Originalism is a theory of constitutional interpretation, it is not—nor can it be—a constitutional theory in itself.
Reckoning With January 6
William F. Buckley brought the conservative movement into the mainstream by disassociating it from radical and repugnant elements like anti-Semitism. The populist right apparently sees its function as the opposite: They denounce any barrier to saying the quiet part out loud with the dread epithet “elite.” Conservatives used to be comfortable with elitism rightly understood. The route to becoming a populist spokesman—“elite”?—now is deriding Twitter’s “blue checks” while coveting one’s own like a high school debate trophy.
Which brings us to the anniversary of January 6. There was a moment when everyone, even leading populists, understood that something constitutionally abominable had occurred. We know it was considered abominable because anyone vaguely connected with the event or its perpetrators disclaimed responsibility for it. But that moment fled almost immediately. On the populist right, January 6 quickly became an Antifa black flag operation, gave way to the electoral imperative of resisting an investigation, and is now culminating, predictably, in an outright celebration of the rioters.
This is a decisive moment for constitutional conservatism. For purposes of isolating the essential question, let us stipulate every claim, even the ludicrous ones, of the populist right: We are living in a Biden-induced hellscape. The fascists are coming for our children. The 2020 election was a top-to-bottom fraud in which Democrats stole the presidency but forgot to cushion themselves in Congress or manipulate state elections. Can we or can we not nonetheless agree that sacking the United States Capitol to disrupt a constitutional process was constitutionally unconservative?
Apparently not. Former President Trump, a onetime blue-check from whom the blue-check haters take their cues, has called the January 6 rioters peaceful protesters and said the real insurrection took place on Election Day. (If it was peaceful, why did he tell them—after hours of rampaging—to go home? Why did the populist right’s own media voices, like Sean Hannity, intervene to get Trump to intervene?) The latest in this revisionist genre comes from Eric Lendrum at American Greatness, who calls January 6 the left’s Reichstag fire and the right’s storming of the Bastille.
Lendrum’s assessment of January 6 is so filled with contradiction that it would flunk freshman composition. January 6 was a Reichstag fire because it was a pretext for progressive authoritarianism, he asserts, but the fact that progressive authoritarianism was already upon us justified the riot. The insurrection, meanwhile, was simultaneously peaceful, as though the rioters had knocked politely on the door and been let in for a tour by the Sergeant-at-Arms, and the second coming of the Bastille, whose commander, Jourdan de Launay, was stabbed to death after surrendering. Therein lies one essential difference: Lendrum’s proof that the protest was peaceful is—this is for real—that Trump supporters killed “[n]ot one person” on January 6. Refraining from assassination passes for a laudable accomplishment. Do they get a participation ribbon for that? The emphasis in the original suggests they should.
But permit Lendrum his paradoxes. Perhaps, like Rousseau, he cannot think without them. He apparently cannot think without morally repulsive Nazi analogies either. Conservatives, he proclaims, are “on a course for being every bit as ostracized and alienated from broader society as Jews were in the years leading up to Nazi Germany.” Republicans outnumber Democrats by 27 to 23 among state governors. They control a majority of state legislative seats. The Jews, by contrast—is it actually necessary to say this? Yes, apparently it is—were marched into gas chambers by the millions. Their descendants will have to set aside our snowflake impulse to take offense at this execrable trivialization of the Holocaust. Lendrum is after bigger game than respecting the memories of the Six Million: He is out to save civilization from the progressive hordes seeking our “enslavement by the state.”
“The January 6 hysteria,” he proclaims, “is the ultimate vehicle for authoritarian efforts to march us towards the final solution: A fascist nation, the very thing which they have accused the other side of desiring.” In the coming dystopia, progressive “foot soldiers” will roam the streets unpoliced, burning cities to the ground. Their chosen tactic, says Lendrum, who has just warned of the “final solution” and compared conservatives to pre-war European Jews, is the hyperbolic comparison. Joe Biden, “the man who holds the title of president of the United States,” likens our divisions to the Civil War. And get this: Biden even plans to commemorate the anniversary of January 6.
Lendrum’s Holocaust references are grotesque. The ones to the Bastille are flatly unconservative. It is useless at this point to invoke Burke to the populist right. But for at least half a century—longer, if we go back to John Quincy Adams—American conservatism has held up the differences between the American and French Revolutions as evidence of, wait for it, American greatness.
On Lendrum’s account, the peaceful protesters were upset about electoral fraud, but their deeper motivation was—again with the metaphors—“a long train of abuses and usurpations perpetrated against the American people by an entrenched elite class that has infected our institutions.” Because the left is exploiting January 6 to impose the tyranny that January 6 was a reaction to their having already imposed, the populist right should
celebrat[e] the events of that day as our Storming of the Bastille; a day where a symbol of the degeneration of our ruling class into total corruption and tyranny was challenged, and the elites were shown just what happens when millions of freedom-loving citizens finally grow sick and tired of a boot perpetually stomping on their necks.
A regime of “total” tyranny might have found a way to prevent Lendrum from exposing its plot to impose total tyranny. By contrast, media on the populist right are thriving, so much so that a cynic might suspect they have a financial interest in continuing to terrify their devotees.
Conservatism has intellectual resources with which to analyze Lendrum’s preposterous claim of neck-stomping. One is that claims of crisis should always be regarded with the suspicion that they are pretexts for asserting power. Claims of victimhood should be treated similarly. The reality is that the populist right has simply adopted the same tactics conservatives condemn in identity politics: I am victim, hear me roar.
The premise of constitutional conservatism is that America is what Michael Oakeshott calls a “nomocratic” regime: one in which how things occur matters as much as what happens. In a nomocratic regime, process lends legitimacy to outcomes over which reasonable people differ. In a telocratic regime, by contrast, only outcomes matter, and process can be trampled in their pursuit. The premise of the populist right seems instead to be Carl Schmitt’s: the fundamental political distinction is between friends and enemies. They operate under an all-conuming imperative: One must never say anything, regardless of its truth, that could redound to the advantage of the libs.
What is lost in all this is the ability to make serious arguments against progressivism. Independents and swing voters are less likely to be outraged than confused by the claim that boots are on their necks. On the left, identity politics speaks a language foreign to most voters. It is hard to be affronted by insults delivered in a foreign dialect. But it is quite easy to ignore them. That is the risk progressives run: not just that they will alienate voters but that voters will simply pass them by like they would someone proclaiming doom on a street corner.
The revisionist story of January 6 occupies a subtler category: Its doomsaying is through the looking glass, but the events unfolded on live television. The facts—roll back the tape to Fox News that day if that helps—are these. Vice President Mike Pence presided as Congress assembled to count electoral votes in a solemn constitutional process. A mob (Burke: “excuse the term, it is still in use here”) disrupted that process, using brute force to break into the Capitol. They engaged in hand-to-hand combat with law enforcement, at a minimum injuring several. They erected a gallows and prowled the halls chanting “Hang Mike Pence” while he and his family hid in the basement.
The populist right discredits itself by denying or excusing this, even if every grievance asserted is granted. What is more important is that mainstream conservatism will discredit itself if it cannot disassociate itself from the revisionists. This is not a matter of whether Reaganism is still relevant or whether George W. Bush was really a conservative. Conservatives can continue internal debates on those issues.
But if someone—Mitch McConnell, John Thune, anyone at all—cannot help us face facts, there is a real question as to whether conservatives have a claim to govern. The most fundamental principles of conservatism—that constitutional process is sacred, that claims of crisis merit skepticism and that assertions of raw power are dangerous—are at stake. More than ever, we need a Buckley. When he or she arrives, one question will suffice to sort out the serious conservatives from the populist hangers on: “Was January 6 an abomination?” Anyone who needs a “but” in order to answer is not to be counted among the serious.