As Politico reports, Neil Gorsuch on Thursday night delivered a victory lap speech at the annual conference of the Federalist Society. The article tells us that Gorusch’s big applause lines concerned his:
Snide reproach to those who characterize the Federalist Society as a secret cabal scheming in darkness to infiltrate and control the federal judiciary; and
Full-throated and triumphant affirmation of originalist and textualist judicial philosophies the Federalist Society and legal conservatives support as articles of faith.
Let’s consider these remarks in turn.
The Secret Cabal
This is what Gorsuch said. “If you’re going to have a meeting of a secret organization, maybe don’t have it in the middle of Union Station and then tell everybody to wear a black tie. It’s not a shadowy cabal in need of Joe McCarthy.”
Here’s the thing. No one believes the Federalist Society is a shadowy cabal. While not a large organization compared to its right-wing big brother, the Heritage Foundation, The Federalist Society is enormously well-funded and well-organized. One could infer the organization schemes and acts under cover of darkness, given its lack of emphasis on publishing research. However, the Federalist Society’s explicit mission has for decades been to function as an “activist” organization, with the clearly stated aims of:
Recruiting law students to its values, methods, goals, and practices; and
Packing the federal court system with its acolytes.
Gorsuch’s remark is therefore a disingenuous red herring, but one fully consistent with the feckless line the Federalist Society has fed its suppoters and backers for years – that we’re small, beleaguered, disparaged, and maligned / but plucky, feisty, principled, and courageous.
Originalist and Textualist Judicial Philosophies
This is what Gorsuch said. “The duty of a judge is to say what the law is not what it should be. Tonight I can report, a person can be both a committed originalist and textualist and be confirmed to the Supreme Court of the United States. Originalism has regained its place and textualism has triumphed and neither is going anywhere on my watch.”
Several points here.
As Gorsuch well knows, the distinction between what the law is and what it should be is not binary, but subject to gradations of ambiguity, nuance, and consequence. His statement about the duties of judges is therefore rhetorical and ideological, not substantive and meaningful, and more significantly relevant as an ahtorical rendering of the Constitution as revealed religion.
Originalism and textualism have likewise become ideological shibboleths freighted with meaning for those initiated to their mysteries. Federalist Society luminaries will tell us judicial review does not need knowledge or guidance assembled from legal precedent, legislative history, social science, natural science, or data science. Judicial review requires only the inert words captured in a small, fixed, and dated set of canonical “founding” texts (Declaration of Independence, Constitution, Federalist Papers, etc.). These “original” texts are a Procrustean bed, a Solomonic, incontrovertible measuring stick, no matter how anachronistically ill-equipped they may be for comprehending and adjudicating the most pressing matters and challenges of our time. Hence, legal conservatives such as Gorsuch will writhe around the unanswerable and possibly irrelevant question: What did this clause of the Constitution mean to the Founders? One might reasonably ask in return: Why not closely inspect entrails?
Gorsuch’s preening and strutting bombast reflects, generally, the triumphalist swagger of The Federalist Society, which for the past three decades has viewed itself as a government-in-waiting, now fully ascendant, and not in the least bit troubled by the need to saddle and mount the rampaging, caterwauling, bucking bronco they once swore never to ride.
When queried about why Donald Trump did not reappoint Janet Yellen as Chairman of the Federal Reserve, the Associated Press reported the following response from Trump economic whisperer, Stephen Moore.
Stephen Moore, an economist at the Heritage Foundation who was a senior economic adviser to Trump’s campaign, said Trump wants someone who will support loosening regulations. He also said the president simply wanted his own person in place.
“The job of the Fed chair is not just to be the lead person on monetary policy. This is the chief economic voice of the nation,” said Moore. “She’s not with the program.”
Stephen Moore is the chief economist for the right-wing Heritage Foundation. He is also on the editorial board of the Wall Street Journal. And founding president of the Club for Growth.
Stephen Moore is a go-to quote for journalists seeking a right-wing perspective on economic policy debates. But he is not a real economist in any sense of the term. His only advanced degree in economics is an M.A. from George Mason University. He does no economic research. And he is mostly known professionally for the depth and scale of his ignorance on economic details. Wikipedia may have put it best when it listed his profession as “writer.”
Stephen Moore is not a serious person, but dangerous because people who should know better (journalists) pretend he is.
Many analogies exist, in history and in literature, for our straining efforts to account for our inverted times. Our instincts are to obey our laws, trust our institutions, have faith in our leaders. But in these times, fealty to our laws, institutions, and leaders risks our destruction as a nation, if not as a species.
We already know about The Handmaid’s Tale. We know about 1984 and other dystopian literature. We should consider The Caine Mutiny. But perhaps the historical analogy that best fits our times is the Spanish Civil War, where for complex (and fascinating) reasons, robust, unifying institutions never evolved during the country’s nation-building stage, which both established the fragile terms of the Republican “moment” in the early 1930s, and the savage intensity of the right-wing counter-strike when the war commenced in 1936, with the full force and fury of the traditional landowners, the Catholic Church (the most reactionary in Europe), and the fascist military mobilized to destroy this challenge to their privileges, identity, and existence. \
For two great reads on this topic, check out The Spanish Labyrinth, by Gerald Brenan, the classic analysis of the historical background to the Spanish Civil War, and Adam Hochschild’s recent and fantastic history of Americans in the Spanish Civil War, Spain in Our Hearts.
I use Feedly to aggregate stories from about 80 publications, ranging from The New Yorker to Neatorama. On any given day, I scan 200 or 300 stories from this news feed. I select 50 or 60 of these stories to “Read Later” and use IFTTT to post them automatically to the Reading Room of my Jeremiadus website. The website currently archives nearly 9,000 stories, on pretty much any subject you can imagine, under the broad umbrellas of politics, science, literature, philosophy, and culture.
One would think the breadth of this feed would extend even beyond the prehensile reach of Donald Trump. But one would be wrong. Of these 9,000 stories, nearly 3,000 reference Trump somewhere in the article. This Trump tilt is not the result of my own selection bias. If anything, my instinct is to choose stories that eschew, ignore, abrogate, elide, defenestrate, and abandon Donald Trump. And yet there he is.
Today, Feedly launched a “mute” feature, allowing users to filter any word or term from their news feed. I “muted” Donald Trump and Feedly “banned” 1,300 recent articles from the publications I track. My world instantly lightened.
Trump is batshit crazy. We know this. But the weight slipping from my shoulders and from my mind has little do with his deranged clown act. The political antics of the Keystone Cop Republicans aren’t really even the source of my distress. The problem is that any time a story invokes Trump and the creepy dementors he has unleashed upon us, we all become rubber-necking assholes craning our necks and bugging our eyes to get the best view possible of the carnage unfolding on the road beside us. We become vampiric, pustule-sucking warlocks, slurping the toxins, getting off on the whole sordid mess.
There is nothing redeemable about the situation. Trump dirties himself daily, but of course our tragedy as a nation is that he dirties all of us. He brings us to our knees. How are we to think about this?
In the 21st century, we lead accidental lives. We appreciate the randomness of existence, but succumb to this randomness, rather than making use of it. We are overwhelmed by noise and can locate no signal. We are awash in images and words, with no ability to parse their meaning, to source them to an underlying reality about which we can (mostly) agree (most of the time). These images and words themselves, recursively, constitute their own reality, a slipstream that pulls us further away from each other, and from ourselves, until our shouts are merely echoes, globules of emotion, randomly firing synapses, ejaculations of judgment.
Fuck you! … fuck you! … haha … haha …
Trump is obviously a fully accidental species of human, a cratering self-inebriate, careening from one random moment to the next. He is a walking, talking meme. Entirely noise. Entirely unparseable. He truly doesn’t matter, because he possesses no meaning beyond himself. If he were to disappear, we would never miss him, but in the meantime he is all we can think about. So I am thrilled to be able to mute this deranged, minimally human person from my life.
We don’t need to agree about what is true. We only need to agree about what is false.
Consider the drunken sailor of random walk fame, whose problematic journey home inspires the mathematics underlying basic probability and resolves itself empirically in the fibrillations we associate with Brownian motion. Our challenge politically – and it is always a challenge but one now amplified to the nth degree by the random behaviors and speech irruptions of Donald Trump – is our compulsion to locate agency, and causation, in the actions of individuals. We are responsible for ourselves, a truism that has become ontological – we only know we exist because we believe we have free will and that we can own, understand, and account for our thoughts and actions as individuals. Cogito ergo sum.
Leaving aside for the moment the internally dubious merits of this Cartesian formula, the 21st extension of its logic has led us to a place where what we know about ourselves as thinking, acting individuals presumes no access to or understanding of what others know about themselves. Which sticks us in the middle of the radically subjective shit storm that has allowed Donald Trump to commandeer the ship of state. We each travel alone, in darkness. Meaningless beyond ourselves. And so free to judge without standards and without consequence.
But randomness is not the problem. Randomness is, in fact, the solution. Because, of course, truth emerges probabilistically. Form is itself the product of thousands and millions of inebriate movements. Meaninglessness resolves itself into meaning via randomness. Truth and causation will always remain elusive, but with a focus on the actions, not of single individuals, but of thousands and millions of individuals, we can make sense of our policy choices less subjectively, less reactively, less reductively and with a more humble sense of our individual cogito-ing selves in relation to the transpersonal dynamics of populations and of ecosystems, which are forever contingent and in flux.
The current healthcare debate illustrates the choices and the stakes of the decision to embrace risk, uncertainty, and randomness – as the idea of insurance itself, and the much-maligned but indispensable discipline of actuarial science, tell us we must. The Republican health care legislation backed by Trump obviously has nothing to do with actuarial science and population health (which would make single-payer a no-brainer) and everything to do with crude Old Testament impulses to reward and punish according to the code of the vendetta and to extract the pound of flesh as one would the barrel of oil or the lump of coal.
Which returns us to the drunken sailor of yore, whose journey is poignantly asymptotic. On his own, we know from probability theory, the inebriate sailor’s odds of returning home may be slim to none. But with a population of thousands or millions of drunken sailors, we can reliably predict how many will find their homes again, and at what intervals, without knowing for sure which specific sailors they will be. A profound and soothing thought.
With my Feedly mute feature, I can erase Donald Trump, misanthropic carnival barker who cannot leave home. Public welfare issues that matter in politics remain for me to ponder, clarified and restored by his absence.
Much has already been written about Donald Trump’s speech to the Polish people earlier today. This speech, written (presumably) by White House fear-mongers Stephen Miller and Steve Bannon, adopts a dark and legitimately creepy Saruman-like vibe similar to Trump’s inaugural address. James Fallows commented on the shift in tone of this speech from famous (and infamous) addresses of previous presidents to foreign nations that optimistically emphasized shared ideals about the rule of law and the importance of inclusive legal concepts of fairness and justice, freedom of expression and religious toleration, as our final bulwark against the depredations of war and intolerance. By contrast, both Fallows and Bloomberg journalist Marc Champion noticed the insistent focus in the Trump speech on dark, exclusive and ominously tribal themes (and memes) of threat and danger, of European ethnic and Catholic-Christian religious identity imperiled by Islamic fanatics and cosmopolitan elites, of the mystical communion of faith, family, tradition, and nation – the precepts of Judeo-Christian western civilization – renewed upon the mantle of a crusade against its foes.
Even the wacky libertarians at Mises Wire have today indirectly voiced their concerns about this blunt-force and mythologized vision of national unity. As Mises Wire editor Ryan McMaken emphasizes, however we may bemoan the painful divisions within our nation, the United States has never in any true sense been “one nation” united by a common religion, language, and culture. McMaken points to obvious fault-lines in national life that have organized and given shape to cultural conflict – between pre-Columbian inhabitants of north America and European settlers; between annexed Hispanic populations and European ranchers, farmers, and miners; between free-labor states and slave states; between industrial and agrarian populations; between polyglot immigrants and English-speaking natives; between established Protestant sects and insurgent religions (before Islam, there were rising populations of Catholics, Jews, and Mormons); between migrant African-Americans and settled European urban working-class enclaves.
Of course, the nation’s ability to absorb these cultural conflicts – which is the renewable source of our energy, strength, and resilience – could not be more opposed to the small-minded, tendentious, and self-enraptured vision of the Trump speech today in Warsaw. The Trump vision (which is of course really the vision of his “Steves”) owes far more to an infatuation with an idea of “Western Civilization” – based on primitive, medieval concepts of control, fidelity, allegiance and honor, and made relevant through transposition into the familiar (but empty) tropes of “family, faith, and freedom,” and of “small-town, traditional values.” Of course, anyone who has traveled through small-town and rural America will quickly disabuse themselves of the idea that escaping from decadent metropolitan fleshpots deposits us in a bucolic scene of chastity and virtue. Rural America sits on a decrepit tax base with fragile prospects for economic growth and greatly enfeebled institutions insufficient to support its aging, immobile populations and unable to provide the basis for the sort of flourishing of generations any culture requires.
Stephen Miller and Steve Bannon have latched on to the “clash of civilizations” meme as if the Christian West has in the most recent millennium never stopped being at war with neutered cosmopolitan elites and ululating Islamic hordes, In his fantastic book, The Better Angels of Our Nature, a controversial (in a good way) history of the exponential decline of violence over time, another Steve – Harvard polymath Steven Pinker – gives us a framework for thinking about the unhinged ignorance of Stephen Miller and Steve Bannon – and puts the lie to this idea that there is some kind of organic continuity between Catholic Europe in the the Middle Ages and Western Civilization in the 21st century.
Pinker’s book actually offers any number of angles for thinking about our current cultural conflicts, including a concise (although now somewhat dated) assessment of the more authentically and persistently “medieval” aspects of Islamic culture that allow unabashedly cruel and violent habits to persist, without reducing these practices to some essential “evil” within Islam itself. Pinker also invokes and dismisses the Samuel Huntington “clash of civilizations” argument that fuels the crusading militancy of the White House Steves.
But I would like to close by simply allowing Steven Pinker to pose some questions about the comparative iniquities and evils of city life and rural life captured by the demographic and political arc of “western civilization” in the past thousand years. For our purposes, the value of these questions is the extent to which they free our minds from what we might loosely call the “fear porn” so liberally peddled by the paleo wing of the Republican Party.
Do you think that city living, with its anonymity, crowding, immigrants, and jumble of cultures and classes, is a breeding ground for violence? What about the wrenching social changes brought on by capitalism and the Industrial Revolution? Is it your conviction that small-town life, centered on church, tradition, and fear of God, is our best bulwark against murder and mayhem? Well think again. As Europe became more urban, cosmopolitan, commercial, industrialized, and secular, it got safer and safer.
And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth. (Genesis, 1:28)
In 2007, Professor Robert George, McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University, delivered the John Dewey Lecture in Philosophy at Harvard Law School. George himself received his legal education at Harvard, and was there introduced to ideas about the relationship between law and morality, the study of which, as he happily tells us, became his life’s vocation.
George’s 2007 lecture, entitled “Natural Law” (and subsequently published in the Harvard Journal of Law and Public Policy), for our purposes serves beautifully as a primer on the intellectual foundations of philosophies of natural law. The lecture is broad and basic enough to initiate the unwashed, yet sufficiently subtle and nuanced to entice those already fluent with natural law and other Western moral philosophical traditions (specifically, utilitarianism and deontology).
I hope to further distill from this natural law primer the ideas on which the logical coherence of natural law philosophy depends. From that foundation, I’ll launch an exploration of the political and moral challenges presented to us in the 21st century by natural law philosophy’s subordination, itself, to the precepts of revealed religion.
George’s language in this lecture/essay is probably more turgid and formal than it needs to be, even for an august institution such as Harvard, but as we shall see, this pontifical style conforms to the vaulted sense of purpose that generally characterizes Catholic moral philosophy (for other examples, read pretty much anything from First Things, the Catholic-inspired journal of religion and public affairs). One of the challenges in addressing this elaborate, high-sounding (almost Counter-Reformation Baroque) language is to avoid its seductions and attend to how easily its curlicues can blandish us into a kind of nodding, soporific submission that muffles some of the philosophy’s underlying nastiness. Anyway, let’s get into it.
[Note: Those who wish to probe a bit further into the political and legal meaning of natural law philosophy should review the article entitled “Natural Law Theories,” authored by Robby George’s Oxford University dissertation adviser, John Finnis, in the Stanford Encyclopedia of Philosophy. The two essays track each other closely.]
Natural Law philosophy both absorbs (from revelation and scripture) and communicates (into public discourse and legal practice) a quite specific understanding of the human individual as the summit of God’s creation, shaped in the image of God himself. The vocabulary of natural law philosophy organizes itself around this concept of the imago Dei. Here are some key terms, all of which we’ll consider throughout this series of essays: Revelation, Creator, Creation, Nature, Imago Dei, Individuality, Reason, Freedom, Human Dignity, Character, Virtue, Self-Evidence.
Natural Law Defined
Human Flourishing. George associates rights and justice with an account of human flourishing that encompasses intrinsically (and presumably exclusively – an important point to which we shall later return) human goods. George’s stipulations affirm a concept of humanity – the flourishing – as a noble end in itself, to which both individualism and collectivism risk becoming dangerous subjunctives that reduce human individuals and human associations to merely instrumental currencies of value or exchange. In this balance between our inner life and individual fulfillment and our external relationships and social happiness, George locates an Aristotelian golden mean toward which we must constantly strive, with natural law the carpenter level that trues our behavior in relation to this moral constant.
Practical Reason. George emphasizes, repeatedly, that reason is the means by which humans can identify and pursue the goods that support the flourishing of the species (with the exercise of one’s rational faculties itself one of the highest types of flourishing). George specifically emphasizes the singular gift to humans of “practical reason”, the quality of mind that allows us to discern the goods humans all seek, as well as the virtues attached to this seeking, and the flexibility to accommodate and adapt to the diverse circumstances of our existence in order to pursue these goods. Fair enough. But natural law philosophy here pivots momentously, by conflating reason and nature.
Nature and Reason. The background to this conflation of reason and nature is the crazy-complicated intramural philosophical conversation about the naturalistic fallacy. For our purposes, we need only emphasize that within the tradition of natural law philosophy (following Aquinas), nature refers to the intrinsic essence of a living creature, generally associated with its capacities. In this sense, human nature refers to the rational capacities that we use to locate and pursue “intelligible, intrinsic” goods. So the term natural law itself might more accurately mean “the laws of reason”, or “the laws that direct and secure our pursuit, via reason, of intelligible, intrinsic human goods.” And the idea of natural rights (a concept that flows in and out of the conversation about natural law) refers to “the rights of reason”, or “our rights to the intelligible, intrinsic human goods toward which reason directs us.”
Imago Dei. Why does this conflation of nature and reason matter? Because for philosophers of natural law, reason is a highest-order capacity specific and unique to humans, one not possessed by other creatures, a capacity that we alone share with the God that created us. Robby George adds to our rational faculties an additional, distinctly human, attribute: the capacity for “freedom,” by which he means free will, freely choosing. Together, reason and freedom constitute our nature as humans. They grant to us capacities for deliberation, judgment, and choice. Both ontologically and epistemologically, we can imagine the operation of these capacities as pure mind apprehending itself and the world. And for George, this unique human potential to step outside of ourselves is what allows us to escape from the dependent status of other creatures enmeshed in the web of causation and to become ourselves, like God, uncaused causers. “These capacities are God-like [and] constitute a certain sharing – limited, to be sure, but real – in divine power. This is what is meant, I believe, by the otherwise extraordinarily puzzling Biblical teaching that man is made in the very image and likeness of God.” (NL, 176)
Creator. George takes pains to emphasize that the logic of natural law philosophy does not require a belief in a Creator God, but his own belief in such a God suffuses the Natural Law essay and, truly, imparts to this essay its most intellectually radical and significant moments, when George identifies the creative potential of practical reason and free will as a God-like, “awesome” power (a term he uses more than once, inadvertently summoning, in my mind, concepts of power associated with the Bush “shock and awe” invasion of Iraq in 2003).
Human Dignity. Consistent with Catholic theology, natural law moral philosophy cleaves mind from body, spirit from flesh, attaching mind/spirit to the Creator God and body/flesh to God’s Creation. The ultimate value emerging from this dichotomy is the Catholic trope of human dignity, most clearly enunciated during the Second Vatican Council, and at the heart of the New Natural Law postulated by Catholic philosophers in the aftermath of Vatican II. For Robby George, human dignity derives from the human capacity for rationally motivated action (based on deliberation, judgment, and choice) free from the influence of external forces (reasons) or internal emotions. The Catholic concept of human dignity specifically refers to “religious liberty” as free exercise of one’s conscience with regard to spiritual matters. From legal and political perspectives, however, just laws and virtuous behaviors generally acknowledge and support the objective reality and intrinsic dignity and value of each human person, and this more general sense of the term is mostly how George discusses human dignity in the Natural Law essay.
Character and Virtue. With free choice, we not only constitute/create a “reality” in the external world, we constitute/create ourselves as possessing a distinct, unique “character” we own and for which are responsible with reference to our words and deeds. As Robby George states, “morally significant choosing leads to a focus on virtues as habits born of upright choosing.” (NL, 186) The culminating evidence of human dignity and human flourishing, then, is the upright behavior of rational individuals, according to a catalog of virtues, freely understood and freely chosen. Everything else is a falling away.
Promethean Individuality. Robby George’s primer on natural law absorbs and reinforces conventional Western ideas about individuality that probably owe more to the Enlightenment project (and less to Aquinas and the teachings of the Catholic Church) than he would like to admit. By anchoring these ideas to the Biblical concept of Imago Dei, however, he apotheosizes the individual human as a freely choosing, creative, God-like power. An uncaused Causer. The promethean echoes here are notable, but for our purposes, the most important implication concerns how natural law sets humans, who alone share reason with God, in opposition to the natural world, which does not reason or possess consciousness as we ordinarily think about these ideas.
Creation. Three important points regarding Creation (or what we might otherwise call Nature), as distinct from Creator.
Capacities. The idea of capacities as the source of a creature’s nature (as in, it is the nature of a human to reason or a wildebeest to run in a herd) helps us to think about how we can imagine the created world itself, taking it in its own terms (without any reference to a Creator God), as the tablature for the inscription of the laws of nature.
Civil Society and Positive Law. Natural law, loosened from a necessary dependence on revealed religion in the past 500 years, may have provided the Christian West with an emergent flexibility that opened a space for civil society and positive law that still (despite the influence on Western thought of Averroes), remains unavailable to Islamic cultures.
Revelation and Common Goods. When framed in the context of a revelation-dependent philosophy of natural law, which in Genesis radically separates the Creator from the Creation, we can see how the natural world provides the stage on which God-like humans act to fulfill the mandate to subdue the earth. It is far less clear, indeed doubtful, that the concept of a common good, as Robby George describes it, entails the goods of natural world itself.
Self-Evidence and Causation
Robby George does not use the term self-evident in his Natural Law lecture. But the idea of self-evidence is central to natural law philosophy as conceived by Aquinas (and as expressed as a way of thinking about fundamental truths in the American Declaration of Independence).
If one thinks about natural law as the laws of nature inscribed upon the Creation, generally, without reference to the rational, free will of a Creator, one might be able to deduce quite a bit of existential truth from these inscriptions. But Robby George and other natural law philosophers remain Scripture-dependent for the ways in which they constitute self-evidence, and this entirely handicaps their enterprise.
The problem, ultimately, is the need to establish a ground of being, the Uncaused Cause, to which self-evident truths can appeal, and Scripture (along with the idea of a Creator God in whose image humans have been created, in opposition to the rest of Creation) is preposterously inadequate to provide this existential foundation. Not least because in a world governed by complexity (morally and biologically and otherwise), the idea of causation itself begins to break down.
Next: Thomist Antecedents of Natural Law Philosophy