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How Our Confirmation Wars Resemble the English Civil War

The English fought a civil war over the issue of sovereignty. Charles I believed it lay essentially with him—by divine right no less. He asserted his right to tax subjects without Parliament’s agreement and to dismiss Parliament, which was in his view just advisory. In contrast, almost all members of Parliament believed that they shared in sovereignty and some thought parliament, not the king, was the supreme authority.

That division led to a bitter political struggle with apocalyptic rhetoric and then resort to the battlefield. The stakes were high, the methods of combat full of treachery. It ended only when the forces of Parliament beheaded the king. The question of sovereignty was not resolved intellectually, but it was decided militarily at Naseby and there is no doubt today about parliamentary supremacy.

Our confirmation wars today also reflect division over sovereignty. One party essentially believes that the Constitution as written is our fundamental law. Thus, sovereignty resides in two thirds of the legislature and three quarters of the state legislatures since only they can change our Constitution. This sovereignty is popular and supermajoritarian. The other party believes that the Constitution must be updated to reflect the progressive arc of history. Perhaps the direction of history is Progressives’ new divinity! To capture the arc of history, sovereignty ultimately needs to reside in the Justices. To be sure, the Justices must act according to rules of recognition that are themselves validated by progressive elites, including law professors, the mainstream media and the elite bar. But these two views of sovereignty are fundamentally incompatible.

On this account, Roe v. Wade transcends the issue of abortion, because its reasoning is so incompatible with following the Constitution as written. It is thus a powerful demonstration of one party’s view of sovereignty and an affront to the other party’s understanding.

We thus should not be surprised that our confirmation disagreements are bitter, marked by the rhetoric and treachery that accompany wars. And they have worked themselves to a crescendo now because filling the current vacancy may determine the nature of sovereignty for some time. Anthony Kennedy often cast ideologically conservative votes, but in multiple opinions on social issues and in rhetoric talking about the “transcendent dimensions of liberty” he was a member of the progressive sovereignty camp. He just sometimes disagreed about the direction of progress.

Thus, as the fundamental nature of the dispute over constitutional interpretation has been revealed over the years, the norms surrounding confirmation that made them peaceful and dignified affairs naturally disintegrate. It can hardly be otherwise. Unlike ordinary political issues, questions of sovereignty are difficult to finesse or compromise. Moreover, each side can appeal to history, because different periods of American history reflected different conceptions of sovereignty. Originalism was entirely dominant in the first hundred and fifty years of the republic. But progressive constitutionalism did hold sway in much of the twentieth century and many hold that to be a glorious part of our history, Roe very much included.

As with the English Civil War, this issue will not ultimately be resolved intellectually. Only when one party achieves a period of dominance like the Republicans after our own civil war and the Democrats during the New Deal will the issue be settled for generations to come.

Reader Discussion

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on October 02, 2018 at 08:59:01 am

Yes, sovereignty, as I mentioned in my comment to the L&L essay on Carl Schmitt. Schmitt's thesis that sovereignty is the power to decide the exception validates the anti-Federalist Brutus's criticism of the Supreme Court as being practically subject to no higher authority in its decision-making. All that the Federalists could answer in response, and the only response that has been offered in the last 230 years, is that the Court must be careful to maintain its "legitimacy" before We the People, that our good opinion of the Court is the needed check and balance. And we see how effective that has been. It sort of makes you understand why it was that the Israelites clamored for a king to replace the rule of the judges.

And McGinnis ought not to have left Cromwell unmentioned in his analogy. Cromwell was the natural consequence of the overthrow of Charles I. Charles I may have relied on some traditional idea of "divine right" but it was Cromwell who fought, and who ruled, and who meted out justice and punishment, in the name of God. "Necessity hath no law," he said, anticipating the Democrats of 2018. Also "“This is a righteous judgement of God upon these barbarous wretches, who have imbrued their hands in so much innocent blood."

Yes, "by any means necessary" is a principle Cromwell would fully have appreciated.

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QET
on October 02, 2018 at 10:05:19 am

John McGinnis's understanding of sovereignty in seventeenth-century England seems to be problematic. McGinnis writes:

"The English fought a civil war over the issue of sovereignty. Charles I believed it lay essentially with him—by divine right no less. [snip] In contrast, almost all members of Parliament believed that they shared in sovereignty and some thought parliament, not the king, was the supreme authority."

First of all, the traditional English constitutional arrangement was a reflection of Cicero's (and Polybius's) model of mixed or "republican" government, involving elements of monarchy, aristocracy and democracy. Seond, as Sir Edward Coke quoted Bracton in a famous confrontation with King James I, the King was "under the Law" -- the Law, fundamentally rooted in the Law of Nature, was sovereign.

I think it would be difficult to find open advocacy of the view of Parliamentary sovereignty until Blackstone and the crisis building up to the American Revolution. This view, that Parliament had the power to legislate regarding all things whatsoever, was a repudiation of Coke's report of Dr. Bonham's Case -- writing into case law the Thomist principle that a legislative act contrary to the law of nature is "void" and no law at all.

As I've mentioned before, in my view, any honest originalist has to grapple with the simple fact that natural law was an essential element of both the common law and the Declaration of Independence, as well as undergirding the Constitution's purpose of "promoting the general welfare" -- a clear echo of Aquinas, as transmitted through the centuries-old natural law tradition.

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John Schmeeckle
on October 02, 2018 at 10:28:53 am

There are also the fascinating parallels between the CoE royalists, the Presbyterian grandees and the Independent leveller-populists of the 1640s and our contemporary woke Democrat totalitarians, our grandee GOPe and Trump's populists.

The alliance between the Presbyterians and the Independents was just uneasy as is the alliance between the GOPe and Trump's populists. The Independents won chiefly because Cromwell had been packing the Eastern Association's militia and later the New Model Army with as many Independent "russet coated captains" as he could lay his hands on after 1642.

It was the Independent faction that both won the English Civil War and settled New England. While they failed to form a republic in England (chiefly because Cromwell would not surrender control of the New Model Army to Parliament) they did succeed in New England and created a stable constitutional democratic republic based upon popular sovereignty and a broad but not universal franchise to vote. They also made sure that the town meetings, not the General Court, ultimately controlled the militia.

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EK
on October 02, 2018 at 11:40:20 am

It seems that we need a Grand Compromise if we hope to avoid, not just political civil war, but one that could escalate into a violent civil war (widespread antifa thuggery vs 2nd Amendment/alt-right true believers?).

I would suggest that we consider trading term limits for ending overt (will not be feasible to prevent covert sneakiness, I am sure) Democrat support of "#Resistance". From both perspectives, limiting how long Supreme Court justices can hold office is an overdue correction to the abuses, lapses, and attitudes, of complacent, overripe judges.

If there is to be any hope of defusing this impending impasse, I think both sides should be brought together to support the Constitutional Amendment needed for this fundamental reform. Possibly, there could be a special case clause in the amendment to specify a 10-year term for Kavanaugh (or whatever achieves the peace with an agreeably "reasonable" term), and maybe even include Gorsuch, or even all the sitting justices as bargaining points.

Whether it would be in time for resolving the immediate crisis over Kavanaugh (from both perspectives I would think), is an urgent imperative for both the Republican and Democrat leadership (such as they are...), and from which neither side better renege, or the violent civil war option could well become inevitable.

Just a thought...

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R O
on October 02, 2018 at 12:24:58 pm

The Kavanaugh "crisis" is of the same order as the Reichstag Fire. The idea that this wholly manufactured "crisis" ought to serve as the basis for some compromise with the Democrats on anything is risible.

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QET
on October 02, 2018 at 14:04:22 pm

Just because they are Democrats does not mean they cannot do anything right ;-}

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R O
on October 02, 2018 at 14:19:29 pm

McGinnis draws an analogy between the struggle over sovereignty in 17th century England and the struggle over confirmation of Judge Kavanaugh.

As others have noted here, his grasp of 17th century English constitutional history is poor. McGinnis argues that the struggle between conceptions of sovereignty grounded in divine right, and those grounded in the English commonlaw, was settled by the Battle of Naseby and the eventual execution of King Charles I. This is an odd claim to advance, since the constitutional history of England is well trodden ground, and since anyone the least bit familiar with it will recognize the error in the claim.

But of course anyone who has read in any depth in the constitutional history of the period knows that the period 1649-1660 is called the "interregnum" for a reason. The execution of the king hardly settled the matter, because in the immediate aftermath the English could not successfully solve the problem of how to erect a government on any other basis than monarchy and aristocracy. Cromwell wound up governing through a council of military generals, and most thoughtful observers at the time recognized the constitutional perils of such a settlement. In 1660 the English restored the monarchy, and subsequent English monarchs asserted autocratic understanding of sovereignty well into the 18th century.

Critically, the eruption of violence between 1639 and 1649 is not the end point of the story--nor, really, is 1688, although that is a more apt time period for McGinnis' purposes than is 1649. Violence and threat of violence, in contests that were implicated in questions of sovereignty, persisted until at least the reign of Queen Anne--the struggle over the restoration settlement, the exclusion crisis, the revolution of 1688, just to name the big ones.

A number of excellent recent constitutional and political histories of the period are worth reading, if anyone here is interested. I think Marc Kishlansky's contribution to the Penguin History of England is very good on these issues: A MONARCHY TRANSFORMED. Steven Pincus and Tim Harris have both written outstanding histories of the events of 1688, and Harris has also analyzed the reigns of James I and Charles I, and the Resoration of Charles II.

So the historical analogy, at least as McGinnis employs it, is flawed. It seems to me that the rhetorical structure of his essay is weakened if we discard the historical analogy. But I also think he still has a substantive case to make.

I think it is possible that McGinnis has indulged in a straw man, in his characterization of Progressive understanding of sovereignty. One good test of that would be to see if we can locate a progressive scholar somewhere who is willing to defend the ground that McGinnis attributes to progressives. If instead most progressives look at that and say "that's not at all what I believe," then that strikes me as making McGinnis' argument about our contemporary situation problematic.

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Kevin Hardwick
on October 02, 2018 at 14:20:28 pm

The same could be said of the Bolsheviks. But the ratio of what they did right to what they did wrong was so infinitesimally small that they gave their people the Soviet Union.

Maybe when (if) the Democrats revert to a Kautsky phase from their current Lenin phase, they can be reasoned with.

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QET
on October 02, 2018 at 15:54:42 pm

Yes, reading the history shows that after 1621, the issue was the proper scope of the Crown's prerogatives and not the narrow technical question of who or what is sovereign. Until December of 1649, all in England save Cromwell and a few wild and wooly republicans like Henry Marten would have agreed that the king was the sovereign. But the question was whether or not his sovereignty was subject to the common law and the unwritten English constitution. Charles I would not yield on that point, he said he was subject only to God and that all of concessions made by the crown could be withdrawn by his mere will. Cromwell called him a man of blood and cut off his head.

Prior to January 1649, the Parliamentarian's position had been that the common law predated the Norman Conquest and that after 1066 the kings of England were sovereign by right of conquest. They went on to argue that William I had ceded some of his sovereignty when he affirmed the common law, that King John had ceded more of his sovereignty in Magna Carta and that Charles I had ceded still more of his sovereignty in the Petition of Right. Later, more sovereignty was ceded to Parliament in 1660 and 1688 but it was not until the reign of Victoria that the Crown became sovereign in name only.

McGinnis's conclusion that sovereignty must be vested in the "Justices" is simply bat shit crazy whether we are talking about the period 1620-60 in England or now in the US. If anything, functional sovereignty in the US is vested in the Constitution. I guess that McGinnis reasons that since the justices of the Supreme Court have been arrogating power to themselves since the 1920s they are sovereign because we have collectively acquiesced in their usurpation. But the short answer to that is that no constitutional right is ever lost in such a manner and so sovereignty can never be vested in the Supreme Court.

The American solution, reflected in Article V, is that the people acting through their freely elected representatives are sovereign in the sense that the contemporary king in parliament is sovereign in the UK. I guess the "people in congress" would be the American equivalent of the British "king in parliament.' How McGinnis reaches a different conclusion and places sovereignty in the judiciary is baffling but maybe that's the way Con Law profs think these days.

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EK
on October 02, 2018 at 23:17:29 pm

FWIW, I think McGinnis is describing, not prescribing (if that is your meaning) the functional shift of sovereign power to the Supreme Court since the 1920's. Of course those of us supporting the Originalist position are not willing to concede that as legitimate, but the effect is what he seems to be describing. The Court, and the rest of the national government (and states) act as if it has the final say, and that has been quite corrosive for our rights, although we have gotten various tidbits restored to some degree with recent rulings on occasion. Still, as we say about referees/umpires in sports: the ref giveth and the ref taketh away, and we hope it balances out in the final game result.

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R O
on October 03, 2018 at 14:39:52 pm

But in Cooper v. Aaron (1958) the unanimous Court did claim both judicial supremacy and judicial universality and it remains un-rebutted in the Court and in Congress to this day.

To paraphrase Sir Francis Bacon's spirited defense of Charles I's claim to be an absolute monarchy: "the supreme law of the land is a simple majority of the justices on Supreme Court justices speaking."

Since McGinnis did not highlight that the Supreme Court has already decided the dispute he identified in favor of both judicial supremacy and universality I assumed he comes down on the side of the Supreme Court.

God knows he's still trying to cram stare decisis in constitutional matters down our throats.

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EK
on October 03, 2018 at 18:07:12 pm

EK:

Bravo!!!!!

"God knows he’s still trying to cram stare decisis in constitutional matters down our throats."

Absotively luvv'd it!!!!!

And yes, Cooper v Aaron is the high water mark of the Black Robes arrogation of Supremacy to themselves.

To be fair to McGinnis, like RO above, I think he is being descriptive not prescriptive; regrettably he fails to recognize that there is no longer any debating of the matter, it having been *settled* in the Court's mind and that of the citizenry!
Hey, isn't that stare decisis on a grand scale?

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gabe

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