The Most Important Question For Alabama Voters: How Low Will You Go?

Republished from Breaking / Bannon.

The most important question the Alabama Senate election on December 12 will answer is not: Do Alabama voters care more about abortion or pedophilia?

The most important question the Alabama Senate election on December 12 will answer is: Do Alabama voters care that Roy Moore is an embarrasment to the state?

In other words, Alabama voters must decide: How low will you go?

Abortion and pedophilia themes in this election are emotionally volatile symbols (mostly as vectors of our inner lives, not directly connected to social reality in any meaningful sense) that crowd out debate about the issues that truly do matter in the lives of most Alabama residents. These culture war themes are not irrelevant or unimportant. But they are a small part of a larger conversation, and absolutely should not be tent-pole factors in the outcome of the election.

On issues that matter in this larger conversation – laws and policies governing: taxes, spending priorities, health-care access, reproductive rights, gender and racial equity, immigration policy, environmental protection, foreign policy and diplomacy, national infrastructure, and science and technology investment – Doug Jones and Roy Moore will shape debate and cast votes that are pivotal to the fortunes and the future of Alabama residents and of the United States.

On all of these issues, Doug Jones will be informed and thoughtful. He will not be exciting. Flames will not burst from his ass. But his track record, his “body of work” (as sports analysts like to say), gives us confidence he will reclaim for the Senate some dignity and some policy relevance. By contrast, Roy Moore is an empty suit, an ignoramus who takes pride in his lack of interest in and knowledge of policy matters, and in his lack of concern for the history and significance of the U.S. Senate as an institution.

As a U.S. senator, Roy Moore would not debate or deliberate. He would not inform himself, for in his mind, he has long known everything he or anyone else needs to know – that the Bible contains all truth and is a sufficient basis for making all decisions concerning policy and principle. As a U.S. senator, Roy Moore will stand and fulminate. He will raise high his Bible. He will cite the 10 Commandments. And in his pride and arrogance, he will bring the Senate, as an institution, to its knees.

With respect, then, to this conversation about laws and policies that directly affect the lives of all Americans, the election of Roy Moore would indicate that Alabama voters are prepared to go very low, indeed. But there is more to consider – or perhaps (in the spirit of going low) less to consider.

In his bravura performance as president, Donald Trump has already transformed the United States into a global punch line. Alabama voters know this. They elected him by a margin of 28 percent over Hillary Clinton. A vast (although declining) majority of the state still supports Trump personally and approve of his sub-fuhrer style as president.

With their support for Trump alone, one might conclude a large number of Alabama voters have no shame. But the election of Roy Moore would carry Alabama to depths previously unexplored in the capacity of a state to revel in its own pathos. And personally, I do not believe Alabama is capable of this descent, an existential slipping of the gears that leaves us that much closer to free-fall as a nation.

One theory to support this view is that Alabama voters, like many elsewhere, mostly voted against Hillary Clinton rather than for Donald Trump. A vote against Hillary of coure offers no evidence that matters of policy and principle much concern these voters, of course, but such a vote nonetheless indicates that Trump’s appeal may largely derive from his novelty, that he is a new and shiny object to gaze upon and admire.

Alabama voters already know Roy Moore. He is not new and shiny. He is already a pustulating pimple on the rear end of the state, with support from its hinterlands, but a style and a “body of work” that has long been a source of distress and consternation to many in the state. The most recent sexual predator allegations only surface and reinforce an awareness of Roy Moore’s creepiness that has already been long-acknowledged and understood by people in Alabama.

For these reasons, my hunch is that Alabama voters will choose not to take that next step toward perdition and inflict Roy Moore upon the entire nation.


The "Hamilton Defect": or, Why Mike Lee Should Stop Writing Terrible History and Go Back Just To Being a Terrible Senator

“Mine is an odd destiny. Perhaps no man in the United states has sacrificed or done more for the present Constitution than myself — and … I am still trying to prop the frail and worthless fabric. Yet I have the murmurs of its friends no less than the curses of its foes for my rewards. What can I do better than withdraw from the scene? Every day proves to me more and more that this American world was not made for me.”Alexander Hamilton (1802)

It’s understandable why progressives would imagine Hamilton as their partisan, Big Government comrade. But this understanding of Hamilton is based on a deeply distorted image of him.Call it the “Hamilton Effect”: Twisting history to suit one’s ends, willfully ignoring and ultimately erasing it when it stands in your way. If we knew our history—the true and complete stories of how our nation came to be—we’d know how to fight back against the progressive agenda. And we’d be a lot less likely to accept its overreach. – Senator Mike Lee (2017)

Utah Senator Mike Lee has a historical bone to pick with you. In a widely read article published in Politico Magazine, called How the “Hamilton Effect” Distorts the Founders, Mike Lee tells us that the Alexander Hamilton you swooned over in Hamilton the Musical was not, in fact, the sexy, passionate, loquacious, hard-working, pro-immigrant, nationalist visionary conjured by Lin-Manuel Miranda from Ron Chernow’s epic biography. If only we knew our history, Mike Lee writes (and, presumably, if only Ron Chernow knew his history), and weren’t weak suckers for liberal propaganda masking as history, well, then we would realize, truly, that Alexander Hamilton was actually a small government, state’s rights conservative. A principled, free-market, family values conservative perhaps not unlike Mike Lee himself!

Ordinarily, one might glissade past such silliness. But Mike Lee is not your garden-variety historian (he’s actually not a historian of any variety), and the intellectual and political legacy of Alexander Hamilton is these days a hot button proxy for a larger (increasingly tense and violent) struggle in the United States about the meaning and practice of democracy. Mike Lee certainly appreciates what is at stake, for the outcome of this existential struggle, in the shape and significance we attach to the national founding, and to its legendary icons such as Hamilton. He believes we all need to know what is at stake.

So let’s get to know Mike Lee and find out why he would want to take time off from the important duties of his day job as U.S. senator to give us a civics lesson about poor Alexander Hamilton, who suffered enough when he was alive more than 200 years ago, and who in death would no doubt prefer to participate in Lin-Manuel Miranda’s glorious shenanigans than Mike Lee’s soul-killing exercise in Constitution-worship.

Who Is Mike Lee?

Mike Lee may not be a familiar name to most Americans, but he will be. Like many members of the House Freedom Caucus, Mike Lee was elected to the US Senate in 2010 as part of the Tea Party revolt against the policies and persona of President Obama, and subsequently reelected in 2016. Lee’s father (Rex Lee) served as the government’s solicitor general during the Reagan administration. Mike Lee, a devout Mormon, received undergraduate and law degrees from Brigham Young University and worked on two different occasions as a law clerk for Supreme Court Justice Samuel Alito.

A rising star on the Republican far right, Lee endorsed Ted Cruz, whom he calls his best friend (and we thought Ted Cruz had no friends) for the Republican presidential nomination in 2016 (while also scorning unbridled hedonist and generally unhinged presidential candidate Donald Trump), and in most respects the two (both geeked-out lawyers) align intellectually, ideologically, and politically. Lee is one of only a handful of Senators who have consistently received nearly perfect ratings from the Club for Growth, the American Conservative Union, and the Heritage Foundation. His policy positions on tax and budget matters, the environment, public lands, separation of church and state, guns, abortion, education, and the social safety net are reliably off-the-charts conservative. On national security, surveillance, immigration, and some policing, criminal justice, and incarceration matters, Lee trends closer to libertarian positions of Rand Paul.

Why will Mike Lee at some point be a familiar name to most Americans? Because he is young and intelligent and likely immune from personal scandal. His family-friendly Mormon values and high-powered legal background make him (in many ways like Ted Cruz) a safe and compelling conservative option for higher office (an all the more appealing prospect as the Trump hangover intensifies for Republicans). Unfortunately, most of Lee’s conservative animus seems to coalesce around his hatred for the federal bureaucracy and contempt for federal bureaucrats, and it this distracting emotional fervor that drives him off the rails when it comes to Alexander Hamilton.

Why Does Mike Lee Care About Alexander Hamilton?

Mike Lee cares about Alexander Hamilton because he believes the “progressive left” has willfully misappropriated Hamilton’s nationalist ideas to sanctify their own vision for the “massive, intrusive, unaccountable federal government that today thrives in Washington, DC.” Taking aim at the remarkable cultural and political impact of Lin-Miranda Manuel’s Broadway musical, Lee terms this kind of calculated distortion the Hamilton effect.

Unfortunately, pretty much everything Mike Lee tells us about Alexander Hamilton is spurious and disingenuous. Which is perhaps not surprising given Lee’s political instincts, but nonetheless disappointing given his allegedly exciting bona fides as a constitutional lawyer. While Mike Lee proudly attests to a “nearly lifelong” study of the U.S. Constitution, evidence of these inquiries is sadly lacking in the Hamilton essay. But don’t believe me. Let’s allow Mike Lee to speak for himself.

Mike Lee’s argument (somewhat oddly) does not focus directly on Hamilton’s legal and political ideas, and instead mostly spotlights the limited-government position of Anti-Federalists, who opposed ratification of the Constitution from fears it would “vest too much power in the federal government and thereby imperil liberty.” Lee generally conflates the views of Federalists and Anti-Federalists, as different only by degree, which supports his objections to the modern idea that Federalist supporters of the Constitution were early standard-bearers for “progressive” ideas that justified the consolidation of power within the federal government and the executive bureaucracy, at the expense of state and individual liberty. “Those perpetuating this mischaracterization,” Lee writes, “have done so by erasing the essential truth that underlies a full understanding of the Constitution: the fact that nearly every founder shared a healthy skepticism of a large federal bureaucracy—which they feared might grow to include some of the worst features of the very government they had just fought a revolution to escape.”

This statement is simply incorrect. Lee tells us that “historians and politicians who consider themselves more enlightened than the founders have done special damage to the legacy of the founding generation, a legacy that warned against the dangers of a distant, centralized government.” But modern ideas about and experiences with what Lee calls a “large federal bureaucracy” were obviously unknown to the founders, a point Lee himself makes makes a few paragraphs later when he writes, “No one living in America in the late 18th century—certainly none of the brilliant minds who forged our founding documents, be they Federalists or Anti-Federalists—could have contemplated just how strong, or how large, the federal government would become.”

When Lee does invoke Hamilton, the vacuity of his analysis and insights is also striking. Lee mentions again what he presumably views as the fatal error of “the left”, which has been to assume that “Comrade” Hamilton could have both envisioned and favored “the sort of massive, intrusive, unaccountable federal government that today thrives in Washington, D.C.” Hamilton, he argues, “scoffed and ridiculed” any concept of government that strayed beyond the “modest, divided, and tightly constrained” outline in the Constitution.

And there Mike Lee basically calls a halt to his scorched earth patristic march on Washington. Subsequent (and quite limited) citations from The Federalist merely argue for Hamilton’s “modest” concept of federal power on the basis of Hamilton’s claims (in Federalist 17 and Federalist 32) that states would retain all rights of sovereignty in their possession prior to ratification and that, in any event, “it will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities.”

Mike Lee then delivers what he seems to believe is the crushing blow to the expansive government hopes of progressives on the left, which is that this Hamiltonian opinion about the ease with which state governments could steal power from national authorities “may come as a surprise to those who claim his support to do just the opposite today.” For the following reasons, this is definitely a where’s the beef moment.

(1) Hamilton here advances an empirical claim, not a normative preference, and so it is not clear how this statement represents his “support” for broad assertions of state sovereignty.

(2) If Hamilton believes the states possess inherently superior “encroaching” capabilities, why all the hand-wringing from conservatives such as Mike Lee about the enfeeblement of the Constitution?

(3) One can emphasize exclusive (and explicit) delegation of powers as a legal and constitutional limit on the sovereignty of the national government, but to infer from such an emphasis that Hamilton shared with other Federalists a “healthy skepticism of a large federal bureaucracy” requires a massive, ahistorical leap in logic.

How Is Mike Lee Wrong About Alexander Hamilton?

Oh Mike Lee, let me count the ways you are wrong about Alexander Hamilton, who was absolutely an architect of concentrated executive power, which he both theorized and implemented as superior, by necessity and by nature, to the power of Congress and of the state governments.

(1) Alexander Hamilton – Theorist of National Power and the Nation-State

Alexander Hamilton remains the most profound theorist of national power and the nation-state within the American political tradition. Among the founders, no one thought with greater depth and wrote with more eloquence about the presidency. Throughout the course of the nation-building period, Hamilton’s goals remained simple and clear. If the republican Jefferson wished to free each new generation from the world of its fathers, Hamilton sought to create strong and stable political institutions that would confirm for all time the authority of the fathers. As Ron Chernow and Lin-Manuel Miranda have vividly illustrated for us, Hamilton was incredibly ambitious and he projected on to the nation the great destiny he conceived for himself as a lawgiver.

Hamilton’s vision of politics and the state rested upon psychological and sociological principles. Like Hobbes, he was but half a Puritan. He possessed a profound sense of human depravity, unaccompanied by any corresponding hope for human redemption. Hamilton believed spiritual commitments might be put to advantageous political use, by reinforcing allegiance to state and family. Like John Adams, he greatly feared the political effects of atheism, of a world in which the government itself instructed its people in “the most disconsolate of all creeds, that men are but fireflies and that this all is without a father.” However, he repudiated the republican belief that moral virtue by itself could animate and sustain political institutions (Federalist 6). Neither God nor history promised salvation within an earthly dispensation.

Far from it. Politics was not “inherently redemptive” for Hamilton; it was inherently corrupt. He never doubted that aggressive and violent passions reigned within the human soul. The restless, insatiable ambition and avarice of the people fueled a primitive will to power (Federalist 6). Hamilton therefore recognized (with far more realism than Great Awakening evangelicals or radical natural rights pamphleteers or small-government Anti-Federalists), the fundamental dilemma of politics, that freedom for some has generally depended upon the absence of freedom for others. His pessimistic view of human nature, confirmed by the lessons of history, determined the need in America to separate politics from society and republicanism from democracy.

Strong and stable political institutions, rather than the virtue of the people, could provide the only bulwark against anarchy. The state did not exist to express the general will of the people or, as Madison suggested, to provide a forum within which factions might contend for mastery. Hamilton agreed with Paine that government existed instead to discipline and punish fallen humanity. Unlike Paine, however, Hamilton feared that this unpleasant, yet necessary, duty was in danger of being avoided because of the weakness of the central government under the Articles of Confederation.

Throughout the course of his career in public life, Hamilton’s aim was to obtain enduring political stability through as centralized and authoritarian a government “as republican principles will admit.” However, Hamilton also understood the state to be an active, creative, and autonomous force in its own right. He identified politics, not with widespread citizen participation, but with administration, with laws, and with power wielded through institutions and procedures.

(2) Alexander Hamilton – Legal Revolutionary

Hamilton participated in the revolution in American law that occurred late in the 18th and early in the 19th century. If, during the colonial period, the law provided “a paramount expression of the moral sense of the community,” by the 19th century, the legal community proclaimed that the law simply reflected “the existing organization of economic and political power.” During these years, however, it actually became increasingly clear that the law itself could be used to shape and transform society politically and economically. This possibility reinforced Hamilton’s natural inclination to vest enormous formal powers within the executive branch of the national government, at the expense of both state governments and of the national legislature.

History confirmed for Hamilton the inevitability of foreign conflict and domestic strife. Because the passions that lead to war or to domestic insurrection flamed within every human breast, the form taken by a government could provide no guarantee of prosperity and happiness within a nation. Hamilton’s point, of course, was that the small commercial republics glorified by Montesquieu were not intrinsically superior to monarchies. They were neither more peaceful nor more just.

In any event, Hamilton believed Americans did not have a choice with respect to the organization of their government. The individual states must relinquish their autonomy, and preferably even their identity. The nation could only survive in a consolidated form. And since, with Montesquieu, he believed that the vastness of the American empire would require an exceptionally vigorous central government to bind it together, Hamilton conveniently discovered a virtue in what he perceived to be the necessity of a strong and authoritative national executive (see Federalist 6, Federalist 9, Federalist 23).

Hamilton’s theory of power and the state did not simply rest upon the need for coercive laws and institutions to defend the nation against external insurrection and domestic factions. He imagined the state itself to be the dynamic source of strength and purpose for the nation. Unlike Americans who continued after the Revolution to subscribe to ancient, commonwealth, or evangelical understandings of republicanism, Hamilton did not identify freedom with the virtue of the people. Nor did he believe that concentrated state power inevitably posed a threat to the freedom of a people. Politics at its best concerned effective administration by a core of educated and responsible elites insulated from electoral politics and social turbulence.

Hamilton mistrusted legislatures, while also scorning the “mad Democrat [who] will have nothing republican which does not accord with his own mad theory — he rejects even representation.” Like John Adams and James Madison, he denied any necessary connection existed between republicanism and democracy. Instead, he identified republican principles with equality under the law and with some degree of commitment to the concept of popular sovereignty.

More even than other Federalists, however, Hamilton believed that creative founding acts and heroic leadership were necessary preconditions for national greatness. Unlike Madison, Hamilton did not understand concentrated power to be a danger equal to that of mob tyranny. He did not appreciate any need to parcelize and disperse power, and one can find in his contributions to The Federalist none of the elegant theorizing about federalism itself so characteristic of Madison’s contributions.

Hamilton simply did not believe that the effects of concentrated power were inevitably corrupting. To the contrary, he repeatedly affirmed that no nation could long survive without the energy — which he understood almost as a life-force — inherent in concentrated power. For this reason, Hamilton greatly admired Napoleon (see his reference to Napoleon while commenting on “the disgusting spectacle” of the French Revolution).  Power, he insisted, must be wielded. The energy and authority of the nation’s leaders must be sufficient to provide for the needs of the nation as a whole. Almost by definition, “parchment provisions” for the welfare of the nation could never adequately anticipate the exigencies of national survival. Successful crisis management — Hamilton never doubted that there would be crises aplenty – would ultimately depend solely upon the unconditional trust of the people in their leaders. (Federalist 23, Federalist 25).

Hamilton also believed unfettered leadership alone could provide the vision and the genius necessary to lift the people themselves to greatness. As Treasury Secretary, of course, Hamilton would find himself in a position to bring his own economic and political vision to life. As a result, there is a sense in which his defense of executive power at the constitutional Convention and in The Federalist provides the anticipatory prolegomenon of his own accession to power (Forrest McDonald emphasizes this point in his Hamilton biography).

(3) Alexander Hamilton – The Defense of Hereditary Monarchy

Hamilton did indeed work long and hard to gather the states together at the constitutional convention and then to obtain the ratification of the constitution itself. It is also true that he was not present for most of the Convention debate and that he never possessed much faith in the document produced by it. However, Forrest McDonald has argued that Hamilton’s efforts at the Convention, limited though they largely were to the famous six-hour speech he delivered on June 18, 1787, elevated the philosophical tone of the debate and focused its agenda more directly upon the issue of the relationship between the state governments and the national government. The editors of his papers referred to this speech as “perhaps the most important address ever made by Hamilton” and the unabashed McDonald – whose Hamilton is god-like – claimed that it “contained some of the most profound observations on government ever uttered by an American.”

In this address, Hamilton certainly spoke more openly and honestly than he would in The Federalist about his aspirations for the union. Hamilton specifically emphasized the need for a national government “with decisive powers, in short with complete sovereignty.” The nation could not be rescued from democracy by democratic means. Republican forms of government in general seemed to him to be overly susceptible to corruption and insufficiently vigorous. But Hamilton himself observed that in the aftermath of Shays’ Rebellion, even “those most tenacious of republicanism … were as loud as any in declaiming against democracy.” The nation appeared ready to acknowledge the need for a strong, hereditary executive at the national level, within which the “permanent will” of the nation might reside.

The notoriety that attended this speech concerned Hamilton’s praise for the British government against which the new American nation had warred, which he declared to be the best in the world. Only a government modeled on the British constitution, Hamilton said, could effectively unite public strength with private security. Hamilton doubted whether anything short of this arrangement would suffice for America.

More specifically, of course, Hamilton was attempting through his references to the British constitution to lead delegates to the inescapable conclusion that only a hereditary monarchy could stabilize and secure the interests of the nation as a whole. Only a hereditary monarchy could provide enough strength at the national level of government to detach the people from loyalties and commitments to particular states that promised, if unchallenged, to rend the union irreparably. And ultimately, Hamilton believed that only the influence available to a powerful, hereditary monarch, through the capacity to dispense patronage, honors, and emoluments, could harness and direct the popular passions of avarice and ambition toward the support of the national government.

(4) Alexander Hamilton – Acclamation for the National Executive

Hamilton’s reconstruction of the body politic repudiated the corporate sovereignty and the corporate mission of the states. The new government was to be at once more distant from and more closely tied to the individuals subjected to it than the state governments had been. However, the power of the presidency, the energy emanating from it, and its meaning for Americans as the public soul and will of the nation, all required the voluntary subjection and complicit self-alienation of the nation reduced, not to its states, but to its individuals. This subjection would guarantee the permanence of the government, and infuse it with vitality.

In The Federalist, Hamilton’s essays on the presidency differ dramatically in tone and substance from his address to the Convention. For tactical reasons, Hamilton did not argue with nearly as much force for a strong national executive. And because his efforts largely consisted of attempts to impugn the motives and deny the validity of Anti-Federalist criticisms of Article II of the Constitution, the essays tend generally to stress differences between the presidency and European monarchies.

Having already addressed the subordination of state governments to the national government, Hamilton focused in these essays upon the need for executive independence from the national legislature. He did not address in detail the relationship between the presidency and the people, perhaps because the indirect election of the president tended to mask its importance. No part of the proposed Constitution, Hamilton asserted, had been “inveighed against with less candor, or criticized with less judgment” than the executive. Its opponents played upon the popular aversion to monarchy by representing the president “not merely as the embryo but as the full-grown progeny of that detested parent.” (Federalist 67)

In fact, Hamilton argued, the presidency more closely resembled the office of the Governor of New York than it did the British monarchy. The presidency lacked an absolute veto, performed no ceremonial role, could not dispense honors, and contained no particle of spiritual jurisdiction. Hamilton also assured his readers that the election of the president every four years by people chosen from the nation at large, and his liability to impeachment, trial, and dismissal from office for high crimes and misdemeanors would adequately secure the nation from the depredations of an autonomous and irresponsible power. In “the republican sense” of the term, the executive was “safe” (Federalist 77).

The barely hidden premise behind Hamilton’s defense of the executive in The Federalist was that the national legislature, and the people themselves, posed far greater threats to the freedom and the security of the nation than did a vigorous and active executive. Because he considered both the legislature and the community at large to be ignorant and unreliable, he wished, at all costs, to avoid the “servile pliancy” of the executive upon either (Federalist 75, Federalist 77).

For Hamilton, the independent will of the executive constituted its very soul. While the indirect method of election promised to distance the presidency from popular “tumult and disorder,” he remained exceedingly wary of legislative bodies that directly represented the people (Federalist 68). Hamilton demonized legislatures because they inevitably attempted to “annihilate” the executive will. Specific presidential powers such as the veto he regarded almost literally as instruments of war. These the president would deploy, not so much to protect the nation from bad laws, as to “shield” the executive itself from the “depredations” of an “imperious” national legislature inflamed by the passions of the people (Federalist 71, Federalist 73, Federalist 74).

(5) Alexander Hamilton – Power, Art, and Creation

These concerns notwithstanding, Hamilton’s proposed reconstitution of public power did, in fact, amount to a resurrection of royal authority. Token references to accountability, popular sovereignty, and the republican spirit of executive authority could not disguise the fact that Hamilton’s president existed to provide both stability and leadership. Unlike theorists of federalism such as Madison, he did not really understand the constitution to be a mechanical device that would limit the concentration of power and thereby preserve the freedom of the people. To the contrary, he believed both the supremacy and the necessary and proper clauses of the constitution bestowed virtually unconditional grants of power upon the national government. And almost by definition, these powers devolved onto the branch of government responsible for their execution (see Hamilton’s report to Washington on the constitutionality of a national bank).

However, if good government consisted in the proper execution and steady administration of the laws, Hamilton did not simply conceive of the power of the presidency in these instrumental and technical terms (Federalist 68). The president would also perform a variety of other functions, all of which revealed the creative and artistic forms that power might take when shaped by a master spirit (kindred, one presumes, to Hamilton’s). The president would infuse the body politic with “vigor” and energy (Federalist 70). He would educate and discipline the nation’s citizens, thereby elevating them to a higher plane of political and moral awareness (Federalist 71). He would direct “the common strength” against foreign invaders and domestic insurgents (Federalist 73, Federalist 75). Finally, through his power to pardon all offenses short of treason, the president would provide absolution for his people. His would indeed be a saving grace (Federalist 74). And for these reasons, Hamilton did not wish to limit the horizons of those great leaders with vision by restricting their term in office. Those with the passion for power and preeminence would not be denied in any event. If stifled, their passion might assume a far more dangerous form (Federalist 72).

(6) Alexander Hamilton – Do Not “Remain Long at Table”

During and after the Revolution, it has been suggested, most Americans never really relinquished their desire to be ruled by a just and wise king, one who would secure the nation from the twin dangers of foreign aggression and domestic faction. Hamilton himself did not doubt the stability and security of the nation depended upon both the institutional and personal unassailability of presidential authority.  Using the British monarchy as his model, he therefore counseled President Washington to maintain his distance from other important political figures and to limit direct interaction with members of the House of Representatives and with ordinary citizens.

Presidential etiquette dictated that Washington accept no invitations and return no visits. When entertaining others, he must never “remain long at table.” In dispensing this advice to the great man, Hamilton recognized the need for the President always to control the terms of his engagement and discourse with others. Like Job’s God, Washington must reveal to no one his human face. This would preserve the respect and awe of others for his office and his person, and thereby establish the essential conditions for stable rule.

However, ceremony, ritual, distance, and dignity all served another purpose as well. They infused the presidency with the mystical meaning of the nation itself. The widespread understanding of the President Washington as a “patriot-king,” as the new agent of national redemption, liberated Hamilton — who played Prime Minister Walpole to Washington’s King George II — to pursue his own policy agenda.

(7) Alexander Hamilton – The Political Economy and the Masterless Man

Forrest McDonald emphasized Hamilton’s “detestation of dependency and servility,” his desire to be masterless. However, Hamilton did not seek to break ties of dependence, so much as he aimed to transfer them, from the provincial planter oligarchies that ruled at the state level to the national government and the presidency. Hamilton never abandoned his commitment to securing the allegiance of the American people to inherited forms of authority. While he could not expect to gain acceptance for hereditary personal authority, he worked diligently as Treasury Secretary to establish institutions, procedures, and behavioral norms that would bind citizens, and influence their behavior across the generations to come. He endeavored to establish a system (or regime) into which citizens would be born, the assumptions and practices of which would be as familiar and natural, and as necessary to their sense of well-being, as the air they breathed. In this manner, he hoped to narrow their political horizons, by limiting their ability to conceive a broad array of political alternatives, and to channel their turbulent energies into productive economic activity that would enhance the prestige and power of the state.

Hamilton imagined the most important task of the new government, after its vigorous provision for the external and internal security of the nation, to be the promotion among its citizens of something like the worldly asceticism described by Max Weber. He premised his vision upon the need to harness and set to work the naturally avaricious and covetous inclinations of the people. Hamilton believed that Americans “labour less now than any civilized nation of Europe,” and all of his major policy initiatives – the funding of the debt, the creation of the National Bank, and the promotion of manufacturing – aimed, ultimately, to eradicate the slothfulness of the idle and the burdensome (see Hamilton’s 1781 letter to Robert Morris).

The pre-capitalist moral economy, upon which the pastoral vision of the Jeffersonians rested, must give way to a market economy. All must be drawn into the market. The market itself must not be impeded by internal barriers to commercial and financial inter-course. The monetization of society would provide the means to accomplish both ends. Like Hobbes, Hamilton understood money to be “the vital principle of the body politic … that which sustains its life and motion, and enables it to perform its most essential functions.” (Federalist 30) Through measures that ranged from the assumption of the debt to the introduction of coins of small value, he hoped to induce people to work for less and to familiarize the entire nation with the principles of trade, commerce, and finance.

Supported and encouraged by strong government institutions such as the National Bank, the executive, and the courts, Hamilton was confident the population would grow accustomed to the market allocation of values and judgments. The political and moral implications of Hamilton’s economic policies derived from his understanding of all the founders (but especially of himself) as artists and creators, as well as from the harsh judgments that he rendered upon humans and upon history.

(8) Alexander Hamilton – Making History and Making Life

Unlike the evangelicals and the Jeffersonians, Hamilton denied the presence of any innate moral sensibility or divine spark within the human heart. However, his understanding of the “interested” inclinations of the people depended upon the retreat of the godhead, and upon the restless desire and emotional isolation of the self characteristic of a Hobbesian state of nature. Hamilton did not believe the founding act lifted citizens from this primeval condition. Instead, by separating cleanly the state from its social foundations, this founding alienated politics from labor and therefore from the body, separating the task of making history from that of making life.

By alienating from the natural bodies of citizens their souls to provide the nation with a “public soul”, the Constitution reduced citizens to preoccupations of the body, to an elemental economic competition upon the success of which, they were assured, their survival depended. In the nineteenth century, the apotheosis of the nation’s founding fathers trapped its children in this distance separating Creator from Created. The Hamiltonian vision promised economic mastery over this body and nature, at the price of imprisonment within the walls of the created body politic, within the world of the founding fathers.

Why Does It Matter What Mike Lee Thinks About Alexander Hamilton?

In 2015, Mike Lee appeared on Pat Robertson’s 700 Club to tout his new book, Our Lost Constitution, where he reported that specific “intervention from Almighty God”, invoked following a plea through prayer from (well-known Deist) Benjamin Franklin during the Constitutional Convention in 1787, made possible the Connecticut Compromise, which famously resolved differences between large states and small states (and slave states and free states) about the organization of the national government. This divine intervention, we learn, brought forth “the greatest governing document ever devised by human beings.”

Well … okay! We get it! Sounding a bit like Donald Trump, Mike Lee invokes superlatives to support his claims on behalf of the Constitution and other crucial founding documents – their transcendent “greatness”, the “brilliance” of the minds of those who “forged” these documents (I’m not sure if Mike Lee gets the subversive meaning of his use of the term “forged”, but no matter). And of course, all of this greatness and brilliance blessed, sanctified, and enabled by Almighty God.

And now, in Mike Lee’s most recent book, Written Out of History: The Forgotten Founders Who Fought Big Government (for which the Mike Lee Politico essay serves as free advertising), we also can revel in the contributions to this vision of the Constitution of Anti-Federalist women (Mercy Otis Warren) and Indians (Iroquois Chief Canasatego) and even villains of the Hamilton saga (Aaron Burr), further proof, if any were needed, that not merely Almighty God but the natural law, self-evident to every human, encodes within all of us the capacity to recognize and “strike a crippling blow” against the evils of the federal bureaucracy.

Ironies abound, of course (as they always do). To name just two, Hamilton’s expansive constitutional vision does much more to cement the allegiance of the nation to the “original authority” of the founders than the constrained conception of government Mike Lee imposes upon him. And as Hamilton’s letter to Gouvernour Morrisat the beginning of this essay indicates, Hamilton himself, reeling from the death of his son in a duel, came to doubt the value of the Constitution, this “frail and worthless fabric.”

Return to Oz: Peter Thiel's Retro Futurism

wizard-of-ozMaureen Dowd interviewed Peter Thiel (for the “Fashion and Style” section of the New York Times). Technology blog Gizmodo printed an orgy of quotes from the interview and gushed about its subject.

According to the Gizmodo author, Peter Thiel (who used his unlimited bankroll to take down Gizmodo’s parent company, Gawker)seems totally regular and cool.” This is an odd statement, which may communicate the itching temptation among Silicon Valley tech-bros (or their replicants in New York and elsewhere) to “flip”, post-election, from rigid outrage about a Trump presidency to orgasmic submission (now that Trump actually is our political overlord requiring that we bow down and grovel).

Near as I can tell, Peter Thiel is normal, regular, and cool for Gizmodo Guy because his conversational style is to issue clever, provocative, koan-like quality speech nuggets, somewhat resembling golden poops. Which have the effect of eliciting a surprised, cathartic response from Gizmodo Guy and others, perhaps not unlike Charlie’s response to Willy Wonka. Essentially, “Hey, those are awesome golden poops! They don’t look like normal poops. They’re much harder and shinier. But they look neat!”

My own thoughts are inline below, but I guess my punchline is that in this interview Peter Thiel simply does what really smart people (especially those with a particularly logical bent) often do, which is, with his Pyrrhonian skepticism, to routinize the habit of being contrarian. Software engineers and litigating attorneys may be especially prone to this behavioral tic.

The powerful instinct of these contrarians is not really to listen and ponder and reply thoughtfully to whatever question or topic they are addressing. Instead, they pretty quickly respond with linguistic gymnastics that have little to do with the topic, but instead have the effect of either inspiring intellectual awe of oneself or diminishing the person being addressed. It is a diabolical way to deflect attention from significant matters, both regressively defensive and aggressively depersonal.

As an aside, Maureen Dowd, a provacateur herself, is especially adept at framing her columns or stories to elicit this kind of whack cleverness from the people she interviews. I’m sure she did her own share of ingratiating showboating during the interview. Haha, Peter Thiel, you 21st-century Marquis de Sade. Aren’t we both delightfully establishment-shocking enfants terrible?

Contrarians are vitally important to healthy debate about goals, ideas, and process. But contrarianism ideally enfolds itself within a mind (individual or hive or otherwise) that also encompasses and embraces a positive mission. Contrarianism is most useful as a subordinate component of mindfulness. When it becomes an end in itself, a type of mental self-recursion sets in (we might call it the Asshole Loop) whereby the instinct to challenge orthodoxy becomes a mindless, repetitive hammer blow.

Anyway, here’s some of what Peter Thiel had to say, with a bit of commentary. I’m mostly (but not exclusively) riffing off the same quotes Gizmodo Guy found so cool and uplifting. With some thoughts at the end about the relevance for this story, in our time, of The Wizard of Oz.

The World According to Peter Thiel

1. Peter Thiel on the incorruptibility of President Obama: “[T]here’s a point where no corruption can be a bad thing. It can mean that things are too boring.”

President Obama is boring explains a lot. Peter Thiel himself is a big believer in “disrupting” things, a term which takes one predictable (and mostly meaningless) form in Silicon Valley’s idealized vision of itself, but quite another form in politics, where paleoconservatives such as Trump are eager to get jiggity with the Devil in order to make things happen. You know we’re fucked when not blowing everything up becomes a sin.

I get the frustration with gridlock, of course. And the frustration with inequality and the sense that America has somehow lost its mojo. However, there is a deeper and more insidious layer of meaning to the idea that Obama = boring.

As the nation’s first African-American president, Obama instantly had to live up to a far higher standard of personal ethics and decorum, along with a far higher standard of moderation and even-handedness on social and racial and foreign policy matters, than any white president. If Obama betrayed any propensity for good old boy / shoot-em-up behavior of the George W. Bush-Bill Clinton variety, he would have been tarred and feathered and run out of town on a rail by the Tea Party crowd.

But in the spirit of getting jiggity with the Devil, Obama was pretty much damned if he did and damned if he didn’t. Because among the legions of those of the Breitbart persuasion for whom Obama’s public existence was always inherently offensive, his incorruptibility, along with his cool rationality, were pretty instantly also interpreted as deficits, of a piece with the storyline that Obama is weak and effeminate.

Consider the almost superhuman grace, discipline, and decency with which he’s managed this implacable conundrum. Perhaps sustained by a remarkable capacity for reflection on the larger meaning of events, and a terrific sense of humor (something both Donald Trump and Peter Thiel absolutely lack).

2. Peter Thiel on Donald Trump and sexual assault: “On the one hand, the tape was clearly offensive and inappropriate. At the same time, I worry there’s a part of Silicon Valley that is hyper-politically correct about sex.”

Most American institutions have become “hyper-politically correct about sex,” not just Silicon Valley corporations. Some of this driven by demographics (more women in the workforce, but perhaps not enough women in the workforce in places that matter, and an awareness that even limited workforce equity requires robust standards for managing how people interact professionally). But also, for legal and accounting fiduciaries at these places, a matter of managing legal and regulatory risk.

Whether or not one agrees with this new workplace “morality reality”, the Trump sexual assault tape itself need not (and probably should not) be cause on its own for repudiating or shunning Trump as presidential candidate. However, revelations contained in this tape are surely confirmation (or effects) of the underlying causes for repudiating / shunning Trump. Which are well-known and very real.

At any rate, in this response, Thiel simply punts on the larger issue of accountability for one’s actions. His consistent with the whole-cloth abdication on this issue of accountability by Trump and his minions, itself a Sade-like liberation of dark energy for supporters in the “heartland” who similarly hunt for vengeance and catharsis.

3. Peter Thiel on Star Wars versus Star Trek: “I like ‘Star Wars’ way better. I’m a capitalist. ‘Star Wars’ is the capitalist show. ‘Star Trek’ is the communist one. There is no money in ‘Star Trek’ because you just have the transporter machine that can make anything you need. The whole plot of ‘Star Wars’ starts with Han Solo having this debt that he owes and so the plot in ‘Star Wars’ is driven by money.”

Just a glib and stupid statement by a tech geek who should know better. Star Trek is idealistic and committed to some general idea that humans can harness technology to the goals of human exploration and human values. Star Wars is mostly a (hideously bad) Oedipal drama. If you want a truly entrepreneurial, bad-ass, capitalist sci-fi experience, watch Firefly/Serenity or Westworld.

4. Peter Thiel on the obsession with trying to live forever he shares with many others in Silicon Valley: “Why is everyone else so indifferent about their mortality?”

Peter Thiel, encouraged by vampire writer Anne Rice, wants to suck the blood from 16-25 year olds so he can live forever and he wonders why everyone just thinks he’s a creepy version of Edward from Twilight? Here’s the deal for Peter Thiel. He and Elon Musk are all about the Promethean quest, stealing fire from the gods, technology the instrument of an unbridled ambition to obliterate and transcend our physical, sentient limits and become gods unto ourselves.

But what’s left unsaid about the vision of escaping our finite bodies and fleeing our terrestrial home is what’s devalued because it can be left behind. Peter Thiel’s soaring vision of engineered private islands and personal immortality abandons any concept of shared humanity, because the god-powers and god-capacities he assumes require subversion of the humanity of those abandoned, presumably that 99.9 percent of the population not sufficiently wealthy or enlightened to qualify and who therefore can only serve as raw material for his experimental flights of fancy.

Thiel’s concern with both engineering and then sequestering his own, specific immortality also further severs species-identification with other forms of life, perhaps an explanation for his own indifference to the health of the planet, and to the environmental impact of anthropogenic industry and acitivity. Trump’s movement claims a populist mandate. Peter Thiel explicitly voices its elitist dreams.

5. Peter Thiel on how he communicates with other humans: “Maybe I do always have this background program running where I’m trying to think of, ‘O.K., what’s the opposite of what you’re saying?’ and then I’ll try that […] It works surprisingly often.”

Or maybe he always has this background program running where he’s trying to think, “Okay, how can I be the biggest dick possible? and then I’ll try that […] It works surprisingly often.”

6. Peter Thiel on climate change and Donald Trump, who once dismissed global warming as a hoax “created by and for the Chinese”: “Does he really think that? If he really thinks that, how would you influence that? If he really thinks that and you could influence him, what would be the best way to do it?”

Obfuscation = responding to a legitimate question with three new, ridiculous questions that are simply deflections. Does anyone think Peter Thiel gives two shits about Maureen Dowd’s answers to his three questions? Once again, his failure to fucking answer the question betrays an absence of serious intent, any demonstrated capacity for sustained reflection, and a lack of interest in making the soon-to-be most powerful man in the world accountable for his beliefs and his actions.

7. Peter Thiel on the “incestuous amplifcation” of Facebook: “There’s nobody you know who knows anybody. There’s nobody you know who knows anybody who knows anybody, ad infinitum.”


8. Peter Thiel on how he reconciles Trump’s paleoconservatism with his own utopian futurism: “Even if there are aspects of Trump that are retro and that seem to be going back to the past, I think a lot of people want to go back to a past that was futuristic — ‘The Jetsons,’ ‘Star Trek.’ They’re dated but futuristic.”

I’m not sure about Star Trek, since it is apparently a communist plot. But most baby boomers do pair The Jetsons and The Flintstones, so that futuristic-paleo analogy may work, after all. Imagine Peter Thiel as George Jetson and Donald Trump as Fred Flintstone Or we might actually want to recast the actual Back to the Future movie. Featuring Donald Trump as lunatic bully Biff. Milo Yiannopoulos as charismatic daredevil Marty McFly. And Peter Thiel as eccentric scientist Doc Brown.

9. Peter Thiel on suing Gawker: “It basically stands for the narrow proposition that you should not publish a sex tape. I think that’s an insult to journalists to suggest that’s journalism now. Transparency is good, but at some point it can go in this very toxic direction. Gawker manufactured a totally insane bubble full of somewhat sociopathic people in New York.”  But when the case went to court in Florida (where presumably “real” people live), the culture that “you could do whatever you wanted and there were no consequences” was exposed.

Personally, I don’t have a problem with Hulk Hogan suing Gawker. And even winning. Nor do I disagree with the idea of a toxic transparency in journalistic culture. As former White House advisers say, there are good reasons to keep separate the East Wing from the West Wing.

(In each of these instances, of course, the ironies are rife. Peter Thiel’s own unbridled, libertarian, technology-driven capitalism destroyed the traditional business model of journalism, and with it the professional standards that served to limit the toxicity of transparency. Donald Trump’s Keeping Up With the Kardashians governing model, in which public and private interests are indistinguishable, also accelerates the conversion of our public life to a reality television race to the bottom.)

But because Peter Thiel lives in his own outrageously inflated and field-distorting bubble, he cannot see the risks to journalism and to freedom of speech of his private funding of the Hulk Hogan lawsuit.

The United Kingdom enforces more restrictive libel and slander laws than the United States. But those laws also cap damage claims. The idea that Hulk Hogan deserved a $140 million award for damages (since reduced to $31 million)  caused by publication of his sex tape can only be sustained in a world that views these sums as pocket change.

Justice for Hulk Hogan did not require $140 million. But destroying Gawker did require $140 million. Peter Thiel did not fund Hulk Hogan’s lawsuit because he cared about Hulk Hogan. He funded the lawsuit to exact vengeance and intimidate the press. There is no equity here, and justice requires equity.

If rich people are worth more than other people (reputationally and otherwise), simply because they are rich, then there are no limits to the legal actions they can take to destroy institutions or individuals who publish stories or write things with which, for whatever reason, they disagree or find offensive.

10. Peter Thiel on abortion and the Supreme Court: “It’s like, even if you appointed a whole series of conservative Supreme Court justices, I’m not sure that Roe v. Wade would get overturned, ever. I don’t know if people even care about the Supreme Court.”

At some point, we all just become gob-smacked at the alternate reality we now inhabit, in which Maureen Dowd can kiss Peter Thiel’s ass by calling him a “social media visionary” (which he isn’t) and then somehow privilege the meaningless assertion that “I don’t know if people even care about the Supreme Court.”

Well, I don’t know, either. Maybe I should adopt more of a posture of indifference myself to this stupidity, but the “populist” in me gets angry that someone like Peter Thiel claims this sort of platform only because he is rich and arrogant and flamboyantly opinionated (but like his new benefactor also perhaps more cunning than wise), and so more than happy to say whatever he wants without regard for consequence.

This indifference to consequences was the sin that Peter Thiel successfully sued Gawker out of existence for committing against a single individual. But not being accountable for one’s language or opinions apparently now possesses the relish of salvation when inflicted upon an entire national population, as part of an instrumented political game to deny (with endless permutations and combinations) that we can truly know anything. And to claim (as a Pyrrhonian skeptic) that, in any event, it doesn’t really matter whether we do or don’t know anything.

Return to Oz

Peter Thiel’s interesting remark about the futurism of the past – the wide-eyed optimism about technology’s capacity to make our lives better one encounters in The Jetsons and Star Trek – was an idea of his that did engage me. This concept emerges from what Thiel calls the “reduced expectations” for America’s children. Concerns about shrinking opportunities for our children are indeed widespread, and have been used as a justification, or explanation (although mostly after-the-fact as a rationalization) for Trump’s “populist” moment.

In fact, there is little evidence to support Thiel’s claim that this dip in expectations is unprecedented historically. And for many of the more marginalized (but increasingly emergent) ethnic groups in the United States, expectations are not shrinking at all. But for the white Americans who supported Trump, we may assume this concern about the future is an important source of anxiety contributing to their political mobilization (to the degree one can call it that).

White nationalism, and the rallying cry of “white genocide” captures the spirit of this decline, which is relative rather than absolute, but clearly related to population dynamics and slowing birth-rates, which are not “caused” by any specific agency, but which lend themselves to conspiracy theories because the demographic trends (with all that implies for the status, power, and position of those consumed by the “white” meaning of America) do appear to be irreversible.

We can all accept the poignancy of the situation, and grieve about its meaning, while also recognizing that Donald Trump and Peter Thiel actually care very little for these people, and that the “solutions” they do present – sealing our borders, declaring trade wars with other nations, automating jobs out of existence, building more highways, militarizing our police, lowering taxes on the wealthy, eviscerating public education, repealing the Beast of the Apocalypse Obamacare – will not help them anyway.

What Trump supporters will have to settle for, then, is a well-plotted stage in the life-cycle of empires in decline, characterized in this specifically American instance by the rise of the Carnival Barker, the Patent Medicine Salesman,the Tent Revival Preacher, spinning illusion through a fog of disembodied words, promising salvation and eternal life – the brain, the heart, the courage, the journey home. The yellow brick road.

Of course, we know the ending. The Wizard, exposed, departs alone in the hot air balloon from whence he came, leaving those dependent on him to fend for themselves. Much has been written about L. Frank Baum and his Wizard of Oz books in relation to financial panics and Populist uprisings of the late 19th and early 20th centuries. We may want to revisit his books to explore how his parable speaks to us in our time.

Antonin Scalia and the Death of American Law

cropped-paudiss_christopher_e28094_wolf_fuchs_und_schaf_e28094_1666[Note: I wrote this essay several years ago, but am mindful of its relevance as we consider the Antonin Scalia legacy in the aftermath of his death, a task that remains especially vital as Donald Trump, nearly one year later, prepares to appoint Scalia’s replacement. While legal conservatives lionize Scalia, his impact on American jurisprudence and American society has been toxic, perhaps irredeemably so. Scalia’s medieval religious views and equally hidebound perspective on Constitutional Law epitomize what one might call an ontological fundamentalism that quite suddenly runs rampant in American political thought these days.

In October, scores of Constitutional originalists (among them George Will, many others scholars affiliated with the Federalist Society and the Heritage Foundation) publicly stated their dismay at the prospect that a man as unreflective and unfettered as Donald Trump, “a man uniquely unsuited for the office,” might become President. Several months later, it’s fair to say all such scruples had vanished. Federalist Society executive vice-president Leonard Leo has been advising Trump on judicial appointments (alongside those well-known legal scholars Kellyanne Conway and Steve Bannon). Meanwhile, ten days following the election, legal conservatives crowded cheek by jowl into the Federalist Society’s annual national lawyer’s convention, many of these attorneys suddenly, and quite miraculously, sensing an “unpresidented” duty, one they could not still, to take their talents to the the halls of power in Washington, DC.

Why should this craven and unprincipled capitulation to the excretions of power not surprise us? Originalists cleaving to historically arbitrary determinations about the meaning of denatured and “sacred” texts such as the Constitution (or the Bible) fixate on primitive and absolute moral imperatives that have little to do with the realities of freedom, justice, and equity within historically specific, embodied communities, and much to do with purging these imperfect societies of their impurities. An effort that of course requires access to the instruments and levers of power legal conservatives disingenuously claim they want to limit. As the stolid inhabitants of Middle Earth might say, these are a “fell” people.

Anyway. Here’s the essay.]

Supreme Court Justice Antonin Scalia once remarked in a dissent that many dangers visit the Court in sheep’s clothing, “but this wolf comes as a wolf.” So too with Scalia.

We can attribute much of the contemporary sclerosis in national government to the crouching wolf at the door, the successful arrival on the national stage of the legal conservative movement. In the last 30 years — lovingly midwifed by the Federalist Society and lavishly sustained by frankly astonishing levels of financial support from conservative foundations, think tanks, and business associations — legal conservatives have steadily assumed more power and influence in public life. All the while black-cloaking their political agenda behind allegedly non-political, purely intellectual commitments to the original meaning of foundation legal documents, particularly the Constitution. All the while bleating like sheep about their beleaguered position at law schools and on the bench.

But Scalia, their champion, cannot help himself. He opens his robe. Inside he is all wolf.

Court Jester

Scalia swaggers. He intimidates. He’s NinoColorful, quotable, and charismatic. Brilliant and hard-working. Voluble and entertaining. Irrepressible and fearless. He can do it all. He writes. He hunts. He sires nine children. His words are swords, ambuscades of righteous religiosity aimed at the nation’s legal and moral deviants, its corrupt parasitic entrails. He is a lawyer’s lawyer. He could argue either side of a case and win. The liberals love him. He’s so charming and amusing. He disarms them. They fear him. His withering diatribes and clever insults.

Scalia is the Court Jester. His influence, however, also illustrates how legal conservatives have seized the palisades of American constitutional theory. Conservatives of all stripes  – libertarians, advocates of judicial restraint, federalists, Christian conservatives, law & economics partisans, executive power hawks  – have set aside their differences to present a united front on the infallibility of the Constitution. Their methods  – Originalism and Textualism – have become their madness. Scalia contains within himself and symbolizes their unity of vision and purpose. Nothing less than the full recalibration of American political life. A two-pronged strategy. Control the courts. Seize legislative majorities. Limit the scope of judicial activity to preserve the political primacy of state and national legislatures.

Jesuitical Casuistry

With six Roman Catholics on the Supreme Court, with four of them (Scalia, Thomas, Alito, Roberts) theologically and intellectually and politically conservative as only well-educated Catholics can be, it is not unfair to characterize the legal conservative movement led by these justices as medieval in its intentions and Jesuitical in its methods. Here is where Scalia the wolf can instruct us on the impact of the broader flock of sheep in this legal movement, who are neither so brave nor so honest as Scalia in their self-justifications.

Scalia frankly attests to his opinions. “I’m a law-and-order guy. I mean, I confess I’m a social conservative, but it does not affect my views on cases.

Well, who knows if his opinions do or do not affect his legal judgments? It does not matter, because the brilliance of Constitutional Originalism and Textualist exegesis is that SCOTUS conservatives will generally achieve the political outcomes they want simply by punting tough policy issues back to the legislative bodies.

So yes, there is some Jesuitical casuistry at play here, and Scalia (who was first in class at his Jesuit high school and Jesuit college), Clarence Thomas (graduate of a Jesuit college), and other leading judicial conservatives are entirely mindful that their formal methods and substantive goals harmonize. Scalia frequently cites his commitment to the First Amendment as proof that he does not hew to a doctrinal line. He supports the free speech of flag burners! But this commitment is the exception that proves the rule, for Scalia also supports the free speech rights of abortion clinic protesters and corporate campaign contributors. The active component of his commitment may be less to the First Amendment itself as a principle, and more to the character of those whose interests advance under the protection of the First Amendment.

Not surprisingly, Scalia could not conceal his wolfishness when he declared at the inaugural meeting of the Federalist Society in 1982 that among the Founders he preferred Alexander Hamilton, the sexy bad boy of the Constitutional Convention, to its nerdy goody-goody, James Madison. Indeed, despite some disingenuous protestations to the contrary, legal conservatives generally love the vigorous, independent executive first envisioned by Hamilton, an executive that projects its power far and wide, and does not concern itself overly much with trivialities such as human rights, international law, legal transparency, and the more inconvenient amendments to the Constitution (we might appropriately consider SCOTUS conservatives to be the rightful inheritors of the philosophically conceived political realism originating with 13th-century Scottish philosopher Duns Scotus).

Sheepishly Slouching Towards Bethlehem

The Federalist Society is Scalia writ large and small. Writ large because the Federalist Society is the organizational expression of the legal conservative commitment, theologically conceived, to anchoring political life in the original, infallible meaning of the U.S. Constitution, which is their communion chalice, their Bible, their ark of the covenant. Writ small because the Federalist Society members, from founder Stephen Calabresi to political philosophers such as Charles Kesler, all gripped with a perpetual sense of aggrievement, mewl incessantly about liberal elites and an activist judiciary, while shamelessly (wolfishly) advancing their own profoundly reactionary intellectual agenda.

The Federalist Society initially conceived itself as a political alternative within law schools to the activist National Lawyers Guild, a bête noir of conservatives since its establishment in the 1930s. Truly, the comparisons now ring hollow. In 2013, the Federalist Society, with 60,000 members, reported revenues approaching $14 million and more than $8 million in net assets. Donors contributing more than $50,000 to the Federalist Society in 2013 included both Koch Brothers, Koch industries and (perhaps more surprisingly) Google and Microsoft. By contrast, the National Lawyers Guild, with 5,000 members, and which has never benefited from the largesse of the wealthy and powerful, in 2012 reported only $525,000 in revenue, and merely $100,000 in net assets.

Just as legal conservatism shelters under its umbrella a broad spectrum of intellectual approaches and philosophical commitments, Originalist and Textualist methods derive from a range of intellectual traditions centered around a few key academic institutions: the University of Chicago, the Claremont Institute, and more indirectly Princeton University, the Hoover Institution, UCLA, and George Mason University. Intellectual godfathers include political philosophers such as Leo StraussAllan BloomHarvey Mansfield, and (the recently departed) Harry Jaffa, all of whom have employed a species of magical thinking about foundation political texts in the Western philosophical canon, beginning with Plato and extending to Nietzsche. These classically trained philosophers — often categorized as Straussians — have also branched their carefully constructed tree of canonical works of Western political philosophy to encompass both European and American political thought. Straussian students of political philosophy have done much to vitalize the thoughts and writings of the founding fathers of the United States and Abraham Lincoln.

The “esoteric” method pioneered by Leo Strauss borrows heavily from medieval Church philosophers such as Thomas Aquinas and Duns Scotus, and burrows deeply into the meaning of foundation philosophical texts, which because of the conviction that they contain timeless truths about human nature and human relationships, obviate any need for historical situation. Straussians privilege text over context and universal truth over the thread of history, largely because historical and narrative understandings can lead to moral relativism. Additionally, Leo Strauss’s efforts to elucidate the influence of Plato through the course of the Middle Ages led him to the conclusion that the most precious truths contained in the Western philosophical canon were secret and encoded, and could only reveal themselves to the initiated acolyte or the most subtle student.

Legal conservatives have to some degree reaped the rewards of the spade work done by this older generation of academic political philosophers. The precepts of Originalism and Textualism with regard to constitutional studies reinforce the Straussian focus on foundation texts, hidden or subtle meanings, an ahistorical valorization of frozen language possessing timeless universality, and a morally driven concern for the dissipation associated with values relativism.

The legal conservative method, of course, leads otherwise very bright people deep into the darkened logical caves associated with biblical fundamentalism, in which scriptural exegetes hyperscrutinize sacred texts to locate hidden meanings anchored to divinely authored truths. Legal conservatives 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?

You think there ought to be a right to abortion? No problem.

Well, actually, there is a problem. Justice Scalia asks and answers this question rhetorically by way of his capsule summation of Originalism and Textualism. Scalia’s answer being: “The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court, can compromise. A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.

The problem is this. Legal conservatives attach a meta-meaning to the Constitution (it is designed to impede change), along with particular interpretations of its clauses, that elevate the importance of old-fashioned politics for securing non-universal rights (versus judicial remedies). However, the meta-meaning conflicts with an unfortunate reality. The political organs established by the Constitution have ceased to function. Moreover, we have ample evidence that this stalemate is exactly the political result favored by legal conservatives.

We have seen this before. In 1860. In 1936. Actually, we even witnessed this happen in 1786. The stalemate is called a Constitutional crisis. Under these circumstances, the principles that support the rule of law in the United States — equality, fairness, justice, transparency — principles enshrined within the preamble to the Constitution itself, begin to crack and crumble. Legal conservatives therefore face a dilemma. Is the Constitution a means? Or is it an end? They will tell us the Constitution is an end — a Procrustean bed as it were. But legal conservatives employ the Constitution as a means. To reconstruct politics itself, a breathtakingly radical, and risky, dissimulation that wagers all in the service of a hidebound medieval vision.