over the legal conservative movement but by no means defines the political philosophy.

It is not that entire side of the family that you hate—it is just that really annoying Aunt Sally and her bratty kids.

Just as Pulliam seems wrong to pile all of his distaste on libertarianism, Pilon seems wrong in attributing to Pulliam a rejection of natural law. One could surely believe in natural law without believing that nine unelected, life-tenured, politically connected judges from New York and California, trained in law at Harvard and Yale but not in philosophy or in natural law theory, should have the ultimate say on what constitutes a natural right for a geographically and culturally diverse nation of over 300 million people.

Bill Buckley famously said that he would rather “live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University.” My sense is that Pulliam might likewise trust the first 2,000 names in the Perryton (presumably not in the Austin) telephone directory more than he trusts the Supreme Court to make pronouncements on natural law. That doesn’t mean Pulliam doesn’t believe in natural law, any more than Buckley meant he didn’t believe in government. It means Pulliam simply doesn’t trust the Supreme Court to opine on that subject.

And why should he? As Justice Scalia reminded us in Obergefell v. Hodges (2015), the Supreme Court consists of the most culturally untethered and demographically unrepresentative group of men and women in the United States government (and that is saying a lot). This is a political body that, while nominally controlled by Republicans for the last 45 years, has stridently and consistently led the nation toward the left on a multitude of hot-button cultural issues.

The Cato and Reason types might like judicial engagement, because in addition to advancing progressive social causes, the Supreme Court has also supported many of their favored libertarian causes—siding with big business over local communities, secularism over religion, and open borders over immigration restrictions—but that is not an argument addressing whether judicial engagement in the abstract is good. That is a practical calculation about whether you like how the Supreme Court has engaged in the past and is likely to engage in the future.

Traditionalists, after finding almost nothing they like out of judicial engagement, have settled for restraint as the next best thing to victory. That is not an abdication of judicial duty. It is a realization of how the federal judiciary works in practice.

“Ah,” the libertarian will respond, “that just means we need better federal judges.” But, pray tell, whence will these judges come? From the elite legal academy, where a faculty that is only 98 percent progressive is considered ideologically diverse? And guess where that remaining two percent resides on the ideological spectrum? You got it—they are almost all either libertarian or socially progressive conservatives.

Previously, I referred to these “conservatives” as high school nerds adopting the language of the cool and hip left in hopes of securing a prom date. But that is only half of their nerd complex—they are also nerds who want to be the bad boy, strutting around the law school, complaining about how they are the one bad right-winger on campus, struggling under the orthodoxy of the left to argue that federal drug regulation is unconstitutional.

This is why the list of Trump’s academic and intellectual supporters consisted of five law professors, and a handful of lawyers (including Pulliam), while the list of originalists against Trump consisted of 10 times that number. To make this clear, those “originalists” against Trump nearly exhaust the right-of-center law professors in the entire nation, and many in that precious two percent came out against the Republican nominee, even though he clearly offered their best hope of advancing their agenda. And despite all this, after the election, these NeverTrumpers were scouring the halls of the Federalist Society National Lawyers Convention in hopes of saddling up to the administration to advance their preferred form of judicial activism.

It is no wonder, then, that Pulliam is suspicious of libertarian judicial engagement. In the vast ocean of progressivism in the legal academy, libertarians are but a small island, and they have left no place on that small piece of land for the other pillar of the American Right.