Politics, et Cetera
A publication from The Political Forum, LLC
Tuesday, April 15, 2014
They Said It:
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
The United States Declaration of Independence, July 4, 1776.
MCCUTCHEON, BREYER, AND THE RIGHTS OF MAN.
We have spent much of the last two decades arguing that the political differences in this country are anything but superficial; that the battle in which we are all engaged is not a typical political contest of the kind that Plato had in mind when he asked his famous questions, “Who shall rule?” That it is not a match-up between two political factions with differing views as to how to achieve a similar end. That it is instead a perpetual revolution, in which one side is ceaselessly attempting to demolish the existing order, which was once called Christendom and is now more commonly referred to as Western Civilization, and the other is constantly reacting to each new assault.
In its simplest form, it is, as Lincoln noted, a fight to determine whether a nation conceived in Liberty and dedicated to the proposition that all men are created equal can long endure. It can also be seen as a conflict between competing moral systems. One is based on the ancient truths associated with the Judeo-Christian tradition in which the meaning of words such as “right” and “wrong,” “moral” and “immoral,” and yes, “sin” are firmly rooted in God’s word. The other is a post-modern, relativist one in which God is dead and such words, and more specifically all moral judgments, are, as noted by the great moral philosopher Alasdair MacIntyre, “nothing but expressions of preference, expressions of attitude or feeling, insofar as they are moral or evaluative in character.”
Given the stakes involved, it is somewhat surprising that this aspect of the ongoing war between the Right and the Left goes largely unnoticed. But the reasons for this are simple. For starters, many in the political class neither understand nor care about these differences. In addition, most liberals have trouble engaging in any sort of debate on the issue because they reject out of hand the very premise that they subscribe to a moral system that is entirely situational, even faddish, and that any “goodness” it encompasses is nothing more than a residue of the moral system that they have rejected. Indeed, one of contemporary liberalism’s most deeply held delusions is that its practitioners have a more highly developed sense of morality than conservatives because they “care.”
And finally, these issues do not readily lend themselves to retail politics as practiced in today’s materialistic world. To wit: “I am Candidate X. And I approved this ad . . . because I share your beliefs about the transcendent truths of the Decalogue, as passed down through the Jewish tradition, amended by Christ and his early followers, mingled with and added to by Hellenic customs, practices, and beliefs, refined by Saints Augustine and Aquinas . . . ”
The result is that the ongoing war between the Right and the Left is most often fought over more practical matters, questions of policy and social “direction.”
In truth, of course, even these more practical issues are, at their core, questions about what we have come to know as the “social contract,” which is to say questions about the rights of citizens with respect to the responsibilities of government. And as such, the Left is wary of taking this debate head on as well. It is far easier in practice to pretend that all Americans believe essentially the same things and understand such concepts as liberty, government, and rights in essentially the same way. Why make waves and upset the American voters by trying to explain to them that they don’t really understand “freedom” at all, and that they only cleave to an outmoded and inequitable notion of liberty because they have been indoctrinated by a self-interested and self-preserving cultural hegemony that falsely venerates impractical ideas? Better just to adopt the language of the American ideal and to insist that their views on these matters are only marginally different from those of the Right, and furthermore, are fully in keeping with the intent of the intent of the nation’s founding fathers and the Constitution.
Given all of this and against this civic backdrop, what happened in Washington two weeks ago was pretty amazing. One of this country’s most important liberal political figures as much as conceded that the differences between the Right and the Left on issues regarding the social contract actually exist and that they affect everything, right down to the role of government in our daily lives.
Moreover, this individual didn’t dance around the subject or mince words. Indeed, he stated openly and unapologetically that he thinks differently about the role of government than some might expect, given his official role and responsibilities. And in so doing, he helped clarify the stakes in the conflict, of which, as we noted above, virtually the rest of the ruling elite seems ignorant, or, at least, in denial. Even more remarkably, he was joined in his admission by three of his colleagues, who are also among the most powerful and most important political figures in the country.
We are referring here to the dissenting opinion written by Associate Supreme Court Justice Stephen Breyer – and concurred with by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor – in the case of McCutcheon v. Federal Election Commission.
McCuthcheon, as you may know, is a campaign finance case that the Supreme Court plurality (Roberts, Kennedy, Scalia, and Alito, with Thomas concurring in part) decided on free speech grounds. Roberts et al. said, essentially, that federal limits on the total amount that an individual may contribute (to multiple candidates) are unconstitutional in that they comprise a constraint on speech. The minority, obviously, disagreed. But what makes this disagreement interesting – and telling – is the language that Stevens used to state his dissent.
To hear most on the Left tell the tale of McCutcheon – and frankly, any campaign finance case – the issue is not about free speech, but wealth. According to them, the Right loves money in campaigns, and it will do anything it can to protect the “right” of rich people to affect elections, presumably in favor of Republicans. This is a tired old story. The fact of the matter is that the Left likes its money in elections – money from unions and the state itself – but objects to actual Americans, individuals and businesses, having a say in electoral outcomes. And it insists that the only money that negatively affects anything is the money from the Right. Republicans want to buy elections and they hide behind “freedom of speech” to do so.
Justice Breyer, by contrast, takes a far subtler and far more nuanced approach to the subject, insisting not that his right-leaning colleagues are greedy malefactors trying to buy elections for their Republican fellow travelers, but merely that they are mistaken about the role of free speech in a democratic polity. Free speech, Stevens says, is hardly the unabridged individual right that Roberts and company claim it is. Free speech, rather, is also a collective right, the point of which is to demonstrate to the government what the people – which is to say the majority of the people – believe said government should be doing. Specifically, Breyer writes:
In reality, as the history of campaign finance reform shows and as our earlier cases on the subject have recognized, the anticorruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality acknowledges. It is an interest in maintaining the integrity of our public governmental institutions. And it is an interest rooted in the Constitution and in the First Amendment itself.
Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented “marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives . . .
This is not a new idea. Eighty-seven years ago, Justice Brandeis wrote that the First Amendment’s protection of speech was “essential to effective democracy.”. . . Chief Justice Hughes reiterated the same idea shortly thereafter: “A fundamental principle of our constitutional system” is the “maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people.” . . .
The Framers responded to this criticism both by requiring frequent elections to federal office, and by enacting a First Amendment that would facilitate a “chain of communication between the people, and those, to whom they have committed the exercise of the powers of government.”. . . This “chain” would establish the necessary “communion of interests and sympathy of sentiments” between the people and their representatives, so that public opinion could be channeled into effective governmental action. . . . Accordingly, the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.
This is illuminating to say the very least. Breyer – and, by extension, those who concur with him – is declaring a collective restraint on the individual right to free speech. The collective of the people – the majority, if you will – has, in Breyer’s interpretation, a vested interest in restricting the otherwise sacrosanct individual right to speech. And the reason for this is to ensure that “the will of the people” be done.
It is, we think, no coincidence that Breyer cites as precedents the opinions of Justice Louis Brandeis and Chief Justice Charles Evans Hughes. Brandeis, of course, was appointed to the Court by Woodrow Wilson, one of the founders of the administrative state. Brandeis was also an unabashed Progressive, described by fellow Justice William O. Douglas as a “militant crusader for social justice.” As for Hughes, he too was a Progressive. Although a Republican, Hughes was a friend and ally of fellow Republican-Progressive Teddy Roosevelt, and he worked hard in both of his stints on the court to undermine the traditional, i.e. Lochner era, jurisprudence. Together, Brandeis and Hughes constituted part of the critical block of justices who ratified the New Deal and thus changed the course of American history.
It is also no coincidence that in defense of the constitutionality of his interpretation of the first amendment that Breyer cites James Wilson, who is probably best known as the author of the infamous Three-Fifths Compromise. For Breyer’s purposes though (and for ours), James Wilson should be remembered as one of the Constitutional Convention’s principal advocates of “democracy,” which is to say that he favored less republicanism and greater direct participation by the electorate. Among other things, he favored the direct election of both Senators and the President. And to this end, it should be noted that the 17th amendment, which provided for the direct election of Senators, was one of the four “Progressive Amendments” passed in the second decade of the twentieth century.
Lastly, it is no coincidence that when Breyer digs deep into 18th century philosophy to find a respected source to cite on the deficiencies of republican governance, that he settles on the inspiration for the French, rather than the American Revolution, our old friend Jean Jacques Rousseau:
The Framers had good reason to emphasize this same connection between political speech and governmental action. An influential 18th-century continental philosopher had argued that in a representative democracy, the people lose control of their representatives between elections, during which interim periods they were “in chains.”
It is difficult, naturally, to break political theory and the evolution of political thought into nice, discreet bits. But for the sake of argument and in keeping with the general pattern of American political development, we think it’s fair to say that influences Breyer cites in his opinion, from the Progressive Court to James Wilson to Rousseau, are perfectly typical –archetypical, even – of the influences on contemporary liberalism.
Today’s liberals are the heirs to the Progressive tradition and, in fact, have taken to calling themselves “progressives” so as to emphasize their philosophical roots. As Progressives, these liberals disdain republicanism, favoring democracy; they disregard social contract theory as it was understood and practiced by the Founding Fathers, favoring Rousseau’s construction instead; and they reject the notion of natural rights as passed down from Seneca and Cicero through Aquinas and Locke to Jefferson, Paine, and George Mason, favoring instead a notion of rights as derived from the state, rather than from “the Creator.”
We have – as noted above – discussed the issue of the social contract a great deal over the years, and so will keep our comments here fairly brief. In this case, it should suffice to say, that the competing conceptions of the social contract that have shaped American political development – Locke’s conception and Rousseau’s – are inimical to one another and point government and government interests in radically different directions.
Locke’s conception, of course, relies heavily on the notion of natural rights, those rights that are endowed upon man by his “Creator” and which are inalienable and therefore must be respected by any legitimate authority. Locke’s social contract is derived in large part from Thomas Aquinas’s conceptions of natural law and, in turn, formed the foundation for the notions of government that inspired the American Founding Fathers, including Thomas Jefferson, the father of the Declaration, and James Madison, the father of the Constitution.
As for Rousseau, the intellectual progenitor of the political Left, his social contract rests on the idea that the state exists to guarantee liberty and that true liberty can only be expressed and understood in the will of the people, which is to say the “collective will.” Rousseau was, at least superficially, the quintessential anti-republican. He favored both direct popular sovereignty and the authority of the state to enforce the will of the people upon every individual. Whereas Locke (and the American Founders) saw the role of the state as protecting the individual’s inalienable rights, Rousseau saw the state as a mechanism whereby “true” liberty could be achieved through the expression of and conformation to the collective will.
Now, Rousseau understood that getting people to accede to the “proper” common will is not especially easy. It’s actually closer to impossible. But there’s a fix for that, namely the coercion of minority opinion. The Left doesn’t like to talk about this much, but Rousseau was, in some ways, a proto-utilitarian and a proto-authoritarian, in that he concerned himself principally with the will of the greatest number and the authority of the sovereign to enforce that will. (And indeed, we should note that both Rousseau and the Utilitarian patriarch Jeremy Bentham were widely revered and avidly read among the authoritarian French Jacobins). Therefore, in Rousseau’s social contract, the sovereign, which is the voice of the people, has both the power and the responsibility to enforce the common will, even at the price of silencing dissent and dissenters:
While the state can compel no one to believe, it can banish not for impiety, but as an antisocial being, incapable of truly loving the laws and justice, and of sacriﬁcing, if needed, his life to his duty. If, after having publicly recognized these dogmas, a person acts as if he does not believe them, he should be put to death.
Virtually the entirety of modern leftism – from Comte’s positivism to Marx’s communism, from Kant to the Progressives – is derived in part from Rousseau’s notions of government and of the general will. As you might expect from adherents of a Rousseau-ian social contract, the Progressives believed deeply and unashamedly in the sanctity of the will of the people. They were dedicated democrats and believed adamantly that the Founders had written a constitutional document that was deeply flawed and, in any case, had outlived its usefulness. In addition to the direct election of Senators, Progressives championed the reform of state primaries to allow direct election of candidates. They pushed the ballot initiatives and referenda and, of course recall elections. In all these endeavors and more, the Progressive’s sought to make the American government for receptive of and responsive to the “general will.”
Most notably, though, unlike contemporary progressives, the original Progressives were unafraid to speak their minds, to trash the Constitution and the Founders, and to advocate policies that favored the general will over inalienable rights. Moreover, they understood that their values and their goals for society were in fact incompatible with those of the Founders. And they freely admitted so, decrying the Founding documents and their veneration of “natural rights” as relics of a long-dead era. For example, Charles Merriam, the first political scientist on faculty at the University of Chicago and a Progressive intellectual champion, put it this way:
The individualistic ideas of the “natural right” school of political theory, indorsed in the Revolution, are discredited and repudiated . . . The origin of the state is regarded, not as the result of a deliberate agreement among men, but as the result of historical development, instinctive rather than conscious; and rights are considered to have their source not in nature, but in law.
In his McCutcheon opinion, Justice Stephen Breyer eschews the boldness of his Progressive forefathers and adopts the accommodating pose of his contemporaries, as he tries desperately to square the circle and to make his progressive conception of speech as a collective right – and a means of expressing the general will – fit both with precedent and with a fair reading of constitutional intent. And though he is ultimately unsuccessful in the latter effort – both practically and philosophically – he makes the effort and, in so doing, demonstrates that he understands at least that an effort must be made. In this, he is not exactly representative of contemporary liberalism.
As we noted above, much of the contemporary Left is entirely unaware that its beliefs are incompatible with any fair reading of the Founding documents and the will of the Founding Fathers. In yet another demonstration of their emotive disorientation, liberals have come to confuse “constitutional” with anything that they believe is “good” – and to believe that “good” means nothing more than, in MacIntyre’s parlance, “Hurrah for this!” All of which is to say that the Left doesn’t really care whether something is actually constitutional, but only whether it fits the leftist leitmotif. And nowhere is this more evident than in liberals’ desire to see the inalienable rights of the Constitution remade into collective rights. Consider, for example, the following, penned for The Hill by the columnist and longtime lefty activist Brent Budowsky in the wake of the McCutcheon decision:
In the greatest judicial scandal since an earlier Supreme Court treated blacks as the property of whites, the current Supreme Court treats democracy as the property of those with the money to buy it . . .
Five conservative Republican men serving on the Supreme Court, led by a chief justice who has violated 200 years of judicial precedent, despite pledging under oath during his confirmation hearings to respect judicial precedent, are waging a legal war of mass destruction against core principles of American democracy established by our Founding Fathers.
These five conservative Republican justices — two of whom have had ethically troubling relationships with interested conservative Republican groups that benefitted mightily from decisions rendered with their votes — have corrupted our democracy in ways that would outrage the founders, who united to condemn the evils of self-interested factions whose greed Chief Justice John Roberts embraces . . .
Roberts and his four conservative Republican brethren will ultimately be impeached by historians who will condemn, and future courts that will reverse, politically illegitimate and constitutionally deformed rulings that would turn America into a constitutional oligarchy . . .
The founders never intended the democracy of our entire nation to be held hostage by five men who are contemptuous of legal precedent, separation of powers, the cardinal value of one person, one vote, and the timeless truth that all men and women are created equal.
Not to put too fine a point on it, but this is ignorance bordering on stupidity. Even if you ignore the idea that overturning part of a twelve-year-old law can constitute violating “200 years of judicial precedent” this rant – and really, what else can you call it? – is hysterical, in both senses of the word.
The fact of the matter is that the Founders bequeathed us a REPUBLIC, not a democracy and, more to the point, clearly considered the right to speech, and political speech in particular, to be an inalienable natural right, indeed a paean to self-interest, not merely a grant of the government meant to be respected only as long as it is in keeping with the collective will. If Budowsky – and the rest of the contemporary Left, for that matter – bothered to look at the Founders words, he’d be compelled to admit his own conception of the freedoms of speech and the press is radically at odds with those of the Founding Fathers.
As far back as the Fairfax Resolves, which were presumably written by George Mason, were certainly overseen in their drafting by George Washington, and were adopted a full two years before the drafting of the Declaration of Independence, the Founders made clear in their beliefs in natural and inalienable rights of man:
Resolved that the Claim lately assumed and exercised by the British Parliament, of making all such Laws as they think fit, to govern the People of these Colonies, and to extort from us our Money with out our Consent, is not only diametrically contrary to the first Principles of the Constitution, and the original Compacts by which we are dependant upon the British Crown and Government; but is totally incompatible with the Privileges of a free People, and the natural Rights of Mankind; will render our own Legislatures merely nominal and nugatory, and is calculated to reduce us from a State of Freedom and Happiness to Slavery and Misery.
With respect to laws – such as the McCain-Feingold campaign finance law – that might infringe upon the natural rights of man, Mason also put it this way:
Now all acts of legislature apparently contrary to natural right and justice, are, in our laws, and must be in the nature of things, considered as void. The laws of nature are the laws of God: A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict His laws, we are in conscience bound to disobey. Such have been the adjudications of our courts of justice.
Jefferson, Madison, Mason, Patrick Henry and the other Founders all considered the right to communicate, to redress the government with grievances, and to convey these grievances to the public to be, in Madison’s words, among “the choicest of liberties.” The Founders clearly thought of the rights of man as negative rights, which is to say the right to be free FROM undo interference and unjust infringement by government or private persons. Contemporary liberals like Budowsky and Breyer, by contrast, see the rights of man as positive rights, the right TO something, to be provided to man by his sovereign.
With respect to the freedom of speech, Benjamin Franklin most clearly expressed the views of the Founders when he wrote, some 40 years before the Revolution, that:
Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates.
During the debate over the Constitution and its approval, Alexander Hamilton penned Federalist No. 84 specifically to oppose the first amendment, which he thought had no place whatsoever in the Constitution. Specifically, he wrote:
Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government.
Clearly, the notion that anyone, anywhere might actually have the legitimate power to abridge the freedom of expression was considered by the Founders to be ludicrous. The very notion was so foreign to them as to constitute an unnecessary waste of time and effort. The power to regulate expression was not granted anywhere in the Constitution, and so many of the Founders believed that the express grant of the right to expression was superfluous. Fortunately, Madison did not concur. One shudders to think what the Progressives, both in their original form and their contemporary manifestation, would do had Madison not been so prescient.
Now, what all of this tells about the current state of politics in this country is something that might, on the surface at least, seem somewhat counterintuitive. The fact of the matter is that conservatives, who have made a cottage industry over the last couple of decades deriding the Justices of the Supreme Court as “unelected” usurpers of the rights of the people, should, in truth, be infinitely grateful to the Court and should make replenishing its ranks one of their chief priorities.
The direction of public policy over the last century has been unremittingly leftward. As the Michigan State political Scientist Matt Grossman recently put it:
Of the 509 most significant domestic policies passed by Congress [since 1945], only one in five were conservative, in that they contracted the scope of government funding, regulation or responsibility. More than 60 percent were liberal: They clearly expanded government. The others offered a mix of liberal or conservative components or took no clear ideological direction. When significant policy change occurs in the executive branch, it is even less likely to be conservative; only 10 percent of the executive orders and agency rules that policy historians cited were conservative.
The arc of the policy universe is long, but it bends toward liberalism.
Reagan couldn’t save us from liberalism. Bush couldn’t save us from Progressivism. And the next guy won’t be able to save us either. Thus far, the only ones who have been able to save even a shred of our liberties and our constitutional order are five lonely and despised men: Anthony Kenney, John Roberts, Antonin Scalia, Samuel Alito, and Clarence Thomas. The Court, obviously, has been “Progressive” before. Indeed, it has been Progressive for most of the last one hundred years. But it isn’t today.
Unfortunately, of the five conservatives on the court, none is guaranteed to still be there a decade hence. And at least two, if not three or four, will all but certainly be gone, retired or deceased. Scalia is 78 years old. Anthony Thomas is 77. Clarence Thomas is 65, and Alito is 64. Only the Chief Justice, John Roberts, is younger than 60, and only just barely. If the next president is elected to two terms, then he or she will likely have the opportunity to replace much of the Court’s conservative majority. And if the next president happens to be a Democrat, then those replacements will undoubtedly misunderstand and misapply the Constitution precisely as Stephen Breyer wished to do in McCutcheon.
At the same time, two of the liberal bloc justices are also nearing retirement. Breyer himself is 75, while Ruther Bader Ginsburg is 81. And that means that if the next president happens to be a Republican, then he or she will get the chance to solidify the conservative majority and thus to solidify the constitutional bulwark against the progressive objective to complete the process of turning our erstwhile inalienable individual rights into conditional collective rights.
Over the past quarter century, both the Right and the Left have acted as if abortion and Roe v. Wade are the only issues that matter in the selection of Supreme Court justices. As it turns out, nothing could be further from the truth. It is true that jurists who create “rights” out of whole cloth are not likely to be terribly reliable when it comes to preserving true rights as expressly delineated in the Constitution. But that itself is a function of broader philosophical questions and a more universal conception of the nature of man.
In other words, all of this prattling on about social contracts, liberty, and the rights of man may seem pedantic and extraneous to the untrained eye. But again, nothing could be further from the truth. The only question is whether the Republicans will be wise enough to know better come 2016 and if they will, therefore, have the sense of urgency necessary to fight for their rights. And yours.