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.

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.

George Will’s Bizarre Attack on Whittaker Chambers

I recently read Whittaker Chambers’s Witness, a truly superb autobiographical account of not just his involvement in the Alger Hiss case, but his early life, enthrallment with Communism, and ultimately his decision to leave the Communist movement. It is a gripping, well-written book. It provides a stunning look inside how an American communist revolutionary may be made, as well as the ways in which Communists tried to subvert the American government from the inside. Even in the wake of the fall of the Soviet Union, it should be recommended reading for anyone interested in a sort of psycho-political analysis.

After reading Witness, I happened upon this scathing column from George Will written over a year ago. Unlike many other conservatives I haven’t completely given up on Will, though some of his work is rather execrable, and this is a case in point. In a column otherwise dedicated to the wisdom of William F. Buckley, Will decides to unleash a bromide on the entire conservative movement in the age of Trump, a bromide which is not without merit, mind you. Somehow, though, Will looks to Chambers as the progenitor of this anti-intellectual, populist strain of conservatism, writing:

[Buckley], to his credit, befriended Whittaker Chambers, whose autobiography Witness became a canonical text of conservatism. Unfortunately, it injected conservatism with a sour, whiney, complaining, crybaby populism. It is the screechy and dominant tone of the loutish faux conservatism that today is erasing Buckley’s legacy of infectious cheerfulness and unapologetic embrace of high culture.

Chambers wallowed in cloying sentimentality and curdled resentment about “the plain men and women” — “my people, humble people, strong in common sense, in common goodness” — enduring the “musk of snobbism” emanating from the “socially formidable circles” of the “nicest people” produced by “certain collegiate eyries.”

This is quite a departure from what Will wrote about Chambers three decades ago. It is also a bizarre, unhinged attack that has no basis in reality.

Witness is roughly 700 pages long. Will has taken a few quotes from towards the end of the book as Chambers descibes how he felt in the aftermath of the Alger Hiss fury, when it seemed most of the intellectual class was arrayed against him. As Nathanial Blake puts it:

If Will has changed his mind about Chambers and now considers him to have been dangerously populist, that is his prerogative. But he offers only one quotation to illustrate his point, and it is cobbled together (six fragments patched together!) to the point of being disingenuous. It is an unconvincing piece of evidence, especially coming from a writer who in the same column insouciantly dismissed Buckley’s famous crack about preferring to be governed by the first two thousand names in the Boston phone book than by the faculty of Harvard.

Indeed. If anything, Buckley sounds much more like a screecher at times, particularly in Up from Liberalism, a book so tedious even I had to put it down halfway through.

Richard Reinsch and Adam White also take Will to task.

At the time of Witness, Chambers had been vilified in the press and in elite circles for his testimony against Alger Hiss’s Soviet espionage. Only a few prominent voices had defended him. And, Chambers sensed, the folks in the center of America were always with him.

Hiss and Chambers had conspired together from roughly 1935 to 1938 as members of a Soviet underground cell. As an employee of the State Department, Hiss provided documents to Chambers that he in turn handed off to Soviet handlers. But Chambers left Communism in 1938 and fled his former life as a Soviet agent with his wife and two children.  He illustrates his exitus from the Communist inferno in Witness with magnificent formulations from Lazarus, Isaiah, Dante, Shakespeare, Milton, George Fox, Ibsen, Rilke, and Koestler, among others. He also embraced Christianity but stood apart from any particular theological orthodoxy, preferring instead the stillness of the Quaker Meeting. Many leave Communist ideology, Chambers noted, but remain socialists or some type of collectivist sympathizer. In short, they only leave communism because of its violence, but not the ideology itself. Chambers’s conversion was root and branch.

In 1948 Chambers’s former life revisited him, and he was called by the House Committee on Un-American Activities to testify against those who had served with him in the Soviet Underground. Chambers provided HUAC with 21 names and all have been confirmed in subsequent evidence as noted in John Earl Haynes, Harvey Klehr, and Alexander Vassiliev’s Spies: The Rise and Fall of the KGB in America (Yale University Press, 2009). Hiss was convicted in a 1950 federal trial for perjury, ostensibly regarding espionage, with the statute of limitations prohibiting a conviction on that grave charge.

The modern-day legacy of Witness is reduced by Will to little more than a contributor to the “screechy and dominant tone of the loutish faux conservatism that today is erasing Buckley’s legacy of infections cheerfulness.” Will does little to connect Chambers’s actual words to the modern-day problems that Will is lamenting. Nor does Will pause to concede that maybe, just maybe, the problems he’s lamenting could much more easily and directly be traced to the more recent media phenomena. Instead, Chambers’s autobiography, usually regarded by friend and foe alike as one of magnificent spiritual and philosophical intensity, is traduced by a conservative essayist regarded by many as a giant in his own right. Why?

The last question is unanswerable. Will has produced vastly more good than bad in his career, but this attack on Chambers is unconscionable.