Flight of Fancy

The Conundrum for anti-Trump Conservatives

In his June 1 column, George Will wrote that not only should President Trump be defeated this Fall, but so should his Congressional “enablers.” In language evocative of an angry god declaring that all shall be vanquished before him, Will wrote:

The nation’s downward spiral into acrimony and sporadic anarchy has had many causes much larger than the small man who is the great exacerbator of them. Most of the causes predate his presidency, and most will survive its January terminus. The measures necessary for restoration of national equilibrium are many and will be protracted far beyond his removal. One such measure must be the removal of those in Congress who, unlike the sycophantic mediocrities who cosset him in the White House, will not disappear “magically,” as Eric Trump said the coronavirus would. Voters must dispatch his congressional enablers, especially the senators who still gambol around his ankles with a canine hunger for petting.

Will was not quite finished.

We cannot know all the measures necessary to restore the nation’s domestic health and international standing, but we know the first step: Senate Republicans must be routed, as condign punishment for their Vichyite collaboration, leaving the Republican remnant to wonder: Was it sensible to sacrifice dignity, such as it ever was, and to shed principles, if convictions so easily jettisoned could be dignified as principles, for . . . what?

Nothing cries dispassionate analysis quite like World War II parallels.

Will is certainly not the first fire and brimstone spewing conservative critic to call for the electoral elimination of the Republican party, but he’s perhaps the only one worth taking seriously.

Most anti-Trump conservatives[1] will not find much to disagree with GeorgeWill here. We have watched in horror as the Republican party has transformed itself into a cult of personality. Even Trump-skeptical Republicans have either muted their criticism or have become, to not put too fine a point on it, royal ass-kissers, including certain 2016 primary opponents of his. In many right-wing journals even mild criticism of the president is considered something like treason.

So why might an anti-Trump conservative have reservations about Will’s strategy? Because the beneficiary would be a political party no more deserving to hold the reins of power. It could also have the unanticipated result of inspiring a reaction that leads to something much worse than Trump down the line.

The case against Trump

The easiest part of Will’s argument to swallow is the most basic one: President Trump does not deserve to win re-election. The reasons so many conservatives opposed Trump in 2016 still obtain. If anything, Trump has exceeded our worst expectations of his character. He continues to spew idiotic conspiracy theories on Twitter even in the midst of a global pandemic that his administration, to put it charitably, bungled the response to. And even as America descended into riotous protests, Trump’s response was to suggest a “shoot first, ask questions later” response to the protesters and to suggest another conspiracy theory about a man whose skull was cracked open after being pushed by the police.

Trump supporters downplay the significance of all this – “They’re just tweets,” is the common response – but even for those of us who think the “rhetorical presidency” is overblown, we cannot ignore that these insane ramblings do nothing to help unify the country or advance his agenda.

Speaking of Trump’s agenda, while he has been not as bad as conservatives feared, there’s little here to suggest that he has earned a second term, as the miles and miles of invisible border walls attest to. Thus far Trump’s main “accomplishment” has been a tax cut, but for credit for that mainly goes to former Speaker Ryan and Senate Majority Leader Mitch McConnell. And while his administration has rolled back regulations, these are temporary victories that can be easily undone with the next Democratic administration. He has been bolder than other theoretical Republican presidents in some areas – moving the US embassy to Jerusalem, for starters – yet Trump has been more of a paper tiger than a fierce warrior slashing down the cultural enemies quaking before him.

And then there’s the courts. “But Gorsuch” was the rallying cry for Trump supporters once upon a time. Indeed, Gorsuch and Kavanaugh’s elevation to the Supreme Court, not to mention hundreds of federal judgeships secured for originalists throughout the country, is a major victory for Leonard Leo and Mitch McConnell. But as several late-term SCOTUS opinions demonstrate, there are limits to how much the judiciary has advanced. Specific opinions aside, if the major argument for a president’s re-election is judicial appointments, then the republic is on far rockier ground than we even realize.

Trump supporters have another “ace” up their sleeves: Flight 93 revisited. If Joe Biden is elected president then the Green Deal will be enacted, religious liberty will be destroyed, taxes will go through the roof, single payer healthcare will be upon us, and the rivers will run red with the blood of cancelled conservatives. It’s a familiar argument that turns every election into the most important election in American history™ and demands that all good God-fearing American must vote for the Republican nominee or else.

The rebuttal to this is straightforward enough: even a Biden administration will be unable to enact a quarter of what the most radical progressives desire. There are far too many moderate Democrats – yes they exist, no matter what social media fearmongers insist – for a President Biden to force through major changes (assuming he even wants to). Assuming Senate Democrats eliminate the filibuster – and they will – Democrats will still need a Sinema and Manchin-proof majority, not to mention vulnerable Democrats up for re-election in 2022. Do you think Michael Bennett is a sure vote for single payer?

To say that Donald Trump doesn’t deserve to be re-elected is not to suggest that conservatives must go out and vote for Joe Biden. Casting a protest vote against Trump’s character for someone who has repeatedly lied about the sobriety of the man involved in the accident that killed his wife, enabled the disgusting character assassination of Robert Bork and then Clarence Thomas, and told a black audience that Republicans “want to put y’all back in chains,” not to mention his move to the left since wrapping up the nomination, is a little bit odd.[2] Then again, I voted for Evan McMullin, so my judgment on protest votes is also suspect.

Against Never-GOPism

Whatever conservatives decide to do this November with regards to the presidential election, though, Will’s own contention that it is a moral imperative to remove President Trump is undermined by his added contention that Congressional Republicans be decimated at the polls as well. As I noted above, one of the main arguments against the Flight 93 paranoia is that there’s only so much a President Biden can do. That argument is nullified if the Democrats have a 60+ seat Senate majority and a triple digit advantage in the House of Representatives.

One could plausibly counter by observing that the Democrats had a 80+ seat advantage in the House and a filibuster-proof (at times) majority in the senate during the Obama administration, and the world didn’t end. While true, there are two counterarguments. First of all, the 111th Congress managed to pump out a lot of legislation with long-lasting and negative impacts. Dodd-Frank, the massive stimulus, and the expansion of SCHIP are but a few of the major pieces of legislation signed into law in Obama’s first term, not to mention a little thing called the Affordable Care Act (which, one observes, was not repealed by the 115th Congress). Even if the long, drawn-out process of passing Obamacare prevented the Democrats from achieving more, that’s a pretty substantial list and it was certainly more ambitious than the Republican achievements between 2017-2018.

More importantly, even if the Democratic party hasn’t moved as far left in its totality as Republicans contend, it has moved left. The legislative program to be pursued by a Democratic Congress with supermajorities in both chambers is likely to be far, far more ambitious than one with narrow majorities (and perhaps a continuing Republican majority in the Senate). Suddenly single-payer, the Green New Deal, and God knows what else are all on the table.

It’s easy enough for people like George Will to say that’s what Republicans deserve for kowtowing to Trump for four years, but a radical re-orienting of America to the far left seems to be a pretty high price to pay to teach Republicans a lesson.

More to the point, one lesson from life under the pandemic is that the Democrats have done little to merit the gift on uncontested power.

Life in Lockdown

Neither party holds a monopoly on good or bad governance during the COVID crisis, highlighted by the recent spike in infections in both red and blue states, but the very worst behavior among state and local officials played out in New York thanks to the Lloyd Christmas and Harry Dunne of New York, Andrew Cuomo and Bill deBlassio, whose gross incompetence, negligence, indecision, and egoism literally cost thousands of lives.

And while (largely) Democratic reticence to end lockdowns can be debated on the merits, the gross inconsistency in how lockdown policies have been applied is sufficient evidence of why many Democratic officials should never be allowed near the levers of power again. We will continue to debate the merits of past and future lockdowns for years to come, but there’s no debating the moral inconsistency demonstrated by the likes of Montgomery County Executive Marc Elrich and DC Mayor Muriel Bowser in not only permitting mass Black Lives Matters protests but in actively celebrating and encouraging them even as they energetically pushed for continued lockdowns.[3]

Seeing what amounted to (in some cases) giant block parties being permitted while being denied the ability to receive Holy Communion is bound to rub some people the wrong way. It also does not inspire confidence that one’s rights will be protected by these same people if they are given even more power.

Whatabout “whataboutism?”

Some will argue that these are tantamount to “whatabout” arguments, and indeed they are. What about Democratic party radicalism? How does a conservative reviled by Donald Trump and unhappy with Republican party subservience to him solve this conundrum? How was a conservative to vote in, say, Texas in 2018 when Ted Cruz was up for re-election to the Senate?

Ah, Ted Cruz. This is a good time for a slight tangent. I supported Ted Cruz during the 2016 Republican presidential primary, and I would not have made a different choice if I had to do it all over again, especially once some of the heavy-hitting solid GOP governors bowed out early. And this is why I am not Never Trump. Because when people started adopting this term, for many it also meant “and not Cruz either.” The very same people who urge the fiery destruction of the Republican party are the ones who continued to support the dead-end candidacy of John Kasich. Instead of uniting behind the one candidate who could actually defeat Trump, as the Democrats did this year to united behind Biden when the prospect of a Sanders nomination stared them in the face, these self-centered, short-sighted dolts wasted time and resources on the pointless candidacy of John Kasich. Would Trump have won anyway? Perhaps, but it would have been awfully nice to have tried a true one-on-one matchup. But since Ted Cruz gave them the ickies, they selected a path that only aided and abetted Donald Trump. And now these same geniuses are still dishing out political advice? Lest I run afoul of such stalwart conservatives as Max Boot and Tom Nichols, maybe I will follow my own instincts.

Anyway, back to Ted Cruz. I have been as disappointed as anyone in his sudden turn from fierce Trump critic and as a man who said “vote your conscience” at the Republican convention into another Trump-defending sycophant, especially as he adopts policy positions he should know better than to support. But if I lived in Texas (I wish) in 2018 and I had to choose between him and Beto O’Rourke, I wouldn’t have even given it a second thought before voting for Senator Cruz. Sure, there’s always the option to not vote or vote for a third party, as I am doing this year in the presidential race, but am I really just going to “punish” a Senator who I am aligned with on 99 percent of issues because he hasn’t been as critical of Donald Trump as I would like? Who am I punishing in allowing someone like “Beto” to represent me in the United States Senate?

Both Trump critics and Trump fans are finally joined in unison as they shout back at me “Aha – charade you are!” After essentially disclaiming against the “elections are binary” argument for the presidential election, I am now changing tact for other elections.

Not quite. In every election you have to make a rational decision weighing all the circumstances. In 2016 I decided that neither Hillary Clinton or Donald Trump were good enough to earn my vote, but neither was so obviously heinous as to force me to vote for the other person. I have made the same decision (so far) with regards to the 2020 presidential election. But not every election is the same. I couldn’t (and still can’t) vote for Donald Trump because, well, he is an utterly repellent human being and an ineffective president. But Ted Cruz? I’m supposed to enable the ascension of a character like Beto O’Rourke at his expense because I don’t think he’s been critical enough of Donald Trump? That’s a stretch to me.

More importantly, in at least the example outlined above, I did find the other person (Beto) heinous enough to move me to vote for Ted Cruz (if I could have).

But that’s a discrete decision based on the circumstances of one race. The larger context, which I have tried to lay out, is that punishing Republicans at the ballot box for insufficient Trump hatred is a questionable, at best, strategy. Leaving aside the question of whether Republicans have truly enabled President Trump (and it’s not a small question to leave aside, but I don’t need to drone on for another thousand words), conservatives are right to feel more than a little suspect at the prospect of handing unlimited control of government to the Democrats.

Populism: You Ain’t Seen Nothing Yet

There’s one other big risk entailed in a massive Democratic takeover of the government. Anti-Trump conservatives have held a (likely fanciful) hope that there will be something like a return to normalcy once Trump is removed from the scene. This is wishful thinking. The populist ascendency within the GOP is no short-term phenomenon. It began before Trump, and will outlive him. Perhaps this populist strain will be more “enlightened” – it cannot but help but be. Yet the tension between the classically liberal/conservative and anti-liberal/populist strands of the movement is likely to become even more fierce once Trump is no longer on the scene (and his defeat this November by no means guarantees he will not be a major player in the years to come).

What’s more, a complete Democratic sweep this November is more likely to favor a populist ascendency. The Democratic sweep in the aftermath of the 2008 election inspired the growth of the tea party movement. Some of us might pine for the relatively sanguine days of a libertarian-inspired social protest movement. Yet this was also a populist revolt. Indeed it was a paradoxically libertarian-populist (two words combined that can’t make sense[4]) protest. Over time, though, it was the libertarian side of this uneasy alliance which lost.

There has been something like a rebirth of the tea party, libertarian-populist sentiment in the wake of COVID lockdowns, and it’s possible two years of hard-left Democratic rule can spur something similar. Yet nothing that has occurred over the past few years inspires confidence that any right-wing reaction to leftist overreach will be measured and reasonable. A more likely right-wing response will look a lot more Josh Hawley than Mike Lee. And it’s possible a Hawley-styled turn is the best case. In other words, the sort of figure to emerge as the leader of the anti-liberal response to left-wing dominated governance may look Donald Trump look like a piker.

Look, it has not been a fun five years or so for anti-Trump (but not quite Never Trump) conservatives. We spent the better part of a year vocally arguing against Trump’s nomination. We then watched as a majority of those who were in the trenches yelling with us swiftly turned around and decided to be a part of Trump’s palace guard. (Some for genuine reasons, some, well, less so #caring). Then for four years we dealt with accusations of disloyalty from Ever Trumpers on one hand, and on the other hand complaints about our insufficient hatred and fear of Trump by idiots playacting as the modern incarnation of who people who #resisted an actual tyrannical regime.[5]

We are frankly just a little bit weary of it all. So when George Will tells us it’s not sufficient that Trump be defeated, but that the entire GOP should essentially be burnt to the ground, it’s hard not being a bit conflicted. Because, frankly, the GOP does deserve to be massacred at the polls.[6]

But so do the Democrats.

And so we are confronted with yet another ugly choice with really no good options. Sure, we could stand aside and let the Republicans go down to defeat, and hope (foolishly, no doubt) that it will be reborn in the aftermath of an electoral massacre. And in this fit of rational spite we might come out on the back end even worse off, with the most radical elements of the Democrat agenda enshrined into law. And if the GOP does endure such a defeat, and Democrats are allowed to roam about the country unchecked for two years, does anyone expect that the reaction to this will be measured?

In case I am not making myself clear, if George Will has his way then expect something much worse than Donald Trump four years hence.


[1] Note I do not say “Never Trump.” For reasons to be explained shortly, this is a term I reject for myself.

[2] Kevin Williamson has the measure of the man. https://www.nationalreview.com/2020/03/joe-biden-not-a-socialist-just-a-scoundrel/

[3] To say nothing of the mandate in new York not to ask COVID-positive patients if they attended BLM rallies, or the Oregon decision to exempt “people of color” from the obligation to wear masks.

[4] HT: Megadeth.

[5] Because one recalls the history of anti-Vichy Frenchmen openly and loudly denouncing Hitler, lining up bookshelves with their tales of denunciation, and being supported by a media establishment that aids and abets their animus. Totally the same thing there, fellas.

[6] Like, for instance, calling a man who has served in every Republican administration a “warmonger” because he had the temerity to write a book publicly critical of Donald Trump.

Go Away Lucy, and Take Your Football With You

It is difficult to feel angry about the outcome in June Medical Services v. Russo when it was entirely expected. Most conservatives knew Chief Justice Roberts would come up with some half-baked legal justification to “preserve the integrity of the Court,” so naturally he did so with a ridiculously strict rendering of stare decisis, one which he couldn’t possibly uphold. (And as always a satire site manages to convey the ultimate stupidity of this stance.) So be it.

There was one tweet which caught my attention, and so I republish it here.

It is the usual gibberish from the pro-Moloch “Catholic” left. “Forget about all that abortion stuff, and come join the Democrats so we can enact all the stuff that is not really a part of Catholic teaching but we will insist is as absolutely central to being a good Catholic as belief in the real presence.”

I’ve learned to roll my eyes at this stuff a long time ago. The Catholics for Moloch need some way to look at themselves in the mirror, so it makes sense to create a fake Catechism (while calumniating most other Catholics in the process.) They’re no different than pro-choicers who ramble on about “clumps of cells” and other non-scientific hogwash to be able to come to grips with the fact that they are okay with the legalized murder of unborn children.

We all need to find a way to make it to the next day, I suppose.

And yet there is the slightest bit of truth in this statement. One of course has to ignore that all four of the justices who voted to uphold Louisiana’s law were Republican appointees, and four of the five justices who voted to strike down the law were Democratic appointees. It is, I suppose true that conservatives and Catholics cannot absolutely rely on “their” justices to vote as they would like, whereas Democrats never seem to have to sweat this stuff with theirs.

13 of the 17 justices appointed to the Supreme Court since January 1969 have been Republican appointees, yet Roe not only was made law of the land, it has been entrenched several times – once by a Supreme Court with 8 Republican-appointees (and the one Democrat voting to strike it down). While the judiciary has advanced on several fronts, abortion law is one area where the court remains especially disappointing.

The issue remains that the Supreme Court – and indeed the federal judiciary as a whole – has long ceased to operate effectively within the context of a republican form of government. I am no majoritarian democrat, but the fundamental problems with the Court are not going to be fixed by the “right” appointments. This is why the “what about judges?” argument never came close to persuading me to support Donald Trump. Even if Trump has nailed every single appointment (and I think Gorsuch will be fine in the end), we are no closer to a proper orientation of the judicial branch, and likely will not get there anytime in my lifetime.

On a related note, and once again going through the Twitter account of two-faced frauds, here’s the Lincoln Project’s take:

“True conservatism” indeed.

To quote a mediocre coach, they are who we thought they were.

COVID

Over the past few years I have experienced an eternal headache as I have navigated the rough waters of writing about Donald Trump. In the morning I might be doing rhetorical battle on Facebook, Twitter, or elsewhere with a Trump supporter offended that I have deigned to criticize His Omnipotence, and in the evening I am dueling with some #Resistance fool upset that I do not share his belief that Donald Trump is a tyrant, and as such I have shown insufficient angst regarding Hitler Junior.

And so it has been with COVID. When the virus became a serious concern in March I broke with many people in supporting the lockdowns and in arguing that the virus was indeed a much more serious concern than the flu. Then, over time, the lockdown forever brigade began to fray my nerves.

In an age of Google and instant internet access for all, it is not difficult to find statistics and other reports about the virus to gain a better insight into what is truly happening. Yes, even months on from the onset of COVID we still receive inconsistent and sometimes contradictory information, so I understand there may be a level of deserved mistrust in the reporting. But as time has gone on, certain facts seem indisputable.

Yes, COVID is deadlier than the flu by quite a lot. At no point in recent memory have 2,000+ people died of the flu in a single day, as happened during the peak. Even now as the curve has flattened (more on that in a moment), the 700-800 daily deaths are 2-3 times what one would see at the peak of flu season. I have seen some estimates that 80-90,000 people might die in a particularly bad flu season, but that figure is wildly exaggerated as the peak number of deaths in the past decade is closer to 60,000, and COVID deaths have doubled that in just over three months.

Conversely, it is true that COVID is significantly less lethal for people under about the age of 60 who have no other underlying health conditions. Nearly 80% of coronavirus-related deaths in the US have been in people aged 65 or older. It is still more lethal than the flu for just about every age group except the very youngest, though, so one should not casually dismiss the seriousness of COVID – especially when one factors potential long-term health impacts.

Most importantly, COVID is especially non-lethal for children under the age of about 12. There have been about two-dozen deaths in this age category, and I believe almost all involved children who had some type of underlying illness. As a father I cannot imagine losing a child, so no death should ever be diminished. But not only is COVID not very much of a threat to the health of young children, contrary to almost every illness in history (I exaggerate, but kids are called “germ factories” for a reason) kids do not seem to transmit the virus much if at all to adults. What’s more, many other countries have opened schools and there have been no reported outbreaks due to these openings. There was a concern that there was a relationship between an uptick in Kawasaki-disease (or a similar syndrome) related to COVID, but the number of cases remained small, and it doesn’t seem as though this ever became a significant concern (though I am open to correction if people have updated data).

It seems as though we have two conflicting goals. On the one hand, we need to better demonstrate the seriousness of the virus to a subset of the population who continues to dismiss its significance. On the opposite end of the spectrum, those who continue to live in abject fear would do well to better understand recent studies and data. If one purports to be a believer in science, it seems strange to be personally paranoid about a virus that has almost no chance (assuming you are in the low-risk age group) of killing you or even leaving you with long-term disabilities, and has practically zero chance of harming your child if you are a parent.

It’s an admittedly difficult dance. I may not personally have much concern about the virus as it relates to me or my family, but neither do I want to be responsible for passing the virus onto someone who is higher risk. I was very happy to return to Church last week for the first time in three months – a return that was way overdue. Every other pew is blocked off, and everyone wore masks. And yet I couldn’t help but feel a little nervous as two women, likely in their 80s, sat in the next available pew in front of me. I wondered if I could hold my breath for an hour.

And that’s why those who think they are making some sort of political statement by not wearing a mask infuriate me. Oh, you aren’t some sheep who just listens to what others, including the government, tell you to do? Do you stop at red lights? Do you wear a seatbelt? Do you pay your taxes? If you answered yes, then I guess you are just a “sheep.” Wearing a mask is not about protecting you: it is about protecting others from you in case you are pre-symptomatic (as opposed to asymptomatic, which is somehow a different thing). Yes, authorities likely lied about mask-wearing at the outset of the pandemic crisis, and they deserve blame for that. But that’s no excuse now when we know better.

Incidentally, the anti-mask stance is an odd one for libertarians. In an age of video surveillance and facial recognition, mask wearing would seem to be an anti-establishment, finger-poke in the eye type thing. In fact, it is much more likely for masks to be outlawed as facial recognition becomes more ubiquitous. Indeed, masks are precisely the type of subtle protest used in authoritarian countries where video surveillance and facial recognition are widespread. It will be ironic when in a few years libertarians protest the outlawing of masks.

Once again, the flipside is also silly. I don’t wear a mask walking around or when I’m running. I don’t begrudge anyone who decides to do so, though I can’t imagine it being particularly healthy to run in a mask during the summer months. It doesn’t seem as though there is much of a call for people to wear them outdoors except in cases where sustained distancing is not possible, but I wouldn’t be surprised if that started happening because again, nobody seems to be reading anything.

Admittedly this has been a somewhat rambling post as I am just basically venting off three months of frustration. If there is an overarching message, it’s that I wish people really would take data seriously and really think before jumping on this or that bandwagon. For example, when you see cases jump in certain states, don’t just assume it’s the end of the world. Look more closely at the data. For instance, see Avik Roy’s thread about Florida. He shows that most of the cases are in a much younger population, and that even if hospitalizations are increasing, these are cases where most people are discharged and recover. (Incidentally, the thread also gives lie to the idea that Florida is hiding its data or is being insufficiently transparent when it’s the complete opposite of the truth – Florida has been more transparent than just about any other state).

Maybe my message is simply: be safe, be careful, but also don’t feel you need to hide in your cave.

What He Said

I am not the only person returning to the blogosphere. Dale Price has been writing up a storm at his excellent blog, Dyspeptic Mutterings. Today Dale perfectly echoes my own anger and disgust at the iconoclast movement turning its eyes towards a statue of Abraham Lincoln – a statue freed slaves paid for.

Here’s a taste:

I do not share citizenship in the same nation with the mobs. Yes, they are presumably composed of American citizens, but shared citizenship indicates devotion to common ideals no more than standing in the same line at a McDonald’s does. My enmity for them grows by the day.


There is a hellish spectre abroad in our land right now, and it has possessed countless mobs. That self-same mania is aided and abetted by the sympathy of countless political figures, or the cynical calculation, cowardice or fecklessness of the rest. The rage we are seeing was ably described by a wiser man than we currently possess as “the simple gratification of a hell-black spirit of revenge.” It is a hatred for our past and all that represents it, and no amount of explanation or context matters.


As the proverb goes, you cannot reason someone out of a position he did not reason himself into in the first place.


And what will happen when they run out of memorials to destroy? Communal violence gets nearer by the day.

As the saying goes, read the rest.

Rewriting History

Neo-Confederates and others who have a more sympathetic understanding of the Confederacy don’t generally agree on much with far-left Progressives. And yet they do have at least one thing in common: they share a revisionist interpretation of the Civil War generally and Abraham Lincoln specifically. Both downplay the significance of the Civil War and the elimination of the scourge of slavery, and both portray Lincoln as a typically racist white man who didn’t really care all that much about the plight of slaves and whose interest in emancipation was purely part of a larger effort to preserve the Union and win the war.

In my life I have spilled a metric ton of digital ink arguing that this is an egregiously mistaken or warped view of American history, so I’ll address these inaccuracies briefly. First of all, with regards to the cause of the war, yes it was about slavery. One only has to read the documents produced by the secessionist states and speeches from the likes of Alexander Stephenson to understand this. The idea that tariffs or some other underlying economic motives were factors is frankly absurd. Lincoln and Douglas spent seven debates in Illinois arguing about popular sovereignty as it relates to whether territories should be able to choose whether or not slavery would be legal as they moved to statehood. Tariffs did not come up. Nor are they mentioned much in the articles of secession.

It is true that Lincoln and the union government did not engage in war to eliminate slavery, and many if not most union soldiers didn’t care one way or the other too much about the issue. And the same is also generally true of confederate soldiers. Yet there is no serious proof that the ultimate precipitating cause of the division between north and south was anything other than slavery. Once the war started the men were fighting for their country (in the north) or for their homeland (in the south). But why were they fighting to begin with? Surely not tariffs.

And this leads us to Lincoln and emancipation. First of all, it is true that Lincoln was not an abolitionist per se, though he was adamantly opposed to slavery. And his animating purpose at the outset of the Civil Was was the preservation of the union at any costs, including the potential of chastened seceded states returning and keeping slavery. But as the war wore on, Lincoln saw the opportunity to emancipate slaves and he took it. In part it was a war measure, but he also saw it as the right thing to do, and so overruled practically his entire cabinet in issuing it.

That the Emancipation Proclamation did not technically free any slaves at the time of its issuance is true but it misses the larger point. From that point forward the Civil War was now a war of emancipation. It meant that every territory reclaimed by the union would be free soil territory. It essentially signified that union victory in the war meant the end of slavery in America.

Lincoln also comes into criticism for his support for sending freed slaves to Africa, specifically Liberia. Once again this is an incomplete history. Lincoln initially supported this plan because he didn’t think freed slaves could live peaceably in the United States, and assumed they would want to relocate. As president he met with African-American leaders and freed slaves like Frederick Douglass and he learned that they wanted to be a part of the United States. So he ditched this idea halfway through his presidency, and by the time of his death he was fully committed to guaranteeing full citizenship and civil rights to freed slaves (a position which only intensified John Wilkes Booth’s hatred of Lincoln).

So what motivates this unusual coalition of Lincoln haters, aside from pure historical ignorance? For neo-Confederates and a certain element of conservatives, they view the Lincoln presidency as the end of the America of the Founders. According to them. the Civil War put an end to federalism and limited government and gave rise to the imperial presidency. This narrative would make more sense if we ignore pretty much the whole of American history from 1865-1933. Immediately after the war federal spending fell back to pre-war levels. While the 13th, 14th, and 15th amendments restricted state powers in many regards, the actual lived experience of most Americans didn’t reflect a total consolidation of federal power (admittedly some of this is because those amendments were ignored, but that’s not the only reason). And the history of the American presidency after Lincoln until at least the Teddy Roosevelt administration is not exactly one of a domineering presidency.

And what of the Progressives? Admitting that 600,000 American lives were sacrificed to end slavery and that Abraham Lincoln was the primary driver of emancipation, and he did so for legitimate moral reasons would mean that something noble and good happened in America prior to, I don’t know, yesterday. And we can’t have that.

George Will’s Natural Rights Judicial Philosophy

George Will has established a reputation for being an idiosyncratic thinker, and in his masterful new tome, The Conservative Sensibility, Will demonstrates this idiosyncrasy in his chapter on judicial philosophy. Will rejects originalism, preferring instead what could be described as libertarian or natural rights activism. Will chides originalists for bowing to legislative majorities – state or federal – unless they have clearly circumvented the constitutional text. Will argues that the judiciary should be active guardians against encroachments of the natural rights of citizens.

Will’s approach is reflected in his discussion of Brown vs. Board of Education. He dismisses the Warren court’s rationale for overturning the separate but equal doctrine established in Plessy vs. Ferguson. The Warren court’s decision was seeped in social psychology, twisting itself to find a justification for its decision.  Brown has been a source of dissension among some conservatives. For instance, Michael McConnell agrees with the outcome but not the rationale, while others think that – lamentably – there really was no originalist justification for the outcome (a point many progressives make in attempting to debunk originalism in toto).

Will casts aside all of these approaches and instead postulates:

The threshold question when evaluating any particular mode of construing the Constitution is whether the mode would dictate declaring public school segregation unconstitutional. No acceptable theory for construing the Constitution can invalidate the Court’s conclusion in Brown; the conclusion invalidates any theory that rejects it. If a theory of constitutional interpretation cannot find in the document’s text, when the text is construed to serve the document’s purpose of framing a government that secures natural rights, grounds for striking down racial segregation in schools, a practice facially inimical to equal enjoyment of the blessings of liberty, then this theory must be discarded.

Will follows up with an important framing of his basic constitutional philosophy: “The phrase the ‘blessings of liberty’ is of course from the Constitution’s Preamble. But the Preamble is not a mere decorative filigree on the Constitution. It is a statement of the objectives of all that follow.”

To Will, the Constitution “is John Locke’s political philosophy translated into institutional architecture.” He thus views the Constitution as the written document making concrete the principles established in the Declaration of Independence. He echoes Abraham Lincoln in calling the Declaration the “apple of gold,” surrounded by the “frame of silver” which is the Constitution.

Will sides with Randy Barnett in professing what Ilan Wurman (A Debt Against the Living: An Introduction to Originalism) describes as “libertarian originialism.” The case which distinguishes Barnett and Will from most originalists is Lochner vs. New York, the 1905 Supreme Court case involving a New York state law limiting worker hours. In a decision Will applauds, the Court overturned New York’s law, invoking the idea of the “liberty of contract.” This is a right that is not enumerated specifically in the Constitution, but which is implied via the Ninth Amendment.

In supporting the Lochner court’s decision, Will accepts a concept anathema to many conservative originalists: substantive due process. Will writes, “The Due Process Clause, properly construed, prohibits arbitrary government actions, particularly actions that unjustifiably restrict individuals’ liberties. The Due Process Clause is not purely about process.”

This reading of the due process clause would animate many Supreme Court decisions over the next three decades. These cases generally centered on economic questions. It was not until FDR appointed an entirely new court over his tenure in office that substantive due process would die a sudden death, only to be revived by the Warren court, only this time generally to protect socially libertarian ideas.

Will also does not completely dismiss the idea of a constitution as a living, breathing document. Will himself uses the term “living originalism,” a term coined by Jack Balkin. He quotes Balkin’s description: “In every generation, We the People of the United States make the Constitution our own by culling upon its text and its principle and arguing about what they mean in our own time.” The prohibition against cruel and unusual punishment is used as an example. What was considered “cruel and unusual” in 1789 America is not the same as what would be considered cruel and unusual in 2019. Each generation can read the constitutional intent in light of new revelations and modes of thinking. This differs from progressive judicial activism because the constitution would still be interpreted to support a Madisonian respect for natural rights, just with a more modern flavor.

Will lambasts the conservative originalist approach because it is far too deferential to majorities. He specifically calls out Antonin Scalia’s dissent in Lawrence v. Texas, where the majority struck down Texas’s anti-sodomy laws. Will accuses Scalia of being a majoritarian, and decries the originalist impulse to defer to legislative majorities.

There are thus two principles which underlay Will’s judicial philosophy: a defense of natural rights, and a suspicion of majoritarianism. While there is some division within conservative circles, both of these ideas are within the mainstream of traditional conservative thought, particularly the anti-majoritarian impulse. Will is on solid ground in citing Madison and the Framers and their distrust of majorities and the damage that unrestrained majorities could wreck on our republic. Neither of the principal authors of the Federalist Papers – Hamilton or Madison – were exactly Jeffersonian democrats. (Madison may have forged a political partnership with Jefferson, but he never shared similar philosophical ground with Jefferson when it came to ideas such as democracy and the permanency of the constitution.)

Will might encounter more resistance to his passionate advocacy of natural rights. Again, though, he is on generally solid ground in interpreting the Framers as being natural rights advocates. Thomas West, in The Political Theory of the American Founding, does a convincing job of demonstrating the Framers’ commitment to natural rights, sorting through varied and various writings to demonstrate this propensity.

Yet there are three fundamental issues with this judicial philosophy. Neither one is perhaps lethal to Will’s argument, though in combination they suggest that it is not an approach conservatives should take.

The first issue with manifests itself is that of states’ rights, a concept Will himself defends in the book. Leaving aside the judiciary’s rulings on federal matters, absent a clear contradiction of the constitutional text and meaning, a philosophy of judicial restraint with regards to state laws would be not only sensible, but in fact would be the correct way to honor the Framers’ intent as Will calls us to do.

Will defends this seeming tension with respect for state sovereignty by noting that states cannot abrogate the constitution. That is certainly true. Obviously no state can take it upon itself to legalize slavery, which is clearly prohibited by the 13th Amendment. Will wants to go a step further to recognize that the Ninth Amendment is not just an empty set of words, and establishes a principle for supporting rights not clearly laid out in the Bill of Rights and the Constitution in general.

The problem for Will is that the Constitution is a document meant to lay out the rules for the federal government, and not the states. As originally drafted and ratified, there was very little in the constitution that directly impacted and/or curtailed state actions. The republican guarantee and commerce clauses, for instance, constrained state actions. Otherwise, the Constitution was meant to enumerate (and limit) the powers of the federal government.

The reluctance to superimpose a federal viewpoint over the states is best demonstrated by the convention’s rejection of Madison’s proposal for Congress to have a veto over state laws, a veto Madison thought to be essential for the Constitution to have any teeth. Initially it was generally supported, but as the convention wore on, more delegates – particularly from the small states – argued against this provision, and it ultimately went down to defeat. Madison greatly lamented this, and he thought the lack of such a provision was one of the severest flaws in the Cconstitution.

But even Madison’s advocacy of a veto over state laws stemmed largely from his fear of state interference with federal laws. He didn’t begrudge the states from passing their own laws per se, but rather worried that certain state laws would contradict federal action. Thus even this proposal is less about protecting natural rights and more about protecting the federal government from state encroachment.

Will would rightly counter that the 14th Amendment changed the relationship of the Constitution to the states, at least in practice. He laments the Court’s Slaughterhouse decision, which practically nullified the privileges or immunities clause. But the due process clause has been used to bring the states to heel on a number of issues, and has essentially federalized the Bill of Rights. The question conservatives have to tackle is: how much power do the states retain?

This leads to the second problem with Will’s approach. Progressives mock originalism by contending that it turns judges into historians. A conservative could contend that Will’s natural rights approach turns judges into philosophers, arguing over the meaning of natural rights.

Many (though not all) on the right would agree with Will about the natural rights inclinations of the Framers. Natural rights advocates also believe that we’re constantly discovering what our natural rights entail. And that’s the rub. While a natural rights reading of the Lochner decision could stand upon the idea of the liberty of contract, it is not implausible to picture a progressive natural rights reading of the New York law as supporting the legislation. FDR’s “four freedoms” should provide insight into how a much different concept of natural rights would lead to outcomes Will – and conservatives – would very much disapprove of. Though I agree with Will’s natural rights reading of the Lochner decision and the liberty of contract, it’s not at all far-fetched to see a much different philosophy of natural rights reaching the opposite conclusions.

It’s commendable that Will recognizes that the Ninth Amendment and the privileges or immunities clause of the 14th Amendment are still parts of the Constitution, but how much power to interpret the meaning of those clauses in light of natural law should we give the courts? That leads us to the final objection. While Will again should be commended for not taking the easy conservative path of bashing the courts and questioning the judicial branch’s legitimacy, and is correct in highlighting the anti-majoritarian impulse of the Framers, this approach tilts the balance far too much towards the judiciary.

Conservatives have an uneasy relationship with democracy. I am certainly guilty of being reflexively anti-majoritarian. But we run the risk of going too far in our – let’s call it suspicion of democracy, or at least the democratic aspects of republicanism.

But it is, nonetheless, a republican form of government the Framers created and we’re trying to keep. And what is a republican government? According to Madison, in Federalist 39:

If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character.

This broad definition doesn’t necessarily lead us to a satisfactory conclusion as to the rightful powers of the judiciary, but it indicates Madison’s frame of mind. Suspicious as he was of democratic majorities and of state power in general, he recognized there had to be an element of popular choice. Ultimately the people of the United States are sovereign. That sovereignty may be expressed in incompletely democratic forms, and the judiciary is itself a tangential product of popular sovereignty, as they are appointed by (indirectly) elected presidents and confirmed by (indirectly, at the time) elected Senators, and served during good behavior (thus subject, theoretically, to impeachment).

Though we created a republican government with limited democratic forms, there is a general sense that the genius (to borrow from Madison) of the people requires some aspect of popular choice and control. An unelected judiciary consistently overturning legislative majorities based on philosophy rather than the constitutional text will only embitter the citizenry, especially if it feels it has no ability whatsoever to undo the judiciary’s actions. This notion of almost complete judicial supremacy over the legislature, one which extends beyond the original concept of what the judicial branch was intended to be, goes well beyond simple anti-majoritarianism and is seemingly at odds with the very core of our national identity.

That’s not to say there isn’t a good deal of merit in Will’s advocacy of greater judicial activism. First of all, the term judicial activism, like so many political terms, has been abused to the point it merely means “Courts rendering decisions I don’t agree with.” And Will is right to urge courts to adjudicate based on the constitution. In other words, judicial restraint can itself be a form of political activism. For example, John Roberts deciding to find a curious rationale for upholding Obamacare was almost certainly motivated by his desire to restrain the Court from becoming involved in a political debate. Yet this decision itself was political, and lacked any defensible constitutional merit. Judges should judge, and then they may let the political chips fall where they may.

In general, Will isn’t far afield of the Famers. Though Will takes his cues from Madison, it is perhaps unsurprisingly Alexander Hamilton who comes closer to providing support for Will’s judicial philosophy. As Hamilton writes in Federalist 78, “[the judicial branch] is a no less excellent barrier to the encroachments and oppressions of the representative body.” Hamilton adds:

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This supports Will’s counter majoritarian argument. Hamilton here expresses the idea that judges must rule against democratically elected legislators when the latter act against the Constitution. But only the most ardent majoritarian would dispute that. The question remains: how do we know precisely when legislators have acted in defiance of the Constitution? And which aspects of the Constitution apply to state legislators? Hamilton provides something of an answer in Federalist 80:

It seems scarcely to admit of controversy, that the judicial authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union; 3d, to all those in which the United States are a party; 4th, to all those which involve the PEACE of the CONFEDERACY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased.

The first point is most relevant here. As Hamilton explains, “What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them? The States, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government.”

It is this last point which resounds: the principles of good government. It is sufficiently vague to countenance a higher degree of judicial interference in state affairs than one would have imagined by the plain text of the Constitution. But again, this doesn’t quite provide a wholly satisfactory answer. State laws that contravene the Constitution should be declared null by the federal judiciary. But what of laws that run amok against “the principles of good government?”

Hamilton even addresses the privileges and immunities clause of Article IV, but here the reference is to states violating the rights of citizens from other states. This does not address internal laws impacting the state’s own citizens.

Will is on solid ground in defending the importance of an independent judiciary. Conservative frustration with court decisions has led many to call for reforms, some of which would strip the courts of their independence, or would limit their jurisdiction. While understandable, it is as true today as it was over two centuries ago that there must be an independent branch of government acting as a barrier against untrammeled majoritarianism.

But Will goes further than that. It would be an exaggeration to suggest Will is proposing the courts act like a council of ephors, but not much of one.

In a sense, Will is contradicting his own philosophy, and not just because this is a nationalistic judicial philosophy disruptive of state’s rights. As a libertarian-conservative, Will understands that human nature cannot be perfected, and that not all social ills can be corrected or cured. His is an anti-utopian philosophy. Will is also rightly at odds with the “post liberal” strand of conservatism which is so much in vogue, precisely because it has the faintest whiff of utopianism. Yet Will’s vision of an omnipotent judiciary acting as the guardian of natural rights is also semi-utopian. States may err in judgment and pass laws offensive to libertarian sensibilities. But just as post-liberals don’t seem to recognize the dangers of giving the government more power to discern “the good,” Will doesn’t seem to fully appreciate the dangers of giving the judiciary the unrestrained authority to declare what does and does not accord with natural rights. A court so fully invested with such a power may not act in strict accordance with libertarian principles. Just as conservatives should appreciate the importance of pluralism in acting as a safeguard for their practice of their values, a “libertarian orginalist” ought to appreciate the necessity of judicial deference. The alternative system may look a lot different than what is hoped for.

George Will has left us what an important contribution to the world of not just conservative thought, but political philosophy in general. His defense of natural rights and an independent judiciary, along with his anti-majoritarian impulse are all important countertrends to what we see in much of the conservative movement today. His judicial philosophy may place too much trust in the Solomonic wisdom of judges, but it is a worthwhile contribution and important guidepost.

Conservatism Undefined

It’s a battle over the true meaning of conservatism, and for once it doesn’t solely involve individuals on the right.

Kevin Williamson of National Review and Professor Kevin Kruse of Princeton recently had a bit of a back and forth that was essentially over the question of whether it was accurate to call the segregationist southern Democrats whom Joe Biden once buddied up to “conservative.” Williamson, answering in the negative, originally responded to a series of tweets sent by Kruse in response to Tom Cotton. Kruse took to Twitter to reply to Williamson. Williamson replied here, and Kruse in turn answered back here and here.

Just summarizing the exchange would take about 3,000 words, and I’m not doing another one of those right now*, so I am counting you all to look through each link and carefully read every word of it. I’ll wait.

Now that you’re back, I’m not going to go all Hot Air on you now and copy and paste a whole bunch of stuff with commentary intermingled until you are just about nauseous. The quick summary is that Williamson thinks it is absurd to categorize the southern Democrats of this era as conservative. As a counterpoint Kruse cites the words of men like William F. Buckley and Richard Nixon who thought these southern “conservatives” could be won over to the GOP (indeed belonged in the GOP), as well as Congressional voting scorecards to prove that they were indeed conservatives, properly understood.

I think Williamson is largely right in hitting back at Kruse on the fallibility of WFB, who was just frankly wrong when it came to segregation. As for Kruse’s reliance on scorecards, I think it leaves a lot to be desired when it comes to measuring ideological coherence. It’s a bare step up above using those Facebook quizzes to measure where you are on the ideological spectrum. First of all, the scorecard is in the eye of the beholder. What counts as a “liberal” vote is determined by the person doing the scoring. If voting for (or against) civil rights legislation is the major criterion by which one is judged, and voting for such legislation is considered “liberal,” then it makes sense that the southern Democrats would be adjudged to be less conservative. But is that really a good measure when a majority of Republicans voted the same way? It’s at best debatable. As for other scores, who knows how these votes are being scored. Moreover, these scorecards are limited to actual legislation before Congress, and in the context of the 1960s, are further skewed by the dramatic over-representation of Democrats. For example, the 89th Congress (1965-1966) had 67 Democratic Senators as opposed to 33 Republicans, and the proportion was similar in the House. The Democrats lost a few seats in the 90th Congress, but still had a significant majority. That is going to affect the nature of legislation being proposed in Congress, as well as the relative partisan scores.

It would be much better to look at the careers of these southern Democrats and the specific legislative focus before determining they are conservatives. Herbert Talmadge, for example, voted in favor or Medicare and Medicaid and was generally a reliable supporter of Great Society programs. It is true that other southern Democrats, such as Eastland and Stennis of Mississippi, voted against these programs, but southern Democrats largely fell in line. Moreover, Talmadge sponsored the legislation that created foodstamps (albeit with then proviso that the able-bodied must work to receive them), and his legislative history was one that wasn’t exactly a model of Hayekian fiscal libertarianism, even if he was a bit of a budget hawk towards the end of his career.

Kruse waves away Williamson’s quite accurate depiction of southern Democrats as being progressive supporters of the New Deal by pointing out that they started to align with Republicans in the late 30’s to vote against New Deal expansion. But this is both misleading at the same time as it is subtly damning to Kruse’s general thesis.

First of all, Kruse overstates the amount of southern Democrat defection from the New Deal, as neither the entire southern delegation nor their electors completely turned against the New Deal. As a crass generalization, it would be more accurate to label most of these southern Democrats as populists: generally socially conservative, but also economically interventionist. Ironically, they would be a better fit in today’s Republican party than the GOP of their era, but more on that in a moment.

But if one concedes that the Dixicrats and other southern Democrats were generally to the right of their own party, and some Republicans thus saw an opportunity to recruit them into the GOP, that in and of itself refutes the long-held contention that Republicans and Democrats “switched places” ideologically. Though the original histories of both parties are complicated to place on an ideological spectrum, the relative right/left configuration of both was pretty clear by the end of World War I. Woodrow Wilson had begun the process of moving the party in a Progressive direction, while the waning influence of men like Robert LaFollette, combined with the presidency of Calvin Coolidge and the leadership of Robert Taft, moved the Republican party inexorably to the right.

It’s true that “American” conservatism became much more of a true ideology as a reaction to the New Deal, but the GOP had become the more rightward tilting party long before then. What’s more, the right-wing of the Republican party, generally speaking, were not opposed to civil rights. Opposition to civil rights on the right was generally due to states rights and libertarian purity rather than racial animus (though I won’t pretend the latter no doubt played a part in some right-wing thinking).

It is also important to note that men like Talmadge were replaced in the Senate not by populist conservatives, but traditional Reagan conservatives. When the south began slowly moving to the Republican column beyond the presidential level, one of the first Republicans voted into Congress was Newt Gingrich. I think it’s safe to say Gingrich, at least at this period, was a more emblematic of conservative thought than Talmadge. As for Talmadge, he was ultimately defeated by Mack Mattingly, whose political thought was in tune with Gingrich’s. It would take another couple of decades for southern Republicans to become dominant in the south, and there are two notable aspects about these Republicans: they were by and large much orthodox in their conservatism than men such as Talmadge, and they were very much not segregationists.

The south moved slowly towards the Republican party because older southerners – many of whom maintained some of their original racial sentiments – continued to vote Democrat, while younger voters generally shed the racism of their forebears and tended to vote Republican. That is not to say every younger southern Republican was completely pure on race, or that racism is a uniparty phenomenon. But by the time the Republicans truly came to dominate the south in the late 1990s and early 2000s, race had become a drastically less important issue, at least on the surface.

In a way, this confrontation between Williamson and Kruse is another round in the debate about what conservatism truly means. I think Williamson is grounded in traditional conservative thinking, and thus sees at least the economic voting record of southern Democrats as being wholly incompatible with true conservatism. As I alluded to above, Kruse would actually be on more solid ground if we defined conservatism as it is being practiced (or promoted) by the more “Trumpist” Republican party. If conservatism is defined as a culturally reactionary and economically interventionist philosophy dedicated to helping the forgotten American, then indeed Kruse might have the better of the argument. As a matter of historical accuracy, Williamson has the better of the argument. Going forward, I only hope Williamson’s conservatism is what we all recognize as conservatism.

*Stay tuned.

Why I am Not a Libertarian

I did not haphazardly choose Cato as the inspiration for this blog’s name or for my pseudonym. Both the historical Cato as well as the collective of Gordon and Trenchard are inspirational figures. The latter, in particular, are truly the forerunners of the American Revolution and the ideals of the early American republic. These are ideals that, I believe, have been abandoned by the majority of Americans on both sides of the spectrum.

I am not a libertarian, though I am about as close to being one as you could be without actually being one. Am I a classical liberal? Perhaps that’s a better descriptor. Whatever the case may be, I have never been a full-fledged libertarian, and so-called libertarians do their damndest to regularly remind me why I never will be one. Two recent controversies remind me why.

Let’s take the more serious issue first. Recent anti-abortion bills have passed in Georgia and Alabama. The former prohibits abortion once a heartbeat has detected. Alabama’s law is more sweeping, completely banning abortion except in cases where the mother’s life is at risk.

There are prudential reasons even pro-lifers object to these laws. These laws will almost certainly be struck down by lower courts, and there is no guarantee that the Supreme Court will take up the cases. And if it did, there’s a better than even chance that the Supreme Court will not vote to overturn Roe v. Wade.  Clarence Thomas is arguably the only bedrock certain vote against Roe, though Alito would likely join him, as Gorsuch probably would. Justice Kavanaugh and especially Chief Justice Roberts, however, seem to be of the judicial temperament that would incline them against overturning Roe. Therefore we’re back to the drawing board, and arguably we could take a step back.

David French is one of the few voices against restraint, and I agree with him. I think he’s particularly correct in suggesting that instead of simply upholding Roe and laying the hammer down on these states, the justices could work out a middle-ground that modifies the Casey decision. While Kavanaugh and Roberts are temperamentally conservative jurists, I would guess they also do not agree with the Roe decision. I don’t think they would vote to uphold it, full-stop.

While I might understand these prudential concerns, I am much more distressed by some of the feedback from the larger pro-life community. Here’s one example, from Guy Benson.

“I’m pro-life but a bill that actually bans abortion is too extreme.” What? This is incoherent to me. This is more than a pragmatic objection and gets to the heart of the debate. If you’re pro-life, then what exactly are you supposed to be fighting for? This isn’t some debating society thought experiment we’re talking about. The ultimate aim of the pro-life movement is to, you know, ban abortion. This may come as a surprise to some people who call themselves pro-life, but pro-lifers view unborn children as human beings endowed with the right to live. An abortion is thus the deliberate taking of human life. This is not some icky thing we disapprove of but otherwise tolerate legally because we recognize humans must be free to act as they choose. That freedom to choose ends when that choice necessitates killing another person. This is one of the basic building blocks of human society, and I thought it was a sentiment shared by all pro-lifers. Evidently not, because when confronted by the logical conclusion of their position, they are suddenly balking.

Others, however, don’t even bother trying to defend the sanctity of life. The twitter user by the name of neontaster offers up what I think is the position of many libertarians:

So let’s get this straight – it’s not a life deserving of legal protection unless it can survive outside the womb. Of course, this is an even more obscure standard than the heartbeat standard. Medical advances continually reduce the age by which fetuses can survive outside the womb. Fetsuses as young as 21 weeks have now survived. So is the standard the lowest possible age a fetus can live outside the womb? The lowest typical age it is likely to survive?

Aside from being an impossible standard to apply, it’s not logical from a moral and legal standpoint. Either the fetus is a human life or it is not. Its dependence on the mother for continued existence doesn’t diminish this reality.I won’t even get into argument that, taken to its logical conclusion, this would be an argument for permitting the murder of any child up to about age 18, or any special needs child, or anyone dependent on another life. I’ll grant neontaster’s distinction about the ability to live outside the womb, although logically this distinction doesn’t really add up when you think about it. If the child cannot survive without my ability to nurture it, how does that make it any less dependent? Sure, a mother can beg off once the child is born, but the child is still dependent for quite a long time. But, again, for the sake of argument I’ll just grant this distinction. It still fails to address the fundamental humanity of the unborn child. A legal standard that permits abortion as long as the child cannot live outside of the mother’s womb is still a legal standard that permits murdering human life. There is no law if this is law.

Unfortunately this is the standard argument of many libertarians. Some, such as Rand Paul, reject this form of thinking, but they are in the minority. As long as libertarians cherish bodily autonomy at the expense of defending human life, then this is a movement I want no part of.

Another issue where I depart from libertarians, at least in part, is on foreign policy. A kerfuffle surrounding Senator Tom Cotton’s remarks about potential war with Iran is what reminds me of the extremism of the libertarian position. Here is a link to a tweet in which the video is embedded.

Cotton is asked if we could win a war with Iran, and he replied, instantly, that we would. He adds, “Two strikes. The first strike and the last strike.” In the rest of the clip he then clarifies that he does not in fact want war with Iran. The question which was postulated was based on a scenario in which Iran struck us or our allies first. Cotton makes it very clear that he doesn’t want war and wants to exhaust every peaceful solution possible. He things regime change ought to happen, but that it isn’t going to come because we sparked a war with Iran. His response, again, was predicated on whether we would win the war.

This naturally outraged many who accused Cotton of being some neocon warmonger.

Cotton’s “two strikes” comments are admittedly worrisome. A particularly negative interpretation is that he’s talking about nuclear strikes. If not, he is perhaps widely over-estimating the ease with which we would win a military confrontation with Iran. Whichever interpretation you go with, Cotton’s remarks on this score merit criticism. But beyond that, the blowback is hysterical.

First of all, there seems to be a wide contingent of Americans who seem offended by the notion that someone would dare to be confident about America’s military capabilities. Yes, how dare a sitting US Senator think America could win a war – the nerve of the guy. Better for Senator Cotton to respond that America would curl into the fetal position and immediately surrender were Iran to attack us. That’s the sort of 21st century American spirit we have come to know and love.

The rest of the criticism comes from those who have not seemingly watched the entire clip – in other words, the overwhelming majority commenting on it. To accuse Cotton of being some kind of neocon warmonger based on these remarks is a calumny. He does not in any way indicate some desire for pre-emptive war. But to an increasing number of Americans – both on the libertarian side and for large swathes of the right – any mention of military action, even theoretically, sends them into paroxysms of rage. To even think about a military action, even a theoretical one based on the idea that we’ve been attacked by a foreign power, is basically the same thing as wanting to just bomb every country in existence.

Noah Rothman doesn’t exactly address this specific video, but he writes about this general sentiment in Commentary. He shoots down this notion that there’s just some large neoncon cabal itching to fight endless wars.

Rothman is hardly a fan of this administration, but he gets it right. While the Trump administration (and one would think any rational human being) wants regime change in Iran, military action to achieve it would be counter-productive.

Sadly our conversations around foreign policy seem to assume there are only two options: Paulite isolationism or McCain-like bellicosity. There are, in fact, other approaches. A reasonable approach – okay, my approach – is to be incredibly circumspect about military action without completely abandoning the possibility that we might, as a last resort, have to engage militarily with other countries. Discussing the potential of what might happen were we to engage in military conflict doesn’t mean you’re actively pursuing that agenda.

Again, not all libertarians necessarily subscribe to the extremist “don’t even think about it” approach to potential military entanglements, but this is certainly the view of the overwhelming majority. What’s more, for some it seems to go beyond mere principled opposition to military conflict and becomes an almost paranoid fear of the subject, and even a subtle deprecation of the American military.

I’m sympathico with much of the libertarian agenda, but these are just some of the reasons why I will never be a libertarian myself.

 

Against Ludditism

I came across this article on my friend’s Facebook feed and was fascinated by it, or at least by the attitude it represented. Here’s how it begins:

I was backing my wife’s car out of our driveway when I realized I wasn’t watching the backup camera, nor was I looking out of the rear window. I was only listening for those “audible proximity alerts” — the high-pitched beeps that my car emits as I approach an object while in reverse. The problem was that my wife’s car, an older model, doesn’t offer such beeps.

I had become so reliant on this technology that I had stopped paying attention, a problem with potentially dangerous consequences.

Backup cameras, mandatory on all new cars as of last year, are intended to prevent accidents. Between 2008 and 2011, the percentage of new cars sold with backup cameras doubled, but the backup fatality rate declined by less than a third while backup injuries dropped only 8 percent.

This speaks to a real problem: technology does force a certain atrophy of some of our senses or brain functions. I can remember most of my childhood best friends’ phone numbers – numbers I haven’t called in two decades, but other than my wife’s cell, I couldn’t recall from memory one phone number I’ve acquired since I started using cell phones. As for backup cameras, if I drive the large family minivan (which has a backup camera) for any extended period of time, I get a little discombobulated when I get into my Mazda (no camera).

And yet, what are the tradeoffs? While losing a cell phone used to mean all your contacts were gone forever, usually the files are recoverable thanks to modern software, apps, and other technologies. Now you have those contacts until the end of time, and you don’t have to rely on a faulty memory to call a friend you haven’t spoken to in years.

Look at those backup number stats. While the author seems to argue that the injuries and accidents haven’t gone down at the same rate as backup camera installations, they have gone down, and pretty significantly in terms of fatalities. In other words, it would seem that the use of backup cameras has been a net benefit.

The author cites other technological fails – the Boeing 737 Max 8 for one – as cause for concern over our reliance on technology. Nevermind that the mass commercial aircraft is itself a major technological change from, say, sailing across the water or relying on a horse and buggy to carry you across the country. While these air crashes and the deaths caused by automated vehicles create headlines and cause concern, left unaddressed is the important question: do these technologies create a net benefit? Often the answer is yes.

Let’s look at automated vehicles. While there’s still some work that needs to be done I’m sure, consider the alternatives. I recently sat through a presentation where someone mentioned he was an EMT, and was stunned when he sat around on a Friday night and there were no crashes on the Beltway. A colleague said to him that’s because younger people take Uber or Lyft when they leave the bars rather than get behind the wheel. Now, those Ubers and Lyfts are currently operated by humans, but nonetheless they’re examples of smart technological process. And as those vehicles become automated they will become cheaper, and their use more ubiquitous. The end result is likely to be even fewer roadside fatalities.

Automation doesn’t come without concerns. Those Uber and Lyft drivers will be out of jobs. Electrified vehicles also tend to come with less maintenance issues, so mechanics will also see a decline in work. Then there’s the fact that people do actually just like to drive. And yet, there will be obvious benefits: a decrease in fatalities and injuries, which will lead to fewer medical and repair costs. If we’re not spending money on mechanical repairs, we’ll be spending the money elsewhere in the economy. And while we might like the freedom of driving, the ability to get other stuff done while HAL 2000 takes you to work has a certain appeal as well. Thus, the benefits of automation will very likely outweigh the costs, and probably by a long shot.

Now, as a conservative I ought to be concerned about the unforeseen consequences of automation. I alluded to one above. There is a car culture, especially in America, and there is a psychological component to driving your car around. And yet, the car itself, like the plane, is new technology. The car is barely over a century old, and mass availability of cars is even newer. I’m sure people enjoyed riding on horses or in buggies, but they adapted. We love our cars because they’re what we’re used to. But I’m not sure it will be a huge societal loss if we personally drive them less, or even not at all.

I could spend another couple of thousand words speaking about the pros and cons of the internet, and what social media hath wrought, but I won’t (at least at this time). I will just leave with this: while a healthy suspicion of technology is a good and necessary thing, we ought to carefully weigh the benefits of these changes along with the costs. Are our lives made better through these changes, and if the answer is yes, then maybe we ought to be grateful for those changes instead of advocating a return to stick shift.

The Real History of the Electoral College

Note: I’m reposting this from my old blog thanks to renewed efforts to get rid of the electoral college based on faulty premises.

It would take an act of enormous historical illiteracy to end my blogging hiatus. Congratulations are thus in order to the New York Times for providing me with such an example. In an editorial Jay Caruso has accurately labeled “historically inaccurate garbage,” the Times has called for the abolition of the electoral college. In the process of doing so, the Times’ editors reveal an understanding of American history which calls into question whether they’ve even taken high school-level American history classes.

The Electoral College, which is written into the Constitution, is more than just a vestige of the founding era; it is a living symbol of America’s original sin. When slavery was the law of the land, a direct popular vote would have disadvantaged the Southern states, with their large disenfranchised populations. Counting those men and women as three-fifths of a white person, as the Constitution originally did, gave the slave states more electoral votes.

Let’s address the slavery as the reason behind the electoral college argument. The New York Times links to a Time magazine article written by Akhil Reed Amar in which Amar attributes the electoral college’s existence to the advocacy of the slave states. He begins:

Some claim that the founding fathers chose the Electoral College over direct election in order to balance the interests of high-population and low-population states. But the deepest political divisions in America have always run not between big and small states, but between the north and the south, and between the coasts and the interior.

Some “claim” this because, well, it happens to be true. The divide at the constitutional convention was not between slave states and non-slave states,* but rather between large and small states. Remember, the convention kicked off with a presentation of the Virginia plan. This plan, authored in large part by James Madison but presented by Edmund Randolph, set the framework for much of the debate at the convention. Among other things, the plan proposed a bicameral legislature with representation in both houses based on population. The smaller states objected to it, and put forward their own plan. The New Jersey plan called for each state to have an equal voice in the legislature, a la the Articles of Confederation.

* As Caruso correctly notes, at the time of the convention, only a handful of states had even partially abolished slavery, and only Massachusetts had totally abolished it. That’s not to say that New York and South Carolina were equally vested in the continued propagation of the institution, but in 1787 the north-south divide on this issue was not nearly as intense as it would become in future years.

When it came to the large-small divide, there was a mixture of states. The large states included Massachusetts, Virginia, and Pennsylvania – in other words a mix of predominant slaveholding states and anti-slavery states. The small states included Connecticut, Delaware, New Jersey and Georgia – again, a mix of states with different views on slavery. Thus feelings about slavery had little to do with these respective coalitions. So already Amar is off to a poor start in actually grasping the nuances in early American history. But he’s not done.

One Founding-era argument for the Electoral College stemmed from the fact that ordinary Americans across a vast continent would lack sufficient information to choose directly and intelligently among leading presidential candidates.

This objection rang true in the 1780s, when life was far more local. But the early emergence of national presidential parties rendered the objection obsolete by linking presidential candidates to slates of local candidates and national platforms, which explained to voters who stood for what.

Even if one objects to the notion that political parties made this argument obsolete (they didn’t), it’s a bit anachronism to bring this into the debate over the electoral college, since parties didn’t actually exist at the time of the convention, and several of the Framers had rather deeply set feelings against parties (even if they would eventually spearhead the formation of those parties). So dismissing this objection when the reason for its supposed nullification didn’t yet exist is non-sensical.

Although the Philadelphia framers did not anticipate the rise of a system of national presidential parties, the 12th Amendment—proposed in 1803 and ratified a year later— was framed with such a party system in mind, in the aftermath of the election of 1800-01. In that election, two rudimentary presidential parties—Federalists led by John Adams and Republicans led by Thomas Jefferson—took shape and squared off. Jefferson ultimately prevailed, but only after an extended crisis triggered by several glitches in the Framers’ electoral machinery. In particular, Republican electors had no formal way to designate that they wanted Jefferson for president and Aaron Burr for vice president rather than vice versa. Some politicians then tried to exploit the resulting confusion.

Enter the 12th Amendment, which allowed each party to designate one candidate for president and a separate candidate for vice president. The amendment’s modifications of the electoral process transformed the Framers’ framework, enabling future presidential elections to be openly populist and partisan affairs featuring two competing tickets. It is the 12th Amendment’s Electoral College system, not the Philadelphia Framers’, that remains in place today. If the general citizenry’s lack of knowledge had been the real reason for the Electoral College, this problem was largely solved by 1800. So why wasn’t the entire Electoral College contraption scrapped at that point?

The 12th Amendment merely more carefully delineated the presidential and vice presidential election process. It did not amend the electoral college, nor did it necesssarily eliminate the basic need for the electoral college. But Amar knows the real reason the college wasn’t changed: demon slavery.

Standard civics-class accounts of the Electoral College rarely mention the real demon dooming direct national election in 1787 and 1803: slavery.

This sneering dismissal is ironic, as, if anything, slavery’s role in the formation of the constitution is over-estimated. But don’t worry, Amar has a tool at his disposal that most mere mortals who only have taken standard civics classes don’t: google. So Amar no doubt entered into his search “constitutional convention electoral college slavery” and came back with literally the only result that would have populated – a speech given by James Madison in July of 1787 during the convention.

At the Philadelphia convention, the visionary Pennsylvanian James Wilson proposed direct national election of the president. But the savvy Virginian James Madison responded that such a system would prove unacceptable to the South: “The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.” In other words, in a direct election system, the North would outnumber the South, whose many slaves (more than half a million in all) of course could not vote. But the Electoral College—a prototype of which Madison proposed in this same speech—instead let each southern state count its slaves, albeit with a two-fifths discount, in computing its share of the overall count.

As I said, this is literally the only time during the entire convention that slavery came up in the context of the election of the executive. Unfortunately for Amar, an actual reading of the entire convention debate outside of this one quote proves that his magic bullet is not so magical.

First of all, some context is in order. Throughout much of the early part of the convention it was assumed the executive would be chosen by the legislature. It wasn’t until about the second part of the convention that the debate really kicked in over the method of selecting an executive.

There were a couple of intertwined debates. Some argued that if the executive were to be selected by the legislature, then he should not be eligible to serve more than one term. If eligible to serve more than one term, then the executive would be beholden to the legislature, and would therefore not be an independent force.

Amar is correct in pointing out that Wilson advocated a popular selection of the president, and his fellow statesman Gouverneur Morris also advocated for a selection independent of the legislature. Many other delegates – both from small and large states, as well as anti-slavery and slaveholding states – scoffed at the idea of any popular participation in the selection of the executive. Elbridge Gerry of Massachusetts insisted on more than one occasion that the general mass of the population were ill-educated and would be easily duped, and as such should have no say in the selection of the executive.

As the debate continued over several days, it was clear that the dividing line was not between slave states and non-slave states, or even large and small states (though that certainly was a part of it), but rather between individuals who had a more populist bent and those whose inclinations were more, shall we say, aristocratic. The debate was in large part a reflection of the general feeling that the mass of citizens did not have the proper qualifications and knowledge to make such a crucial decision. Even those who did not think it proper for the legislature to choose the executive did not openly advocate a popular election.

Enter James Madison. It’s odd, though understandable, that Amar focuses on Madison, as at the time he delivered his speech at the convention cited here he was closer to Wilson than most of the other delegates. The bulk of his speech was actually dedicated to expressing his opposition to the legislative method of choosing the executive. In point of fact, Madison expressed his preference for a popular vote, a preference he repeated at another point in September when the convention made its final determinations. What Amar is quoting is a small section of Madison’s address where he concedes the potential drawbacks to a popular vote. Contrary to Amar’s implication, Madison’s concern was not with how the southern states would be disadvantaged by slavery, but rather the more restrictive franchise requirements that existed in the south. Madison’s argument was that more people would be eligible to vote in the north, irrespective of slavery, thus furthering the imbalance. Madison repeated this point in September, with absolutely no mention of slavery.

Therefore the one and only convention speech Amar points to as proof of his thesis actually contradicts it, at least when read in its entirety.

And that is the entirety of Amar’s argument – this one speech, and the fact that a whole bunch of Virginians were elected president. Nevermind that those Virginians included the man who led our country to independence, the author of the Declaration of Independence, and one of the primary authors of the Constitution and the Bill of Rights. No, it’s all about slavery.

There were literally dozens and dozens of speeches made at the constitutional convention regarding the election of the executive, and one of them contained a passing reference to slavery. Yet Amar, and in turn the New York Times, uses this as justification for contending that the electoral college is completely about defending slave interests. Even if one counters that the framers were too wily to openly state their true intentions, a careful reading of the entirety of the debates shows that the delegates were motivated by completely different factors.

And of course there is one of the most elegant defenses of the electoral college ever made – Federalist 68. In it the author celebrated the electoral college for giving the people a voice in the selection of the president while providing an intermediate body of electors whose judgement would presumably be more discerning. As the author states, it’s all about preserving an orderly process:

It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of several, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

Now who was the author of this celebrated piece? Why, none other than the bastard, son of a whore and a Scotsman. Yes, the immigrant, New Yorker, and ardent slavery opponent Alexander Hamilton. Somehow I don’t think he viewed the electoral college as a vestige of slavery. But what did he know?

Amar tries to move the goalposts by arguing that even if the electoral college at inception wasn’t about slavery, later events (which, by the way, he completely exaggerates while relying on dubious methodolgies to determine who really should have won the election of 1800) made it about slavery. Now, it’s curious that the institution which made Abraham Lincoln’s ascendancy to the presidency possible should retroactively be seen as a gatekeeper for the peculiar institution, but so be it.

Now let’s get back to the Times. The editors throw in a whole bunch of other familiar arguments about the folly of the electoral college and its unfairness. Since this is strictly an historical post I won’t get into all that, so I’ll let you read the rest of Jay Caruso’s post. I’ll just note that throwing in the slavery non sequitur is nothing more than an attempt to gloss over the weakness of the Times’s overall argument. By continually parotting the historically inaccurate line that the electoral college is all about protecting slavery – an argument repeated by equally historical illiterate leftists on twitter and other platforms – we are supposed to throw away this “ancient” and “outdated” mode of election. Unfortunately these arguments do nothing more than to reveal that those making them don’t even have the first clue about American history and the debates surrounding the constitution, thus making anything else they have to offer of dubious merit.

At the very least we can take confort in the knowledge that people like Akhil Reed Amar have little influence outside the barely-read pages of Time.

Akhil Reed Amar teaches constitutional law at Yale University. This essay borrows from his recently published book, The Constitution Today.

 To quote Dr. Hibbert, upon learning that Homer is working at a nuclear power plant: Oh Good Lord. Although this picture might be more appropriate.
facepalm