Gorsuch Victory Lap Speech at the Federalist Society: Some Correctives

As Politico reports, Neil Gorsuch on Thursday night delivered a victory lap speech at the annual conference of the Federalist Society. The article tells us that Gorusch’s big applause lines concerned his:

  • Snide reproach to those who characterize the Federalist Society as a secret cabal scheming in darkness to infiltrate and control the federal judiciary; and
  • Full-throated and triumphant affirmation of originalist and textualist judicial philosophies the Federalist Society and legal conservatives support as articles of faith.

Let’s consider these remarks in turn.

The Secret Cabal

This is what Gorsuch said. “If you’re going to have a meeting of a secret organization, maybe don’t have it in the middle of Union Station and then tell everybody to wear a black tie. It’s not a shadowy cabal in need of Joe McCarthy.”

Here’s the thing. No one believes the Federalist Society is a shadowy cabal. While not a large organization compared to its right-wing big brother, the Heritage Foundation, The Federalist Society is enormously well-funded and well-organized. One could infer the organization schemes and acts under cover of darkness, given its lack of emphasis on publishing research. However, the Federalist Society’s explicit mission has for decades been to function as an “activist” organization, with the clearly stated aims of:

  • Recruiting law students to its values, methods, goals, and practices; and
  • Packing the federal court system with its acolytes.

Gorsuch’s remark is therefore a disingenuous red herring, but one fully consistent with the feckless line the Federalist Society has fed its suppoters and backers for years – that we’re small, beleaguered, disparaged, and maligned / but plucky, feisty, principled, and courageous.

Originalist and Textualist Judicial Philosophies

This is what Gorsuch said. “The duty of a judge is to say what the law is not what it should be. Tonight I can report, a person can be both a committed originalist and textualist and be confirmed to the Supreme Court of the United States. Originalism has regained its place and textualism has triumphed and neither is going anywhere on my watch.”

Several points here.

  • As Gorsuch well knows, the distinction between what the law is and what it should be is not binary, but subject to gradations of ambiguity, nuance, and consequence. His statement about the duties of judges is therefore rhetorical and ideological, not substantive and meaningful, and more significantly relevant as an ahtorical rendering of the Constitution as revealed religion.
  • Originalism and textualism have likewise become ideological shibboleths freighted with meaning for those initiated to their mysteries. Federalist Society luminaries will tell us judicial review does not need knowledge or guidance assembled from legal precedent, legislative history, social science, natural science, or data science. Judicial review requires only  the inert words captured in a small, fixed, and dated set of canonical “founding” texts (Declaration of Independence, Constitution, Federalist Papers, etc.). These “original” texts are a Procrustean bed, a Solomonic, incontrovertible measuring stick, no matter how anachronistically ill-equipped they may be for comprehending and adjudicating the most pressing matters and challenges of our time. Hence, legal conservatives such as Gorsuch will writhe around the unanswerable and possibly irrelevant question: What did this clause of the Constitution mean to the Founders? One might reasonably ask in return: Why not closely inspect entrails?
  • Gorsuch’s preening and strutting bombast reflects, generally, the triumphalist swagger of The Federalist Society, which for the past three decades has viewed itself as a government-in-waiting, now fully ascendant, and not in the least bit troubled by the need to saddle and mount the rampaging, caterwauling, bucking bronco they once swore never to ride.


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.

Mike Lee: Stop Writing Terrible History and Go Back Just To Being a Terrible Senator

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

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

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

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

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

Who Is Mike Lee?

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

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

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

Why Does Mike Lee Care About Alexander Hamilton?

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

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

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

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

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

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

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

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

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

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

How Is Mike Lee Wrong About Alexander Hamilton?

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

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

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

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

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

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

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

(2) Alexander Hamilton – Legal Revolutionary

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

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

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

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

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

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

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

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

(3) Alexander Hamilton – The Defense of Hereditary Monarchy

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

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

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

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

(4) Alexander Hamilton – Acclamation for the National Executive

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(8) Alexander Hamilton – Making History and Making Life

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

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

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

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

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

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

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


From Steve Bannon to Robby George: The Catholic Foundations of American Conservative Thought

This essay traces the arc within movement conservatism in the United States from Steve Bannon, Chief Strategist to President Donald Trump (and arguably the most reviled and feared conservative political actor in American public life) to Robby George, McCormick Professor of Jurisprudence at Princeton University (and arguably the most respected and influential conservative political thinker in American public life).

Stylistic and intellectual differences between Bannon and George, real though they may be, cannot obscure the common ground they share regarding both the sources and the implications of their ideas, specifically those ideas pertaining to Catholic (or Thomist) natural law. While neither might relish the comparison, the relationship between Steve Bannon and Robby George is the relationship between messenger and message, between musical prelude and orchestral suite.

The Messenger and the Message

Irish-Catholic Steve Bannon embeds in the White House an emotionally manipulative, threat-driven sensibility, with methods and antics that echo the methods and antics of Irish-Catholic Senator Joseph McCarthy (and, more recently, two fellow Nixonians, Irish Catholic nationalist Pat Buchanan and Catholic agitprop maestro Roger Stone). A sensibility, and a set of methods that are politically effective and destructive, but inherently unstable and unsustainable. For this reason, Bannon’s intellectually suspect flirtations – with Catholic mystics, fringe historians, and prophets of apocalypse – probably also entomb him politically, alongside fellow Irish-Catholic street brawlers, Bill O’Reilly and Sean Hannity, for whom success is ultimately about insurgency, about blowing up things, which means, ultimately, that one blows up oneself.

Put another way, Steve Bannon is all about tactics. An architecture of assumptions scaled to the existential stakes of our current moment in time might therefore tell us that Bannon is epiphenomenal. He is only the messenger. He is not the message. Bannon’s talents for political mayhem have surfaced and brought into more clear relief the remarkable influence of idea-driven institutions such as the Heritage Foundation and the Federalist Society around and through which American political conservatism has built itself into the dominant force in contemporary American politics. Catholic-powered ideas about natural law provide the most enduring and consistent thread of thought at the most high-profile and well-funded conservative think tanks and foundations. As the leading philosopher of Thomist natural law on the American political scene, Robby George most clearly articulates and contains within himself the distilled message and the intellectual contradictions of these institutions.

The Catholic Moment

Roman Catholic influence in American politics has mushroomed in the past 40 years, specifically in response to the crisis engendered by the 1973 Roe v. Wade decision, but more generally as an organizational and intellectual presence best evolved to exploit and respond the cultural uncertainty and flux of our times. The precepts of Roman Catholic theology – specifically (although not exclusively) with regard to the human life / human dignity issues associated with reproductive politics – now interpenetrate conservative American political thought and nearly every political institution of consequence, including the Republican PartyCongress, the White House, the military, and the media.

Five Catholics serve as justices on the Supreme Court. A sixth, Neil Gorsuch, is a formerly devout Catholic who now worships as an Episcopalian. Antonin Scalia, the justice Gorsuch replaced, was of course also Catholic. Which means seven of the most recent ten justices have a Catholic background (with Episcopalian identification one shade of gray removed from Catholicism). Prior to the appointment of Antonin Scalia to the Supreme Court in 1986, only six of the previous 103 justices serving the previous 197 years of the Court’s history had been Catholic (the first being Roger Taney, appointed by Andrew Jackson in 1836).

None of this happened by accident. The hegemony of Puritan/Protestant ideas/ideals in American history always masked a specific organizational weakness. We can presume this organizational deficit is dispositionally endemic to fractional/fractious religious movements. In the case of American cultural formations associated with Protestantism, we can also speculate this institutional insufficiency was reinforced by the omnipresent option – dating back to the settlement patterns of 16th-century Protestant sects – to separate, to drift, to disperse, to migrate. Or as Albert Hirschman’s paradigm might suggest, to exit. This weakness the Articles of Confederation expressed politically and the Constitution and doctrines of federalism barely masked.

American Catholics lacked both the recursive instincts to fractionalize of post-Reformation Protestantism and many of the first mover settlement options of Protestant sects and communities that preceded the arrival to the United States of Catholic immigrants. But American Catholicism possessed a latent advantage that proved to be enormously functional in the decades following World War II, when economic growth and global reach allowed American Catholics to attain business and financial prominence and political influence that had previously eluded them. That latent advantage was organizational, a capacity integral to an enormously sophisticated, globally minded religious enterprise with centuries of experience building institutions and making theory practical via the law. And when theory – the systematic elaboration of ideas about cause and consequence – becomes practical and programmatic, it suddenly also becomes powerful.

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.

Eight Thoughts on Guns and Freedom

Waterboarding is how we baptize terrorists. – Sarah Palin (NRA annual meeting, 2014)

The presidential election of 2016, probably the biggest “Fuck You” election in our history. Donald Trump going upside our head, with impunity, over and over again (weirdly like Biff in Back to the Future). Talk about the return of the repressed….
Guns give us a pretty clear and simple way to think about this gross (orange) hairball we’ve just coughed up. In the United States, guns are collocative with a host of other right-wing cultural tropes that have found their way into our political idiom (white supremacy, states rights, limited government, homophobia, biblical fundamentalism, military zeal, homespun rural values and toxic nostalgia, among others).

Did we assume (because the data / numbers / facts told (and tell) us so) that gun owners were / are simply an atavistic remnant of a fading age of Caucasian male celerity, in which the gun, like many an appendage from our earliest species origins, survived only as a useless, slightly maligned encumbrance? Did we assume atavistic meant harmless?

Recent major national studies of gun ownership (the NORC General Social Survey and a detailed survey conducted by Harvard and Northeastern University public health researchers) confirm long-term trends toward a bifurcation of gun ownership that closely tracks the polarization of the political parties in the United States. Because guns are so expressive of deeper national political and cultural currents, the way we think about them greatly matters for the future of political discourse, political opportunity, and public policy in the United States.

1. Demographics

21st-century demographics don’t favor gun owners, who remain predominantly older white males in rural parts of the South and Midwest. In the next 50 years, the nation (if it survives in its present form) will become more urban and less white. The Trump election and the emergence of an explicitly white nationalist political minority does not change this reality. More young people will grow up in an environment where there is no functional need to own a gun and where the idea of owning a gun seems alien. For these reasons, trend lines do not objectively favor gun owners.

Of course, guns are prevalent with young minorities who live in cities, but gun possession among this population is largely associated with gangs and drugs. In other words, gun possession within this urban youth population is an immensely destructive accouterments of youth, not an article of religious faith. Revamping our drug and incarceration policies to keep kids in school and out of jail, and to remove the market incentives for illegal drug trafficking, would likely make a big dent in the percentage of young minorities living in cities who possess firearms.

2. Protection

Notably, the percentage of Americans who say they own a gun for protection has risen precipitously at the same time that crime has fallen dramatically (even with the recent surge of violence in predominantly black urban silos). For this reason, it is difficult to make the argument that the perceived need for “protection” is based in reality, on actual probabilities of meaningful threat. Instead, we must wonder whether the urge to own a gun for personal security rests more on a different, less concrete understanding of what constitutes a threat, and how best to handle that threat, whether it is imagined or real.

Guns give people the fantasy of control, not the reality of control, so to understand the firearms ownership obsession, we need to appreciate what fantasies are at work. For example, there is a significant fear among whites of black youths. But of course we also know that most violence involving young black males is geographically specific, committed against other black males, who more than likely know each other personally. This reality removes any reasonable argument for stand-your-ground laws, concealed-weapons-laws, open-carry-laws, give-everyone-assault-rifles-laws, and let’s-allow-guns-in-schools-parks-churches-and-bars laws.

3. Politics

People in the United States generally don’t question the need for our state governments to license both cars and their drivers. It is self-evident to just about everyone that cars in poor condition, or in the possession of the wrong people, become weapons that menace our safety.

The logic for gun-control laws is virtually identical to the logic for licensing cars and drivers. And so it should not surprise us that one of the biggest obstacles to reasonable gun-control laws, particularly in less densely populated states, is the outsized influence within their governing bodies of white, male, and rural representatives. It is precisely among these populations where one would expect the logic for regulating ownership and use of both firearms and motor vehicles to be almost equally suspect.

The intimidating rhetoric and organizational virtuosity of the National Rifle Association reinforces the rural-white-male bias within state legislatures. The effect has been to give interests favoring extreme gun rights disproportionate power to open the floodgates to gun ownership and to block laws that would enact even the mildest background check or gun safety provisions. Of course the other major source of influence in this debate, when one looks further under the skirts of the NRA, is the firearms industry.

4. Constitution

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Okay. Super.

Citizens of other nations generally feel no need to own guns and their rate of gun violence is far lower than it is in the United States. We shouldn’t underestimate how weird and creepy our national obsession with firearms appears to people in other countries around the world. Second Amendment zealots fully appreciate how far they have removed themselves from the global mainstream when it comes to opinions about gun ownership. They just don’t care.

Appealing to an abstract “Constitutional” or “God-given” right to own guns in response to the condemnation of pretty much everyone else in the world really is not useful. Most legal scholars would agree our nearly 230-year-old Constitution, which is one of the oldest in existence, and which has never had a fixed meaning but has always been in instrument of political conflict, is long-past due for an overhaul. The U.S. Constitution was drafted for a nation entirely different from the country in which we now live. As for our right to own guns being God-given, well, let’s wait to see if God ever speaks on this topic (or on any other).

5. Definitions

What is a well regulated militia? What does it mean to say this militia is necessary to the security of a free state? What is the origin and nature of this right of the people to keep and bear arms? What are the scope and limits of infringement?

For that matter, what is the definition of arms? And do we need to continually (but randomly) adjust the definition of the constitutional right to keep and bear arms to whatever lethal production value presents itself to us? In the 21st century, we each can manufacture (untraceable) weapons using 3D printers. Pretty much anyone can buy an assault rifle that on its own would have obliterated the entire Continental Army. We can now weaponize drones. How do we know which of these capacities for extreme lethality falls under the protection of the Second Amendment? How do we decide?

How do we balance this vague and uncertain (because entirely decontextualized) right to keep and bear arms against other rights and freedoms guaranteed by the Constitution? What is the relationship between guns and freedom, anyway?

6. Ontological Fundamentalism

Constitutional fetishists – and certainly Second Amendment gun fetishists – are like other fundamentalists (Biblical and Koranic and Talmudic and otherwise) in the predilection for assigning mystical, unassailable powers to historically arbitrary objects (or people or events). We can deduce evidence for the arbitrary (and so essentially false and manufactured) and misplaced (because essentially dead) reverence for history in the tendency of ontological fundamentalists to assign more literal (and legal) significance to the sacred texts as they become more distant in time. In this sense, the Second Amendment, particularly to the degree it collapses the entire meaning of the Constitution and of the American political experiment into itself, is little more than a scam and a ruse and a blight upon the nation.

7. Human Nature

Guns don’t kill people, people do.

When guns are outlawed, only outlaws will have guns.

Guns are only tools.

For decades, gun rights advocates have parroted these slogans without really feeling any need to justify their claims logically or support them with evidence. Indeed, logic and evidence both clearly indicate that the abstract concept of a “person” is woefully inadequate for capturing the range of psychological circumstances and conditions to which every one of us is subject on a daily basis. At any given moment, even the most rational or disciplined or experienced among us is capable of acting irresponsibly or dangerously — out of rage or despair or incompetence or inattention or indifference.

We are imperfect beings. Put a perfect tool of destruction and mayhem in our hands, and you can well predict the havoc we are capable of unleashing.

8. Freedom

Gun rights advocates in the United States sequester their odd claims under the sheltering canopy of faith and freedom. Gun ownership has become a bizarre, frenzied religion. A cargo cult that worships the smooth barrel of a gun, a false idol, with its prosthetic, prophetic promise that we can blast our way into Heaven. The language of the Second Amendment has itself become fundamentalist literalism, obsessively parsed for divine meanings and prophecies, the authority that justifies itself. To paraphrase Sarah Palin, violence is how we baptize our enemies and confirm our freedom.

However, neither gun ownership nor the Second Amendment can confer, exalt, or secure freedom. Enhanced destructive capabilities do not make us free. Nor can we subsist on parchment freedoms inscribed in the Constitution. Indeed, to make a piece of technology or a piece of sheepskin the enabling condition for our freedom is to trivialize beyond recognition the meaning of freedom, and its importance to our nation.

Freedom is a spiritual condition of awareness, an intellectual endowment of foresight and reflection, a physical gift of health and wholeness, and a social capacity for conversation and communion. We are free when we can trust the spaces and the silences that separate us from our brothers and sisters, an interim that lets us fully see ourselves, and know ourselves, through the reflection in their eyes and in the rise and fall of their breasts.

The gun destroys the interim. The gun takes away our freedom.

Appendix: Public Data on Gun Ownership

In this (now foreshortened) era of open government and data transparency, the demographics of gun ownership in the United States remain opaque. Which poses a conundrum for gun rights zealots. On the one hand, the National Rifle Association has pushed hard to limit collection and disclosure of gun purchase and ownership data. The NRA also has successfully curbed research for public health studies regarding the use and abuse of guns.

At the same time, the NRA, along with various hunting, target-shooting, concealed-carry, and open-carry advocates, have recently made a big deal of the claim that gun owners are no longer simply older white guys with beer bellies and a pickup truck. One of the most aggressive claims is that women are flocking to gun ranges, arming themselves, and fully embracing the idea that guns = protection and guns = empowerment.

But gun people cannot have it both ways – stifling data collection and data disclosure concerning firearms use, while at the same time grandstanding about demographic trends in gun ownership based purely on anecdote and speculation. Happily, new data sources provide at least glimmerings of insight into the state of the gun market. So let’s test some of the gun ownership demographic claims of our firearms friends.

  • Shrinking percentages of Americans own guns. The percentage of Americans who live in a household with a gun has fallen to approximately 22 percent, its lowest level in nearly four decades. (this data to some degree contradicts Gallup and Pew surveys indicating that gun ownership rates have remained relatively constant over time, tracking at about 42 percent, with a high of 52 percent in 1993).
  • Partisan identification matters. The percentage of Republicans who live in a household with a gun has remained steady at about 55 percent since 1980. In this same period, Democrats who say they live in a household with a gun has fallen from 55 percent to 22 percent.
  • Gun ownership patterns track population movement and partisan shifts. Gun ownership remains stable in the American South and in rural parts of the nation, both of which have become solidly Republican in the past four decades. At the same time, urban dwellers more consistently identify as Democrats, are a larger percentage of the population, and percentages of urban dwellers who own guns have dropped in line with percentages for Democrats.
  • Guns sales have surged. In the most recent decade, annual gun purchases (as measured by background checks) have more than doubled, at least partly fueled by the fear of more legal restrictions on gun ownership (and possibly also fueled by fears of a black America, with the election to the presidency of Barack Obama).

Gun rights spokesmen will reliably tell you that no one in their right mind would be truthful about their gun inventory, since honesty invites government scrutiny, surveillance, and seizure. The logical difficulties with this assertion — which emerge from the troubling effort to prove a negative, over and over again — tells us far more about the mind of the gun rights purist than the validity of national opinion survey results. But the assertion itself does point us toward the following set of paradoxes.

  • More lax gun ownership laws. Fewer gun owners. Even as gun ownership laws in state after state have loosened to allow concealed-carry and open-carry privileges to pretty much anyone legally allowed to own a gun, and even as the limitations on gun ownership have generally slipped away, fewer Americans choose to own guns.
  • Less crime. More guns owned for protection. By and large, gun ownership remains a hinterlands phenomenon and a regional phenomenon. Moreover, in the urban areas in which lower percentages of the population own guns, violent crime has continued to drop (although there is no consensus on causation). At the same time, more Americans, and more women, do say they own guns for protection (although largely in the statistically less-dangerous regions of the country).
  • More guns owned for protection. More gun suicide. Each year, guns cause the deaths of about 30,000 Americans. About 20,000 of these gun deaths are suicides. An increasingly high percentage of suicides in the United States are committed by older, white men in rural areas.
  • Less gun control. More paranoia. Legislators have opened the flood-gates for concealed-carry and open-carry permits. Secondary and online markets for guns operate with impunity. We may be experiencing a historically glorious moment of legislative and judicial dispensation and validation for American gun owners. Yet delusion and paranoia within the gun-rights community has never been more intense.