The American Regime and Its Moral Ground

Most readers are probably familiar with the conservative position that the Declaration of Independence--with its recognition and enunciation of American first principles--should be treated as equally foundational to our constitutional order as the Constitution itself. That argument, reasonable as it is, is wormwood to progs for obvious reasons--as obvious as the Declaration's most famous passage: 

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Self-evident truths, a Creator, unalienable rights, limited government founded on principles rather than the opinion of prog experts--Yikes! It would be the end of civilization as ... Progs want us to know it. What would come next--open and fair elections?

Hadley Arkes, retired professor of jurisprudence, has a thoughtful article today that amounts to a meditation on these issues. It's well worth your time to read it:

The American Regime and Its Moral Ground

When the founders took up the task of framing a new Constitution, they had to draw upon those principles of law and moral truths that were there—as they had to be—before the Constitution.

UPDATED: Is America Fracturing?

My Dutch friend sent me a link to a longish piece at Zerohedge that raises once again the issue of civil war in America. The piece begins with a lengthy and very interesting analysis of where Turkey stands vis a vis NATO, the EU, Russia, and China's Belt and Road project. But halfway through the author shifts gears. But the theme is similar--just as the old Cold War alliances are shifting and even fracturing, so too in America:

New Alliances Forming In The US...Civil War Is On The Table

The focus of the article is singleminded. The one issue raised is The Border, although state finances are drawn into that mix. Basically here's how the author sees a civil war developing.

We've seen that Texas and Arizona are very much concerned with the flood of illegals pouring across the border with Mexico, and are trying to address the situation with their own resources. More striking than this open conflict with the Zhou regime's policy of attacking American sovereignty, however, was the recent announcement by Florida governor DeSantis that Florida would send law enforcement resources to assist "fellow Americans"

Transparency And Constitutional Order

I'm not aware that the word transparency appears anywhere in the Constitution, but I'm pretty sure that most people would agree--in principle--that there is firm understanding that the government of our republic is supposed to deal with the people on the up and up. That understanding may be tacit, but my impression is that it's pretty firm. We all know that it's often honored in the breach, but it's the point behind the regular exposures of "hypocrisy" on the part of politicians and other public officials. If transparency in matters that affect the general public were not accepted as a fundamental principle nobody would be outraged by the lack thereof.

That understanding is also behind what's going on with the audits--or, attempted audits--of the 2020 election. The attitude is: If they don't have something to hide, then why are they jiggering with the process?

Then there's the Covid casedemic.

Just the other day I wrote a post about the VAERS reporting on vax deaths and injuries. It's well known that the VAERS data--being voluntary and not widely advertised among non-medical persons--is not terribly reliable, erring very much on the low side. Today, Off-Guardian has an interesting article that expose what can only be described as deliberate deception in constructing and applying statistics to measure what's going on with the Covid regime:

How the CDC is manipulating data to prop-up “vaccine effectiveness”

New policies will artificially deflate “breakthrough infections” in the vaccinated, while the old rules continue to inflate case numbers in the unvaccinated.

Many testing experts--including the now deceased inventor of the PCR test--have repeatedly pointed out the fact that the PCR test is being misapplied to identify Covid cases, both in principle and in the actual application. None other than Tony Fauci has openly admitted this. In fact, the author argues, the Covid pandemic is essentially a casedemic--a figment of bureaucratic statistical ingenuity:

UPDATED: SCOTUS Takes Big 2A Case

The SCOTUS today announced that it will take a major Second Amendment case. The case comes to the SCOTUS from New York, in the 2nd Circuit. New York--like eight other Blue states--requires a gun owner to provide what the state regards as a "proper cause" for wanting to "bear arms" outside his home. The reality is that, unless you're politically connected, it becomes extremely difficult to carry a firearm in any of those states. In the case at hand, New York was denying concealed carry permits to persons who said they wanted to bear a firearm for "self defense"--a pretty traditional reason.

Thus, the issue is pretty straightforward. Can a state demand a reason why a person wishes to exercise a constitutional right: not only to "keep" a firearm (in your residence) but to "bear" it. Next up--First Amendment? Why do you want to express a viewpoint that the government regards as not "proper?"

Now, while this case is, on its face, fairly narrow, it's also possible that the SCOTUS could address related issues that go beyond the actual holding. Such issues might include the extent to which states may regulate the 2nd Amendment right to keep and bear arms more generally. For example, other states than those most directly affected by this case have various laws in place that make gun ownership--let alone bearing a firearm--difficult or somewhat expensive. These measures go beyond such relatively traditional measures such as a ban on felons owning firearms. As a result, this case is raising hopes and apprehensions on both sides of the issue.

Thus, while the terms of the grant of certiorari are very limited, that won't prevent justices from voicing their views and presenting arguments that could sway lower courts on related issues:

Briefly Noted: Margot Cleveland Shares My Hope

Today Margot Cleveland reviews the SCOTUS decision on Free Exercise of religion in Tandon v. Newsom. Yesterday we discussed Shipwreckedcrew's views on the case. SWC noted the emergence of what seems to be a solid five vote majority on the SCOTUS that 

1) favors a robust application of the Free Exercise clause and 

2) has run out of patience with CJ Roberts' go-slow approach.

I concluded by expressing the hope that the Tandon decision signals a shift in basic attitudes on the part of the SCOTUS with regard to conflicts between guaranteed constitutional rights and state regulation:

To speculate a bit on equally broad issues, I wonder whether this get tough approach when it comes to the First Amendment v. State regulation may presage an openness to reexamining the entire notion of judicial deference to the supposed "expertise" of the administrative state. We know that Gorsuch's views on that subject--and I believe the same applies to Justice Amy--were key to his nomination. In point of fact, all three of the other justices in the majority--Thomas, Alito, and Kavanaugh--seem open to that reexamination to one degree or another. That would be major good news.

You can find Cleveland's fine discussion of the case here:

The Zhou Baiden March 25 Event

The first person occupying the Oval Office who will never give an actual press conference. What those who were paid to watch this disgraceful event witnessed--and many of thesm were active participants in America's disgrace--was a staged propaganda event. The purpose was simply to "check a box", to gaslight people into accepting a clear counterfactual: that the American Republic is still functioning according to its constitutional order as we've been told it's supposed to function.

That that is not the case was evident throughout this staged event. We pretty much knew that's how it would work out when it was staged during the afternoon rather than during prime time. Obviously there was no confidence on the part of Zhou's handlers that he could function even on a minimal level past the point in the day when he began to anticipate his evening feeding. His attention level for trivialities like a "presidential" "press" "conference" simply could not hold up once he began to sense it was time for dinner--as is the case with most dementia sufferers. Zhou's handlers knew that and planned accordingly.

The American Republic was designed to function with a strong, involved, chief executive--a commander in chief. Anyone who had suspended disbelief to this point, imagining that this was possibly the case under the Zhou Baiden regime was quickly disabused of such self deception yesterday. The greatest disgrace, perhaps, was the complicity of an utterly degraded media in the event.

So here we are. How did we get to this point? Who will object?

I think the answer lies in the quite literal demoralization of the American people. Exhibit one in that regard, in terms of public life, is Covid. On our shopping forays, my wife and I have lately been marveling at what I call the Victory of the Neurotics. To see the masked shoppers--some with face shields, some also with gloves--defying all science and common sense is a remarkable thing. Even after being told that 3 feet should suffice (and, no, we won't go into that supposed science, either) we see anti-social distance being maintained at 10 ft. or more by some of these unfortunates. And they snarl at anyone who ignores their neurotic quest for "safe" distancing.

What explains this is neurosis--the true American spirit of the 21st century. It's an almost total inward focus on personal "safety." The notion that these Covid measures are harming the fabric of our society, let alone our political order, is of little or no moment at all to so many of our fellow citizens. 

What have normal, spiritually healthy human beings lived for over the millennia? For their children and grandchildren, for the health of their social and political order. The social science is readily available. Covid closures harm young people and thus pose a grave danger to a healthy society. Why has American not exploded in anger at the school closures? The harm that is surely being done to an entire generation of young people who may never recover from the school closures should be a matter of intense national debate--and should have been the centerpiece issue of Election 2020.

The evidence that these, and other, closures and restrictions are motivated by greed and selfishness is everywhere. For people so oblivious to these matters--matters that should be a cause for soul searching--it's almost pointless to try to point out the further issue of the use that these measures are being put to for purposes of total social control. Who objects to the coercion to participate in the experimental administration of untested medications?

In a society in which neurosis--the quest for personal "safety" to the exclusion of all other considerations--dominates, is it any wonder that citizens are willing to be gaslighted by the Globalist Guardians of what used to be our Republic?

Compelling Commentary 3/20/21

I can't recommend highly enough Daniel Greenfield's lengthy analysis of the current crisis in our constitutional order--brought on by the Deep State and Prog Left's reckless determination to seize the presidency (h/t Unknown):

There is No Biden Administration

Only an imminent 25th Amendment crisis and soldiers in the streets.

Exactly. That's why I refer to it as the Zhou Baiden regime. It is a regime, but Zhou is a figurehead, so it lacks the coherence to ultimately be effective on the world stage. And it may lost any semblance of coherence on the domestic stage as well. Hubris on the Left.

As I said, Greenfield's piece is lengthy, but it's also a compelling read that delves into the dynamics of the Left's seizure of the Executive Branch: Who's really in charge, what are the competing factions, etc.? Here's just a brief sample:

Covid: Good News, Bad News

The WSJ featured an article on Thursday by Marty Makary, a public health doctor at Johns Hopkins who has been heavily involved in tracking Covid cases:

We’ll Have Herd Immunity by April

Covid cases have dropped 77% in six weeks. Experts should level with the public about the good news.

The article seems not to be behind the usual WSJ paywall, so check it out. Here's my take from it.

It appears that if you read between the lines, Makary is basically presenting the views of immunological and virological experts such as Michael Yeadon and Sucharit Bhakdi (and others). Makary is careful to avoid transgressing the established orthodoxy by suggesting that there isn't actually any real point in mass, coerced vaxxing. However, that is the logical conclusion of most of the data that he presents.

Here's the chart in which he presents that 77% drop in "cases" in the last six weeks--and please note that he doesn't discuss the fraught issue of how to determine what a "case" actually is. However, he does stipulate:

Briefly Noted: The Vision Thing

"The Vision Thing" is Jen Dyer's latest article. As usual with Dyer, it's humongously long. Here a link to the full title:

The vision thing: Handy guide to the biggest earthquake in human affairs in 2,000 years

While the entire article is extremely lengthy, what I see as the true core is brief enough and follows on conveniently from two recent posts here:

On Neo-Gnostic Ideologies

The Christian Intellectual Tradition

Dyer's article is basically about: Where are now? and, What do we do about it? What recent events tell us is where we are as a nation. Duh! These events tell us that we're a deeply divided nation that is definitively ruled by an oligarchy that is composed of: a corrupt political class, a class of radically ideologized neo-gnostic public and university activists, Deep State actors in the military, diplomatic and, above all, intelligence agencies, and Big Tech corporations.

How divided is the United States? My guess is that America is not quite as divided as the 50/50 election results over the last several national would indicate. The hard left element of the population--or that element that is willing to throw the constitutional order (such as it now is) up for grabs--probably doesn't exceed 30%. The difficulty is that a significant portion of the remainder are not committed to the steps needed to wrench control back from the ruling oligarchy--they'd like to muddle along in the hope that a non-upsetting solution will emerge. The real question for our future becomes: How committed will the Left be to pushing their agenda through if popular resistance stiffens and spreads? And of course the wild card is in the "if".

With this in mind, here's the core, as I see it, of Dyer's article. The reason I say this brief passage is the core is because Dyer doesn't actually offer a plan of action. At all. She says we need to see what emerges, much as I just said. However, here are her guiding ideas:

A Fascinating Historical Analogy For This Faux Impeachment

Big H/T to Don Surber, who came up with the article that sketches out a fascinating and instructive historical analogy for the continuing constitutional hoax being perpetrated in the Imperial City on the Potomac, under the occupation of the New Army of the Potomac. We'll get to that shortly, but first I intend to quote a few passages from two other articles that address this hoax briefly but succinctly.

First of all, Jordan Davidson at The Federalist sketches out the most important element of the reply brief that Trump's attorneys have filed today--Trump Legal Team Decries Democrats’ ‘Outlandish’ Impeachment As Unconstitutional ‘Political Theater’. As we'll see, the lack of a legal or even a constitutional basis for this proceeding in the Senate plays into the historical analogy. Here is a passage toward the end of the article that sketches this out:

Important: It's Not Just Censorship

If you read one thing today, make it Lee Smith's latest--the whole thing:

It’s Not Censorship, It’s a Coordinated Effort

A time to strengthen families and communities

It's a simple point, really, like most important truths. What's going on currently goes beyond censorship alone--the censorship has to be understood in the broader context of the crisis of legitimacy that the American regime has been struggling through for several decades now. We've emphasized this point--the importance of understanding the concepts of legitimacy and authority--over the last several months.

The reason censorship--heavy handed and visible--has become necessary, in place of the less visible forms of social manipulation that were used in the past is because, despite the Uniparty regime's best efforts, assisted by its Tech and Media allies, is that Trump's unprecedented turnout has challenged the regime's legitimacy in an authoritative way. People are seeking, and finding, alternate centers of authority, and those centers of authority have allowed people to credibly challenge the regime's legitimacy. The other hoax efforts of the last four years have definitively failed, replaced now with fully armed boots and armored Humvees on the ground. Censorship is simply a part of that desperate, but misguided, effort to fool the people one more time.

With that intro, here are some of Smith's high points. Please pay attention to his closing recommendation. Every regime in crisis seeks to isolate individuals from one another, to break down human bonds in society that provide the type of alternate source of authority and legitimacy that constitute an existential threat to the regime. Those social bonds have been gradually dissolving in America, replaced by a one on one dependence on government. One of the few remaining secondary institutions that have preserved some degree of independence and ability to provide authoritative interpretations of of reality at variance with regime approved narratives are those of organized religion. Those institutions are now threatened as never before by the Covid hoax lockdowns. They need to be revived. We cannot rise to this challenge as disjoined individuals. Social solidarity needs to be restored on an authoritative basis.

The American Republic's Crisis Of Authority And Legitimacy

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":

The Sad Lessons Of The Trump Presidency

The sad lessons are about who we are as a nation, as a people.

Today John Daniel Davidson reviews the lessons we've learned in 2020:

5 Big Things We Learned About Our Elites In 2020

It’s been a hard year but at least we know, beyond all doubt, that our elites despise us and will do anything to expand their power.

IMO, I think we can go a bit further and state that these lessons--while driven home with a vengeance in 2020--tell us things about ourselves as a nation that stretch back certainly to the beginning of the Obama era. However, here are the 5 lessons that Davidson lists:

1. Democrats Don’t Care About Science—Or Religious Liberty

2. Lockdowns For Thee But Not For Me

3. Lockdown Elites Don’t Care If Small Businesses Die

4. Silicon Valley Wants You to Shut Up

5. Elites Are Okay With Chaos and Violence From the Left

I'm sure you can gather a pretty good idea of where he goes with those. Here's how Davidson leads into his 5 headings:

Merry Christmas!

Even as the assault on what little remains of our republican constitutional order continues apace (ht/t emailer Jim):

Donald Trump executive order banning diversity training blocked by federal judge

A federal judge has blocked Donald Trump's executive order restricting the federal government and its contractors from offering diversity training that the president labeled "divisive" and "un-American."

U.S. District Judge Beth Labson Freeman granted a preliminary nationwide injunction in the lawsuit filed by LGBT rights groups in November in the Northern District of California, saying the groups were likely to prevail on their First Amendment claims.

I extend the traditional greeting with the prayer that, just as the seeming demise of our constitutional order has been revealed, so too this season of hope may reveal to us a rebirth of the hope on which our order was founded. 

America's Reign Of Judges

The Federalist is carrying another excerpt from Michael Anton's new book, The Stakes: America at the Point of No Return. This excerpt deals with the role of the Judicial Branch of government under our Constitution. Anton advances a fairly conventional argument in the article, but I highly recommend it:

America’s Reign Of Judges Has Left Us With An Unrecognizable Constitution

Judges who can find no support in law for the outcome they want resort to their own personal sense of morality to achieve their desired result.

We're all familiar with that narrative. Our wise founding fathers established a very limited judicial branch which has subsequently gotten totally out of control, due to the unprincipled Left:

According to the parchment, judges are supposed to rule on individual cases and — in extraordinary circumstances — may invalidate laws that clearly flout the plain text and meaning of the Constitution. This is not what our judges actually do. They profess themselves loyal to the Constitution, in part as a diversionary tactic but also in part out of genuine sincerity. The problem with their sincerity is that their loyalty is not to the actual Constitution but to a rival constitution of the left’s own devising. That constitution is not written in the same manner as the formal Constitution, but neither is it completely unwritten. Its tenets are explained in various books and journal articles, in certain laws, and in administrative rules.

Clearly there's plenty of truth in that summary, at least as a sort of phenomenological description of where we find ourselves. What I'd like to suggest here is that this is not so much a perversion of the constitutional regime as it was originally intended, but rather the logical result of that constitutional regime--as originally intended. In other words, our current crisis with the Judicial Branch is a fairly logical extension of what the founders had in mind. If you don't like what you see, then maybe you should consider whether our constitutional order is flawed.

The Troubled SCOTUS--And Our Troubled Constitutional Order

The fact that the SCOTUS, under the shapeshifting 'leadership' of CJ Roberts, is leaking like a sieve and seemingly unable to arrive at principle decisions on important matters comes as no surprise. It's been a long time coming. Professor Josh Blackman addresses the current mess of leaking that has undermined this third branch of our government in an article at Newsweek: A Supreme Court Divided Cannot Stand. John Roberts Must Step up or Step Off. For my own part, I have to question whether the deep philosophical divisions of the country--the fact that the legal establishment is openly at war against what IMO remains a public consensus regarding our constitutional order--may preclude any solution such as Blackman sketches out. For what it's worth, however, and to draw attention to the way in which these philosophical divisions are undermingin the very foundations of our constitutional order, I append some excerpts. Note that Blackman offers "five steps" that he'd like Roberts to take, but I only include four.

I offer these excerpts for two reasons. The first is obviously that they highlight the importance of the upcoming election. It seems that for decades now the SCOTUS has been a constant issue in presidential elections, but increasingly so. The second reason is because the inability--the unwillingness?--of the Roberts Court to enforce any discipline on the Judicial Branch since the inauguration of the Trump presidency may play a role in how AG Barr approaches a DC Circuit that is openly trampling basic Separation of Powers issues.

AG Barr's Originalist Critique Of The "Resistance"

Yesterday Bill Barr presented an important analysis of the state of Executive authority--the Article II powers of the President--in modern America. Barr did this in the form of an address to the Federalist Society which was attended, among other prominent persons, by Brett Kavanaugh. The address is over an hour in length--a video and transcript can be found at CTH. I'm slightly more than halfway through the text, so am in no position to give an overview of the whole. However, I present below some excerpts which are directly relevant to the so-called "Resistance" to the government of the United States.

Yes, I meant that--resistance to the government of the United States. Barr begins his analysis by tracing the general outlines of the conceptual framework of the Executive authority within our constitutional order, as envisioned by the Framers of the Constitution in proper historical context. In doing so, he leaves no doubt that what we are faced with is an attempted overthrow of that constitutional order. Should Pelosi's attempted assertion of pre-eminence of the House over the Executive--the only nationally elected Branch of government--succeed, there is no doubt in my mind that "progressives" would go on to assert their pre-eminence over the Judicial branch as well.

I have, in the past, asserted that Barr is committed to the originalist view of the Executive power as "unitary" under the Constitution, inhering in the single person of the President. Barr's analysis in this address is a powerful expression of that view, and fully justifies my impatience--which I have not attempted to hide--with the notion that Barr is somehow a creature of the Establishment, a creature of Executive branch subordinates and agencies, more interested in protecting their prerogatives than the institution of the Presidency.

It is reassuring that a key adviser to President Trump is so articulate in presenting this principled view to the President.

Herewith, some excerpts that give a flavor for Barr's critique of the "Resistance", which arises especially from the Legislative Branch. These selected remarks bear directly upon not only the attempted coup of the Russia Hoax and its continuation in the Mueller Witchhunt, but also upon the current Impeachment Theater in the House. Barr leaves no doubt as to his support for this President, and for Donald Trump's principled governance in the face of outrageous and unprinicpled attacks on our constitutional order. He also demonstrates a broad grasp of the field of battle in our current crisis.

*********

Legislative Encroachments On The Executive Authority Under The Constitution

• As I have said, the Framers fully expected intense pulling and hauling between the Congress and the President. Unfortunately, just in the past few years, we have seen these conflicts take on an entirely new character.

Immediately after President Trump won election, opponents inaugurated what they called “The Resistance,” and they rallied around an explicit strategy of using every tool and maneuver available to sabotage the functioning of his Administration. Now, “resistance” is the language used to describe insurgency against rule imposed by an occupying military power. It obviously connotes that the government is not legitimate. This is a very dangerous – indeed incendiary – notion to import into the politics of a democratic republic. What it means is that, instead of viewing themselves as the “loyal opposition,” as opposing parties have done in the past, they essentially see themselves as engaged in a war to cripple, by any means necessary, a duly elected government.

A prime example of this is the Senate’s unprecedented abuse of the advice-and-consent process. The Senate is free to exercise that power to reject unqualified nominees, but that power was never intended to allow the Senate to systematically oppose and draw out the approval process for every appointee so as to prevent the President from building a functional government.

Yet that is precisely what the Senate minority has done from his very first days in office. As of September of this year, the Senate had been forced to invoke cloture on 236 Trump nominees — each of those representing its own massive consumption of legislative time meant only to delay an inevitable confirmation. How many times was cloture invoked on nominees during President Obama’s first term? 17 times. The Second President Bush’s first term? Four times. It is reasonable to wonder whether a future President will actually be able to form a functioning administration if his or her party does not hold the Senate.

Congress has in recent years also largely abdicated its core function of legislating on the most pressing issues facing the national government. They either decline to legislate on major questions or, if they do, punt the most difficult and critical issues by making broad delegations to a modern administrative state that they increasingly seek to insulate from Presidential control. This phenomenon first arose in the wake of the Great Depression, as Congress created a number of so-called “independent agencies” and housed them, at least nominally, in the Executive Branch. More recently, the Dodd-Frank Act’s creation of the Consumer Financial Protection Branch, a single-headed independent agency that functions like a junior varsity President for economic regulation, is just one of many examples.

Of course, Congress’s effective withdrawal from the business of legislating leaves it with a lot of time for other pursuits. And the pursuit of choice, particularly for the opposition party, has been to drown the Executive Branch with “oversight” demands for testimony and documents. I do not deny that Congress has some implied authority to conduct oversight as an incident to its Legislative Power. But the sheer volume of what we see today – the pursuit of scores of parallel “investigations” through an avalanche of subpoenas – is plainly designed to incapacitate the Executive Branch, and indeed is touted as such.

The costs of this constant harassment are real. For example, we all understand that confidential communications and a private, internal deliberative process are essential for all of our branches of government to properly function. Congress and the Judiciary know this well, as both have taken great pains to shield their own internal communications from public inspection. There is no FOIA for Congress or the Courts. Yet Congress has happily created a regime that allows the public to seek whatever documents it wants from the Executive Branch at the same time that individual congressional committees spend their days trying to publicize the Executive’s internal decisional process. That process cannot function properly if it is public, nor is it productive to have our government devoting enormous resources to squabbling about what becomes public and when, rather than doing the work of the people.

In recent years, we have seen substantial encroachment by Congress in the area of executive privilege. The Executive Branch and the Supreme Court have long recognized that the need for confidentiality in Executive Branch decision-making necessarily means that some communications must remain off limits to Congress and the public. There was a time when Congress respected this important principle as well. But today, Congress is increasingly quick to dismiss good-faith attempts to protect Executive Branch equities, labeling such efforts “obstruction of Congress” and holding Cabinet Secretaries in contempt.

One of the ironies of today is that those who oppose this President constantly accuse this Administration of “shredding” constitutional norms and waging a war on the rule of law. When I ask my friends on the other side, what exactly are you referring to? I get vacuous stares, followed by sputtering about the Travel Ban or some such thing. While the President has certainly thrown out the traditional Beltway playbook, he was upfront about that beforehand, and the people voted for him. What I am talking about today are fundamental constitutional precepts. The fact is that this Administration’s policy initiatives and proposed rules, including the Travel Ban, have transgressed neither constitutional, nor traditional, norms, and have been amply supported by the law and patiently litigated through the Court system to vindication.

Indeed, measures undertaken by this Administration seem a bit tame when compared to some of the unprecedented steps taken by the Obama Administration’s aggressive exercises of Executive power – such as, under its DACA program, refusing to enforce broad swathes of immigration law.

The fact of the matter is that, in waging a scorched earth, no-holds-barred war of “Resistance” against this Administration, it is the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law. This highlights a basic disadvantage that conservatives have always had in contesting the political issues of the day. It was adverted to by the old, curmudgeonly Federalist, Fisher Ames, in an essay during the early years of the Republic.

In any age, the so-called progressives treat politics as their religion. Their holy mission is to use the coercive power of the State to remake man and society in their own image, according to an abstract ideal of perfection. Whatever means they use are therefore justified because, by definition, they are a virtuous people pursing a deific end. They are willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications. They never ask whether the actions they take could be justified as a general rule of conduct, equally applicable to all sides.

Conservatives, on the other hand, do not seek an earthly paradise. We are interested in preserving over the long run the proper balance of freedom and order necessary for healthy development of natural civil society and individual human flourishing. This means that we naturally test the propriety and wisdom of action under a “rule of law” standard. The essence of this standard is to ask what the overall impact on society over the long run if the action we are taking, or principle we are applying, in a given circumstance was universalized – that is, would it be good for society over the long haul if this was done in all like circumstances?

For these reasons, conservatives tend to have more scruple over their political tactics and rarely feel that the ends justify the means. And this is as it should be, but there is no getting around the fact that this puts conservatives at a disadvantage when facing progressive holy far, especially when doing so under the weight of a hyper-partisan media.