On Superman, Sentimentality, and Citizenship (or, What Gunn's Superman Knows About America that J.D. Vance Apparently Can't Comprehend)

Daniel McCarthy expanded upon his New York Post editorial, the one I responded to previously, in the pages of his journal, Modern Age. His expansion—“Superman After Liberalism”—isn’t a rebuttal to my response, but he tagged me nonetheless, so I’m going to take the opportunity to respond once more…particularly since the way McCarthy is pursuing his case against James Gunn’s Superman provides me with an important contract to Vice President J.D. Vance, who recently, on the occasion of receiving an award from the Claremont Institute, gave a speech on citizenship which was about as antithetical to the deeply American moral sentiments of Superman as I can imagine.

McCarthy’s argument against Gunn’s vision of the Superman character isn’t changed by his expansion, but he does elaborate on his thesis in some interesting ways. He’s not wrong that “the problem of reconciling the exceptional with the egalitarian” has been a subtheme to telling super-heroes stories ever since Jerry Siegel and Joe Shuster essentially evented the genre (and if McCarthy had either the pop culture knowledge or inclination, he could have made the obvious point that recent comic, cinematic, and television incarnations of Superman—from Christopher Reeve in Richard Donner’s 1978 Superman: The Movie to Henry Cavill in Zack Snyder’s 2013 Man of Steel to many, many others—have all taken different positions on how to address this narrative problem). Nor is he wrong—though he is, I think, incomplete—in suggesting that Siegel and Shuster’s original solution, and the one that supposedly served the character so well for decades, was to write Superman as motivated by a New Deal-era confidence in liberalism as a form of patriotism, the result of his, through his adopted parents, “assimilation into Kansas and America as the land of the free.” I don’t see how anyone remotely online—to say nothing of comic books fan over the past 85 years who have (likely unlike McCarthy) actually consumed Superman media—could be unaware of this aspect of Superman’s history, especially given how relevant it is to debates that McCarthy (and Vance) are deeply involved in today.

McCarthy sees the Superman of the James Gunn film as having abandoned this confidence, as American liberalism has also abandoned it (or maybe, depending on how much and what sort of postliberalism McCarthy embraces, it was fated to turn away from it, in favor of identity politics and government-managed pity). Instead, he sees the Superman played by David Corenswet as unexceptional, bland, and weak (McCarthy makes much of how Superman’s unwillingness to kill makes him reliant upon other heroes capable doing the necessary “dirty work”). And while he allows that there probably could have been, even within his framework, a way of telling the Superman story that asked the “right questions,” this one absolutely isn’t it; in Superman, he sees only a left-liberal film that is so frightened that “fascism has already taken over this country” that its titular character lacks “a place of his own,” leaving him to articulate only lame liberal sentiments with no moral strength of their own.

I’ve already talked about how wrong this argument is. The lame liberal sentiments that McCarthy sees in Superman’s wonderful final words to Lex Luthor—

I’m as human as anyone. I love, I get scared, I wake up every morning and despite not knowing what to do, I put one foot in front of the other and I try to make the best choices I can. I screw up all the time, but that is being human! And that’s my greatest strength.

—could, I suppose, be understood as validating a kind of moral individualism and even fatalism. That they lack much by way of realpolitik thinking, and thus arguably open the door to a hypocritical Machiavellianism, showing a face of kindness and sympathy to the crowd while justifying self-interested actions behind your back, is also perhaps true. (Superman didn’t seem too worried about the fate of his clone, for example.) But of course, it’s not like the downsides—the exclusionary classism, racism, sexism, and more—so frequently present in more rigorously particular moral systems are difficult to identify either.

More importantly, to fail to understand the moral strength—and, on an admittedly somewhat attenuated level, what I think can only be understood as an aspect of self-sacrificing Christian love—that is just as possible to be found within this kind of compassion-driven ethical universalism is a major mistake. It’s one that has been made by haters of Rousseau and every attempt within the context of modernity to follow the path toward moral legitimacy—a civil religion based on rights and consent and small-d democratic efforts to build communities of action and legislation—which he suggested for centuries now. I have no idea if James Gunn or David Corenswet have ever heard of Moral Therapeutic Deism, and I definitely reject the idea that what viewers of Superman saw on the screen is just another version of some self-centered, MTD, make-it-up-yourself-morality. But denying that there is any moral substance, any heroism, to someone who puts forward, first and foremost, kindness and concern and sentimentality and good deeds, absent any explicit patriotic attachment or sectarian confession or nationalist vision, is simply a complete misreading of the moral thinking at work in this long, centuries old, deeply important liberal Christian tradition. It’s a complete misreading of the religious sensibility that, as a resident of Kansas, I still see plenty of evidence of all around me, obtaining in communities and families that are interconnected and wired and far less self-sufficient that many who prattle on about “heartland values” insist on making them out to be, but which issue in friendliness and service and charity nonetheless. And finally, frankly, it is a complete misreading of American republicanism as well.

So now let’s turn to Vice President Vance’s partly thoughtful, but mostly pedantic speech, one that Superman would never be pretentious enough to give. In talking about citizenship, Vance starts by making a serious, complicated point:

Social bonds form among people who have something in common. They share the same neighborhood. They share the same church. They send their kids to the same school. And what we're doing [in the Trump administration] is recognizing that if you stop importing millions of foreigners into the country, you allow that social cohesion to form naturally. It's hard to become neighbors with your fellow citizens when your own government keeps on importing new neighbors every single year at a record number.

That social bonds and civic strength develop organically over time through the routines of ordinary life is an undeniable communitarian truth; the whole notion of “social capital” is built upon that understanding. And hence, it’s not unreasonable to see the challenges of ethnic, religious, racial, cultural, and (I think especially) linguistic diversity as genuine ones, ones which immigration restrictions might be an at least partial solution to. There is good research in support of this—but also evenmoregood research that challenges it, making the argument that the obstacles posed by diversity are actually, when one controls for technological distractions and economic barriers which prevent people from interacting as humans (anthropologically social creatures that we are) normally would, quite small, and in any case that such obstacles, absent political polarization, actually fall quite fast.* Robert Putnam, the scholar who developed the idea of social capital, essentially concluded in a later study that the difficulty Vance highlights is a short-term one, one that—in immigrant societies like the U.S.—is always being negotiated by the emergence of “cross-cutting forms of social solidarity and more encompassing identities.”

Presumably, Vance—or at least his speech-writers—are smart enough to know all this. Which means that in holding to this argument, he unintentionally (or, who knows—maybe intentionally!) reveals that his hope through serving in the Trump administration isn’t to fine-tune immigration policy, but rather to change America  away from being an immigrant society at all. And his case for this is plainly ideological—or even, I think, theologico-political, and not in a good way. In the most notorious passage in his speech, he claims:

If you were to ask yourself in 2025 what an American is, I hate to say it, very few of our leaders actually have a good answer. Is it purely agreement with the creedal principles of America? I know the Claremont Institute is dedicated to the founding vision of the United States of America. It's a beautiful and wonderful founding vision, but it's not enough by itself. If you think about it, identifying America just with agreeing with the principles, let's say, of the Declaration of Independence, that's a definition that is way overinclusive and underinclusive at the same time. What do I mean by that? Well, first of all, it would include hundreds of millions, maybe billions of foreign citizens who agree with the principles of the Declaration of Independence. Must we admit all of them tomorrow? If you follow that logic of America as a purely creedal nation, America purely as an idea, that is where it would lead you. But at the same time, that answer would also reject a lot of people that the ADL would label as domestic extremists, even though those very Americans had their ancestors fight in the Revolutionary War and the Civil War. And I happen to think that it's absurd, and the modern left seems dedicated to doing this, to saying you don't belong in America unless you agree with progressive liberalism in 2025. I think the people whose ancestors fought in the Civil War have a hell of a lot more claim over America than the people who say they don't belong.

Some of the reasoning here is obviously puerile. (“Must we admit all of them tomorrow?” So, you’re assuming that “hundreds of millions, maybe billions of foreign citizens who agree with the principles of the Declaration of Independence”—perhaps in part because their own French or Japanese or Canadian or British or Italian or Australian or Norwegian political cultures have long socialized them to accept similar principles of government by consent and natural rights—actually would all want to come to the United States in the first place?) And some of it worryingly strange. (As John Ganz pointed out, the Anti-Defamation League is hardly a “woke” entity these days, but somehow Vance nonetheless thinks it important to insist to castigate them, suggesting that he really does think that anti-Semites, neo-Nazis, and others so-inclined should be given a pass, presumably because they had ancestors who fought for the Confederacy.) But the parts of it which bother me the most are, I think, anti-republican in the most malicious way.

The republicanism of Thomas Jefferson has been endlessly analyzed, and no doubt will long continue to be. But broadly speaking, Jefferson’s republicanism was a fascinating—some would say incoherent—mixture of the aristocratic and the democratic, a mixture of Enlightenment confidence, agrarian sentiment, and noblesse oblige. Jefferson’s Declaration of Independence is not a crystalline distillation of all those ideas, but it does hit all the main points of it, especially as its ideas were later amplified and refined through centuries of American experience and practice. Jefferson’s vision was one of rational human beings exercising their natural right to collectively achieve independence, not solely or even primarily in order to remain virtuous farmers, or to instantiate through the power of a new social contract their own preferred res publica, but simply in order for their personal and communal development, as productive citizens, to be free from the interfering interests of powerful others in their civic spaces. Whatever the inconsistencies one might find in this theoretical framework, it is a substantive one, reflective not of unstated assumptions about some natural necessity regarding borders and identity, but rather of the explicitly stated assumption that a God-and-nature-given sensibility will show the rightness of a free people being able to work out their independence as part of civil order they choose for themselves, absent any distant hierarchy (whether spatially or temporally).

No one actually familiar with the philosophical and historical arguments here can deny that notions of sovereignty—of the right of a people to collectively define and govern their communities, including the borders thereof—were an important component of these republican visions that shaped America’s political culture. But Vance would have us believe that sovereignty needs to be the central concern of anyone concerned about citizenship and freedom:

What does it mean to be an American in 2025? For one, I think it has to mean sovereignty. More precisely, American citizenship must mean belonging to a nation that guards the sovereignty of its people, especially from a modern world that's hellbent on dissolving borders and differences in national character.

The Declaration is by no means a culturally placeless document; among the particulars that Jefferson levied against King George were claims that his actions were stirring up the continent’s native inhabitants to war and allowing the Catholic French to establish a dangerous foothold in Canada. Jefferson was not so idealistic as to ignore all concerns about security and identity. But the power of the document—and really, the power of this kind of liberal republicanism in general—is the way it connects with sentiments of liberty whose natural rightness were, in Jefferson’s view, becoming undeniable with the transformations which moved Western civilization away from the ancient and medieval worlds, and towards a more rights-based one. Jefferson’s embrace of the Enlightenment is hardly defensible in every particular, especially when it comes to race and religion. But the fact that America’s political culture became entwined with Jefferson’s hopes—his belief that, as he put it in one of the final letters he ever wrote, “the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God”—is inseparable from what this country has meant to the history of the world. To reduce that all to obsessions over sovereignty (and apparently not so much, in Vance’s mind, popular and democratic sovereignty, which is a crucial aspect of self-governance, but rather martial sovereignty, since he seems especially worked up about the fact that “so many young people…say that they would not die for their own country…[or] put on a uniform and sacrifice their lives for our common nation”) is a serious conceptual loss.

Fortunately, the history of America is filled with people who have understood this country’s civic self-conception more accurately than Vice President Vance does. President Abraham Lincoln, for one, who in perhaps his greatest and most influential speech, emphasized that the carnage of the Civil War, and the kind of community those who waged it were motivated by, was one characterized by a simple, singular “proposition”: “that all men are created equal.” But also, how about the political theorist, and refugee from the Holocaust, and naturalized U.S. citizen, Hannah Arendt? There’s isn’t a smidgen of flakey idealism to be found in her writing—and yet, her whole understanding of her adopted country began with her appreciation of the power of the demos to build civic spaces and secure liberty through revolutionary action, action which is not dependent upon some kind of prior security, but upon a spontaneity available to all. There is, of course, Martin Luther King, Jr., civil rights leader, devout (however flawed) Christian, and democratic socialist, whose commitment to all three of those collections of moral principles formed the pillars of the “beloved community” that he believed all free people ought to and someday would be able partake of, with Jefferson’s words in the Declaration guiding him towards his refusal “to believe that there are insufficient funds in the great vaults of opportunity of this nation.” And what about Zohran Mamdani, the likely future Mayor of New York City? On July 4^th, he posted his sentiments: “America is beautiful, contradictory, unfinished. I am proud of our country even as we constantly strive to make it better, to protect and deepen our democracy, to fulfill its promise for each and every person who calls it home.” And Vance—kind of like McCarthy, come to think of it—found that bland statement of liberal patriotism simply horrifying. “There is no gratitude in those words, Vance ranted. “He dares on our 249th anniversary to congratulate [America] by paying homage to its incompleteness and to its, as he calls it, contradictions?....Who the hell does he think that he is?”

Well, for one thing, he appear to think—if only in terms of structure, not substance—pretty much the exact same way Vance himself thinks, if he were only honest or self-reflective enough to notice it, since our Vice President actually ends his own speech saying “we must get to work”—which I think must mean that even he agrees that the work of American citizenship is, well, “unfinished.” But that’s just more puerile rhetoric from angry man, or at least a man who knows his position in the Trump administration and the plaudits he receives from the MAGA base depends upon his performative anger.

A better answer, of course, is that Mamdani, like all good Americans this summer, may not think he’s Superman, but he’s surely been inspired by Malik Ali, the falafel vendor who believes in Superman, jumps into a crater to help him up during his first tangle with the Hammer of Barovia/Ultraman, and then is pointlessly murdered by Lex Luthor while the latter tries to get Superman to tell him the location of his home. Because Superman does have a home, a place—a place of homely, maybe even “bland” liberal republican and Christian virtues, all that not particularly sovereign stuff about doing good and feeling compassion and treating everyone equally and trying again and again, despite all his and our limitations and mistakes. It’s the sort of place that teaches a person to, when offered a falafel by a vendor after saving someone from being hit by a taxi, accept it gratefully.

Did the Kents introduce Superman to falafels while he was growing up? Probably not—probably he came to like them because he’s just another struggling modern person, appreciating the good food and other good works human beings can achieve. There is a substance to this very American, very liberal, very “bland” struggle. It’s a substance I’m happy to admit is in some ways parasitic upon, and therefore must necessarily connect to, all sorts of deeper traditions and values and visions; there’s a reason why I call myself a communitarian and a civic republican and a Christian, after all. But to allow the fact that the Christianity and republicanism and community attachments of modern Americans (like, I think, James Gunn’s Superman) tend to be rather liberal to become a reason to reject their sources entirely is the worst sort of cutting off your nose to spit in your own face. Of course, when you’re talking about a political movement that’s all about reacting against the America that actually exists, not to reform or improve or correct it but rather to just reject its reality, then maybe that kind of cutting and spitting is what passes for respectable thought. It wins awards from the Claremont Institute, apparently.

Why Championing American Values May Not Be Enough

[This is an expanded version of a column which appeared in The Wichita Eagle on Sunday, July 11.] 

When Mike Pompeo launched his "Championing American Values” political action committee recently, he employed what some would call some pretty dark and defiant language. The Biden administration's economic policies are "sickening," and their foreign policies are "naive." Claiming that the United States of America is "the most exceptional nation in the history of civilization," Pompeo insisted that America today is confronting “the dividing line between freedom and oppression.” Leaning heavily upon his military background, Pompeo's PAC foregrounds the idea of a conservative, pro-Trump, Republican calvary riding to battle against the Biden administration and the Democratic party, filled with "pipehitters" who will "never give an inch...against the radical Left’s agenda." A milquetoast foray into national politics this was not.

Personally, I don't find any of this language all that unusual, or even especially extreme. It doesn't frame itself in terms of an apocalyptic culture war, as so much political rhetoric today does, after all. Instead, it's actually entirely conventional for political action committees: it aims to win elections, specifically to "take back majorities in the U.S. House of Representatives, the U.S. Senate, and in state legislatures." You can't get much more normal for American party politics than that.

But perhaps the very normality of Pompeo's stated intentions is what makes his language stand out to some observers? Hard to say, but the fact that some people can look at something as routine as a political action committee and see it as a frightening harbinger perhaps says something about the broader fears held by some in America today.

Of course, fear is actually part of Pompeo’s argument. If “the encroachment of socialism” and “the woke cancel culture” really are dire threats to “our liberty and freedoms,” as Pompeo’s announcement suggests, then perhaps every America should rightfully fear whether our constitutional democracy will survive. But if so, then the fact that Pompeo’s appeal does exactly what, according to at least one understanding of our constitution, we are democratically expected to do suggests that seeing our current constitutional situation as especially dire may be flawed.

The constitutional reading and democratic expectation I'm talking about is the Madisonian one, laid out in Federalist #10. His entire vision of our constitutional system will handle disagreement and diversity is premised upon the idea that we Americans, in order to promote our disparate values, will form discrete factions. Through those factions--which came to be most purely embodied through the mechanism of political parties and interest groups, though it is doubtful Madison himself had any so institutionally formal in mind--voters can attempt to influence the government one way or another, by recruiting candidates and lining up voters and cultivating donors with resources and more, all with the aim of winning elections. But given the diversity of America, none of these factions will ever elect enough people to be able to achieve majority control of the government on their own. Thus they’re forced to compromise, to work together. None of the relevant groups ever get all that they want, but all get enough to keep on going.

As I said, that’s one understanding—an understanding that looks at Pompeo’s new PAC, and salutes him for taking the exact same electoral actions which every other political action committee, working on behalf of every other possible set of values, also does. We may be deeply divided in our policy preferences when it comes to what we want our government to do, but how can we worry too much about the influence of one division or another when we’re all going about our political business in the same way anyway?

Some worry, I suspect--and I count myself as one of them--because we recognize that the bumpy but supposedly consistent “going” mentioned above actually doesn’t always work the way some constitutional thinkers believed it would. For me, the reasons it doesn't work the way it was supposed to are rooted in democratic theory itself; as I've written before, I suspect that Madison's vision of pluralism presumed a controlling classical republic background (as represented by the men who would be the presumed default leaders of these factions; "men who possess the most attractive merit, and the most diffusive and established characters" as Madison called them), and thus by praising factional interactivity as he did, he was actually undermining the conceptual requirements of his own constitutional vision. But even if I'm wrong, and Madison really was just a pragmatic liberal all the way down, with little interest in the common good, preferring just to manage our diverse, we still must confront the fact that he was a product of his time and place. Worried American citizens today don't have to know anything about Madison's philosophy or constitutional theory to suspect that things may go very wrong when factions, thanks to long-standing government dysfunction and increasing cultural divides, become sources of permanent frustration and anger. The hard truth is that the traditional story of American pluralism provides no solution when such impasses emerge. The Civil War, which there was no compromising out of (despite the delusions of some revisionists), is proof of that.

True, vague talk about how we may be facing “another civil war” is pretty common, on both the left and right, so much so that, as I wrote above, Pompeo's language might arguably even seem tame by comparison. And frankly, such language is arguably to be expected. Madison's whole system assumed people will be passionate believers, and will fight hard for their factional causes. But that fighting, at least in the century between the end of the Civil War and the breakdown of the New Deal party system, took place in a context where, among other things, media outlets were subject to political requirements which standardized a certain degree of regional variety and fairness, the controlling presumption of whiteness effectively enabled cross-ideological compromise, and campaign finances were closely watched enough that there was rarely any upside in political extremes. But the civil rights and women's movements, combined with technology and money and deregulation, have long since broken down most of these electoral structures and practices which once defined our factions, with the result that political movements are increasing driven by which ever micro-faction can effectively leverage grievances over values, so as to allow them to dominate their fellows by pure momentum. As a result, it’s become easy for the passionate believers to assume they face uncompromising extremists, not fellow citizens that they’ll have to deal with eventually. As that assumption becomes standard it become self-fulfilling, making Madison's vision seem ever more quaint and out-of-date when we consider the cultural conflicts of today.

I confess I have come, over the past 10 years, to embrace this dark diagnosis almost entirely. That doesn't mean there aren't plenty of reasons to think things aren’t all that bad; locally, in particularly, I suspect good government through traditional pluralistic politics is still possible. When all is said and done, though, if you’re one of those who look at political actors like Pompeo and—even if you agree with the values he expresses—wonder a little about just what the endgame of his absolutist language is, then you’re like those of us who are beginning to fear that our constitutional machinery for dealing with disagreement may not be able to handle the internet-empowered, shame-resistant, mutual-destruction, cultural factions of today. Does that mean that some entirely new electoral and political machinery is necessary? I suspect so—but unfortunately, getting any compromise on what that machinery should be remains far away as well.

The Anti-Federalists Were Right About Trump (and Many Other Things as Well)

[Cross-posted to Front Porch Republic]

Gillian Brockell, a talented writer and researcher for The Washington Post's history blog Retropolis, interviewed four esteemed historians and scholars of the Constitution, about what, if anything, the Founders had to say about the possibility of a President of the United States who refuses to concede an election, contests the results to the bitter end, and then, when the results are clearly and finally against them, simply rejects the results and insists upon staying in office. Their answer? As the historian Sean Wilentz of Yale University sums it up: “No, the Framers did not envisage a president refusing to step down or discuss what should be done in such a situation. There’s obviously nothing in the Constitution about it.” Jeffrey A. Engel of Southern Methodist University expands on that a little:

"[The Founders] couldn’t fathom two things: a person who had become president who was so utterly lacking in classical virtue that they would deign or dare to put their own interests above the unity of the country. And the second thing is, I think they couldn’t fathom how any president who would so vividly display disdain for the unity of the country, and mock and undermine the legitimacy of American democracy, why that person [wouldn’t have] already been impeached and removed from office.”

Fortunately Brockell did sufficient research so as to be able to add in her article, at length, comments from one of the Anti-Federalists who opposed the Founders' constitutional creation, the anonymous Pennsylvanian known as "An Old Whig." This concerned citizen presciently wrote:

To be tumbled headlong from the pinnacle of greatness and be reduced to a shadow of departed royalty, is a shock almost too great for human nature to endure. It will cost a man many struggles to resign such eminent powers, and ere long, we shall find some one who will be very unwilling to part with them. Let us suppose this man to be a favorite with his army, and that they are unwilling to part with their beloved commander in chief....[A]nd we have only to suppose one thing more, that this man is without the virtue, the moderation and love of liberty which possessed the mind of our General [Washington]-- and this country will be involved at once in war and tyranny....

We may also suppose, without trespassing upon the bounds of probability, that this man may not have the means of supporting, in private life, the dignity of his former station; that like Caesar, he may be at once ambitious and poor, and deeply involved in debt. Such a man would die a thousand deaths rather than sink from the heights of splendor and power, into obscurity and wretchedness....

I would therefore advise my countrymen seriously to ask themselves this question: Whether they are prepared to receive a king? If they are, to say so at once, and make the kingly office hereditary; to frame a constitution that should set bounds to his power, and, as far as possible, secure the liberty of the subject. If we are not prepared to receive a king, let us call another convention to revise the proposed constitution, and form it anew on the principles of a confederacy of free republics; but by no means, under pretense of our public, to lay the foundation for a military government, which is the worst of all tyrannies.

Ah well, hindsight is always 20-20, right?

Our Own Vines and Our Own Fig Trees: a Post-Independence Day, Post-Hamilton-Watching Sermon

[Cross-posted to By Common Consent]

Like plenty of other Americans (and, given likely demographics, probably in particular like plenty of readers of this blog), my family and I watched the musical Hamilton over the July 4th weekend. Our second-oldest daughter, who was home to join us yesterday, had actually seen the show in 2016 on Broadway; for the rest of us, as familiar as we were with the music, watching the show was a new experience--and it was a lovely one, a wonderfully funny and dramatic, visually and aurally compelling, and historically challenging (in more ways than one), piece of filmed theater. It was three hours very well spent.

Most of all for me, I enjoyed spending time in the virtual company of Chris Jackson's stylized portrayal of George Washington. All the musical's theatrical depictions are hyper-stylized, of course (it's fundamentally a work of fan fiction, after all), but there was, in my view, an astonishingly deep and consistent core to what Lin-Manuel Miranda put into the figure of Washington, brought to beautiful life by Jackson's presence and baritone voice. That core connects with something mythic, something, frankly, scriptural. Appropriately so, since Washington's central song in the musical, "One Last Time," in which Washington instructs by example the unfortunately mostly unteachable Alexander Hamilton the decency and wisdom of knowing when to walk away from power and the contests over power it always involves, is the only line in the whole libretto which quotes the Bible--Micah 4:3-4, specifically. It reads (from the NRSV):

He shall judge between many peoples,
and shall arbitrate between strong nations far away;
they shall beat their swords into plowshares,
and their spears into pruning hooks;
nation shall not lift up sword against nation,
neither shall they learn war any more;
but they shall all sit under their own vines and under their own fig trees,
and no one shall make them afraid;
for the mouth of the Lord of hosts has spoken.

This is a messianic passage, and generally speaking, folks in contemporary democratic (or at least democracy-aspiring) states don't like associating politics, and especially not specific political figures, with messiahs. And yet we do, constantly, all the time. After watching the music, my only comment on social media was to quote the devastatingly dark and funny (and, I think, fundamentally true) line given to the hilariously arch King George III, in the song "I Know Him," immediately following Jackson's rendition of the above song, when he learns that Washington was retiring from the presidency and John Adams had been elected to take his place: "Oceans rise / Empires fall / Next to Washington, they all look small." In response to which, a commenter linked to this command performance of the song:



Many of the mostly self-identifying liberal readers of this blog will likely find themselves touched by this moment, especially in light of the Trump years which have followed it. Yet at the same time, many of those same readers--to say nothing of those few of my fellow leftists out there--are likely to find themselves, as I see it anyway, in a bit of a contradiction. Isn't this kind of sympathetic idealization, which is really a kind of idolization, basically kind of wrong? Don't we want to avoid getting all romantic about those who stand before us in leadership positions? Aren't we obliged to respond to any kind of hero-worship, however wistfully expressed, with thorough-going critique, if not outright rejection? Shouldn't we be, as one of my By Common Consent co-bloggers recently suggested, iconoclasts, tearing down images which presume to situate some felt ideal in the body of some invariably flawed (and, unfortunately often in our history of public statuary, affirmatively racist and criminal) person?

If you don't see or feel this contradiction, more power to you; it may only manifest itself to people like myself who flirt with dangerous philosophical ideas. And I'm not being ironically self-deprecating when I call them "dangerous"--there is a lot of history which proves the danger of reading passages like Micah's above and believing, as I do, that's it's not just poetically describing a hopeful vision of peaceful rest, but is also communicating the holiness, the sacramentality, of being in a place of peaceableness and rest. Start thinking that way, and soon you're thinking: "where can I find such a place?" Or, "how can I make such a place?" And then, eventually, worryingly, "who can make such a place for me?" Could have President Obama? Despite his self-association with the old activist phrase "we are the ones we've been waiting for," he hardly governed in a manner which rigorously avoided any attempt to embody certain ideas for and on behalf of the American people. Nor has President Trump, for that matter. I mean, he did promise to "Make American Great Again," right?

The perversity of linking the actions of President Trump--who has basically never made any serious effort to pretend that his administration reflects or represents or embodies any kind of general civic ideal--with this idealization simply shows up the problem, I think. The very fact that so many will criticize Trump for being unpresidential underscores that most of us think, most of us want, presidents of the United States to be presidential, even if our critical sensibilities tell us otherwise. (The same goes, though obviously to much different and often much lesser degrees, for pretty much all leaders of all communities, I suspect.) Some part of us wants them to embody something! And while many might articulate it differently, I suspect that that wished-for embodiment might best be described as a identification with a longed-for place, or way of being in a place--in the case of the president of the United States, an "Americanism," if you will. A sense that, in other words, this person is making for us, showing us, the way it is supposed to be here. Here, under our own vines, under our own fig trees: it should be like this. Which means, I think, that while the substantive content is radically dissimilar, the phenomenology of putting on a MAGA hat may not be all that different from watching Hamilton and mourning that moment of classiness back in 2016. Especially when we think about it in connection with, and through a stylized and powerfully sung representation of, Washington at the moment of his Farewell Address, with such a thoroughly problematic yet aspirational phrase as "I want to warn against partisan fighting"! (It shouldn't have surprised me to learn from my daughter that there was a gospel remix of this song with Obama speaking lines from the address.)

I write all this not to critique this, but to sermonize on behalf of it. I like, and more importantly actually believe in, this part of politics (which means, this part of living in society with other people, no matter what the organization of that society may be). I like and believe in this admittedly dangerous sentiment; it has always--at least for as long as I can remember thinking about any of these matters--appealed to and made intuitive sense to me. I think it is not only a very human thing, but also, at least always potentially, a very good thing. I was up early this morning with a headache; it was still dark out, and the lines of "One Last Time," and particularly Jackson's gorgeous and plaintive singing of them, kept ringing through my head. And I found myself reflecting upon all the ways in which I've felt myself spiritually pulled towards feeling some real truth in, and thus wanting to defend, this conceptualization of our life as embodied, historical, dialogic, relational beings over the decades. Traditions, holidays, civil religion, public expressions of faith, presidential rituals, civic associations--they've all been part of this decades-old argument I've been having with myself (and others) over what it means to intentionally (and thus more often than not romantically) make, and then consequently to be in and belong to, a place. These vines, these fig trees, and being able to find in them, or having them revealed to us or invoked for us as, a peaceable place that is our own. My thinking about those places have changed over the years. I was much more willing to think nationally about places in the past, whereas now I think much more about local places, and the peace of the home and the neighborhood they can bring. That's a holy thing, I believe.

It is also, unfortunately, always potentially an exclusionary thing as well. Our vines--go away, they're not yours, they don't belong to you! That's a dangerous sentiment, or at least as a Christian and a man of the left I can't help but feel that way. The holiest--and thus, if you'd prefer I use the secular terms I consider to be equivalent, the most empowering and equalizing and democratic--approach to this messianic passage of scripture, the truth within it that calls to us, I think, no matter what the scale of the communities we live within or the character of the leadership which exists within them, is this one:



When Miranda put into Washington's mouth the lyric expressing a retiring president's wish to be "at home in this nation we’ve made," think, I would suggest, not of nation-states, but of the original meaning of "nation": natio, or as we might say today, a "peoplehood." It is both reasonable and even moral, I think, to long for, to look for the embodiment and instantiation of (and, yes, to memorialize through song and statuary, with the understanding that statues can come down and, just as Hamilton did, songs can be resung), one's people and place, one's vine and fig tree, one's home. But that longing has to co-exist with the imperative to enable all of God's children to have their people and place, their vine and fig tree, their home. Maybe their and our homes will turn out to be--will constructed to be, will be sung by someone like Christopher Jackson so as to be revealed to be--one and the same. As the hippies used to say, maybe all us critters have a place in God's choir--or in the Hamilton ensemble, for that matter. I won't presume to think that I could take Washington's place under his vine and fig tree. But maybe he can make space for me, and vice versa, all the same.

Presidents' Day Questions for Ralph Hancock

[Cross-posted to By Common Consent]

Ralph Hancock, a political theorist at Brigham Young University, is a fairly notorious figure in certain tiny Mormon slivers of the internet, which I happen to partake of regularly. I never took a class from him when I was a student at BYU, but I've interacted with him, in person and online, dozens of times over the decades; we're friendly, if not necessarily good friends. Recently, Hancock made waves with a piece he published in Utah's Deseret News (a Mormon Church-owned newspaper), arguing, in reference to the recent impeachment vote, that Utah Republican Senator Mike Lee, who voted, along with every other Republican save one, to find President Trump not guilty of the impeachment charges, had acted like a true statesman; Mitt Romney, the only Republican senator to voted to convict Trump, had not. This is a position I disagree with, to no one's surprise. So this President's Day, I'd like to pose some questions for Ralph--not with any illusion that anyone's mind will be changed by voicing such questions, but because I honestly want to understand just what it is he's claiming about American statesmanship circa 2020, and why.

Ralph's short piece spends most of its length setting up a philosophical argument regarding the place and the nature of partisanship in our odd political moment, in which we (or, depending on what kind of right-wing or left-wing critique of American voting practices you prefer, "we" in scare quotes) govern ourselves through a pluralistic democratic arrangement wherein certain civic republican ideals and standards are nonetheless at least ritually given a place (the senators taking an oath to judge impartially, and not in accordance with political pressures, during an impeachment trial, for example). Ralph thinks Romney's speech explaining his impeachment vote demonstrates a poor understanding of the place of partisanship today, thus making his appeals to conscience and ethical and religious principles an annoying distraction. (He's made this argument similar to this about Romney before, charging him with failing to recognize that the "foundation" of civic virtues like "decency" and "civility"--which Romney condemned Trump for lacking, as he obviously does--are more "vulgar" virtues like "courage and loyalty," which Trump, in Ralph's view, has plenty of.) The key paragraph in this section, I think, is this one:

To take political responsibility is to reckon with the inevitable fact of partisanship. Anyone really interested in making a difference for the better for our country must recognize the need to have political friends and to beware of enemies. To recognize the reality of allies and adversaries is not to debase political action but simply to reckon with the actual partisan situation. The question is whether Sen. Romney has frivolously spent his political capital (in Utah, especially) or wisely traded it in order to make some powerful new friends in the national political arena....[I]t is hard not to question the otherworldly “profile in courage” of a political gesture that results in immediate celebrity among the great and powerful, if not among the more vulgar in Washington or in Utah.

I'd like to understand whether Ralph, who has insisted multiple times over the years that he is a strong advocate for "original constitutionalism," sees this as a necessary correction to Madison's (I agree flawed, but important and admirable all the same) claim that a properly constituted "extended republic" could effectively sideline the problem of parties (or "factions," as he put it), or whether he actually does hold with Madison, and instead simply believes that "reality of...the actual partisan situation" today requires fighting fire with fire. I'd love to learn it was the former, and thus be able to count Ralph, whatever our other political disagreements, as an advocate for pushing our system in a parliamentary direction wherein partisan divides are treated more honestly and responsibly. My suspicion, however, is that it's the latter, in which case the long theoretical case he makes in the first four paragraphs seems like so much throat-clearing.

Either way, the meat of condemnation of Romney's vote, and his praise of Lee's, comes immediately after this:

Senator Lee deftly framed his decision in the context of the larger partisan conflict over the design and purpose of our constitutional republic. For decades...progressives have worked to overcome the limitations of federalism and the separation of powers by transferring more and more power to unelected “experts” forming a virtual fourth branch of government, the bureaucracy. Trump’s alleged constitutional offense, from the standpoint of progressive or “living” constitutionalism, consists precisely in overriding the authority of expert bodies or the prevailing “inter-agency consensus.” Lee is a frank partisan of the original Constitution and a critique of its progressive reinterpretation. True solicitude for the constitution thus dictates, he concludes, not righteous indignation at the president’s use of executive power, but the defense of his Article II powers against the increasing arrogance of the fourth branch.

I would really like to understand better some of the assumptions Ralph is making here--assumptions which operate, I should note, without ever mentioning any details of the allegations about President Trump made in the articles of impeachment, thus obliging readers of Ralph's column to assume that the truth or falsehood of those allegations is irrelevant. Leaving entirely aside larger historical and theoretical debates over constitutional interpretation and the definition of "progressivism" being used here, the crucial leap I see here is the idea that the "experts" who expressed the "inter-agency consensus" against Trump's bribing or threatening or pushing of President Zelensky (presumably this is a reference to the testimony of Ambassador Gordon Sondland, Ambassador Marie Yovanovitch, Lt. Col. Alexander Vidman, and multiple others), actually constitute a unified body that seeks to operate as a "fourth branch of government," outside of the will of the executive or legislative branches That these individuals and others were actually operating within the reach of the executive branch--hence Trump's ability to fire them--complicates this assumption somewhat, especially in light of the centrality which Ralph grants to partisanship as a necessity of proper statesmanship.

While it is true that conservative stereotype of the progressive interpretation of the U.S. Constitution has involved the progressive empowerment of various agencies, boards, and other institutions within the executive branch, I have never heard it said that President Woodrow Wilson or other progressive bogeymen of the conservative imagination were empowering such agencies in order to limit presidential discretion by way of "expert consensus." On the contrary, the conservative knock against them has long been that these agencies and experts centralized power in the office of the presidency. So in what way, exactly, can executive appointees hypothetically undermining the actions of a president via expressing their critical judgment against him in impeachment testimony be understood as following through on a progressive agenda to centralize power?

I think I can imagine one way, but only one. If Ralph is a complete adherent to the theory of presidential power laid out by Attorney General William Barr, then presidential power must be understood as something that belongs not to the executive branch, but to a single person, wholly and entirely. The executive branch, under this (I think frankly ahistorical, and others agree) interpretation, then the people around the president must be understood as his partisan tools, nothing more or less. Thus, any Republican appointee of President Trump who dissents from or really is just in any way critical of Trump's actions has failed to follow their partisan role within the constitutional structure of the executive branch, and must be understood as acting independently, in alignment with those progressive forces, hiding behind their civil service protections, acting as an unelected, undemocratic force.

If this is correct, then Ralph is arguing--or at least as best as I can construct the argument--that if ours is to be a responsible constitutional democracy, it must firmly resist any kind of intra-party dissent within the executive branch, because absolute partisan unity is central to the executive (that is, the President of the United States) governing--including, I suppose, making phone calls--the way he or she chooses to, and giving the presidency wide freedom in what they choose to do holds off or at least hampers the development of an elite body of undemocratic, unelected others.  Hence, Lee is acting a statesman in voting in support of the president, and Romney, invoking an "impartial" ideal to justify his vote against the president which fails to reckon with the necessity of an executive being free from push-back from his own partisan tools, is not. Have I got this right, Ralph?

I think there are huge historical and theoretical problems with this, and I say that as someone who is entirely willing to dump on Madison, praise parliamentarianism, and join in rolling my eyes at obviously partisan individuals and organizations cloaking what they do in civic republican language. But that's not what Ralph has done here; I think he's made a different kind argument, one that I would really like to understand better, because not only does it not seem to fit the "original constitutionalism" Ralph has so long praised, but it doesn't even seem to entirely fit the conservative complaint against progressivism which so many adherents of "original constitutionalism" have long put forward. Yes, I know; Occam's Razor suggests that Ralph doesn't actually believe any of this; that's it's all motivated reasoning, same as my response, and that his column and my response here is all just so many pointless words tossed around. But noentheless I'd love to be humored, at least a little bit. Ideally I'd love to hear from Ralph himself, but if anyone would like to explain to me what I've misunderstood about his claims, I can't think of a better way to honor Presidents' Day than to argue about it all.

Arguing About Abortion (but Actually Mostly Other Things) in Kansas

[I was asked to provide some commentary on the recent abortion decision by the Kansas Supreme Court which received so much national attention. My column appeared in the Wichita Eagle on Saturday (read it here, complete with an incorrect file photo of the current Kansas Supreme Court justices), which surprised me, as I expected it to run today. Anyway, as usual, I actually have more to say, so here we go, one day late:]

A little over a week ago, the Kansas Supreme Court handed down its decision in Hodes & Nauser v. Schmidt, the case which obliged them to rule on whether or not Kansas’s state constitution included the right for a woman to have an abortion. It includes three different opinions–one by a five-person majority, one concurrence by Justice Dan Biles, and one dissent by Justice Caleb Stegall–spread over 199 pages, all of which I read last weekend, because I'm that kind of nerd. Judging by my scribbled notes all over those pages, I would say the opinions are filled with careful, challenging, and sometimes frustrating legal argument. Whatever else you may think of the results, I can assure you that the decision here was anything but simple.

Yet last Friday, my own west Wichita representative in the Kansas House, Dan Hawkins (hi Dan!), denounced the Court’s ruling in highly simplistic terms, calling it an act of “dictators” bent on “dehumanization” in a Wichita Eagle column. His argument was impassioned, and not, I think, entirely wrong--but fairly tendentious all the same. Since Kansas Supreme Court justices never comment on their own opinions, I figured I may as well attempt an explanatory retort.

But first, inveterate academic that I am, I can't help but include an unfortunately-lengthy caveat on the whole matter of the judiciary's role in American democracy--which, by the way, is actually pretty central to the dissent's whole argument--just in case anyone is confused about where I'm coming from. I long have been, and I remain, despite much rethinking and fine-tuning of my opinions over the years, still basically suspicious of judicial review (as many blog posts of mine over years have made clear). I recognize that counter-majoritarian tools are indispensable in a democratic system which takes the idea of basic rights even minimally seriously; the question is, if the governing system one is part of also takes genuine participatory (and thus invariably majoritarian) democracy even minimally seriously--which generally I think it should--what those counter-majoritarian tools should consist of. I am unpersuaded that the civic costs of judicial review, as it has come to be exercised, are always worth its benefits. That is not to say that, absent a complete reworking of the bases upon which engaging in democratic activity under out constitutional system, we should simply get rid of it; my point is simply to reiterate its (I think irreparably) problematic character, not to deny its inextricable connection to the only kind of political functioning currently available in the United States. One should always keep in mind that judicial review didn't have to be institutionalized in the overwrought, often desperate way it has been; the U.S. Constitution, on my reading, certainly doesn't warrant it, and American history provides numerous instances where one could imagine the relationship between the courts and the legislator-electing public developing along different lines. Consider, for example, Abraham Lincoln's response to the precedents supposedly laid down by the Supreme Court's infamous decision in Dred Scott v. Sandford:

Judicial decisions are of greater or lesser authority as precedents, according to their circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession. If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent. But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.

I have no idea how any of the above could have been institutionalized (requiring controversial cases, or those that split 5-4 or otherwise along recognized party lines, to be re-argued before a different set of justices, perhaps? but that would necessitate much more frequent turn-over in the federal judicial system, perhaps through imposing term limits on Supreme Court and lower court judges?). But just because I can't think of how to make it work, doesn't mean there isn't any possible way to institutionalize it. But in any case, that's where I stand--and hence, as I'll explain, I have a certain among of sympathy for the dissent. But also, please note: this case was not, strictly speaking, a full act of judicial review. Rather, this was a case of the Kansas Supreme Court being obliged to provide an answer to a question which would then be relevant to any judicial determination of the constitutionality of a law. And that, at last, leads me back to the decision itself, and Hawkins's reaction to it.

The first paragraph of the 5-justice majority's opinion defines the goal of their argument: "Section 1 of the Kansas Constitution's Bill of rights provides: 'All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.' We are now asked: Is this declaration of rights more than an idealized aspiration? And, if so, do those substantive rights include a woman's right to make decisions about her body, including the decision whether to continue her pregnancy? We answer these questions, 'Yes'" (pg. 7).

The Kansas Supreme Court's decision is obviously a win for those who defend abortion rights, and a loss for those who oppose the extension of those rights (with both groups constituting roughly half of Kansas's population). But does that mean the decision by the majority has opened the door for “unrestricted late-term abortion up to the point of birth” in Kansas as Hawkins wrote? No, it does not--or at least, it only means it in the same sense that my having the freedom to grade my own students' exams opens the door to my deciding to arbitrarily flunk everyone who is less that 5 ft. in height. The simple fact is that any hypothetical changes to abortion laws in Kansas are a question for the future, and are by no means predicted by this decision. This is because the focus of this case wasn’t abortion policy at all, but rather the constitutional terms under which abortion policies are to be made--and as such, provides no ready-made path for anyone who wants to make specific policy changes.

The original argument behind the whole question brought before the Kansas Supreme Court was over what level of justification the state of Kansas must provide in passing a law which bans a particular type of otherwise legal abortion procedure (in this case, the undeniably gruesome but generally safe and reliable procedure normally used in those rare cases where late-term abortions are medically necessary because the baby is severely deformed or otherwise threatening the health of the mother). Having made their decision, the majority's decision sends the case back to district court, to be argued in light to their constitutional interpretation. They note that the lower court has “a heavy task ahead of it” (pg. 86), in that it will have to consider this Kansas law in the face of scientific advances in fetal viability on the one hand, and the clear right of women to control their bodies on the other.

So what about that right to bodily integrity or autonomy (the majority uses both without much clarity or distinction)? Hawkins is obviously correct in noting that the Kansas Constitution includes “no language of the sort.” Here is where things get interesting to nerds like myself to love to study such things. Abortion rights were established by the U.S. Supreme Court nearly a half-century ago in Roe v. Wade on the basis of the right to “privacy” which it interpreted out of other guarantees in the Bill of Rights--the (in)famous idea that privacy-related rights like that of free association, protecting one's property, insisting on remaining silent, etc., formed a "penumbra" that included within it a general right to privacy. Whatever your opinion about that bit of constitutional interpretation, it must be remembered that the Court modified it in the decisions which followed. Over the decades, various debates over privacy in regards to abortion has led that Court to develop a test which allows state legislatures to pass laws which restrict abortion rights in the name of protecting fetal life, so long as doing so does not pose an “undue burden” on a woman’s freedom of choice. That test, developed primarily by Justice Sandra Day O'Connor in Planned Parenthood v. Casey, remains the binding precedent for abortion policy today.

The majority on the Kansas Supreme Court acknowledges this line of reasoning, allows that the Kansas Constitution incorporates this currently reigning interpretation of privacy rights–and then dismisses it, actually writing that, while they hold this interpretation to be valid, they "need not recognize" it (pg.15). Instead, they argue that the Kansas state constitution provides something even stronger: an inalienable natural guarantee of complete bodily autonomy.

This is a rather audacious thing for a state court to claim, in particular because it introduces a host of questions that the Court provides no guidance for. For example, is “bodily integrity” to be understood as solely referring to the right of women to control their own pregnancies? Or might it also imply that any Kansas law or government office or place of public accommodation which puts restrictions on what people choose to do with their bodies–like, that I must clothe my body with a shirt and shoes if I want to be served, or that a child’s body must be vaccinated before she attends elementary school–should be presumed to be unconstitutional? The majority does gesture towards the sticky problem of mandatory vaccinations, but suggests that the principle of never causing "harm to the individual"--pg. 40--will provide clear guidance, a claim I strongly doubt.

In confess that here I am very sympathetic to the concurrence opinion by Justice Dan Biles, wherein he agrees with the majority that state abortion laws must take into consideration the rights of women, but then argues that elevating rights regarding something as fraught as abortion to such a high level, ignoring the definitions and qualifications which the U.S. Supreme Court has introduced in its decisions about privacy concerns, creates more legal problems than it solves. Biles is particularly good in pointing out that the majority seemed intent on resurrecting Roe-era "strict scrutiny" standards for evaluating abortion policies, but then provided no coherent guidelines for understanding how the right to bodily integrity should be applied to any particular case. After detailing what he considered (I think rightly) an unnecessary bridge too far beyond Casey's privacy-based undue burden standard, he comments "The trial court is going to have to make sense of this nuance, and I wish it luck, because I can't tell the difference" (pg. 96).

Finally there is the dissent. Hawkins condemns the majority for never addressing the elephant in the room: "the rights of the child" and “the loss of life that occurs when an abortion takes place.” But of course, the dissent didn’t address it either–because, again, that wasn’t what was legally at issue. I know Justice Caleb Stegall, and consider him a friend; I know he’s a committed Christian conservative on these matters, and some of his stray comments about the procedure which the state law banned make clear. But in crafting his tour de force dissent of this decision, he remained firmly focused on the case before him.

Thus he spent little time discussing abortion itself, and instead produced a historical and theoretical argument which presents rights as something citizens already possess, and thus may legislatively extend or limit them as they democratically prefer, rather than as something that reflect, to quote Stegall, “sea-of-fundamental-values” (such as an abortion-supporting right to bodily autonomy) which the courts must protect against invasive majorities (pg. 116). On this point, Hawkins’s column, like Stegall’s dissent, connects with an old and honorable argument--an argument that, as a matter of political theory, is as old as the notions of natural rights and democracy themselves, and as a matter of American political history, goes back to the debates over the Constitution by the Federalists and Anti-Federalists, and has continued in one fashion or another ever since. As someone who teaches these ideas regularly, I’m fascinated the dissent’s contribution to this debate. Personally, I find much of his theory highly persuasive--how could anyone like myself, who is basically suspicious of judicial review, not sympathize with his point? But I find myself questioning much of his history.

Not necessarily the detailed history he gives of the origins of the Kansas Constitution, and the descriptions of it by those who were contributed to its writing. Stegall sees this history as supporting the use of a "commonwealth lens" to assess government powers, thus suggesting that the rights included in the document's beginning were not individualistic natural rights but rather reflected "right of republican self-rule" (pgs. 133, 169). The majority obviously disagrees with him, though they seem to me much too quick to turn early Kansans into a bunch of modern Lockeans, judging every governmental problem they faced through contractarian, property-and-rights-based assumptions (hence the Court's ability to connect liberty with bodily self-ownership relatively quickly). But I'm no expert on Kansas judicial history, so I can't weigh in too much on that argument. I can, however, articulate my problems with Stegall's attempt to put what appears to my mind to necessarily issue in a strong strong states' rights (or at least Jeffersonian) argument into the language of Abraham Lincoln, presenting him as one who believed that rights were best understood as what results when "the people relinquished...a defined and limited measure of their pre-political sovereignty while retaining the rest" (pg. 148).

Of course, Lincoln was far closer to older, more republican understandings of democratic government than our much more complex, much more urbanized, much more diverse, and much more competitive and economically divided country presently allows, Moreover, he obviously (as I noted above) was no friend to the arbitrary judicial discovery of--or, as happened to be the case, withdrawal of--basic rights. The man obviously adored the legacy of Jefferson and took seriously his ideas. Still, I think the majority is obviously correct when they insist, in response to Stegall, that "Lincoln...would not be quite so dismissive...on the existence of equal 'natural rights,'" going on from there to quote Lincoln's famous conviction that the rights mentioned in the preamble to the Declaration of Independence (which are the same ones mentioned in the Kansas Constitution), and its promise of equality, were all meant to be aspirational and "of future use"--and thus not something necessarily subject to the give and take of community self-definition (pgs. 34-35). Lincoln gave us the Gettysburg Address, after all--a speech which reduced all the local democratic articulations of the general welfare and everything else tied up with the historical experience of republican self-government to a single "proposition." Consequently, I find Stegall's history more a distraction than an aide to his theoretical argument.

But at this point, the overall reality of the arguments happening in Hodes & Nauser v. Schmidt should be clear. They are mostly not, in fact, arguments about abortion. Rather, they are arguments about different philosophies of natural rights, about republican political theory, about constitutional interpretation and judicial precedents--about, in short, basic fundamentals regarding governing power. All of those things, given the particular structure of this case, will have significant impacts on abortion policies--but we don't know what those impacts will be, because all the Court has determined is how, in the state of Kansas, what one has to include when one argues about abortion, not how those arguments have to go.

The law is hard, and for better or worse (I think mostly for worse, but there's not much I can do about that), has become the place where we send our hardest disputes. That doesn’t mean we’re obliged to respect the decisions of any particular court, or the way it decides them; I certainly don’t. But rather than reducing the complexity of what courts do to simplistic political arguments, let’s at least credit them for taking seriously the particular questions before them. Then afterwards, once we've all done the reading and the thinking regarding what our judicial umpires have to say, we can let the political chips fall where they may.

Thoughts on Wolin

[Cross-posted to Political Context]

Yesterday evening, at the reception to mark the opening of this year's Association for Political Theory conference, a moment of silence was asked for to honor the legacy and the passing of Sheldon S. Wolin, a tremendously incisive and important political theorist and historian of political philosophy who passed away just a couple of days ago. Wolin has been mostly--though far from entirely!--silent over the past few decades, but no doubt many tributes will nonetheless pore in as the days go by. As is my want when someone whom I've intellectually wrestled with passes away, here is mine.

As an undergraduate developing an interest in political theory and the history of ideas in the early 1990s, I was aware of Wolin's name before I had any sense of his significance. This was thanks to Bill Moyers's wonderful series of interviews, A World of Ideas, broadcasts that I missed on television but later read in book form, books which I've praised before. I can't say that Moyers's interview with Wolin captured by attention, but it made me think--particularly passages like this:

BILL MOYERS: You seem to be calling for a much more inclusive participation at the local level by citizens in all forms of political decision making at the very time--to take your own diagnosis--that the impetus of society is toward larger, more hierarchical, more distant, more remote, more powerful organizations. Aren’t those two fundamentally at odds with each other?

SHELDON WOLIN: Absolutely. Absolutely. The movement has been away from a federal decentralized system to an increasingly, almost hopelessly overcentralized system, so that the whole emphasis has fallen in the one direction.

BILL MOYERS: You sound like Ronald Reagan.

SHELDON WOLIN: I know. I’ve been accused of that several times. but I think that--I think, again, that the difference is that I don’t think Reaganism stands for the real revitalization of power at any other level. I think. Reaganism is a combination of a very strong push towards high technology, and it’s been very powerful in that direction. And it’s been a very strong push towards a strong state, as I’ve mentioned; aggressive foreign policy, strong defense, strong national--strong defense budget, and the rest of it. But it’s also been nostalgia. It’s been nostalgia in terms of 19th-century or even 18th-century values about home, church, family and that son of thing. [It is] that peculiar combination of sort of progressivism, technologically and in terms of the political state, and a regressive view towards ethics, morality, piety, family and the rest of it. And I think it’s that American proclivity towards wanting to really find yourself sanctified by some set of values that you know very well cannot come from what you’re actually into. In other words, defense, high tech, strong corporate system can’t generate the kind of values that really make us comfortable, that really suggests the power that we have is good, and we deserve it.

(Moyers's original broadcast interview with Moyers is online here and here; definitely give it a watch.)

Long before I was studying communitarianism, localism, or any other way of living and thinking which challenged America's liberal capitalist addiction to corporate forms and technological fixes, Wolin's analysis of the political space and democracy was, I later realized, setting me up to recognize as political, and not only philosophical, issues that writings of Hannah Arendt, Christopher Lasch, and Charles Taylor which I encountered in graduate would make clear to me: that late capitalism--and really, the whole sweep of modernism--has created conditions wherein technical knowledge and individual mastery are mostly accepted as the essential fundamentals of social life, to the detriment of democracy, community, and the common good. To properly contest over the direction of our polities, then, requires us to understand the deep historical roots and sometimes opaque ideological backgrounds which have situated it. Rethinking what was exactly happening when modern states were founded becomes, therefore, essential.

This is why my favorite work of Wolin's, which I discovered during my first year in graduate school, wasn't his long, canonical study of the history of the modern contestation over the political realm--Politics and Vision--but a small collection of essays of his, mostly written about American history, mostly written in the 1980s, titled The Presence of the Past: Essays on the State and the Constitution. One of the essays included in that volume, "'Tending' and 'Intending' the Constitution," gave me a persuasive language for understanding the argument between the Federalists and Anti-Federalists, an argument which, I realized, put front and center the broad politically framing issues of science, economy, and locality. I, at least, see Wolin's distinctions--between the desire to see politics as progressive, enabling, demanding project, and the desire to see it as something conservative, protective, and fundamentally respectful of the ordinary--as haunting discussions about sovereignty and anarchy. To this day. His language gave structure to what became my very first published article, and more importantly contributed to turning me not into a cynic about politics, but someone very interested in enabling people (and myself) to see, in ourselves and others, the respectful and often insightful political contestation which is inherent to the most everyday and local sort of interactions and exchanges. And, of course, to the degree that meritocratic patterns move our attention away from the everyday and the local, then the deep populist point of democratic self-government gets lost.

The first graduate conference I ever attended was organized by a couple of young scholars at Johns Hopkins University, and it was designed to be an tribute to and an exploration of Sheldon Wolin's ideas. That was my one chance to meet Wolin, but unfortunately at the last minute he had to cancel; even close to 20 years ago, his health was delicate enough that he couldn't manage the long flight from California. It would have loved to have met him, because I wanted to ask him about a fascinating essay of his which he wrote for the very first issue of the cutting-edge journal, Theory & Event, titled "What Time is It?" That essay, along with another one which emerged from the conference (I had a paper which came out of that conference as well), brought up what I consider to be some of the most radical, while at the same time most grounded and intimate, criticism of upper-class and upper-middle-class educated life in contemporary liberalism. Wolin wanted us to see how “the temporalities of economy and popular culture,” as outgrowths of late capitalist development, leads the great majority of us to automatically prize innovations. The hurried quest to discover (or, often, profitably manufacture) new problems to solve result in an “instability of political time” wherein the sort of temporality necessary to finding “a common narrative, [which was] formerly a stable element in conceptions of the political,” is replaced by the process of fashion: invention, enlargement--and thus, of course, rapid obsolescence and replacement. All of which distracts us from investing in everyday localities and processes which had traditionally grounded the practice of actual democracy, and instead makes us every more aligned (even as we insist that we are actually free-thinking individuals) with those paradigms that promise us--for now, until next week or next month or next year, when new ones will arrive like clockwork--the tools and toys of late capitalist enjoyment.

The fact that those paradigms ultimately serve oligarchic powers is something which some of us notice, but who is willing to fight against it? Well, Wolin himself never advocated overthrowing liberal principles--but he did point out that the often illiberal worldview of “democratic localists, socialists, radical feminists, Christian fundamentalists, Black Muslims, or Jewish Hasidim,” and how their beliefs and practices, their communities and rituals, challenged the way modern liberalism “creates cultural pressures to restrain the individualism that forms so fundamental a part” of liberal accounts in the first place. In other words, the Wolin that I read decades ago seemed to be suggesting that we are in the midst of what is fundamentally a temporal dilemma. To respond to it, we do not need yet another new thing, but something old: not a new emphasis on liberal freedom, for such freedoms have already been appropriated into a commercial myth (a point which Wolin made at length in his last published book) but rather something collective and ritualistic and unexpected: something, perhaps, like religious or similarly illiberal ideological beliefs. For someone who was on his way to becoming a Christian democrat/local populist/anarcho-socialist, those ideas burrowed deep in my head, and over the past decades have provided fertilizer for many, many ideas that have since come to fruition.

If you found anything at all interesting in the previous three paragraphs--whether you understood it or agree with it or not--then you at least have a taste of what the erudition, close reading, serious argument, and open-mindedness of Wolin's political writings brought to me, and hundreds of thousands of other political theorists who read him, or were taught by scholars whom he'd trained, or who actually interacted with the man himself. He was, very simply, one of the greatest and least categorizable political thinkers of the 20th century. He was, like many of the best and most serious advocates of democracy, far too respectful of community and tradition to stand with a money-and-guns addled Republican party, and far too committed to real, collective freedom and self-government to align himself too closely with a Democratic party whose answer to the corporate take-over of liberal promises is, "well, let's just have more of it." Wolin helped us see that politics wasn't just who gets what and how and when, but how we define those whos, whats, hows, and whens in the first place. His fears and concerns for the future of political life remain--but thankfully, his work diagnosing and responding to it remains as well. RIP.