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.

Happy Constitution Day! Now Go and Read This

When I was an undergraduate studying international relations and political philosophy back in the early, circa 1990-1993, Francis Fukuyama was huge. His 1989 essay "The End of History" (later expanded into a book) was essential reading. I'm pretty certain I never bought into his Hegelian interpretation of the history of liberal democracy, and in later years I found his apologetic balancing act regarding the Iraq War discomforting familiar to my own unfortunate trajectory. Still, I've always found him worth reading, particularly his reflections on Confucianism, social development, and civic trust. And thus it was with great interest when Damon Linker pointed his readers to this morning to this rather despairing essay by Fukuyama. Drawing on his latest work on the decay of political institutions, he apparently has just one basic thing to say to his fellow American citizens: might as give up.

Okay, maybe his doesn't quite go that far. But when you end a lengthy and detailed article, summarizing much political science research with numerous well chosen examples (though my friend David Salmanson is perhaps rightly complaining to me via e-mail about Fukuyama's treatment of the U.S. Forest Service), with "The depressing bottom line is that given how self-reinforcing the country’s political malaise is, and how unlikely the prospects for constructive incremental reform are, the decay of American politics will probably continue until some external shock comes along to catalyze a true reform coalition and galvanize it into action," the headline of Damon's column--"America is Doomed!"--seems justified. Given my rather odd and radical mix of political preferences--Christian socialism, local community, populist economics, a decentralized and quasi-anarchic egalitarianism, etc.--it's not surprising that I'm quite open to root-and-branch condemnations of the liberal constitutionalism which defines our political order (though it was really only within that past few years that my despair with our particular approach to democratic government really began to flourish), and I recognize that general narratives of decline are a dime-a-dozen and deserve to be treated skeptically. Still, I think overall Fukuyama has thoughtfully and measuredly nailed our institutionally decay. Perhaps there is much more that could be said about the civic, moral, and structural roots of that decay, but in terms of proximate causes, it really is, as Damon commented to me, a tour-de-force.

So, in other words, you all should read it, and think about it. To whet your appetites (or perhaps to serve the needs of those who are curious but don't have a spare half-hour or so), let me summarize some of his main points by reconstructing them in a step-by-step, historical fashion:

1) The constitutional arrangement of the United States ended up--in part by building guarantees of individual rights, guarantees which came to be the interpretive prerogative of the judicial branch, into our fundamental law right from the beginning--enabling (or, at least, given the ideological backwash of the Revolution, legitimizing) a rise in a demand for political and economic democracy long before an administrative state capable of delivering of the democratic wishes of the people was established.

2) Consequently, through the 19th century political parties became the primarily deliverer of democratically demanded prizes--and as the country grew in size and complexity, this political and economic patronage became increasing corrupt, with locally elected representatives and locally elected or appointed judges enjoying enormous patronage resources.

3) The Progressive era was thus much more than simply cleaning up and regulating political parties and elections; it was also creating a set of expectations for administrative agencies--ones that reflected a late 19th-century/early 20th-century devotion to science and organization--that presented them as capable bearers of the public trust distinct from the buying and patronizing of political influence. Ideally, while these agencies would be subject to ultimate legislative (and thus democratic) oversight, they would be kept free from invasive and debilitating interest group interference.

4) Unfortunately, over the long haul, both our particular (separation of powers) constitutional arrangement and our particular (first-past-the-post) electoral system made it in the interest of elected representatives to seek the support of specific interest groups beyond the official agenda of their parties, and our individualism pushed against the regulations that had prevented the development of a hugely expensive campaign finance system which made such support necessary for the success of any individual politician. The combination of these made the ability of administrative agencies to remain free from the legislative veto-points that proliferated in our federal government--or even the desire of those working in said agencies to stay above them--rather negligible.

5) As a result, the judiciary became increasingly responsible for, and then eventually invested in, resolving disputes and issuing rules to patch over both the inability or unwillingness of our legislative bodies to effectively act on political consensus, and the incoherence of the dictates handed out to administrative agencies by a divided and interfering legislature. An executive which regularly took up authority that the legislative branch couldn't or wouldn't make use of, and issued executive orders which often tested the boundaries of its enumerated powers, giving the legislature and interest groups additional things to fight about, didn't help.

6) All this, of course, decreased the trust in and prestige of government, meaning that increasingly the purported meritocracy of the civil service didn't work, as the best and the brightest went elsewhere.

7) Lather, rinse, repeat. Or, as Fukuyama writes near his conclusion:

[T]he United States is trapped by its political institutions. Because Americans distrust government, they are generally unwilling to delegate to it the authority to make decisions, as happens in other democracies. Instead, Congress mandates complex rules that reduce the government’s autonomy and cause decision-making to be slow and expensive. The government then doesn’t perform well, which confirms people’s lack of trust in it. Under these circumstances, they are reluctant to pay higher taxes, which they feel the government will simply waste. But without appropriate  resources, the government can’t function properly, again creating a self-fulfilling prophecy.

How to get out of this? I don't know. Some aim to overturn Citizens United and re-install some strong limits on the ability of powerful individuals and corporations to dictate where the incentives governing the decisions of our elected representatives lie. But frankly, I have little hope for that. But assuming that or some other such reform does work, what would keep the whole process from simply starting up again? Probably, I think, it would have to involve creating a more parliamentary set of institutions, meaning a wholesale change in our Constitution. Again, not something I'm holding our much hope for. See what I mean about despair?

How the Fall of Eric Cantor Continues to Prove James Madison Wrong, or Something Like That

My friend Michael Austin has become a skilled pundit, and his observations on American politics are usually smart, historically informed, and wise. But his latest column, in which he claims somehow that the historically unprecedented defeat of a sitting House Majority Leader in a primary contest--which is what happened to Eric Cantor yesterday, when the Tea Party-influenced (though interestingly, not actually Tea Party-backed) quasi-libertarian David Brat defeated him soundly--is a demonstration of James Madison's logical argument for large republics in Federalist #10, is just strange.

Michael gets the basics of the tenth and, arguably, most famous of all the Federalist Papers correct:

Federalist #10 is Madison’s argument for a strong central government. The greatest danger to a republic, he argues, is a faction (a party or interest group) that becomes too powerful and begins using the power of the majority to oppress the minority. The only way to keep this from happening, Madison believed, was to place so many factions in competition with each other than none of them ever held power long enough to become oppressive. And the only way to do this is to create a large enough political entity to make sure that factions are always unstable.

I think Michael is leaning too much here on the idea of "unstable"; Madison (like Alexander Hamilton, his political-enemy-but-for-once-ally in the fight to get the proposed Constitution ratified) hated instability, comparing it with "injustice and confusion" in government, and blamed the existence of all such things on the partial interests of popular factions in the first place. Of course, Madison then goes on to show that, since we can't get rid of factions, free governments need to focus on "controlling its effects." This leads many readers--especially those partial to a kind of pragmatic pluralism, as Michael generally is--to see factions as one of the frustrating-but-managable realities of liberal government, and leave it at that. But that's not where Madison himself left it, I think; rather, he engages in a halfway-republican move (perhaps necessarily, given the political realities of the ratifying convention in New York State that the Federalist Papers were being written to influence), and argues that by obliging the representatives of factions (which, as he and every other person involved in the writing of the Constitution assumed, would be highly educated members of their respective communities, or as he put it, "men who possess the most attractive merit, and the most diffusive and established characters") to interact with one another in a legislative setting, you increase the likelihood that the government will act in accordance with the common good.

How was that supposed to work? First, Madison talked about how representative democracies "refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations." So, representative government improves the chances of a free people being able to discern the true public interest. Second, Madison urged that the republican system be extended: by "tak[ing] in a greater variety of parties and interests...you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other." In other words, in being forced to deal legislatively with one another, the ability of any one faction to subvert the common good in the name of private interest is interrupted by the necessity of respecting differences--as Madison concluded, "communication [referring here, I think it is fairly obvious, to lining up other legislators to vote along with you] is always checked by distrust, in proportion to the number whose concurrence is necessary."

The ultimate point of all this mostly well understood by scholars of the Federalist Papers: Madison made the claim (whether he actually believed it or not is a somewhat different question) that homogeneity and community are not the best way to balance human freedom with civic virtue; rather, the best thing to do is throw the door open to lots of factions, which, through their necessary intercourse with one another, will both allow representative action to articulate a common good, and will prevent partial interests from being able to infringe upon on the common good by obtaining majoritarian power.

What does any of this have to do with Cantor? That's exactly my complaint; I really don't think it explains anything about Cantor--in fact, if anything, the fact that a small faction (Tea Party-influenced libertarian-constitutionalists) within another faction (the Republican Party) can, through winning a low turn-out primary election, probably put effective political end to a much needed bit of legislative action, mainly just proves how much our systems doesn't actually adhere to Madison's understanding of representative government at all.

This is the way Michael summed it up:

Like most pragmatic Republicans, Eric Cantor understood that his party could not remain nationally competitive unless it could find some way to capture some non-trivial portion of the Hispanic vote...But he also knew that Republicans had damaged themselves badly with Hispanic voters by their persistent anti-immigration stance. He embraced immigration reform carefully and pragmatically because he understood that, without it, the Republican Party could be virtually shut out of national elections for the next two generations. It was a politically astute decision, and it cost him his political career....

The tea party appears to have more power within the Republican Party than it ever has, and establishment Republicans will increasingly have to choose between their long-term political fortunes and their short-term survival. The more success the conservative movement has, the more ideological purity its true believers will demand, and the less successful the conservative movement will be. Everything, in other words, is going according to Madison’s original plan.

I really don't follow this argument at all. Michael's assertion seems to rest on the idea of that a "successful" party is one that will be "nationally competitive." The Tea Party may have great influence, but as a faction it cannot succeed if it maintains its ideological purity, because that will mean....I guess that we won't ever have a immigration-reform-opposing, Hispanic-unfriendly, Tea Party-candidate win the presidency, or otherwise be able to do (in regards to "long-term political fortunes," anyway) what representatives are sent to the legislature to do. It will fall apart, as Madison predicted.

First, I don't see any indication in Federalist #10 that Madison held any kind of comprehensive view on the life-cycle of factions. (If he did have such a view, one might argue that his trenchant comments about how we can see throughout history factions destroying democracies that he seems them as rather durable, to the point of overwhelming and destroying, parasite-like, their own political hosts.) Second and more importantly, Michael seems, in this column, to be choosing not to think much about the institutional realities of American electoral politics. We operate with an electoral system that privileges two-party dominance. The sort of regional, cultural, religious, and economic variations throughout our country which once complicated the positioning of factions within those two parties have become ideologically streamlined--particularly in the case of the Republican party. And, of course, we have a separation-of-powers system and a legislative body with a large number of veto points, controlling the possibility of genuine legislative action. And, of course, you have all the flaws of our campaign finance system. The result of all this, as everyone knows, is democratic gridlock. In the case of immigration reform, you have significant majorities of Americans who recognize that something needs to be done--and you have a small faction, a faction within a faction really, who has probably been able to effectively paralyze the U.S. Congress on this issue for the rest of Obama's term in office. Since stopping the kind of immigration reforms which were actually on the table in Congress was one of candidate Brat's oft-stated goals, that sounds to me like a faction that is "successful," don't you think? Brat doesn't have to run for president, and Boehner doesn't have to continue on as Speaker of the House, for a faction to succeed in gumming up the "communication" that Madison thought ought to happen in the legislature.

I suppose Michael is ultimately wagering on what he assumes the long-view to be: Madison said there will be factions and we have to manage them, or they will manage us, and that is what's happening, so Madison, in general, was right. Since I don't know what Madison's long-view was, I can't really say. But to the extent that Madison, as I read him, claimed that an extended republic would allow for more and better representatives to more faithfully and responsibly eliminate threats to and work towards the common good, I think he was mostly wrong about how representative democracies have come to work. Cantor's loss, if it suggests anything, I think proves more on the anti-Madison side than otherwise.