Just yesterday in Who Would Rule A Post-Constitutional America? I raised the issue of rule in a post-constitutional America--an America ruled by a regime lacking authority and legitimacy. It may be well to expand on that a bit, and today at American Greatness I found two articles that may help.
First, however, I'll try to be more explicit about what I mean by the terms 'authority' and 'legitimacy'. Authority derives from the degree that a regime reflects the truth of human nature. Legitimacy refers to the degree that a regime reflects the views of the population it purports to represent. A bit of reflection will suggest that a given regime may be legitimate, yet lack authority--and vice versa, unfortunately. In an imperfect world, authority and legitimacy will normally be imperfect, as well. However, I take it as given that the regime established by our written Constitution had sufficient authority and legitimacy to command the consent of the population. The imperfections inherent in the American Founding, of course, have contributed to the recurrent crises of our constitutional order, as is the case with all regimes.
The current crisis is twofold. The crisis in authority is occasioned by the fact that our ruling class rejects--whether implicitly or explicitly--even the concept of human nature itself, let alone the idea of a truth of human nature. This revolutionary attitude of our ruling establishment was memorably lampooned by Justice Scalia in referring to the Libertarian views of Anthony Kennedy as (here quoting from Scalia's dissent in Lawrence):
The Court's claim that Planned Parenthood v. Casey, supra, "casts some doubt" upon the holding in Bowers (or any other case, for that matter) does not withstand analysis. As far as its holding is concerned, Casey provided a less expansive right to abortion than did Roe, which was already on the books when Bowers was decided. And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ("'At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'"): That "casts some doubt" upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one's "right to define" certain concepts; and if the passage calls into question the government's power to regulate actions based on one's self-defined "concept of existence, etc.," it is the passage that ate the rule of law.
As Scalia suggests, a constitutional 'jurisprudence' that purports to leave to each individual the privilege--or burden--or defining "one's own concept of existence, of meaning, of the universe, and of the mystery of human life'" is no jurisprudence at all. It is, as he notes, a jurisprudence that has eaten the rule of law. A regime whose civic philosophy is expressed in such a parody of a jurisprudence lacks authority. And that's where we are as a nation.
The legitimacy of our constitutional republic is fundamentally defined and grounded in the concept of free and fair elections. Thus, the Constitution itself contains a "Guarantee Clause":
Article IV, Section 4:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
As James Madison wrote in Federalist No. 57:
“The elective mode of obtaining rulers is the characteristic policy of republican government.”
This is why the 2020 Election Hoax constitutes a fundamental crisis of the legitimacy of the American regime--one that has been coming on for quite some time but which has now reached a point at which it can no longer be denied. A hoax election contradicts the notion of legitimacy as laid down in our Constitution. The installation of a puppet regime by an oligarchic elite--over the heads and the vote of the republican citizenry--spells the end of the American Republic's legitimacy, replaced by a regime openly based on raw power and lacking therefore in true authority.
So, this morning I was delighted to read those two articles that address, each in its own way, these two related issues of authority and legitimacy.
The first article
A New Year Will Not Bring Relief
A crisis of authority and legitimacy is emerging from failures in the most fundamental tasks of a society. 2020 was not the cause. It merely exposed the malignancy.
focuses on what the author, Christopher Roach, views as "failures" of "the system." Those failures are threefold:
a crisis of authority and legitimacy is emerging from failures in the most fundamental tasks of a society: the provision for basic needs, physical security, and a fair and accepted means of making decisions and picking leaders.
As a result, Roach adds ominously:
The shutdowns, riots, and fishy election of 2020 simply showed that those in charge might be miscalculating the permanence and security of their current position.
I agree, but with this caveat. The failure to perform the fundamental tasks of a society that we are seeing goes beyond incompetence ('incompetence is a word that Roach uses). The crisis of authority and legitimacy arises not from a failure or inability to perform but from a conscious rejection by "those in charge" of the very bases for authority and legitimacy as outlined above. The Election Hoax is what has made that situation patent, undeniable. The Election Hoax, carried out in plain sight, is a root and branch rejection of our republican constitutional order. That rejection is quite in line with progressivist doctrine as embodied in their policy prescriptions: court packing, elimination of the electoral college, transformation of social and basic human relationships through court fiat, etc.
The whole article is worth the read. Roach gets in some trenchant observations, even as he misses the really big point--that the 'failures' that he cites are not bugs but features. They are the assertion of the elites power over the rest of us. They are the elite establishing that we are now mere subjects, no longer free citizens of a republic. For example:
one’s attitude about the virus became a mark of purity and belief in “science,” that is to say, an endorsement of the managerial class’s claims of expertise and knowledge.
True, but. Belief is one thing, but public questioning is now increasingly censored or even subject to reprisals.
Now Senate Majority Leader Mitch McConnell (R-Ky.) is making heroic efforts to stop $2,000 checks to Americans of modest means. We never see such energy deployed to ban abortion, close the borders, or curtail foreign aid, but all of a sudden the Republicans become deficit hawks devoted to the common good when a government program helps regular Americans who have been harmed primarily by the acts and omissions of government.
This is not a fluke. And this selective concern for deficits and process crosses both parties. The recent response to the coronavirus is just a larger scale repeat of the TARP bailouts from 2008.
Again, we see an open assertion of a change in status, of who matters--and it ain't us.
Regarding law enforcement:
A system that selectively and arbitrarily enforces laws and is indifferent to its citizens’ safety and flourishing is a failure that will not command legitimacy. Whether this is deliberate incompetence or a product of ideologically-driven blindness is mostly irrelevant. The government’s most basic job is not getting done.
Selective and arbitrary enforcement of law is a denial of the rule of law--except in the sense of the official legal philosophy of our elites, legal positivism: Law is redefined as a simple order. And imposition of power, rather than a requirement based on authority rooted in human nature.
Roach is very eloquent on The End of Democracy, and in a way that will play into the second article:
Both parties’ leftward drift on social issues and accommodation of market economics does little to threaten Silicon Valley, Wall Street, and Amazon’s growing economic and political power. While the old GOP would love to pretend Trump didn’t happen—so they can soon get back to losing while conjuring up the spirit of Ronald Reagan—Trump is joining forces with Bernie Sanders in support of more generous relief checks to struggling Americans.
While the party apparatuses have converged, their results have not been good. Nor has this convergence been popular with large, alienated pluralities in both parties. The Sanders phenomenon and the Trump phenomenon are two sides of the same coin. They each represent a plurality of Americans who feel unrepresented, powerless, and unhappy with the results and priorities of those in charge.
This is an excellent description of a regime that lacks authority and legitimacy.
The second article takes an historical approach, working from a budget device:
The Constitutional Politics of Trump’s Impoundment Move
Richard Nixon showed his mettle as the first president to oppose the progressivism behind the destruction of constitutional government. Trump should be lauded for defending constitutional government.
The key is in the subtitle--"the progressivism behind the destruction of constitutional government." The author, Ken Masugi, begins with an overview of the whole issue of impoundment and what Trump might be attempting to achieve. It's interesting in and of itself. But from there he moves on to the essential problem: the takeover of government by the progressive movement and its staffing with a permanent bureaucracy which has become, in effect, a fourth and co-equal branch of government--a de facto branch of government, but no less real for the failure of the Founding Fathers to mention it. Alex Vindman calls it the "Interagency", and that's good enough for our Establishment.
Rather than summarize, I'll provide a fairly extensive excerpt from the second half of Masugi's article. It's a profound look into the historical origins of our crisis of authority and legitimacy. Masugi, of course, concentrates on political issues in a much narrower sense than Roach. Authority and Legitimacy are left unmentioned, however the presence of these concepts can be sensed throughout, behind the references to the constitution and the hostility of the administration to freedom--the preservation of which is the goal of our republican constitution:
Nixon and Trump’s thinking and actions are best illuminated by reference to the profoundest student of Nixon, John Marini. In his latest book, Unmasking the Administrative State, Marini points out that Nixon—the first president following Lyndon Johnson’s establishment of the Great Society, which was the culmination of the 20th century’s Progressive politics—was the first to oppose this project on constitutional grounds. Nixon’s fate exemplifies what happens to serious, principled opponents of progressivism: defenders of the constitution are turned into its enemies.
Perhaps the most controversial essay in Marini’s book, “The Role of Bureaucracy in the Watergate Affair,” notes the parallels between Nixon’s enemies and Trump’s. Nixon’s Democratic enemies never forgave his investigation revealing the Communist ties to elite members of their party. But by 1968, his exposure of the Democrats had increased in scope.
By the end of the 20th century, following Ronald Reagan’s rhetorical assault on the administrative state, it became clear that “it was an element of government itself, the bureaucracy, which had established the purpose and unity of the political branches, and with the blessings of the courts . . . . In short, political rule of law gives way to executive or administrative discretion,” meaning willfulness. Reagan’s first inaugural denounced the arrogance of elites, who denied self-government. Impeachment became a political tool for the Left and its allies to support the administrative state against its enemies. Any excuse for impeachment will do.
As Aristotle noted long ago, the essential qualification for high public office is patriotism, love of country, in which recent presidents proved to be lacking in various ways. But Trump’s coalition is not just “deplorable” whites but immigrants as well, who love their adopted country. Trump’s vision of a patriotic Republican workers’ party, with its implications for foreign policy, international trade, and immigration, is well underway.
Somehow, Masugi fails to expand from this insight to the conspicuous lack of patriotism on the part of our rulers--passing over that key phenomenon with a bland reference to "lacking in various ways." In point of fact, in place of love of country and of their fellow countrymen, the Progs evince an ostentatious hatred for the "deplorables" and "bitter clingers" that is central to their identity. The much anticipated prospect of coercing deplorables against their consciences has become ever more open and explicit in Prog fantasies. They want everyone to know of their hatred.
“The separation of powers was intended to protect political rule—the chief end of which is liberty,” Marini concludes. “Bureaucratic rule is indifferent, if not hostile, to the maintenance of the conditions of freedom.”
Nixon showed his mettle in being the first president to oppose the progressivism behind the destruction of constitutional government in this new administrative state, and for his troubles may forever receive bipartisan damnation as a violator of the Constitution and individual rights. Trump proved a better politician but was denied reelection anyway under suspicious circumstances, to be sure. He will not go down in history for his indifference to budgets but should instead be remembered for his defense of constitutional government and its freedoms, morally, legally, and, above all, politically.
The Founding Fathers regarded the establishment of a constitutional republic as a Great Experiment, the outcome of which was by no means certain. It was more or less a commonplace among them that this constitutional order would require a virtuous citizenry. Perhaps this history shows the source of the seeming failure of our constitutional order that we're facing. Perhaps there is a pervasive failure of virtue abroad in the land, or even a simple lack of interest in the public interest--Politics writ large. An involved and informed citizenry is required for a political order to thrive and even ennoble its participants, and of course that's exactly what the Left has in its crosshairs.
And so it ends, not with a bang, but a whimper.ReplyDelete
Wow! Is your keyboard smoking?ReplyDelete
I still back up a century + on our failures towards maintaining constitutional authority but I get the gust of it and am in agreement. How we got here only really applies when / if we are considering change.
Yes, feature vs bug is a more accurate description.
The republican hawking is another "feature" of sorts. The long con of the decepticon party, every once in a while they say the quiet things out loud.
"Jurisprudence lacks authority" is a fancy way of saying we're off a cliff... Which is why I say, time to hit the reset button!
If one expands their perspectives, you realize the Progs are not much better off than the conservatives. They are just played in a different variation of the same con job.
All of these symptoms are caused by the same problem, a government that's out grown it's britches.
The blur of distinction is caused by a two party system playing fiddle for the same master. Neither side is winning, that is something both sides will tell you over and over. They will also both tell you their opposition is always wins as well.
Funny how that works...
Meh... To Arms!
Mega dittoes to that final sentiment DM.Delete
"The much anticipated prospect of coercing deplorables against their consciences has become ever more open and explicit in Prog fantasies."ReplyDelete
Relevant to this is an article by Jordan Alexander Hill, at
https://quillette.com/2021/01/03/return-of-the-strong-gods-understanding-the-new-right/ , which starts with
< In mid-November, just two weeks after one of the most contentious elections in American history, Democratic National Committee member David Atkins took to Twitter. “No seriously… how *do* you deprogram 75 million people?” he wondered, sounding more like a member of the Politburo than the DNC. “Where do you start? Fox? Facebook? We have to start thinking in terms of post-WWII Germany or Japan.” He continued: “This is not your standard partisan policy disagreement. This is a conspiracy theory fueled belligerent death cult… the only actual policy debates of note are happening within the dem coalition between left and center left.” As the comments flooded in, Atkins doubled down: “You can’t run on a civil war footing hopped up on conspiracy theories… without people trying to figure out how to reverse the brainwashing.”
What is most striking about Atkins’s comments is, not his evident belief that 75 million Americans are conspiracy theorists, nor his suggestion that we re-educate citizens for wrongthink—in the world of Left-Twitter, this is comparatively mild fare—but rather his insistence, that the Democratic party is a uniquely heterodox space, a forum for robust policy debates, while the GOP is some kind of monolith. A “cult,” as he called it.
And yet, the Republican Party possesses more viewpoint diversity, and is more internally factional, than its competitor by a wide margin. >
According to this Atkins' web page, hisReplyDelete
"term on the DNC does not officially begin until the close of this year's Democratic National Convention." (2020)
In any case, his stuff about "how *do* you deprogram 75 million people?” is *classic* Stalinistic.
There is MUCH packed in this article. 1st thing that hit my mind was the 3 newest SC members... intended to align to Scalia in many respects but obviously not completely. Would think they would have a grasp on the Founder's authority and legitimacy intent.ReplyDelete
2nd) the shift to a more progressive style e.g. thought process, social agendas, and progressivism in general is merely (IMO) a by-product of our education system. Social justice (riots), law breaking etc... are encouraged rather than scorned.
3rd) Nixon's reference is intriguing in the sense of his views at the time driven mainly by McCarthyism growing up through the 50's and 60's and the real and immediate THREAT of communism and socialism at the time. Unfortunately now a days this threat isn't as real in the sense of visible evidence for citizens to see, touch, and feel. No one wants to view China as a threat. Why they make so many of our gosh darn goods to be viewed as a threat. Don't speak poorly of China.
4th) Until America wakes up (not wokes up) and gets a grasp of reality, understands the liberties and freedoms at stake we're rolling towards being another Canada or worse. Has your neighbor snitched on you lately for having 6 or more people over during the Holidays?
I have a way to deprogram Atkins and it only leaves a very small opening.ReplyDelete
Your discussion of 'authority' and 'legitimacy' is refreshing, and a reminder of just how serious all this stuff is.ReplyDelete
But may I suggest that Casey is hardly the most important modern-day SCOTUS breach of 'authority; its rejection of Natural Law in Roe was a predicate for Casey. (Yes, Dred Scott was just as evil for the same reasons, but that's not 'modern-day.')
The authority of Natural Law was specifically incorporated in the Declaration, "....the laws of Nature and Nature's god....." Natural Law, then, is a product of "Nature's God", which establishes the Real Authority: God.
Legitimate Governments, then, use (borrow) the authority of Nature's God, but that authority diminishes in direct proportion to that Government's movement away from Natural Law; at a certain point, Government's legitimacy no longer exists.
We are near that point.
I'm a strong believer that the convergence of unforeseeable events can change the political culture. It happened in the sixties and I suspect it is happening again, only this time to shift the country rightward. Attempts to stifle that shift are part of the process, as are the responses -- sometimes violent -- to those attempts.ReplyDelete
Great article, Mark, thank you.ReplyDelete
Watergate was the first successful attempt by an entrenched, unelected bureaucracy, and their friends in the liberal media, to topple a legitimately elected Republican president. The burglary itself was a nothing burger.Delete
WaPo, with help from slimeball Mark Felt (FBI), was able to turn a molehill into a mountain. True, Nixon was his own worst enemy, embarking on a stupid coverup, and making tape recordings about what at that point had clearly become a felony.
Nixon may have been a paranoid. Turns out, though, he wasn't paranoid enough.
Nixon probably could have survived all the theatre about Watergate. What compelled him to give up was a bunch of little old ladies in Nebraska discovering he was a potty-mouth in the oval office. That was a political battle he knew he could not win.Delete
Less "sophisticated" times.
In the next grand experiment, the people must explicitly design their founding documents to actively and perpetually limit the power and authority of Leviathan. The cynic in me knows that some level of "bureaucracy" is crucial to a modern state, but IMO, it is a blindspot of the founding fathers that they presumed we would always act for individual liberty.ReplyDelete
Seems to me self-determination was largely the point. If one, or multiple, generation/s fail in honor or virtuosity it hardly seems fair to complain that some distant ancestor didn't bind them in such a manner as to relieve them of the burdens of agency. But then life is typically unfair.Delete
The DS has been built one brick at a time. Millions, across multiple generations, have had a hand in it. How many movies from the dawn of talkies to the 1950's had at least one character lament, "There oughta be a law." Most if not virtually all. Well that sentiment predated movies by a lot of generations, and that “politics is down-stream from culture” has proven true. Americans got their laws, and the administrators that necessarily go with them and the minders that necessarily go with that. They got so many laws that starting about 1950 they no longer needed to decry the lack thereof because the juvenile DS, created by law, was churning out regulations as fast as busy little fingers could type them up (then word processing came along and things really took off), always at the behest of a group that inveighed "there oughta be a law”. Examples of agency saving devices we’ve had gifted to us by a now dead generation are the burden lifting 16th and 17th Amendments. One relieved us of hearing the Administrators begging for funds by basically transferring all income to the Administrators and letting them set our “allowance”; the other relieved us of having to pay attention to local and state politics and turned the responsibility of picking Senators over to the national parties (huge time saver that).
"If we do not wish to be ruled by a coercive authority, then each of us must rein himself in...A stable society is achieved not by balancing opposing forces but by conscious self-limitation: by the principle that we are always duty-bound to defer to the sense of moral justice.”
Aleksandr I. Solzhenitsyn, Rebuilding Russia: Reflections and Tentative Proposals
“Our envy of others devours us most of all.”
Aleksandr Solzhenitsyn, The Gulag Archipelago 1918–1956
I think the founders understood quite clearly the impossibility of writing rules so comprehensive or so ironclad as to save a people unwilling to rouse themselves to participate and simultaneously exercise something resembling self-restraint. It was one of those, “Bless it and release it kinda moments.” Maybe the founding generation should have aborted the entire idea and just named a monarch; or saved a lot of blood and stuck with George III, who really wasn't so bad as monarchs went. Then we could at least let the founders rest in peace and just blame whomever holds the throne, as we wait for the sport schedules to get back to normal.
Very nice. John AndraDelete
Not sure if anyone else is reading "The Fourth Turning" by Strauss and Howe. I am well into it now and highly recommend for the current Crisis. It is directly relevant to Mark's excellent post here as the authors predicted that America would enter the cyclical "Crisis" phase sometime in the 2020s--- and this was written in 1997!ReplyDelete
One valuable insight of the book is to view our present Crisis in cyclical terms not linear terms. America has experienced 3 prior Crises: the Revolution, the Civil War, and Depression WWII, a sort of Winter of our national life. After each one, Spring came, the fullness of Summer, and then the inevitable unraveling of Fall. This by no means minimizes our current Winter but it does put us firmly in history as something we have faced and can (must) conquer. A new order is about to be born. We must come through this fiery ordeal and win through to see America reborn as a glorious new land of freedom and opportunity. Hate to sound corny but, yeah, it's our destiny. We have to rise to it even if we're not sure yet how to act. We know the end goal. That is enough.
It may not be quick and certainly not easy. If we shrink back, the rebirth may be one of totalitarianism not freedom.
Not "may be" ...Delete