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.

 

America • Defense of the West • Education • Government Reform • political philosophy • The Constitution

Robert Curry: Americanism Is In Our Bones, If Not In Our Intellects

Robert Curry—American Greatness contributor and author of Common Sense Nation: Unlocking the Forgotten Power of the American Ideaappeared on the Seth and Chris Show yesterday to discuss his recent article, “Replacing Scalia and Replacing Constitutional Rights.” The theme of Curry’s work may help us to understand how we, the American people, can begin once again, to exercise the sovereignty our Constitution recognized and sought to guarantee.

Curry’s argument, he avers, is a simple one: America is in a Constitutional crisis because we “no longer understand the ideas that would enable us to work the mechanism properly.” Put differently, we are slowly losing our capacity for self-government. As his article on Scalia made clear, we demonstrate our confusion about the ideas that set us apart from other nations even in the language we use to describe our rights. The Founders understood them to be inalienable and the purpose of government, therefore, to be securing those rights. But today we talk of “constitutional rights” as if they were given to us by that instrument—as if their point of origin is something as arbitrary and changeable as a human contract.

The good news, however, is that our problems are self-inflicted and for this reason we also have the power to correct them. We may have forgotten the ideas that informed the Founders and their understanding of what is required of a self-governing people, but according to Curry we still “kind of have them in our bones if we don’t have them in our intellects.” America is not intended to be a country ruled by experts or a chosen few. We have the power to remind ourselves again of what it means to be a free people and that task really isn’t as daunting or intimidating as the “experts” would have us believe. We should defy them and do it.

You can (and should) listen to the whole interview here:

https://soundcloud.com/thesethandchrisshow/the-seth-and-chris-show-january-11-2017-h2

First Amendment • Free Speech • The Constitution • The Courts

Replacing Scalia and Replacing “Constitutional” Rights

Mitch McConnell’s bold and sagacious gamble last year in refusing to allow a vote on the replacement of Supreme Court Justice Antonin Scalia during the remainder of Obama’s term surely helped Donald Trump get elected. The specter of Hillary Clinton nominating a replacement for Scalia genuinely frightened many voters, and brought them around to voting for Trump. The senate majority leader’s decision to keep Scalia’s seat open until after the election applied a constant and perhaps decisive pressure on the electorate.

Clinton’s defeat, however, has assured that whomever Trump nominates to the High Court is in for a ferocious confirmation fight. To recall the treatment of that good man and great jurist Clarence Thomas at the hands of senators and the media is to weep. But we are soon to witness more of the disgraceful same.

Even worse than the personal injustice any Trump nominee is likely to face, American citizens soon will endure senators and “experts” pontificating about the meaning of the Constitution in terms that would break the Founders’ hearts to hear. Worst of all, Americans once again will be left with the impression that the Constitution is a mystery difficult to understand, a thicket of problems about which the experts heatedly disagree and about which mere citizens cannot hope to hold reasonable or important opinions.

But this was not the Founders’ view. The Constitution is ours, yours and mine. The Founders wrote it for us and intended for us to understand it. That is why it is brief and clearly written. Their meaning and their intent is available to anyone who can read. Understanding it requires common sense, not advanced study in emanations and penumbras.

Where does the lack of clarity come from then? Beyond the raw politics involved, fundamentally it results from the fact that we have abandoned the language of the Founders in favor of the language of the Administrative State. It is a remarkable fact, though one little noticed, that we no longer conduct our politics in their language. What that means is that we no longer think politically at all, but are only expected to act as passive consumers of what the “experts” dispense. That makes it difficult for us to understand the Founders, though they are not in reality difficult to understand.

Take for example the Founders on our rights. George Washington wrote that the American Founding occurred during a time “when the rights of mankind were better understood and more clearly defined than at any former period.” That new understanding of our rights is what the Founding is all about.

The Declaration of Independence states we have “unalienable rights.” It challenged the legitimacy of every government then in existence, declaring that to secure these rights is the very purpose of government (“…to secure these rights, Governments are instituted among Men…”).

Unalienable rights are at the core of the Founding. Yet except for ritual observances on special occasions, have you noticed that references to unalienable rights have largely disappeared from American politics? Constitutional rights are often invoked, but very rarely or almost never are they described as unalienable rights. Though familiar in one sense, the term “unalienable rights” has the unfamiliarity of a special item only brought out for special occasions.

Recently, a popular talk radio host was discussing the question of rights. The topic had to do with billboards bearing the words: “In the beginning, God created…” Evidently, some atheists and others were objecting to the message, even claiming it needed to be suppressed because it was “hate speech.” The host of the show defended the people who had posted the message, claiming they had a “constitutional right” to post the message. Because he believed he was fighting the good fight, we can appreciate his good intentions. But was he fighting for our rights on the right ground?

No. Not according to the Founders.

If the talk show host had been Thomas Jefferson he would have said they had an unalienable right to post their message. The host’s loose language actually cheapened the truth of this matter and made it seem as though the people behind that billboard were free to speak of God’s creation only by virtue of the fact that the Constitution said they could.

We do not derive our right to freedom of speech from the Constitution. More specifically, it does not “come from” the First Amendment.

To understand this question rightly, we need to remember what the Constitution does. It defines how the federal government is to function—and the very purpose of government, according to the Founders, is to secure our unalienable rights. Consequently, unalienable rights are senior to, on a higher level than, even the Constitution itself. The sequence in logic goes like this:

  1. Unalienable Rights
  2. The Constitution (the Founders’ brilliant design for securing those unalienable rights)

The Constitution is all about defining and dispersing the powers of government. It is fundamentally a design for limiting the government, limiting it precisely in order to secure our unalienable rights from people in government who would try to violate our rights. As Jefferson said, “let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

Now look at the First Amendment. Notice how it begins: “Congress shall make no law…abridging the freedom of speech, or of the press…” No right is here granted to the citizen. The First Amendment, carefully written by James Madison, follows the logic of the Constitution as a whole; it restricts what government, in this case Congress, can do.

The Constitution is not the source of our right to freedom of speech because freedom of speech is an unalienable right. What the First Amendment can do is recognize that already existing unalienable right by forbidding the government from abridging it. And that is precisely what it does.

Consequently, according to the Founders, the people who posted the message on the billboards do not have a constitutional right to freedom of speech. They have, and we have, an unalienable right to freedom of speech which is specially protected by a specific constitutional limitation on the power of government.

I hope that remembering this most fundamental fact about the Founding may help you navigate the blizzard of nonsense which will soon sweep across the federal city and the media.  And pray that our new justice is another Clarence Thomas—possessing both the courage to endure an often cruel and unjust confirmation process and the wisdom to grasp the Founders’ intent.

2016 Election • America • Conservatives • Cultural Marxism • Democrats • Donald Trump • History • Obama • The Constitution • The Leviathian State

Obama Limps into History

Most non-Millennials know the history. Facing a sure defeat at the hands of Napoleon in 1812, the Russians retreated. As they retreated, they burned crops, destroyed bridges and successfully weakened and slowed the advancing French army. In the end, the demoralized and depleted French endured a brutal Russian winter without supplies only to face ultimate defeat.

At first glance it would seem that, taking his lesson from history, Barack Obama is attempting exactly such a tactic in the face of the overwhelming electoral condemnation his party and policies suffered in the most recent elections. The New York Times, and other papers have reported Obama’s last minute executive actions in this light. But upon closer inspection, this myth of utilitarian heroism falls away and we’re left with nothing more than a vanity-driven attempt to create a virtue-signal based political legacy.

Democrats emerged from November’s elections even more broken than they were going in, with humiliating losses in the states, a clear failure to recapture either house of Congress, and, of course, the loss of the presidency. So what does President Obama do? He has used the lamest part of his lame-duck presidency in an attempt both to cement his “legacy” and place obstacles in the path of his successor. He allowed the United Nations to condemn Israel; “permanently” banned drilling off the Atlantic coast; protected federal funding of Planned Parenthood; and condemned and sanctioned Russia for allegedly “hacking” the presidential election.

Obama’s 11th-hour executive actions and institutional directives might be seen to serve the utilitarian purpose of forcing Trump and the Republican congress to waste political capital on their revocation thus making the Republicans’ major agenda items, repeal of Obamacare, immigration and taxes that much more difficult. But, like most of the things he has done via pen and phone, many of these are relatively easily reversed by “pen and phone,” making them, for the most part, a house of cards built as a tornado approaches.

Russia has already responded to his effete sanctions with a round of deserved mockery and, with the exception of the U.N. resolution, each one of the directives can be rescinded fairly easily by the next administration whose party controls both chambers of Congress. As to the drilling ban, the Washington Post reports:

President-elect Donald Trump could counter Obama’s plan with his own five-year plan, but even so it would be years before drilling could start.

The president-elect’s authority to undo a permanent prohibition is unclear. But Congress, controlled by Republicans, could move to rescind the withdrawal of federal lands from oil and gas exploration.”

Similarly, regarding the Planned Parenthood rule, the New York Times notes:

According to the department [of Health and Human Services], repealing the rule would require a new rule-making process, or a joint resolution of disapproval by the House and Senate, with concurrence by the new president.”

Constitutional scholar Barack Obama knows all this. We are left with the conclusion that he enacted these changes with full knowledge that they would be reversed in no time at all.

None of these actions is designed to be permanent but rather to serve as the ultimate in political virtue signalling. If these agenda items were important to him he’d have spent considerably more political capital on them. He’s had eight years, two of which effectively saw him enjoying a supermajority, in which to try to enact and cement these policies legislatively. Instead, he is choosing the last hours of his presidency to “act.” Yet these actions are not intended to be permanent. They serve only to make Obama look good in the eyes of his fans as he leaves office—and, of course, to make Trump look the monster when he repeals them on Day One. Obama understands that these actions are not only symbolic, but doomed. None of that seems to matter to him, so long as the history books record that he tried.

And there lies the heart of it: the history books. The same man who won a Nobel Peace Prize for winning an election is now trying to be viewed as an environmental protector, Palestinian freedom fighter, and the Shining Knight of women’s health using a thin broth consisting of last minute abstentions and executive actions.

What may lie at the core of his actions is his belief—some would say knowledge—that he has the academy and the writers of history (or at least Buzzfeed Top 10 lists) on his side. Obama issues these proclamations secure in the knowledge that the politically Manichean culture he has buoyed during his eight years in the White House will have him painted as hero by a large and impassioned swath of the electorate. Romantic readings of his last-minute actions as grand moments in a storied movement are already underway. And since, like any good social organizer, Obama understands that it is the past that keeps changing, he is comfortable being known as the president of “what might have been.” To that end, he continues governing by intention rather than looking toward any real results.

These are not the noble actions of a retreating general using scorched earth effectively to stall an oncoming force. Instead, they are akin to an attempt by a slumlord or real-estate developer to spackle over cracks in the walls and put Bondo in holes of a crumbling building he’s trying to sell as a luxury property. If and when Trump and Congress use those same tools of pen and phone to undo many of Obama’s ersatz accomplishments, the dudgeon no doubt will be high. Not merely because of policy reversal but because they will be viewed as destroying the legacy of a would-be perfect president. His base and the mythologized history written about his presidency will mourn the future that could have been.

If only, if only.

 

2016 Election • America • American Conservatism • Conservatives • Donald Trump • Greatness Agenda • The Constitution • The Left • The Media • Trump White House

The New Yorker on the “Greatness Agenda”

The January 9, 2017 edition of The New Yorker features a story titled “Intellectuals for Trump,” which highlights the work of Publius Decius Mus and American Greatness. Here’s a short excerpt:

The most cogent argument for electing Donald Trump was made not by Trump, or by his campaign, but by a writer who, unlike Trump, betrayed no eagerness to attach his name to his creations. He called himself Publius Decius Mus, after the Roman consul known for sacrificing himself in battle, although the author used a pseudonym precisely because he hoped not to suffer any repercussions. In September, on the Web site of the Claremont Review of Books, Decius published “The Flight 93 Election,” which likened the country to a hijacked airplane, and argued that voting for Trump was like charging the cockpit: the consequences were possibly dire, but the consequences of inaction were surely so. Decius sought to be clear-eyed about the candidate he was endorsing. “Only in a corrupt republic, in corrupt times, could a Trump rise,” he wrote. But he argued that this corruption was also evidence of a national crisis, one that could be addressed only by a politician untethered to political piety. The author hailed Trump for his willingness to defend American workers and America’s borders. “Trump,” he wrote, “alone among candidates for high office in this or in the last seven (at least) cycles, has stood up to say: I want to live. I want my party to live. I want my country to live.” By holding the line on unauthorized immigration and rethinking free trade, Decius argued, Trump could help foster “solidarity among the working, lower-middle, and middle classes of all races and ethnicities.” Decius identified himself as a conservative, but he saved much of his criticism for “house-broken conservatives,” who warned of the perils of progressivism while doing nothing in particular to stop it. Electing Trump was a way to take a stand against both ambitious liberalism and insufficiently ambitious conservatism.

The essay was meant to provoke conservatives, and it succeeded. Ross Douthat, of the Times, responded that Decius had underestimated the likelihood that a Trump Presidency would damage both the country and the movement. On Twitter, Douthat wrote, “I’d rather risk defeat at my enemies’ hands than turn my own cause over to a incompetent tyrant.” The Web site of National Review, the eminent conservative magazine, published a series of critiques, including one by Jonah Goldberg, who called Decius’s central metaphor “grotesquely irresponsible.” No doubt Goldberg expected that, before long, he would be able to reminisce about that strange week, near the end of an endless campaign, when a blogger using a pen name was the most talked-about conservative columnist in America.

But for conservative intellectuals, as for so many others, November 8th did not mark a return to normalcy.

Read the rest at The New Yorker.

2016 Election • America • American Conservatism • Conservatives • Defense of the West • Donald Trump • Foreign Policy • GOPe • The Constitution • The Culture • Trump White House

The Fall and Fall of Evan McMullin

Thought the #NeverTrump fiasco was kaput now that the election is over? Think again.

Though many Never Trumpers have abandoned the field and are cautiously optimistic in light of Donald Trump’s post-election actions, others cling tenaciously to their cause. Evan McMullin, the presidential candidate seemingly fabricated by Bill Kristol in a laboratory, remains steadfast in  his quixotic quest to become the Torquemada of True Conservatism.

In case you have forgotten who McMullin is (though you and most other Americans might find it impossible to forget someone you never really knew), he worked for the CIA for 10 years overseas, followed by a stint at Goldman Sachs, and then spent a few years as a House staffer until earlier this summer. He was flattered into running for president by the same brain trust that hatched a failed scheme to recruit David French, a relatively obscure writer and lawyer at National Review, for the purpose of thwarting Trump and electing Hillary Clinton. French, however, was self-respecting enough to understand when he was being taken for a fool; McMullin, not so much.

To no one’s surprise, McMullin’s candidacy was largely a sideshow, aimed at providing cover for movement conservatism in the event of the “inevitable” loss these gurus were convinced was coming for Trump.. His campaign was straight out of a Christopher Buckley novel; though he evidently wasn’t in the on the joke. Self-awareness is not one of McMullin’s strong suits, to say the least.

McMullin ran on the platform that if only Americans would invoke the principles of the Declaration of Independence enough, and apply them to the whole world with verve, we could solve our national problems. Never mind the hard work of connecting principles to policies that serve the common good. Statesmanship is for chumps. Simple sophistry will suffice to bind our nation’s wounds. The rednecks in Appalachia just need to quit their incessant yapping about their trials and travails and read their trusty pocket Constitutions everyday. That’ll do the trick.

At this point, McMullin has resigned himself to being a Twitter warrior, calling out Trump for everything under the sun.

McMullin has castigated Trump’s pick of former Breitbart CEO Steve Bannon as his chief strategist, calling Bannon a “white supremacist darling” and an “anti-Semite.” Bannon, along with Trump appointees Michael Flynn and Jeff Sessions, are “antagonistic to religious and other minorities.” The writers at left-wing fever swamps like Salon and the Daily Kos couldn’t have said it better! Though these charges are absolutely baseless, that hasn’t dissuaded McMullin from spreading every bit of lurid anti-Trump propaganda he can dream up. Evidently, this is what “principled conservatism” has come to be. Fair play and honest assessment of character be damned.

As for Trump, McMullin has called him an “autocrat” who wants to erode our democratic institutions so that he can “wield power” and establish an “international kleptocracy.” Those who make such charges seem to be unaware of the despotism perpetuated by the unaccountable bureaucrats who run the administrative state—the same bureaucrats Trump has promised to rein in. As William McGurn notes in the Wall Street Journal,

What’s striking here is that the same folks who see in Mr. Trump a Mussolini in waiting are blind to the soft despotism that has already taken root in our government. This is the unelected and increasingly assertive class that populates our federal bureaucracies and substitutes rule by regulation for the rule of law. The result? Over the Obama years, the Competitive Enterprise Institute reckons, Washington has averaged 35 regulations for every law.

McMullin, of course, has nothing at all to say about this political reality. Instead, he evidently thinks that throwing around some meaningless evocations of “liberty” and “equality” is sufficient.

McMullin has also succumbed to Putin fever, seeing foreign agents of the Kremlin lurking in every corner. Most conservatives—including many NeverTrumpers—have understood the CIA-originated “reports” of Russian interference in the election allegedly on Trump’s behalf to be a rehash of an old charge. Even if evidence supported Russian ties to the hack of the Democratic National Committee and Clinton campaign chairman John Podesta, among others, no evidence suggests the hack (as opposed to the true information the hack exposed) influenced the election. Yet McMullin has gone on a tirade straight out of the Cold War, buying the report and the spin about it without exhibiting the least bit of curiosity about the timing or the findings.

McMullin accused Trump of “purposefully dismantling barriers that protect our nation from dangerous Russian subversion.” In a particularly egregious display of malice, McMullin claimed that “Donald Trump is not a loyal American.” I understand that some Americans are appalled at Trump’s election. But calling Trump a traitor to his country is beyond the pale. If he had any real regard for the truth, McMullin would be ashamed of himself.

In any event, such reports shouldn’t be taken at face value. As an ex-CIA officer, McMullin—of all people—should know this. Why would this report re-surface now, ahead of the Electoral College meeting on Monday, and when it’s been known for some time that such hacking was taking place? (And as John Hinderaker of PowerLine notes, the White House and other executive office computer systems were hacked a couple years ago with little national outcry to speak of.)

Does the CIA, an agency that’s gotten so many things wrong over the years, have direct evidence that proves Russia hacked the emails and that they did so in order to help Trump win? And even if there were proof of Russia’s involvement and intent, would this “proof” be dispositive evidence that Russia influenced American voters as opposed to, say, Hillary Clinton’s character and actions? The Washington Post’s own account begrudgingly admits that they don’t have direct evidence to back up these claims:

The CIA presentation to senators about Russia’s intentions fell short of a formal U.S. assessment produced by all 17 intelligence agencies. A senior U.S. official said there were minor disagreements among intelligence officials about the agency’s assessment, in part because some questions remain unanswered. For example, intelligence agencies do not have specific intelligence showing officials in the Kremlin “directing” the identified individuals to pass the Democratic emails to WikiLeaks, a second senior U.S. official said. Those actors, according to the official, were “one step” removed from the Russian government, rather than government employees.

(The idea that a lack of direct evidence is only a “minor” detail is laughable.)

And why did the FBI conclude months ago that the RNC—which another leak reported by the New York Times said was hacked as well—in fact was never hacked? If the emails supposedly handed Trump the election, why did Mike Rogers, the head of the NSA, and Senator John McCain (R-Ariz.) conclude only a few short weeks ago that the hacking did not influence the outcome of the election?

Surely, much more needs to be known to assess what’s really happened. That Russia and other countries try to influence United States policy and elections through espionage (and that the U.S. does the same to other countries) should not shock anyone. Nations have interests and they do what they can to promote them. But the claim that Russia “hacked our elections” (whatever that means) and that such “hacks” were the determining factor in Trump’s victory just doesn’t hold any water.

Instead, this claim should be viewed as part of a much larger campaign to delegitimize Trump’s presidency before it even begins. The fact that  Clinton’s 2016 campaign was the worst in modern American history apparently eludes liberals. They remain undeterred, feverishly spinning outlandish theories by which Hillary can be installed as president. Not demonstrating any interest in why their party took yet another shellacking from voters, they are now pointing the finger at anyone and anything (e.g., the Russians, racism, fake news, sexism, dumb voters, etc.) but themselves for their complete and utter incompetence. And yet according to Evan McMullin, Trump is the one sabotaging democratic norms.

Predictably, ExxonMobil CEO Rex Tillerson’s nomination to be the next secretary of state has drawn McMullin’s ire. Tillerson has a working relationship with Vladmir Putin, along with many other heads of state, because of his international business dealings in the oil and gas industry. He received an important-sounding award, the Russian Order of Friendship, in 2013 from Putin. (Other “agents of Russia” who have won the award include former Cleveland Cavaliers basketball coach David Blatt and, posthumously, the American pianist Van Cliburn.) McMullin has argued that Tillerson is a useful patsy for Trump, because he won’t stop Trump’s “alignment with Putin.” (“Alignment” seems to be his term for when someone doesn’t want to start World War III with Russia at the slightest provocation.) But James Baker, Robert Gates, Condoleezza Rice, and Stephen Hadley applauded the appointment, with Gates calling Tillerson “a person of great integrity whose only goal in office would be to protect and advance the interests of the United States.” So are Baker, Gates, Rice, and Hadley also among Putin’s flunkies?

McMullin’s flailing about is entertaining, but it is also a stark reminder of the failures of the conservative movement. Speeches filled with high-flown rhetoric about principles are not enough. And a conservatism that takes its moral bearings from identity politics is worthless. We should be thankful that voters had the sense to stay away from such foolish grandstanding. And we should continue to pray that their minds remain as clear as they were on Election Day.

2016 Election • America • Conservatives • Democrats • Donald Trump • Electoral College • GOPe • History • Republicans • The Constitution • Trump White House

Believe It or Not, There’s a Silver Lining in the Electoral College Controversy


When the Electoral College meets Monday, Donald Trump will be confirmed as president without much drama and despite the threats of so-called faithless electors.

They call themselves “Hamilton Electors.” “They” are a couple of dissident Republicans, Michael Baca of Colorado and Bret Chiafalo of Washington, and a D.C. public relations firm.

The “electors” are a mostly theoretical set of Republicans who would defect from Trump to deny the president-elect the 270 votes he needs to take the oath of office next month.

“Hamilton” is, of course, Alexander Hamilton – founding father, “bastard brat of a Scotch peddler,” toast of Broadway and, most relevant to our discussion, author of Federalist 68.

The Federalist Papers, as they’re commonly known, are a collection of 85 newspaper editorials authored in 1787 and 1788 by Hamilton, James Madison and John Jay using the pseudonym “Publius,” making the case to ratify the Constitution we know and mostly love today.

Remember, the U.S. is not a democracy, strictly speaking. We’re a republic. We have a Constitution written to keep the worst popular political impulses in check.…

The “Hamilton Electors” claim Trump is just the sort of low man the Founders wanted to guard against. But their case is thin, and their remedy would do far more violence to the constitutional government they claim to revere than simply letting the process run its usual course.

Besides, these guys would need a miracle.

Read the rest at the Sacramento Bee.
2016 Election • America • American Conservatism • Conservatives • Cultural Marxism • Democrats • Donald Trump • Electoral College • First Amendment • Free Speech • Hillary Clinton • Obama • Republicans • The Constitution • The Courts • The Culture • The Left • Trump White House

The Common Sense Trump-Has-Been-Elected Survival Guide

With Donald Trump’s election, a growing number of websites, organizations, survival guides—and even elected officials—have issued statements of fear, stoked notions of dystopia, and promoted and threatened nullification and secession. Perhaps a different kind of survival guide is needed just now, and it could start with some adult talk and a small dose of common sense.

It should be aimed primarily at college students and administrators as our colleges and universities are the vector encouraging most (but not all) of this immaturity. Heck, it could even join the vast genre of college and university survival guide books—it might even be a best seller. It need not be long, but it is needed. Herewith, a proposed chapter outline:

 

1.  The First Rule of Politics:  Not Everyone Will Agree With You.

I heard this rule attributed to Irving Kristol, and it couldn’t be more needed than now. As a radio host, I can attest that even conservatives need to remember it. Many is the time I will state an opinion and a left-winger or right-winger will say or write, “Seth, you’re wrong,” only to then offer up another opinion. Opinions are not right or wrong, facts are. The question is whether or not an opinion is based on sound reasoning and hard facts. Adults tend to understand this, once reminded; college students, not so much. Why? Echo-chambers, bubbles, and confirmation bias. Nicholas Kristof got this right, writing:

I also fear the reaction [to Trump’s election] was evidence of how insular universities have become. When students inhabit liberal bubbles, they’re not learning much about their own country. To be fully educated, students should encounter not only Plato, but also Republicans.

But, of course, they almost never do. Years ago, it was possible for college students to be taught about and have opinions about Karl Marx while never reading him. Now, they read a lot of Marx and hear almost nothing about, and never read, James Madison.

2.  If the Federalist Papers Are Too Difficult, At Least Read the U.S. Constitution, Including Its Amendments.

It is important to understand that there is no constitutional right for only Democrats or liberals to be heard, run for office, govern, or get elected. I can well-appreciate a college student at, say, age 20 knowing only of the presidency of Barack Obama, but there is a vast history prior to that, as there will be a vast future ahead.

As Oliver Wendell Holmes, Jr. put it: “A page of history is worth a volume of logic,” so let me explain what happened in 1992 on our college campuses. The average 20-year-old college student knew only of the presidencies of Ronald Reagan and George H.W. Bush back then. Then Bill Clinton ran and won. Many of us hated it. But we lived with it, threatening not nullification over whatever Clinton would do, threatening not secession, needing not therapy rooms with puppies and pillows and teddy bears. The world and America moved on. The same took place in 2008, when 20-year-olds who only knew of the George W. Bush presidency saw it yield to Barack Obama.

3.  Pay Especial Attention To The First Amendment.

The same rights that allow you to organize, petition, write, publish, and speak about your opinions do not protect only you or your point of view. Indeed, those rights exist, as Thomas Jefferson put it, to ensure that “error of opinion may be tolerated where reason is left free to combat it.” If this point is alien to you, go back to Rule 1. Then read a great speech by one of our nation’s greatest jurists, Learned Hand—his Spirit of Liberty speech. Focus on this part:

The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.

If this is still misunderstood, try Supreme Court Justice Robert Jackson’s opinion in a case allowing for the right of school students to refrain from saluting the flag—for it applies equally to those of us who do not think one institution, a college, say, has the right to tell us all what to think, or to speak for us corporately (you see, some of your fellow students are actually in agreement with Donald Trump): “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

4.  This Is Why We Have Elections.

Here is how it works in America—but not the entirety of the rest of the world, we get that. So it won’t be true in Cuba, though we know you tend to esteem what the Castros and Che Guevara established there. We govern each other “by reflection and choice,” as Alexander Hamilton put it. We have a system by which our presidential candidates know the rules in advance, rules that were hammered out a bit over 200 years ago. And citizens over age 18 get to vote for the electors in their state who best represent their candidate and points of view. The rules protect all of us, and they were written so that one state and or one region could not and would not dictate national policy for everyone else.

Unhappy that Donald Trump won Michigan and Ohio and Wisconsin? Maybe Hillary Clinton should have spent more time there. The country, remember, is not just California and New York—there are 50 states here. Think the election was bought off by monied and corporate interests? Think again: Hillary Clinton outspent Donald Trump two-to-one. Maybe, just maybe, Rule 1 still matters, and not everyone agreed with the idea of continuing the Obama agenda. Or, as one family in Ohio that hadn’t voted for a Republican since 1976 until this year put it: “Hillary Clinton stopped speaking to us.”

5.  Know Thy Candidate.

While it is a popular notion to “know thyself,” maybe it would do just as well to know who and what you protest. Think good and hard on what it is about Donald Trump’s agenda you fear. Loss of gay or transgender rights (that tends to be a large part of the current guides’ field of concern)? Go back and watch or read his nomination speech in Cleveland. Worried about loss of Obamacare? See how its premiums are soaring and how many of its promises did not meet its reality and if what could replace it might just be a good idea. Worried about President Trump issuing executive orders that might reverse President Obama’s executive orders, particularly on illegal immigrants? Ask yourself why President Obama had the authority to issue those orders in the first place. The answer will be quite revealing: he couldn’t pass his desired outcomes through the normal process and processes of legislation.

That’s right. The DREAM Act, and DACA, never had enough support to pass through Congress. Now consider: the same rights President Obama had to issue executive orders in the face of congressional will are the same rights Donald Trump will have to issue executive orders in consonance with congressional will, but more so. Now, go read Justice Jackson again, this time from a different case:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

In sum, here: ask yourself—what, just what, are you so fearful of? Why are you so willing to go through such extra-democratic and extraordinary efforts of protest over your not getting your way and having your opinion accepted?  Maybe, just maybe, if you read a little history, give a modicum of credit to voters who once supported Barack Obama and voted for Donald Trump, and remember the first rule of politics, you will understand why we all have a right to our opinions and beliefs—and not just yours.

After all, it may just occur to you: you may not be right.

American Conservatism • Conservatives • Democrats • Donald Trump • First Amendment • Immigration • The Constitution • The Courts • Trump White House

Sanctuary Cities and Marquess of Queensberry Rules

cane3In a controversial 1992 free-speech case, Justice Antonin Scalia famously proclaimed that the government may not “license one side of a debate to fight freestyle, while requiring the other to follow Marquess of Queensberry rules.”

That is exactly what 21st-century political discourse looks like: One side is fighting freestyle—punching below the belt, biting, doing anything to win—and the other side is lying on the canvas, bruised and bludgeoned, but still holding up the rule-book as a moral triumph of punctilious compliance.

That is the dilemma that so-called sanctuary cities present for the president-elect: Do conservatives choose to follow principles of federalism and permit these cities the sovereignty to flout federal law? Or do conservatives push against sanctuary cities, abridging one of their most sacred constitutional principles in the process?

Socrates’ decision to drink hemlock or flee Athens may have been easier.

As some leading conservative and libertarian scholars recently have pointed out, the Constitution limits how the Trump Administration may go after sanctuary cities, and this illustrates how federalism actually helps to protect vulnerable minorities from majoritarianism. Many progressives are joining the chorus, explaining that while they generally detest federalism, it should be preserved when state and local governments are using their sovereignty to protect ethnic minorities from what they perceive to be federal discrimination and persecution.

This suggests to some conservatives that progressives are now going to join them in following Marquess of Queensberry rules, even when it hurts them. These conservative scholars are the nerds of high school, rejoicing that the most attractive cheerleader asked for help with her homework. “Maybe she finally sees something special in me?”

Not a chance, pal.

Sanctuary Cities and Constitutional Doctrine

Limiting the Trump Administration’s authority over sanctuary cities are two sets of Supreme Court doctrines: (1) the court’s spending power cases limiting the federal government’s authority to impose conditions on federal grants, and (2) the court’s 10th Amendment cases limiting the federal government’s authority to compel state execution of federal programs.

As for the spending power, the court has interpreted this to mean that if the federal government imposes conditions on how state or local governments use federal funding, those conditions must be, among other things, clearly defined, relevant to the purpose of the funding, and non-coercive.

All of these factors would be at issue if the Trump Administration sought to withdraw all federal funding from sanctuary cities, because most federal grants are not clearly conditioned on compliance with federal immigration law. Also, such compliance is not relevant to the purpose of most federal funding. Finally, the threat of a significant withdrawal of funding would likely be deemed coercive, tantamount to the proverbial “gun to the head” bargain.

Although the administration could certainly condition some federal grants on enforcement of immigration law, this would likely not amount to a sufficient loss of funding to induce compliance in many major sanctuary cities like New York, San Francisco, and Chicago. To induce full compliance in these cities, the administration would likely need to withdraw a hefty amount of federal funding. And the court’s precedents pose a substantial obstacle to that course of action.

Likewise, the court’s interpretations of the 10th Amendment bar the administration from requiring state and local officials to report undocumented immigrants. The so-called “commandeering doctrine” prohibits the federal government from enlisting state and local agents to perform the handiwork of the federal government.

These are of course salutary Rehnquist court doctrines, beloved by conservatives, but despised by progressives, who generally loathe federalism and decentralization. The question is whether the Trump Administration should meekly follow these doctrines now, when such a fundamental policy issue is at stake and despite the fact that the other party would never constrain itself in pursuing its own policy goals.

Do you start free-styling or do you continue to follow Marquess of Queensberry rules?

Progressive Inconsistency

In a normal polity, in normal times, where political parties and competing ideologies disagree on particular policies but fundamentally agree on the legitimacy of the rules of combat (i.e., the Constitution), this would be an easy question: conservatives, in that case, would and should honor these spending power and 10th Amendment doctrines.

But this is not a normal polity, and these are not normal times. This a polity where, after a significant number of people claimed to be “literally terrified” that the Republican nominee would not accept defeat, those very people then turned around and refused to accept defeat themselves. These are times when the people who have complained endlessly about federalism now conspire to secede from the union and wage a coup.

This is a polity where fears of white nationalism run rampant, partly because a Jewish man and an Asian pornographic actress made an obscene racist gesture out of a desperate need for attention, apparent mental disability, and an obviously demented sense of humor. And because of this obscene gesture performed privately in a room far from Trump’s cognizance, the president-elect was somehow painted as responsible and compelled to disavow people he doesn’t know and clearly has no interest in ever knowing. Yet when the other party considers making an outspoken black nationalist and anti-Semite its chairman, there is no such outcry.

It has come to this: A lack of a connection with white nationalism requires condemnation and disavowal, but a direct connection with black nationalism and anti-Semitism warrants praise. Got it. Freestyle, meet Marquess of Queensberry.

This is a polity where an actor harangues the vice president-elect and his children for graciously attending the actor’s overpriced, propaganda filled rap-musical. And not only that, but the actor did so condescendingly on behalf of the entirely non-white cast (except for the actor playing the English tyrant, George III) that he introduced to the vice president-elect as “the diverse America” (apparently, “diverse” means “non-white”). Vice President-elect Mike Pence, after years of playing by Marquess of Queensberry rules, claimed he “wasn’t offended,” because apparently condescension and self-entitlement are, in Pence’s words, “what freedom sounds like.”

Freedom also apparently was ringing when this particular actor, this ambassador of diverse America, tweeted that St. Patrick’s Day (a celebration of the patron saint of Ireland) was a sort of Merry Christmas (a celebration of the birth of Jesus Christ) for “black dudes” who enjoy assaulting drunk white women (how is that for cultural appropriation?). This culturally sensitive actor who urged Pence “to uphold our American values” also approvingly had tweeted a call for sexual violence against white mothers as retribution for the tragic death of Trayvon Martin at the hands of an Hispanic male. Again, no outcry from the party of progress, and no apology from the author of these violent and deplorable statements.

Secession, coups, ethno-states, race-and gender-based violence. This is the Democratic Party of 1861. And it is, apparently, still a feature rather than a bug of the Democratic Party of 2016. Another day, another non-disavowal.

But this is not yet another “liberals contradict their own liberal principles” piece. Liberals have been doing that for decades. And conservatives keep pointing it out. And no one cares.

Don’t get me wrong—it is supremely satisfying to point out inconsistency. That is largely what makes watching Fox News so pleasurable for conservatives. You go after those hypocrites Tucker Carlson!

Despite being satisfying, however, nothing is accomplished from such finger-pointing, other than further subjecting conservatism to the constraints of progressivism. Indeed, when conservatives do this, they are implicitly seeking the praise of their opponents—to prove to progressives that they can serve their constituencies better than they can, because conservatives, after all, are the real progressives.

Wait, what? If conservatives are truly progressives, then who are the conservatives? That’s exactly why the current crisis of ideological identity has emerged.

So long as conservatives defend principles such as federalism on decidedly non-principled grounds—for example, by claiming that federalism is really about benefiting Democratic voters—conservatives will lose. And progressives will win because they have no interest in doing this in reverse. Just imagine House Minority Leader Nancy Pelosi (D-Calif.) defending her party’s various positions on the ground they would benefit rural Republican voters. (Once you stop laughing, please continue reading.)

My overriding concern, as a legal scholar and political scientist, is not with the question of which side wins or loses, but with what will happen to American political and legal discourse in the long-run if the only way that conservatives make arguments is by appealing to how their principles favor progressive outcomes. Indeed, there were precious few appeals to federalism when the Obama Administration sought to regulate, for example, public school bathrooms, community residential demographics, and local school disciplinary policies. But some conservatives are now eager to burden themselves with federalism constraints in the arena of sanctuary cities to prove just how much federalism favors progressives. Again, these are nerds offering to do homework for cheerleaders, with the hope it will score them a prom date.

This pattern, I worry, will lead the next generation of conservatives to give up on Marquess of Queensberry rules. Which would not only be a shame for the cause of civility, but a disaster for civilization itself. Is there a way out of this conundrum?

Three Steps to Get Back to Marquess of Queensberry Rules

This problem may very well be too far gone to resolve with easy solutions, but taking the following three steps may go a long way toward rehabilitating our crumbling discourse.

First, stop playing the progressive “find the racist” shell game. Because of the way our cultural landscape is currently configured—in terms of media, entertainment, and academia—there is no way conservatives will win this game. So stop playing it. Calling Keith Ellison a litany of names will do nothing to protect Jeff Sessions. It is foolish to think it will.

At the same time, conservatives should feel less obligated to renounce and disavow every person upon command. Of course, any reasonable and good person should condemn hateful statements and sentiments, but that is different from being at the moral mercy of your opponents, especially when playing that game serves to entrench and institutionalize rules that hurt only conservatives.

Second, conservatives should consider accepting federalism limitations for sanctuary cities, so long as doing so corresponds with empowering states like Arizona and Texas to impose stricter immigration requirements than federal law mandates. Federalism must go both ways. Progressives often advocate federalism only when it favors strengthening civil liberties for particular minority groups. But federalism does not work when it is so narrowly tailored to particular ideological causes.

Rather, federalism works to diffuse intense political polarization only when it permits a broad range of regional disagreement, in both conservative and progressive directions. This means that the Trump Administration should make it a priority to overrule cases like Arizona v. United States (2012), which denied the states the authority to impose stricter immigration requirements than federal law requires. If sanctuary cities can exist, so can Sheriff Joe.

Finally, stop framing federalism and liberty arguments in narrow egalitarian terms. Over the past 25 years, the Republican Party has become preoccupied with framing its agenda to appeal to Democratic voters—for example, in making school vouchers for urban low-income residents the core of its education policy.

But what about school choice for middle-class residents, who overwhelmingly vote Republican, and who are chased out of cities into suburban school districts because they are not eligible for voucher programs and cannot afford the fancy private schools that cater to progressive urban elites? Part of making American cities great again involves diversifying them, ideologically and economically, so that they do not simply represent the Democrats’ barbell electorate, consisting of extreme wealth and poverty. This means framing federalism and liberty arguments in terms of many different causes. Conservatives should fight for tax incentives for homeschooling and private education with the same intensity as they have been fighting for voucher programs over the last 25 years.

I cannot say for sure whether these approaches will resuscitate political civility and ideological fairness. But at least it will mean not lying on the canvas, bruised and bludgeoned, clutching your precious rules in defeat.

2016 Election • America • Donald Trump • Immigration • The Constitution • Trump White House

Why California is Wrong to Defend Sanctuary Cities

sanjose-trump-protest

Forget #Calexit. We don’t need to wait until 2018 for a silly vote. California has all but decided to secede from the union.

How else to interpret our officials’ lawless course in the coming fight with the Trump administration over illegal immigration?

They’ve laid down their markers. They’ve drawn their lines. Gov. Jerry Brown: “We will protect the precious rights of our people.”

Sacramento Mayor-elect Darrell Steinberg: “We are going to make it very clear that Sacramento will continue to be a sanctuary city.”

Oakland Mayor Libby Schaaf: “I like to compare this to conscientious objector status. We are not going to use our resources to enforce what we believe are unjust immigration laws.”

University of California President Janet Napolitano: “All members of our community have the right to work, study, and live safely and without fear at all UC locations.”

This week, Napolitano joined Cal State University chancellor Timothy White and Eloy Ortiz Oakley, chancellor-designate of California Community Colleges, in a joint letter to the president-elect, urging him to leave alone an estimated 74,000 undocumented immigrants enrolled in one of the three systems.

“These sons and daughters of undocumented immigrants are as American as any other child across the nation,” they wrote. These students “should be able to pursue their dream of higher education without fear of being arrested, deported or rounded up for just trying to learn.”

First, they aren’t children. Second, they aren’t at risk of arrest and deportation “for just trying to learn.” They’re at risk of arrest and deportation for being in the country illegally.

Read the rest at the Sacramento Bee.

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2016 Election • America • Donald Trump • Electoral College • Republicans • The Constitution • The Courts • Trump White House

Recovering Constitutional Dignity After the Election

Netflix's "The Crown" can teach American viewers about dignity and constitutional government.

Netflix’s “The Crown” can teach American viewers about dignity and constitutional government.

Every day since the election has brought with it a new affront to public civility. By and large, those in leadership have tried to rise to the occasion; signaling, yet again, Americans may be able to manage a peaceful transition of power.

Nevertheless, tensions have been pervasive. College administrators have excused some students from classes for being too emotionally distraught to learn. Social media has been full of denouncements of the character of the President-elect, his advisors, and those who voted for him. In several cities anti-Trump protests have resulted in vandalism, arson, and other acts of violence. Significant ideological and power struggles are transpiring in both the victorious party and the defeated party. At the risk of missing its constitutional functions, people across the country are even proclaiming the irrelevance of the Electoral College in a modern democracy.

The aftermath of this election should be of little surprise. The campaign was among the most vitriolic and divisive of recent decades. The debates lacked substantive discussion of policy. The bias of the media also fueled Americans’ anger and resentment. Political pollster Frank Luntz recently observed in an interview with CBS News’ “60 Minutes” that mainstream media’s pursuit of ratings and profitability (and even preferred political outcomes) rather than information and knowledge has resulted in a state of affairs in which Americans have increasingly begun “to collect information to affirm themselves rather than to inform themselves.” Americans seem to be turning on one another in ways that reveal a significant loss of their fundamental dignity and respect for one another upon which our constitutional government is ultimately grounded.

How have we come to this? Can we prevent the cutting of the already thin thread that continues to bind us as one nation?

Illumination sometimes comes from surprising places. The Netflix program “The Crown,” which became available for streaming on November 4, serves as a welcome example. The series dramatizes Queen Elizabeth II’s accession and her early years on the British throne and thoughtfully points the viewer to important considerations about the nature of constitutional governance.

Even Americans, who long ago repudiated monarchical government, can profit from considering the constitutional dynamics explored in episode 7, “Scientia Potentia Est” (“Knowledge is Power”). As the episode opens, viewers watch a pre-adolescent Princess Elizabeth taking notes as her private tutor, Henry Marten, vice-provost at Eton College, teaches her the fundamentals of constitutional law. With reference to Walter Bagehot’s classic The English Constitution (1867), he relates that there are two elements of the constitution, the efficient and the dignified. The efficient has the power to make and execute policy and is answerable to the electorate. “What touches all,” he intones, “should be approved by all.”

By contrast, the dignified, with its center in the Crown, gives origin and legitimacy to the efficient and is answerable only to God. The constitution only works—and the young princess is told to underline this—when the efficient (the government) and the dignified (the Crown) trust one another. “The Crown” explores how the young Queen applies this early lesson in learning to perform her constitutional role and invites us to reflect on our own constitutional order.

Significantly, unlike our British cousins, Americans have no Crown that serves as a reservoir for the dignity of our Constitution. Bagehot’s treatment of constitutional government compared the English and American constitutions. “Royalty,” Bagehot wrote, “is a government in which the attention of the nation is concentrated on one person doing interesting actions. A Republic is a government in which that attention is divided between many, who are all doing uninteresting actions. Accordingly, so long as the human heart is strong and the human reason weak, Royalty will be strong because it appeals to diffused feeling, and Republics weak because they appeal to understanding.”

Did the American Founders leave us at a little noticed disadvantage when they bequeathed us a republican form of government with its comparatively weak executive? If Bagehot was onto something here, Americans must deliberately and continually reflect together upon the source of authority behind our Constitution, especially when we transfer executive power. As the real and symbolic power of the presidency has expanded in recent decades, our presidential elections have generated increasing emotional heat and have distorted our constitutional design.

Where do we Americans look to find the functions of dignity within our Constitution—the function that helps sustain allegiance to our government even as leadership changes hands? American historian Forrest McDonald pointed out that the office of the president of the United States combines a ceremonial function with a governing function. The ceremonial function is that which moves the human heart to loyalty and so we are tempted to look to the president for the dignity necessary to inspire our trust. Too often, however, we are sorely disappointed when we do so. While some presidents have been more personally dignified than others, the contentiousness of American politics has long dragged presidents into the fray, diminishing the office as a wellspring of constitutional legitimacy.

If we must not look too much to the presidency to unite us, perhaps we might look to the Supreme Court, where the black robes of the Justices inspire a certain sobriety and dignity. The Judiciary, too, fails the test—especially since we increasingly have come to look to the courts for obiter dicta on policy that go far beyond their limited role of deciding the cases before them. When new rights can be found in penumbras and English words such as “tax” and “marriage” can be reconstrued at will, the Supreme Court shows itself accountable not to higher law and deliberative reason, but to the whims and winds of public opinion. And, finally, Congress, as the lawmaking body, serves as the “efficient” department of government, not the “dignified”—since it is by definition the people’s branch and is accountable most directly to the electorate.

Not in the executive? Not in the judiciary? Not in the legislature? Where does this leave us?

If, as some among us begin to fear, the very legitimacy and authority of our government is withering, where do we find the roots of constitutional dignity to feed and water them? The answer is, of course, right before us in the preamble of our written Constitution. “We the People,” it states, are the source of constitutional legitimacy. The role that the Crown plays in the English constitution was largely democratized in the United States, relocated in the consent of the people as reflected by their representatives during the ratification of the Constitution. That Constitution embodies the solemn will of the American people and it is sustained by our ongoing consent, which demands a measure of affection, but moreso requires us to seek information and understanding.

American constitutional arrangements from the beginning differed from those taught to the young Elizabeth. Americans sought to adopt the long-standing British style of  constitutional separation of powers, but with modifications. Americans eliminated the Crown, replacing it with a republican form of government, one that possessed democratic elements to make real government by consent. Along with monarchy, the founders did away with special birthright political privileges, the aristocracy of birth. In its place Americans embraced an idea of a citizenship that encouraged a new kind of aristocracy—one of talent and virtue where people properly educated and habituated in the responsibilities of their office created the bedrock of the American republic. In some ways those responsibilities were daunting, for the constitutional health of the American experiment depended upon a combination of informed suffrage and the steady engagement in civic good works.

The upshot is that American government is only as sound as the constitutional habits of its people. The dignified element of America is in us, its people, and it sits alongside those parts of us that are merely efficient. Alongside their brashness, working, hustling, vying, trying to make a living and getting things done, our forbears possessed a constitutional sobriety, a capacity for disinterested interest, a jealousy for hard-won freedoms, an eternal vigilance for the rule of law, all of which constitutional habits were brought by the majority of Americans under the guidance of conscience, that is, submitted for accountability to God.

The American constitutional settlement, in other words, called upon its people not only to reason together but also to inform their consciences in light of their faiths and to bring prudence to bear in their daily lives. These habits were to have bearing on both their private commercial and social engagements and their public and political engagements. This complex responsibility of American citizens, always messy in practice, was sustained for a long while on a spiritual and moral capital that has long since diminished under the corrosive effects of the false civil religion of progressive politics, by the misbegotten accretion of power and patronage in Washington, and by an increasingly unaccountable regulatory state. Where citizenship is largely reduced to voting and lobbying a centralized administrative state, the civic habits that renew constitutional discourse and unite us as a people and a polity atrophy. While America was in fact something new in History, it turns out that it does not stand outside History; we are not immune from the quite predictable and human corruptions of power, money and bureaucratic hubris. When the minds of the people become servile, we begin both to desire and to fear the emergence of a despot.

By many lights, neither of our presidential contenders appealed during the campaigns as a potentially unifying president; both seemed to cast shadows in the minds of different constituencies of a coming despotism. Only time will tell whether President-elect Trump and his administration can rise to the demands of restoring constitutional governance. In the meantime, it is up to us, the American people, to step back from the precipice and to reconsider the necessary elements of our Constitution and the ways they should work together. Out of what seems a moment of crisis to many, we also have an opportunity to begin the process of restraining the imperial presidency, restoring the rule of law over that of men within our courts, and demanding more effective lawmaking from Congress.

For these good things to happen “We the People”—in our own hearts, minds, streets, shops, neighborhoods, towns, and cities—are going to have to begin again to listen to and learn from one another. If we can do so; if we can stop shouting to be heard and instead listen for what we might learn; if we can lend a hand to those around us in distress; if we can try to figure out local solutions when we see a local problem rather than looking first to Washington; if we can bow our knees and our heads and reconnect to the dignity that has its source in and is accountable to God, in due course we shall begin to renew those habits needed for reconciling with one another and reweaving the constitutional fabric that has made America a beacon of liberty, prosperity, and hope. To vote is not enough; now comes the task of practicing with dignity the difficult art of self-governance.

17th Amendment • America • Electoral College • The Constitution • Uncategorized

Protecting the Electoral College from the Progressive Assault

diagram_of_the_federal_government_and_american_union_editProgressives want to eliminate the Electoral College. They argue that the American constitutional system of electing the president unfairly advantages the votes of people in smaller states. This argument, deceptive to its core, only seems plausible because of radical changes to the Constitution imposed by the Progressives themselves.

A little history should make this more clear. And an additional benefit of understanding the Electoral College as the Founders understood it is that it will enable you to understand why the United States of America has its curious name which, remarkably, claims that it is (a nation) made up of states.

Imagine for the moment that you are a member of the Founders’ generation, America’s actual Greatest Generation. You are already a citizen of a functioning state, one of the original 13. Your state and the other American states have just defeated the world’s greatest superpower. The 13 states have conducted the war as a kind of wartime alliance. (The ratification of the Articles of Confederation did not occur until March 1, 1781, the same year as the military victory at Yorktown, and even under the Articles each state remained sovereign and independent.)

Now, just a few years later, along come Washington, Madison, and others with a proposal for a new “federal” government. It would, they explain, carry out for your state functions that could better be carried out by a government representing all 13 states. It would have powers to deal with states for the states—with foreign states and to a lesser extent with the American states in matters such as interstate commerce. Here is how Madison described it in Federalist 45:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce…The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Please note: the “several States” reserve all state powers, except those “few and defined” powers they delegate to the proposed federal government. Because in America the citizens are sovereign, it is up to you as a member of the Founders’ generation to decide the question of which powers should be delegated to the federal government.

Fast forward to our present day and the contrast could not be more stark. It is clear that we do not have the kind of government the Founders’ generation voted for, isn’t it? Today the federal Leviathan crushes the states, regulates the individual in an uncountable number of ways, and intrudes into everything from your local zoning commission and your local school board to that dry creek bed behind your house that only has water after a rain. What went wrong?

In the Framers’ plan, the Senators represented the state governments. Because the federal government’s main purpose was to take over certain state responsibilities the people had determined were better managed on a national scale, the United States Senate was to hold legislative power over those functions—“war, peace, negotiation, and foreign commerce”, and the Senators, quite logically, were chosen by the legislatures of the various states to legislate and supervise federal use of the delegated powers.

The citizens’ representatives in the federal government were called—well, Representatives—and they made up the House of Representatives. The Representatives were chosen directly by the voters, apportioned by population. The House was given the power of the purse—which the Founders’ generation understood to be paramount (“no taxation without representation”)—and which meant every Representative had to face the voters with frequency and regularity.

Each state got two electoral votes by virtue of its two Senators, and one vote for each Representative. Please note that under the original Constitution each state government was treated perfectly equally. Each state government got two Senators. No disparity there! Only when the progressives overthrew this system by means of the Seventeenth Amendment did a kind of disparity appear. The 17th Amendment instituted the direct election of Senators, the system we now have. It took away from the states the power to appoint the Senators who were to represent them in the federal government and to oversee federal execution of the responsibilities the states had delegated to the federal government. The result was a diminishing of the power of the states and the growth of the gargantuan central government we have today.

The 17th Amendment reneged on a deal honorably entered into by honorable men, and approved by the voters of the Founders’ generation. The method of election so perfectly suited to choosing the Representatives, and so imperfect for the function of the Senate, was imposed on the Senate by the progressive “reform.” Today, Progressives use the disparity which resulted from what they did as a reason to go even further—and abolish the Electoral College.

That’s why they are called Progressives; they never stop their assaults on the Constitution.

We may ask: did the Constitution fail America or did Americans fail the Constitution? The question answers itself. The generation which ratified the Seventeenth Amendment failed in its primary responsibility as citizens, its responsibility to understand and defend the Constitution. We are living with the consequences of their failure—a federal Leviathan operating in an increasingly post-Constitutional America

One can legitimately take hope from this election in which the Electoral College may have again saved the Constitution—or at least given us another chance to save it.

May we prove worthy of this opportunity.