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.

 

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.


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.