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Great America

Is America Even a Nation of Laws?

The sheer gigantism of the state makes it impossible for people to know what the relevant laws are, for most spheres of human action; and it is a short step from not knowing the law, to seeing that nobody else knows it, to shrugging and not caring what it is.

When Grover Cleveland was elected president for the second time, he said in his inaugural address that he would adopt an “unconstrained” view of the duties laid out for the executive in the Constitution. He meant that he would not constrain or force the words of the Constitution to mean something that they did not obviously mean, or worse, that they obviously did not mean. He would not accept mercurial glosses on the text, trumped-up to justify new powers of government, ostensibly to promote the commonweal.

Cleveland had already given evidence of his determination to hew to the law—to go thus far, and no farther. In 1887, during his first administration, a long drought had reduced Texas to misery. Congress voted to send seed to the farmers in certain Texas counties, at the rather modest cost of $10,000. Cleveland vetoed the bill, one of his 584 vetoes. Said the president:

I can find no warrant for such an appropriation in the Constitution; and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadily resisted, to the end that the lesson should be constantly enforced that, though the people support the Government, the Government should not support the people.

The words seem to come from a different world. Cleveland was not a hard-hearted man. He appealed to the generosity of the American people, and they responded with vigor, sending aid to their suffering countrymen in a measure far greater than what Congress would have sent.

My point is not to argue about the welfare state and its moral hazards, its extravagance, its various degrees of effectiveness, and its warrant in constitutional law. It is to notice that Cleveland’s dispassionate, umpire-like approach to the responsibilities and the limits of his office is simply incomprehensible now. 

The first question that Cleveland asked himself when Congress appropriated the money was not whether he should sign the bill. It was whether he could sign it: whether the Constitution gave him the authority. Again, I am not arguing that his veto was correct. I note only that he referred straightaway to the law that was to govern his actions. Cleveland understood that to violate the law in a good cause is to sap the earth beneath your city.

I notice that in most of our current political controversies, no one asks the obvious question, “What is the law?” It is as if we no longer really believe in representative government, or in a nation of laws rather than of men (and women) imposing their will. Perhaps the Ship of Law has long sailed. 

We condemn or praise President Trump for his “immigration policy.” Why the president should have an immigration policy is not clear to me, when there are—I assume that there must be—laws, passed by the Congress, which the executive is bound to enforce. We have long engaged in military action across the world without any congressional declaration of war. The president has recently warned school districts against incorporating the awful “1619 Project” in their curricula, lest they lose federal money. Why a national government of 330 million presumably free people should have anything at all to do with the raising and teaching of children, I do not see.

I do see that government in our time, as Samuel Francis observed long ago, functions as a protection racket. It squeezes money out of you, takes a hefty share to engross itself, and then gives you some money back—with a promise, seldom kept, to promote your welfare, and a threat to kill you and stuff you with cotton if you dare to cross it. We can foresee a Biden administration that will kill you and stuff you with cotton—after making it practically impossible for you not to take a dime of “support”—if your school does not go whole hog for the gay agenda.

In the last two months, we have witnessed outbursts of protest across the country, protests that have cost at least 30 lives, that have destroyed the businesses of innocent people, that have shut down major thoroughfares, and that have defied local and state law. This has happened not in the wake of a Great Depression or a world war. There is no emergency to which to appeal. 

Nor can we say that the protests have been, in the legal definition of the word, peaceful. If you keep me from my place of work, you are disturbing the peace. If you cordon off a city block and defy anybody to make you leave, you are disturbing the peace. If you take down a statue or vandalize it, you are disturbing the peace.

Do we have laws, or not? Any governor or mayor who proves unwilling to enforce ordinary and obvious laws intended to keep the peace should be recalled or impeached. It does not matter whether they sympathize with the protestors. Their sympathy is neither here nor there. The aims of the protestors are neither here nor there. They have a job to do, and they should do it.

But perhaps we have something beyond cowardice and ineptitude. Perhaps it is collusion: encouraging those who break the law, so that one might obtain by their means what one otherwise could not obtain through regular political processes. The protestors then function as a kind of occupying army, welcomed in by government collaborators, who try to portray themselves as moderating influences. That cannot work for long. When one indulges people who break the law in broad daylight, he will be the first person they despise.

How did we come to this pass? I am not enough of a historian to answer that question. I suppose that the sheer gigantism of the state makes it impossible for people to know what the relevant laws are, for most spheres of human action; and it is a short step from not knowing the law, to seeing that nobody else knows it, to shrugging and not caring what it is. I suppose that our licentiousness in sexual matters has eaten through its container and now breaks forth as licentiousness in financial and political matters too.

There may be something else. 

We are no longer a culture of honor, which is usually also a culture of self-restraint and self-limitation. We no longer say, “That is something that an honorable man does not do.” The honorable man is not a bully, a sneak, a backbiter, or a tale-bearer. He knows that dishonorable actions stink, and you never get the stink off you, regardless of the cause you wanted to promote. He knows that if he cannot swear to work with a duly elected or appointed superior, he should resign. He does not permit his personal feelings, much less his financial or political interests, to prevent him from doing his duty, or to excuse what is base, cowardly, or treacherous. 

The honorable man is almost as suspicious of what he favors as of what he does not, and if anything he is willing to strain himself and his friendships to be fair to those he does not like. He knows that respect must be earned, and once it is lost, one must move mountains to regain it. He pities the weak, but he does not believe that their weakness makes them sure arbiters of what is just or true.

In what jurisdiction could such a person now be elected to office?

Great America

The Crisis of the Conservative Legal Movement

We need a substantive vision for the good life in America. As Aristotle put it in his “Politics,” “a state exists for the sake of a good life, and not for the sake of life only.”

According to 2016 presidential election exit polling, the Supreme Court was the single most predictive and determinative issue. Amidst the backdrop of a Court vacancy left by a dearly departed icon, Justice Antonin Scalia, a sizable plurality of voters cast their ballots based on the presidential candidates’ avowed preferences for Supreme Court nominations. These voters, horrified by decades-long leftist jurisprudential crusades against religious liberty and the American way of life, overwhelmingly broke for Donald Trump.

So, what exactly were these droves of conservatives, independents and moderates voting for? The most common answer, professed by Conservatism, Inc., and imbibed by an entire impressionable generation, is that these voters merely sought jurists committed to a certain methodological approach to constitutional interpretation. These voters, the post-Ronald Reagan conservative institutionalists tell us, merely desire federal judges who pledge fealty to certain neutral interpretive norms rooted in the Constitution’s original public meaning.

Perhaps there really are millions of voters whose primary voting interest is ensuring public officials honestly interpret the Constitution. That is an intrinsically beneficial goal. Ours is a moral Constitution intrinsically oriented toward establishing justice, promoting the common good and securing the blessings of liberty while defending its authority and grandeur against those who would undermine it is worthwhile—all the more so amidst our current doldrums of facing a pseudo-Marxist insurrection.

But there is a competing, and more compelling, theory. As noble as our constitutional structure is and as well-versed as the Founding Fathers were in political theory, it is unlikely that so many voters pull the lever for Republican candidates due primarily to the desirability of a certain governmental form or a text’s interpretive methodology. Rather, these voters primarily desire not procedural but substantive ends: protect unborn lives, promote the inherent good of religion, secure gun ownership and self-defense and, above all else, preserve the integrity of the American lifestyle against a fiery mob of woke civilizational arsonists who seek to burn the entire edifice to the ground.

This alternative theory posits that conservatives and independents primarily motivated at the ballot box by the Supreme Court are more interested in substantive outcomes than by procedural methodology. The current crisis facing the conservative legal movement is what happens when a purportedly well-oiled machine geared to churn out methodologically sound judicial automatons fails to produce sound results.

The recent Supreme Court term that just ended was perhaps the most disappointing, from a conservative perspective, in decades. On high-profile case after high-profile case, conservatives—despite the presence of two Trump-nominated justices on the Court—were let down. Some farcical outcomes, such as invalidating a pro-life Louisiana law and precluding Trump from unilaterally rescinding his predecessor’s unconstitutional executive amnesty for “Dreamers,” were at the behest of the feckless chief justice, the George W. Bush-nominated John Roberts. But in the bread-and-butter culture war case of Bostock v. Clayton County, it was Trump-nominated Justice Neil Gorsuch who misinterpreted Title VII to codify new gay and transgender employment rights from the bench. Similarly, it was Gorsuch who informed us that roughly half of the state of Oklahoma is actually still Indian country.

As the ambitious and transformative Senator Josh Hawley, R-Mo., said on the Senate floor shortly after the Bostock ruling, “if textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach such a decision—an outcome that fundamentally changes the scope and meaning and application of statutory law—then textualism and originalism and all of those phrases don’t mean much at all.” What, in essence, is the point of all of this if we are unduly hindered from achieving the very results for which we are fighting? It appears the country is not heading in a correct substantive direction despite feigning “fealty” to “correct” methodologies.

Hawley has followed up by announcing an express Supreme Court nomination litmus test for Roe v. Wade, the landmark ruling establishing our blood-soaked abortion status quo. That is a bold, correct and necessary first step. But if Trump and the Republican Party want to ensure social and religious conservative voting turnout this November, more is needed.

We need nominees who are not merely of the belief that Roe is a constitutional abomination; we need nominees who, through word and deed, have bled for the substantive right to life. We need nominees who will expressly abnegate strict fidelity to norms of stare decisis, or precedent, which has all-too-often provided a convenient roadmap for weak-kneed Republican-nominated justices.

We need, in short, a substantive vision for the good life in America. As Aristotle put it in his “Politics,” “a state exists for the sake of a good life, and not for the sake of life only.” Would that our constitutional order and judicial nominations apparatus alike reflect that in earnest.

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News

Philadelphia Police to Stop Arresting Criminals Due to Coronavirus

Philadelphia police officers have been ordered to stop arresting criminals due to fear of the spread of the coronavirus, according to The Daily Caller.

In an email sent to all police officers in the city, they have been instructed to avoid arresting “non-violent” offenders, and instead to simply “detain individuals, confirm identification, and complete necessary paperwork,” before releasing them to be arrested at a later date with an arrest warrant. Among the “non-violent” crimes that are to be temporarily excused are “burglary, narcotics offenses, prostitution, auto theft, vandalism, and theft from persons.”

The Fraternal Order of Police Lodge #5 came out in support of the move, with a statement from President John McNesby, who said that “we are supportive of Commissioner Outlaw’s directive,” which was “released to keep officers safe during this public health crisis.” However, there was widespread ridicule of the directive on social media, which suggested that the move was a shift towards lawlessness and near anarchy over fears of the disease.

First Amendment

Ruling Class vs. ‘The Others’

Americans have a choice: either rebuild the foundations of our society or prepare for an inevitable and ugly collapse.

There has always been a troubling trend on the Left, and among statists and the ruling class in general, when it comes to the rule of law. For those types, “rule of law” means more of a series of suggestions intended to keep “the others”—that is, “the deplorables” or we peasants—in our place. It’s very much “a good for me, but not for thee” mentality. Should any of us violate the laws, we can expect to have the book thrown at us. But for them, it’s more a slap on the wrist, if anything at all.

We see this in the behavior of the Clintons, deep state actors, and even the Bidens. No one seriously thinks that Hunter Biden’s Ukrainian and Chinese business “activities” are above board. But even more troubling, consider that a sitting vice president of the United States was potentially involved in pay-to-play with foreign nations.

The ruling class apparently believes the law is whatever it says it is. It is whatever is convenient for them. The law is a weapon for the ruling class to subdue its enemies.

A remarkable public admission highlighted the truth of the matter recently. Gun-grabber Robert Francis O’Rourke, a man who believes he is fit to occupy the presidency and protect and defend the Constitution, said on national television that he would insist upon the confiscation of AR-15s and AK-47s. “It’s not voluntary. . . It is mandatory,” O’Rourke said. “It will be the law. You will be required to comply with the law.”

Although no one would ever claim O’Rourke is one of our leading intellectual lights, his words do raise an interesting question: what is just law? And please do not tell me it is simply whatever lawmakers at any given point decide the law is. In an American context, that is utterly absurd.

Consider that Germany’s Nuremberg Laws, anti-Semitic and racist, were enacted in 1935. No serious person would call them legitimate or just. Or consider South Africa’s series of laws meant to enforce apartheid. Or, sadly, consider America’s own laws that allowed for slavery. All of these have at one point been considered the “law of the land.”

Many on the Left have abandoned the idea of natural rights and the notion of transcendent law and absolutes. They’ve apparently decided that they’ll just make up the rules as they go.

But were they “just” laws? Those societies at the time said they were, and history is replete with more such examples. But these “laws” all share a common characteristic: every last one of them was in gross violation of human rights and natural law.

In the words of Martin Luther King, Jr., echoing St. Augustine and Sir William Blackstone, “An unjust law is no law at all.” For laws to be just, they must conform with natural laws and rights or they are truly no laws at all: they are merely opinions and weapons meant to oppress other human beings that rationalize egregious human thought and behavior.

Cicero, a consul and Roman senator, and truly one of the last heroes of the Roman Republic, also knew that just human laws must be reflections of higher, transcendent law. We used to believe in such things, but such beliefs can be so inconvenient. It’s difficult to square the circle when there are those who don’t believe in transcendent laws given by a transcendent lawgiver who has endowed every human being, created in His image, with natural rights. Such rights include life, liberty, property, and the right to self-defense. In fact, there is no Constitution long enough to enumerate all the rights we as created human beings have by nature, which is why the 9th Amendment is present in our Bill of Rights.

All of this highlights the tension in our society today: many on the Left have abandoned the idea of natural rights and the notion of transcendent law and absolutes. They’ve apparently decided that they’ll just make up the rules as they go.

Some on the Left, Robert Francis O’Rourke among them, now claim that if given power—though God forbid they ever should—they will make laws that outlaw certain types of guns. Of course, it’s a muddled picture as to what this will look like as they babble on about .50-caliber AR-15s and “weapons of war” and all sorts of things that display a lack of rudimentary working knowledge about guns.

O’Rourke’s talk of gun control is in defiance of America’s founding ideas: our founders believed that one of the primary purposes of government, when people come into just and voluntary associations, is the protection of property, which includes not just physical objects, but anything and everything unique to a human being. If government fails to protect those rights, there is another natural right: the right to defend one’s life and property. This is why I’ve argued, and will continue to argue, that gun rights are a natural right: human beings are entitled to self-defense, ergo guns. And not just any guns, but the most powerful and effective guns.

Natural rights and transcendent laws are the foundation of our republic. This is why an abandonment of such ideas knocks out the very underpinnings of our society. History shows us that at some point a nation that develops a Byzantine series of laws meant to justify its behavior, when confronted with the reality of transcendent law, it will eventually collapse under its own weight—often at a great loss of life.

So we have a choice: either rebuild the foundations of our society or prepare for an inevitable and ugly collapse.