Roy Moore and the Horse He Rode in On: Revealed Religion and Natural Law in the Alabama Senate Race

The crudest presumptions of natural law theory still inform our political and cultural conflicts. In recent posts, I’ve focused on the logical and moral contortions a focus on creator worship as the ground of our being requires of revealed religions. Alabama’s Republican Party offers the most recent permutations of this bizarre fever dream.

On Tuesday, former (twice!) Alabama state Supreme Court Chief Justice Roy Moore (with a rich symbolism perhaps not fully appreciated) rode his horse Sassy into the unincorporated town of Gallant (population 850, also known as Greasy Cove) to cast a ballot for himself as the Republican nominee for the Senate seat vacated by Jeff Sessions.

In the wake of a backlash against “DC swamp” candidate Luther Strange, Moore coasted to a win over nine other candidates, and will once again face (the geographically vast, awesomely named) Strange in a late-September run-off primary. As Senator, Moore promises to restore Christianity to the Capitol and fight the rise of Islamic “Sharia law” in the United States, commitments presumably of little significance to Strange, a former oil industry lobbyist.

While it’s tempting to linger on the incredible Gothic theatricality of this event (for example, the mixed metaphors of “the swamp” as the habitation of the “silk-stockinged elite“), for our purposes, we need initially only pay attention to Moore’s deranged, megalomaniacal Constitutional rants, which begin with the Bible, linger around themes such as God’s desire for families to keep loaded guns at home to protect their children, and end with the natural law gymnastics of early 19th-century Supreme Court Justice Joseph Story.

Moore’s jurisprudence and politics fully conform to the conservative commitment to natural law as a gift and instrument of God via revelation. “I’m not a politician. I don’t like politics,” Moore told a gathering of elderly white folks at Mr. Fang’s Chinese Restaurant on the night before the primary vote. “It’s what God has done through me.”

In a conversation that evening with Jeff Stein of Vox, Moore emphasized, repeatedly, “You have to understand what religion is — the duties you owe to the creator.” According to Moore, Justice Story, one of the most highly regarded jurists of the early Republic who in recent years has become, somewhat surprisingly, a fan favorite of legal conservatives and natural law enthusiasts, supported and refined the view that the duty of the Constitution and the First Amendment was to “foster religion and foster Christianity.”

Here, Roy Moore parses a view of religious liberty consistent with the precepts of Robby George, the Acton Institute, and other conservative Christians for whom conscience becomes the principled basis for ignoring legislation, regulation, and court decisions of the federal government with which they disagree on the basis of the “self-evident” precepts of natural law. Of course, this parsing has long formed the hallmark of Roy Moore as a jurist, with his placement of the stone tablets of the Decalogue in the Alabama state courthouse and his refusal to enforce the marriage equality ruling of the U.S. Supreme Court (with helpful cover from Antonin Scalia’s high court dissent and full-throated support from Robby George).

Roy Moore, quoting from Joseph Story’s Commentaries on the Constitution, has for several decades been instructing us that “the rights of conscience are beyond the reach of any human power; they are given by God and cannot be encroached on by any human authority without a criminal disobedience of the precepts of natural or revealed religion.” On Senate primary election night, with a flourish characteristic of the natural law synthesis initially formulated by Aquinas, Moore concluded, “We need to go back to the recognition that God’s hand is still on this country and on this campaign. We must be good again before we can be great. And we will never be good without God.”

Christian-conservative jurists and philosophers will often invoke Abraham Lincoln’s response to the Dred Scott decision as the ultimate defense of conscience in response to judicial overreach. In reality, these appeals to conscience and religious liberty are, like patriotism, a last refuge of scoundrels. Arguments on behalf of conscience, natural law, and higher law – whether voiced by Antonin Scalia, Robby George, or Roy Moore – mask a theocratically minded support for states’ rights that both dissolves the foundations of nationhood and obliterates the rights of conscience when they fail the arbitrary test of Biblical authenticity.


Robby George's Primer on Natural Law: Let's Break It Down

God, Law (Basquiat, 1981)

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.]

Key Terms

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

 

Prairie Fire: Steve Bannon's Dark Enlightenment

(I) The Deconstruction of Steve Bannon

We can now assess the content and quality of the White House seep, the not-quite-movement conservatism upon which Donald Trump has risen to power, like a toad upon a geyser. This capacity to assess is a good thing, perhaps the only way we have, at least in the short term, to steer clear of emotional chaos activated by extrusions of Donald Trump’s fevered mind – incessant social media chatter, tabloid focus on personalities, shattered boundaries between personal and professional, a looming collective, paranoid psychosis.

I don’t personally know Steve Bannon or any of the other various satraps and factotums and acolytes who accompany this political movement and whose ideas now drive policy at many levels of government. But I do know that if we fear Donald Trump and Steve Bannon and the Republican majorities in the House and Senate and in most state governments, we need to focus less on who these people are as individuals (a major preoccupation for the click-driven media and an incredible waste of time for the rest of us) and more on what they want to do.

The Republican Party did not magically seize power. Trump’s election is only the latest – if most surreal – chapter of a slow-motion political creep on to land of a hyper-conservative Republican sea monster. Those scared shitless by Donald Trump, Steve Bannon, Scott Pruitt, Betsy DeVos, Mitch McConnell, Paul Ryan, Charles Koch, Robert Mercer, Peter Thiel, et. al. would do well to avert their gazes from the daily media squalls – in other words to stop reacting – and instead reclaim the initiative (and the future), with plans, roadmaps, and strategies that attend to the larger ideas, themes, and forces that shape our reality and determine our destiny.  As citizens, we simply have to be more clear about our jobs, and our goals.

For me, the starting point is actually that, on many topics, these strange Tea Party people are almost right. They get just close enough. This is their genius. And their pathology. So it’s really important that we appreciate the meaning of their words, many of which are coded (or at least shibboleths for the initiated), and separate from those words that which is worth harvesting from that which is over-wrought, over-ripe, and toxic. Let’s break it down.

What follows is, by design and by necessity, an impressionistic rendering of the ideological landscape of American movement conservatism. There is nothing tidy or organized or logical or structured about this political movement. Journalists speak of the movement’s “intellectual source code,” and that is an apt and clever phrase, but as source code goes, it is bug-ridden and messy, potted with security holes, loaded with traps and loops. Given the mess, there is no real way to traverse or map this landscape of ideas without approaching it, and imagining it, as a whole that is far less than the sum of its parts. But the parts themselves – fragments and shards of ideas and impulses – are each in their own way fascinating and revealing and deserving of scrutiny on their own terms. We begin with Steve Bannon, Dark Enlightenment Sith Lord whose ideas and influence provide the single most coherent philosophical basis for considering the benighted path on which we now travel.

Gothic Moment

In “normal” times, politically, or at least in our schoolbook “consensus,” “pluralist,” or “interest group” images of politics, the center holds because ultimately it is in the interest of politicians, and political parties, and the organizations and groups and populations they represent, to compromise, take half a loaf, that they may live to fight another day. The premise of pluralism is that people are pragmatic, not idealistic, and that bargaining and deal-making can hold together the nation because most people are fundamentally alike, at least in the sense that they speak the same language and can build trust around their understanding of what words mean and how they represent the world, at least that part of it which is up for grabs. These notions are the mother’s milk of our citizen identity, reinforced historically and culturally through our political and civic associations (including media), common law traditions, and Enlightenment values (see Alexis de Tocqueville, Louis Hartz, etc.).

The strength (and weakness) of these political habits and beliefs is that they are process-driven, not outcome-driven. We associate Enlightenment ideals of representative democracy, individual freedom, legal equality, and political justice with rule-driven attributes and standards of process fairness, consistency, and coherence. The container matters more than the content. Whether naïve or not – (Hello, Indian Removal? Slavery? Incarceration Nation?) (on this 250th anniversary of Andrew Jackson’s birth?) –  this liberal political culture owes an enormous amount to the historically specific claims of the Enlightenment, in combination with English common law traditions, on the American founders. When you read The Federalist, despite the significant and meaningful differences in the political visions of Madison and Hamilton, and between the Federalists and the Antifederalists, all parties communicate a deeply rooted commitment to the shared identity of humans bound together and lifted up by a capacity to reason, employ logic, deduce consequences, gather evidence, and share knowledge.  Baseline commitments to process (and progress) within our political culture depend on the Enlightenment assumption of epistemic coherence, that knowledge about the world objectively exists, and that we can discover and share this knowledge with each other.

The problem is that when we experience abnormal or disjunctive political moments – such as 9/11 or Hurricane Katrina or Wall Street run amok – we discover the process coefficient breaks down and epistemic incoherence ensues. We become strangers to each other. Irruptions from below disclose a chaotic, Bosch-like underworld that disputes almost every dimension of the reality our political institutions take for granted and require – that our votes matter, that our efforts matter, that science matters, that government helps us more than it harms us, that media seeks and tells the truth. In those moments, unfairly disproportionate or unexpectedly unequal social outcomes shred the process container, and in the chaos that ensues we experience not simply the frailty of our political institutions, but the extent to which the rational Enlightenment vision on which they depend remains inaccessible and alien and threatening and illegitimate to vast layers and segments of the American population. At that moment, we no longer recognize ourselves.

Prairie Fire

National political campaigns are inherently toxic. We do elevate the image of Lincoln and Douglas speaking to thousands of white Illinois farmers and merchants, ex tempore, for hours at a time, debating legal and philosophical intricacies of sovereignty and citizenship. That is our template for civic engagement and political discourse. But in that time, as in our own, hidden below the patriotic bunting, the wooden decks of the speakers platforms, the muddied fields, muffled by the raucous cheers and jovial banter of these tent meeting huskings, beneath those honest images of rough democracy, the prairie fires burn hot through the soil. Truly, the Lincoln-Douglas debates were the exception that proves the rule regarding the savage intent and bitter leavings of the political contest. Politics is a bare-knuckled brawl.

On April 15, 2010, as (now old) New Left historian Ronald Radosh has reported in The Daily Beast, Steve Bannon delivered a rambunctious speech to a Tea Party rally in New York. On Tax Day (in the year the Republicans swept aside the Obama majority in the House, threatened its majority in the Senate, and rolled through the state legislatures like so many haystack twisters) Bannon unleashed a torrent of disdain for financial architects and political enablers of the Great Recession that had spun 15 percent of the nation into poverty and unraveled the lives of countless other millions caught on the pitchfork of mortgage arbitrage. While Occupy Wall Street would one year later voice similar contempt and outrage for the One Percent, Bannon’s assault on liberal elites assumes existential dimensions – the Goldman Sachs vampire squid as a cosmopolitan, many-tentacled agent of globalization that had sucked away, not simply the wealth of the middle class, but its sovereignty over the American Dream. The Tea Party, heirs to pre-revolutionary Boston Harbor anti-tax incendiaries, are those stolid, virtuous Americans – Bannon would call them his “hobbits” – who make the country work, “the beating heart of the greatest nation on earth.”

The politics and messaging here are slippery, but to properly position them Radosh isolates Bannon’s concluding remarks: “It doesn’t take a weatherman to see which way the wind blows, and the winds blow off the high plains of this country, through the prairie and lights a fire that will burn all the way to Washington in November.” As Radosh reminds us, Bannon (a committed Deadhead and Springsteen fan back in the day) is invoking phrasing from Bob Dylan’s Subterranean Homesick Blues, simultaneously invoking the revolutionary, system-shattering instincts of the Weather Underground, late-1960s insurgent and militant and violent spinoff of Students for a Democratic Society. Weather Underground members – Bill Ayers and Bernadine Dohrn, specifically – in 1974 published a book titled Prairie Fire that presented themselves as a guerrilla organization (“communist men and women underground in the United States”) committed to destroying American capitalism and the liberal state. Bannon’s language indicates the extent to which he associates the Tea Party with a similarly revolutionary, elite-stomping, state-smashing mission on behalf of America’s forgotten heartland hobbits.

Deep State

Steve Bannon’s radical instincts and Ayers allusions poignantly illustrate the disintegration of language as the common currency of our civic identity. Because of course, (the very non-radical and measured) Barack Obama’s very casual Chicago connection to Bill Ayers in the context of education policy discussions (Ayers became a beloved education professor at the University of Illinois at Chicago College of Education) have become staples of right-wing flame-throwing (see this sampling from Breitbart), a turd-like reality which (the far more radical and subversive) Steve Bannon was obviously poking with his Prairie Fire reference. Beyond the Daily Beast article, this allusion has obtained no obvious traction with anyone on the right (or elsewhere, for that matter), an indication of the extent to which emotions have overwhelmed language and basically destroyed the capacity of words to in any meaningful way frame any public and shared concept of reality.

There are many ways to think about the impact of this bizarre surge of emotion into the public sphere (see a great historical instance of this phenomenon in Lessons From the Fake News Pandemic of 1942). But in our current historical moment, its significance is revelatory. Brooding, profane Irish Steve Bannon is radical because he does not believe in the Enlightenment project. His ideas and instincts are pre-Enlightenment, and so quite alien to the lenses we are accustomed to using for our imaginings about the American experience. I’m going to dive more deeply into Bannon’s intellectual influences. For now, suffice to say that these influences do not include Locke, Madison, Jefferson, or Lincoln. Politically speaking, Bannon is a traditional Catholic conservative (of the Mel Gibson variety) who is profoundly in tune with the darker demons of the human soul, a media Svengali skilled at orchestrating chaos and mayhem.

Our current titillation with the Deep State, working its dark arts from within US intelligence agencies, sheds light on Bannon’s quite remarkable political achievement, which has been (via Trump, Breitbart, and his documentaries) to rip away the rather bland and mechanical surface of American politics and expose its exotic underbelly, a quasi-medieval jurisprudential apparatus funded and supported by a varied group of wealthy and powerful free-market and socially conservative individuals and institutions, ranging from Charles Koch to Cardinal Raymond Leo Burke, but also encompassing canonically minded American judges, including Samuel Alito and Clarence Thomas (and, formerly, Antonin Scalia). This version of the Deep State is not primarily a Protestant evangelical movement, which remains far more in the American grain than these elements in tune with Steve Bannon, for whom the currency of the land is not grace or justification, but power, the terrestrial control of both bodies and minds. To fully understand the intellectual foundations of this legal apparatus, we need to leave the Enlightenment and return to the world-historical vision of the medieval Christian church in its encounter with Islam.


(II) Bannon at the Vatican

In the summer of 2014, Steve Bannon delivered closing remarks to a conference on alleviating global poverty hosted by the Dignitatis Humanae Institute (DHI) in a small marble palace tucked deep within the Vatican. Bannon spoke via Skype from Los Angeles. This address came to the attention of the world in the days following the election in a Buzzfeed article entitled This is How Steve Bannon Sees the Entire World (you can listen to the unedited audio of the talk here).

There is both less and more than meets the eye in this Bannon speech. He is addressing DHI in his professional capacity as the Executive Chairman of Breitbart, and probably the most interesting insights emerge from Bannon’s assumption that Breitbart’s rising moment of nationalist, populist savagery conforms to the goals and worldview of an allegedly principled and philosophically pure Catholic lay organization with transnational aspirations. Let’s see how comfortably Bannon disports himself on this Bed of Procrustes (to invoke Nassim Nicholas Taleb, he of the Black Swan).

What is the Dignitatis Humanae Institute?

Dignitatis Humanae Institute (you can call it the Human Dignity Institute if you want) is a quirky lay Catholic NGO with ties to the European Parliament and the Vatican, based in Rome, and headed by Benjamin Harnwell, a converted Catholic and formerly active member of the British Conservative Party who identifies with the Austrian-Libertarian school of economics associated with Mises and Hayek. The DHI website profligately features a photo of Bannon informing us that “Harnwell’s the smartest guy in Rome. He’s always a tough guy – he comes across as a monk, but he’s actually a very tough guy.” Indeed (and weirdly), we can see some of that toughness, and a sense of the deeper political currents driving the DHI agenda, in a recent post from the Institute about “subversive external influences” in Macedonian civil society of “stateless meddler” and “cultural imperialist” George Soros (also republished in pro-Russian news agency, Eurasia Review – the doubling down on Soros conspiracy theories is much in the news these days).

Canon law fiduciary and flame-throwing Cardinal (and Pope Francis nemesis) Raymond Leo Burke serves as President of the DHI’s Advisory Board, and by way of promoting this relationship the DHI website shares with us Cardinal Burke’s long keynote before the First Annual Rome-Life Forum in May 2013. Salient themes of this speech for exposing the deeper structure of the Steve Bannon worldview include: 1) reverence for the divine essence within each human life (and human life only), as mediated by Jesus Christ (and Jesus Christ only); 2) disdain for rampant secularization (and dechristianization) in the world, characterized by spiritual emptiness, moral relativism, material hedonism (rule of the flesh), and a culture of death; and 3) evangelization of the “gospel of life” based on the “natural moral law.”

The bulk of Cardinal Burke’s speech/sermon concerns Natural Law, as the expression through which reason can comprehend, accept, and fulfill the responsibility to love, serve, defend, and promote human life, in Christ. To this pre-Enlightenment pillar of Catholic legal traditionalism we will later return. For now, it may suffice to note this distillation of Catholic traditional beliefs contains many profound and beautiful insights regarding our flawed, fallen, imperfect existence as human creatures, most specifically the oft-stated command and commitment to serve the least among us. But as we might expect, much of this language is also coded to capture a deeper, more hidden, and darker agenda which exploits the fraught intersection between human sexuality and human conception.

Bannon’s Brain

Let’s first dismiss an important misconception. Bannon is obviously smart (as those who know him report, “perhaps the smartest” in his Harvard Business School class, “the most well-read person in Washington,” the “Rain Man of nationalism,” devouring works of history and political theory “in like an hour”), but not evidently smarter than lots of people, and the media he savages and mocks has perhaps given him too much credit for reading real books and for having real ideas, presumably as a way to account for the visionary and prophetic alignment between the storyline in Bannon’s head prior to the election and the surprising and unexpected outcome that folded, in virtually every one of its details, into the narrative Bannon had foretold.

Now clearly there is a fair amount of post hoc ergo propter hoc going on in our retrospective accounts of what actually transpired (this Hollywood Reporter puff piece illustrates the point), and the reality of the cause and the effect will probably take decades to properly establish itself. At the moment, Bannon properly believes he has earned the right to own the narrative, and he and his compadres have been happy to bludgeon everyone else with his version of events, which conveniently anoints him, in a moment of establishment uncertainty, as a counter-culture sorcerer or soothsayer.

And perhaps he truly is. But as his fellow Wall Street Jeremiah, Nassim Nicholas Taleb, might remind Bannon, the world includes many more data points than any one person can account for, hence the rule of randomness in our lives. The face one sees in a cloud may quickly turn into something else entirely. Indeed, Bannon post-election reminds me of a horse race handicapper who scans a 12-horse field and then successfully places a single wager on the precise order of the first four finishers of a race. This person might well be a gifted handicapper, even the most gifted, but the odds that he could successfully impose his mental map of a race outcome on any given race between actual flesh-and-blood horses remains vanishingly small.

Bannon may indeed be a savant. But one would certainly not reach that conclusion from reading the transcript of his remarks to the Dignitatis Humanae Institute. These remarks, as it turns out, represent a hodgepodge of logically disconnected statements that, while in some cases individually plausible and compelling, are, taken together, neither historically accurate nor coherent at the level of narrative (or even myth), and are, moreover, morally challenged almost to the degree of being depraved.

The shards of truth that Bannon offers, sometimes spastically in this address, are absolutely not the basis for governing a vast and powerful nation at an historically and existentially pivotal moment. But these statements are – regarding the Church Militant, the New Barbarity, and History as a Reaping and a Sorting, as an apocalyptic succession of judgments – absolutely consistent with the backwards-looking, cruel and frozen perspective on human life, and on created life, consistent with natural law and with an authoritarian and top-down Catholic edifice that uses a concept of the Law Revealed to punish and sacrifice the small, marvelous creatures and creations of the world at the altar of an abstract and capricious all-mighty Creator whose “love”, whose “goodness”, more often than not feels like a savage indifference, premised perhaps on irony, but more likely on a cavernous emptiness that we fill with our own fevered dreams.

Capitalisms Good and Bad

At the Vatican, speaking before an audience focused on the material and spiritual nexus of poverty, Bannon threads the needle nicely with a trenchant overview of three kinds of capitalism and wealth creation, one of which is good and two of which are bad. The good kind of capitalism he refers to as “enlightened” capitalism, and while Bannon never clearly states precisely what he means by enlightened capitalism, one can easily deduce its outlines from its effects. Enlightened capitalism, when constructed properly, is a vehicle for the working class and the middle class of a society to receive fair rewards for their labor. In other words, the existence of a stable, prosperous, and growing middle class, bounded on one side by a constrained and docile (because yoked to the promise of entry themselves into the middle class) impoverished social layer, and on the other side by an animated and spirited (but not too animated or spirited) leadership class whose own success is somehow tied to the solvency of the middle-class dream. “That capitalism really generated tremendous wealth. And that wealth was really distributed among a middle class, a rising middle class, people who come from really working-class environments and created what we really call a Pax Americana. It was many, many years and decades of peace.”

The “bad” capitalisms – “crony” capitalism and “libertarian” capitalism – represent metastatic deviations from or corruptions of the Platonic ideal of enlightened middle-class capitalism. State-sponsored capitalism in China and Russia and crony capitalism in Argentina are “brutal” forms of capitalism where the many produce wealth for the few, where the system only benefits intersecting groups of political, business, and military elites and their families, and “doesn’t spread the tremendous value creation throughout broader distribution patterns that were seen really in the 20th century.” Ayn Rand style libertarian capitalism, toward which populist conservatives and younger people in the United States and Europe who favor “personal freedom” have gravitated, objectifies people as commodities who possess no intrinsic worth (here Bannon invokes Marx’s ideas about worker exploitation as mere production factors).

There is some epic confusion in this Bannon narrative about the species of capitalism. At one point in the speech, noting the centenary of the murder of Archduke Ferdinand that precipitated World War I, he characterizes the 20th century as an unprecedented catalog of carnage. Shortly thereafter, he invokes enlightened capitalism as the source of a global Pax Americana that “was many, many years and decades of peace.” Bannon also sometimes conflates his two species of bad capitalism, reducing them to a collective “unmooring” in which all transactions become financially engineered securitization opportunities, individuals are stripped of their inherent, spiritual value and objectified as commodities, and the “party of Davos” dictates its transcendent globalized will via centralized instruments of government that deprive ordinary men and women in the “heartlands” of nations around of the world of the opportunity to “comport their lives” as they see fit.

But, generally, so far, so good. There really is not much in this analysis to dispute. Indeed, if Bannon had been content to sit with this perspective on capitalism, which is almost anodyne, there might not be much to discuss. Even (or perhaps especially) with the infusion of a populist, class-war, pitchfork pungency, few Americans on the right or left would challenge the assumptions of this analysis. And clearly there are many sensible policies to restore foundations of an “enlightened” middle class capitalism that many politicians across the political spectrum would accept, under the right circumstances. But Steve Bannon is addressing a fringe Catholic organization at the Vatican, and we quickly learn that capitalism and poverty are not really his concerns, and that to the extent he argues for class warfare, the war he envisions is the middle class against the poor.

Judeo-Christian Apocalypse and Mayhem

We inhabit stratified physical and mental worlds, and what we quickly realize from his Vatican address is that Bannon’s economic ideas are superstructural to his ideas about cultural and spiritual decay. For Bannon, the foundations of enlightened capitalism and political freedom and stability are Judeo-Christian and Northern European. During this address, Bannon’s conversations about capitalism insistently veer off the rails to engage far more cataclysmic themes more in tune with Cardinal Burke’s conceptualizations of the culture of death associated with the secularization of the West, and with the vulnerability to unspeakable evils that Islam and the Caliphate can now access via this culture of death.

“Tough monk” Benjamin Harnwell politely rephrases Bannon’s downer screed regarding the existing crisis of church, faith, the West, and capitalism. “I am particularly struck by your argument, then, that in fact, capitalism would spread around the world based on the Judeo-Christian foundation is, in fact, something that can create peace through peoples rather than antagonism, which is often a point not sufficiently appreciated.” This perspective on the historically unique capacity of Judeo-Christianity to essentially spiritualize, via its commitment to the Imago Dei within each human, otherwise corrupt and insufficient political and economic institutions, is an important trope within the Catholic human dignity community (see items 5 and 6 of the Universal Declaration of Human Dignity).

But even when served this tennis lob, Bannon cannot bring himself to return serve without applying nasty and negative spin, the unmooring of capitalism from its Judeo-Christian foundations far more significant than his (vaguely Weberian) historical claim that when capitalism was “at its highest flower and spreading its benefits to most of mankind, almost all of those capitalists were strong believers in the Judeo-Christian West.” Bannon cannot wait to get to the main event, which features the claim (repeated over and over in his address) that “we’re at the very beginning stages of a very brutal and bloody conflict, of which if the people in this room, the people in the church, do not bind together and really form what I feel is an aspect of the church militant, to really be able to not just stand with our beliefs, but to fight for our beliefs against this new barbarity that’s starting, that will completely eradicate everything that we’ve been bequeathed over the last 2,000, 2,500 years.”


(III) The Metastasis of Steve Bannon

The unifying message of Steve Bannon’s 2014 Vatican address is omnidimensional global threat and looming apocalpyse. “We are in a crisis of the underpinnings of capitalism,” Bannon tells his audience, “and on top of that we’re now, I believe, at the beginning stages of a global war against Islamic fascism.”

Here’s how it all breaks down, according to Bannon. Ordinary, working-class, middle-class families who form the bedrock of the Tea Party movement and (conveniently) of Judeo-Christian, Western civilization are being crushed economically between a wealthy, arrogant, crony-capitalist overclass and an impoverished, dependent, dissolute underclass – both in their own ways sucklings of the state. At the same time, the virtuous way of life this middle-class materializes is threatened existentially by sub-human radical Islamists and deluded, amoral secularists – both in their own way enabled by the moral relativism and spiritual weakness of global elites, the dissolute underclass, and the theologically neutered state.

The Irony of Being Steve Bannon

There are many ironies here. Bannon associates the Judeo-Christian West with the best kind of capitalism – enlightened and middle class – which stands in opposition to crony capitalism associated with the global Davos/Wall Street set who have ransacked national borders and cultural boundaries. But the immigrant families he wants to deport – from Latin America, Asia, the Middle East, and Africa – tend to be precisely those most associated with the family-based, entrepreneurial capitalism he wants to protect and support.

Bannon also wants to deconstruct the administrative state (his biggest applause line at the CPAC conference in February). But in his Vatican address he advocates for the legislative restoration of the Glass-Steagall Act, which would presumably require significant regulatory and administrative oversight. “I think you really need to go back and make banks do what they do,” Bannon says. “Commercial banks lend money, and investment banks invest in entrepreneurs and to get away from … the hedge fund securitization, which they’ve all become basically trading operations and securitizations and not put capital back and really grow businesses and to grow the economy.” And of course, Bannon himself has willingly nuzzled at the teat of the Mercer family, whose immense fortunes derive from the Renaissance Technologies hedge fund.

Finally, the civilizational and economic critique that Bannon employs to explain the rise of “Tea Party”-like nationalist movements across the globe possibly applies more fully to other nations, and perhaps by a wide margin, than it does to the United States, which remains more economically resilient and robust, and safer from the impact of joblessness, poverty, migration, and terror attacks than Europe, the Middle East, and Africa.

Perhaps one of the explanations for these ironies has to do with what we previously referred to as the things Bannon and the Tea Party “almost” get right – with their criticisms of globalization, arguments for economic and financial reform, skepticism about neoconservative/neoliberal (let’s just call it “Neo”) foreign interventions and nation-building, anxiety about what immigration trends, religious belief, and racial differences imply for national culture and identity. These are all important and challenging and appropriate concerns. That Steve Bannon is apparently more interested in a recursive Populist politics – stoking anxiety and fear and anger, rather than fully thinking through and actually solving these problems – tells us a lot about how and why he might lose his way politically once he (and Trump) had to create a positive policy program on top of this fear and anxiety and anger.

Emotional Seductions of the Meanstream Media

Steve Bannon’s loyalty to the Republican “base,” and to the promises Trump made to this base – regarding economic policy, trade nationalism, infrastructure, immigration, foreign policy, and traditional values – has, for now, marginalized him within the White House. In these confusing, Alice-in-Wonderland times, when up is down and down is up, we can’t know what this new status means for Bannon, or for the Trump presidency, or for American politics. This “not knowing” may or may not be the point for an administration and a political environment in which chaos is the norm, and perhaps/probably the goal.

There are a few things we do know, though. It certainly remains true that for Donald Trump the mechanisms and power of the presidency are only about addressing and restoring to precarious balance the interior feeling states of Donald Trump. We may presume Steve Bannon, useful to Donald Trump’s political ambitions as presidential candidate, and expert at adjusting Donald Trump’s feeling states as presidential candidate, entered the White House with enormous political and policy capital, which he has now squandered, not for any politically good reason except that he has been unable to translate his necromancer feeling state skills from the campaign trail to the institutions and mechanisms of government.

In the end, Bannon truly does hate the mainstream media, his foil throughout the campaign, and truly does love his base of disaffected Tea Party rabble. But we are learning that his White House boss only hates the mainstream media when they are the meanstream media – mean to him, at least – and only loves the Tea Party rabble – with its memestream media – so long as he needs them politically.

The Tea Party now having morphed into the Freedom Caucus on Capitol Hill – who turn out perhaps to be meaner than the mainstream media – Bannon’s capacity to serve Trump’s emotional needs is at odds with his own policy and loyalty commitments. Bannon may love a “gunfight,” but is almost certainly unprepared for the Jared-Ivanka pillow fight.

Illiberal Democracy and Radical Traditionalism

A Trump-Bannon parting of the ways may cast Bannon back into the wilderness, but perhaps he (and we) are learning the wilderness is where he thrives and belongs. With the full and unconditional support of Robert and Rebekah Mercer we may be sure he and his ideas are not going away any time soon, not in the United States and not in Europe and other parts of the world where “illiberal democracy” is now spuming the zeitgeist.

To the degree illiberal democracy remains in play, globally and in the United States, Bannon will remain nefariously relevant. And what this relevance means, we do clearly learn from his Vatican address, is ongoing promotion of the Radical Traditionalist ideology and worldview.

Radical Traditionalism confuses and disorients the mainstream media and mainstream voters, and is cognitively disruptive, because it challenges global liberal democracy via radically “illiberal” post-democratic, post-modern populist means – epitomized by the rise of the Internet troll; “fake news”; a “dear leader” despotism; a rife species of unhinged, paranoid and conspiracy-oriented thinking; and the descent upon our daily lives of an omnipresent fog of war.

At the same time, the “traditional” goals of the Rad Trad program – its ends – profoundly challenge the liberal democratic order via a decidedly pre-modern, pre-Enlightenment, neo-Thomist, natural law philosophy of community and conflict that takes, as its “self-evident” starting point, the idea of the human individual as the imago dei – a fraught, freighted Catholic concept that has become the pillar of the cultural revanchism and irredentism characteristic of illiberal democracy.

The Meta-State

In the Vatican address, Bannon repeatedly describes the war against jihadist Islamic fascism as a “metastasizing” cancer spreading to all corners of the globe. No region, no nation can afford to ignore this civilizational threat. What accounts for this metastasizing, cancerous growth of the Islamic State? According to Bannon (in perhaps an intended neo-Marxist irony) “the tools of capitalism” themelves have facilitated the metastasis of the Islamic State, by which he seems to mean the ways in which ISIS has made use of social media and online fundraising to recruit, cajole, intimidate, and terrorize.

In an extended riff on Vladimir Putin (whom Bannon regards as “quite an interesting character” and “very, very, very intelligent” and someone from whom we in the West can learn a lot concerning traditionalism and nationalism), Bannon also used the term “metastasize” to describe the significance of the ideas of Julius Evola and other radical traditionalists in the intellectual genealogy of fascism and, more recently of the pro-Russian “Eurasian” movement. Bannon sees these metastasizing ideas of radical traditionalism as elements of nationalist opposition to the pan-Europeanism of the EU or the centralized governance of the United States. He identifies radical traditionalism with “a states-based entity that the founders originally set up where freedoms were controlled at the local level.”

Bannon opens quite a can of worms with these statements, particularly with his ahistorical rendering of the US founding as a proto-fascist event. But I think we can reasonably assume he is not making an argument for a return to the Articles of Confederation. Indeed, given the Vatican venue for this talk, as well as the references to the “metastasizing” war between the Judeo-Christian West and the Islamic East and the “metastasizing” (and basically batshit-crazy) authoritarian and traditionalist ideas of Julius Evolo, it might be more fair and more accurate to suggest Bannon is advocating himself for a kind of hierarchical meta-state based on spiritual values and traditions to fill the vacuum left by any diminution of the centralized political state. A hierarchical meta-state not unlike the Roman Catholic Church, perhaps.

Prelude

At this moment in time, Steve Bannon is the most politically and intellectually significant vessel for the ideas powering the radical traditionalist / cultural nationalist / Tea Party insurgency in the United States. But he is merely prelude. The unraveling of his mind discloses a set of threads connecting us to the important historical, institutional, and individual sources of our present discontent. These threads include the “clash of civilizations” argument of Samuel Huntington, the Thomist natural law philosophy that has captured our politics and our courts, and the Catholic concept of the imago dei that may connect us to the Creator but at the cost of separating us from the Creation. More to come.

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.