Talking about a Constitutional Restoration

A Supreme Court Justice has died barely a month before a hotly contested election, in a year of several overlapping crises. If Mr. Trump succeeds in replacing Ruth Bader Ginsburg, he will be the first President since Reagan to appoint three Justices. What this nomination contest means for the upcoming election is difficult to pinpoint, however, it’s worth noting that the Court is the only thing all GOP factions agree on.

President Trump’s third Supreme Court nomination would break an institutional equilibrium that has lasted thirty years, with each president getting two Justices as parties alternate in the White House. Obama might have gotten a third when Justice Scalia died in February 2016, but Democrats didn’t have the votes in the Senate to push through Merrick Garland’s nomination. Electoral politics denied Democrats the ability to fill an open seat in 2016, and electoral politics in 2020 gives Republicans the opportunity to achieve a truly conservative Supreme Court for the first time since FDR.

Trump’s third Court appointment should prompt reflection on our constitutional crisis. During a generation defined by divided government, the Court has been the engine of social Progress—remember Obergefell and Bostock, among others which reduced the representative branches to menial status. Overall, Republicans have failed to achieve their decisive originalist reorientation of the Supreme Court, but if this nomination succeeds, Democrats think their nightmare would become reality: the long sought conservative transformation of the federal judiciary.

Liberalism’s Triumph

Progressivism has dominated the Court since FDR, with certain exceptions. Certain Republican justices not only accepted, but actively supported it. Republican presidents appointed Justices who voted for Roe, Casey, and Bostock. Conservative opinions are grudgingly accepted, but progressive academic and legal elites constantly work to undermine them. Progressive opinions, despite being recent academic inventions, are holy to the Court. Thus, progressivism has made the Court seem all-powerful and disdainful to many conservatives. This sparks a belief among those conservatives that it’s win or die, since Progressives will outlaw their beliefs.

For what is Progress but an attack on all venerable things? We have had a century of it in our politics and the Progressive Court is now advancing the liberal project by attacking private life, not only public institutions, which was thought unthinkable until recently.

This conflict changes the character of the Supreme Court—it’s long been the only arbiter both parties recognize, but liberal abuse has earned conservative fear, and, if this dynamic continues unabated, disobedience will follow. Progressivism is unsuited to run the Court, since law is supposed to be reliable and they keep changing it. Will we experience a return to the intentions and practices of the Founders or something else? In order to guess intelligently, we have to abandon FDR’s progressive vision for the Court.

Our politics has changed too much—including by Court decision—for the Court to stay the same. If we dare, we can see, by looking to our history, the direction of the change and the crisis to which it has led us. The origin of our Court is FDR’s infamous threat to pack it—the titan of modern American politics was angry that the Court was striking down New Deal legislation at the moment progressivism triumphed in American politics.

After FDR’s 1936 landslide reelection, Democrats were in a position of dominance. Nevertheless, Congressional Democrats feared to use their constitutional authority to pack the Court, because they revered the Constitution more than FDR. But the Court was even more fearful of this providential man—a popular president in a national crisis. FDR appointed five justices in his second term, another three in July ’41.

This part of FDR’s great legacy gave liberalism power over a Constitution otherwise difficult to amend. It has proved inspirational—Democrats are again threatening to pack the Court to have their way without having to build large national coalitions. Now, the Constitution allows Congress to set the number of Justices, which varied until 1869. But we fear court-packing because it’s unprecedented and threatens tyranny—reducing law to partisan power.

We cannot assume that our partisanship will be self-limiting and venerate the Constitution, as Madison in Federalist 49 and Lincoln in his Lyceum Address implored. For what is Progress but an attack on all venerable things? We have had a century of it in our politics and the Progressive Court is now advancing the liberal project by attacking private life, not only public institutions, which was thought unthinkable until recently.

Conservative Confusion

Truth to tell, faith in the Constitution is as revolutionary today as it was in 1787. The Constitution is no longer taken for granted, but has become a partisan issue at elite and press levels. Progressive activists now routinely denounce various parts of the Constitution that seem to them undemocratic—the Senate and the Electoral College especially; threats to pack the Court, too, as noted. But will Republicans defend the Constitution in this partisan struggle?

This is far from obvious. GOP presidents appointed the vast majority of Justices since President Eisenhower, giving us the liberal justices who redefined America. GOP elites take the federal judiciary very seriously and the Federalist Society has helped them achieve remarkable feats of nominating and confirming judges during Trump’s tenure in office. But many GOP elites have little sympathy for conservative beliefs. Indeed, two Republican appointed justices helped liberals radicalize civil rights legislation just this year, in Bostock.

Nor is it obvious that the populists—more in the media than in politics—opposing these elites are much better. Yes, our elites betray their electorate, and shamelessly, but we’re not much likelier to restore the Constitution to its rightful preeminence with people who only care about it because they know partisanship sells, the harsher the better.

Therefore, it might seem unlikely that opposition to Progress should lead to a restoration of the Constitution instead of leading to increasingly violent partisanship and lawlessness. But conflict is not just fearful—it is also revelatory. What was obvious to the wise man who paid attention to FDR’s shockingly bold attacks on our Constitutional order was not obvious to everyone else, and the belief in Progress was once popular, before being discredited by the catastrophes of American society starting in the late 60s. Now we can all oppose Progress.

Constitutional Restoration

Liberal control of our elite institutions, industries, and our culture has not been good for most of us. We can oppose Progress with conviction now that we see what horrors it has produced and what madness and mobs it encourages. But we need a common purpose, not just a common enemy—we need a vision of American life and politics to put the Progressive ideal to shame. The only one available is the Constitution, which made America great.

We made terrible mistakes, though they are understandable, in replacing our constitutional order with Progress. We have become divided and ruined many of our communities in the pursuit of perfection. Many are now threatening to remake the civic compact if their political aims are defeated. To return from arrogance to moderation and prudence requires that we defeat Progressive oligarchy.

Conservatism, to be at all conservative, after so much political decadence corrupting our institutions, must have recourse to superior powers and superior legitimacy. Otherwise, Progress wins by default. The Constitution and our Founders offer both a past we can treasure and a wisdom that could make us take politics seriously again. Perhaps only now that we fear to lose it all can we really learn what power comes with a true political science.

The fight for the Court is a part of this needed restoration, but it must be understood in light of the ultimate purpose. We must make the Court obey the Constitution rather than rewrite it. We must above all fight against the liberal arrogance of creating philosopher-kings who attack our rights to property and the rest of our lives, because we now see the catastrophic consequences of progressive rule—lawlessness and decay.

Elites have obeyed liberalism’s ideas only to see the institutions they ran corrupted and distrusted by multiple segments of the population. Populists oppose this corrupt power only to threaten more corruption and the destruction of institutions. We must fight our political fights and use our victories to build, or rebuild institutions. This means we need a Supreme Court to put an end to the rewriting of the Constitution and to practice and preach a restoration.

Reader Discussion

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on September 25, 2020 at 12:04:41 pm

It's small-fry Friday when the pickings at L&L are always last week's fish. And, insult to injury, today we're served another Titus sardine.

Oh what an intellectual muddle within a mud puddle is this essay, typically-Techeran with its vague verbal focus top-heavy with "we ought" and "we must" moral lecturing, as it rambles aimlessly toward a shapeless political objective identifiable by that target's salient characteristic: whatever is wrong, it is the work of "the elite,'' Techera's favorite bogeyman, the not-dead-yet, dead horse which Techera is forever beating.

The man is terrific on the substance of movies! I wish he would stick to what he knows, while working on the brevity, clarity, coherence and cogency of his writing. Reading the rest of Techera's stuff, that which is not about film, is, to me, a painful act of plodding through commonplace writing laden with just enough topicality, cliche and internet-search-learning to mask a deficiency of education and experience in the politics and culture on which he expounds.

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on September 25, 2020 at 13:32:30 pm

Despite a rather snitty comment by another reviewer finding all measure of fault with this essay, I judge it as fairly remarkable. Readers might like to compare and contrast this with Angelo Codevilla's recent essay at The American Mind entitled Revolution 2020. Techera doesn't cover the ground that Codevilla does, but he certainly demonstrates a keen understanding of the profound issue that either escapes the ken of some, or is ignored perhaps because, unlike Codevilla we don't care to confront the grave possibility that our Union is headed to some form of disunion. Techera has dangled before us an invitation to reconsider, as in consider again the nature of our Constitution and our political constitution. Codevilla makes specific predictions, more specific than I've seen elsewhere, and those readers of this post who have not read Revolution 2020 should do so.

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Mike Timmer
on September 25, 2020 at 17:35:53 pm

The topic is important. No doubt about that. Techera always bumps into an important topic; he has a nose for the topical. My contentions are that, while Techera is conservative and that's a good thing, he does not come close to doing justice to his serious cultural, moral and political topics, that he has modest intellectual depth, typical grad school educational breadth, ordinary world experience, and commonplace insight, that he offers his readers mostly cliche, what we already know, and that, from a literary standpoint, his writing leaves much to be desired. He must not be compared in any of those ways to Angelo Codevilla.

Those are not "snitty" criticisms. Indeed, I wish I could enjoy reading and learning from the man on matters other than film. Perhaps, after Techera finishes grad school, gains some experience outside of moviedom and improves his writing, I will be able to do so. In the meantime, to quote A. Lincoln, "Of those who like that sort of thing, it can be said that that is the sort of thing they like." I'm happy that you like it.

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on September 25, 2020 at 20:13:47 pm

Oh bother, Paladin. I doubt any of Charlemagne's paladins, or all of them together, presented such a whining and boorish sense of entitlement. Further, the linchpin in the referenced piece by Codevilla is:

"Let there be no doubt: the ruling class’s focus on Donald Trump has been incidental. America’s potentates do not fear one pudgy orange-haired septuagenarian. They fear the millions of Americans whom they loathe, who voted for Trump, who gave his party control of House and Senate, and who will surely vote for folks these potentates really should fear." emphasis added

And that linchpin and summary is in perfect accord with what Techera is pointing toward. If you find it so unsatisfying then be a true paladin and take up the challenge yourself, take the initiative, offer up your own perspicuous perspicacity. Be a true paladin or none at all.

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Michael Bond
on September 25, 2020 at 20:25:49 pm

And that Techera cannot be compared to Codevilla is a big So what? Codevilla is among a very small and select group of commentators - Victor Davis Hanson comes to mind as well - in terms of those who lend a particularly adept insight into our present situation and who can do so across a range of disciplines.

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Michael Bond
on September 25, 2020 at 20:56:13 pm

And I'll make it easy to link on over to the referenced piece by Codevilla. It's perhaps not too much to say that it's something of a Rosetta Stone in terms of lending requisite probative depth and probity into the current situation. It should be read by all.

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Michael Bond
on September 25, 2020 at 20:57:08 pm

Oh my!
As I said, if Titus is the sort of thing you like, then that is the sort of thing you like, so read away. I don't care in the least. Certainly, it's not worth suffering your hostility. Is disagreement or a difference of opinion personally threatening for you? Hard to handle emotionally? Why the hostility?

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on September 26, 2020 at 21:07:10 pm

More Us (the good guys) vs Them (the bad guys) tripe. It's like the argument for socialism that says "If only the right people were in power socialism would work." Just substitute "flawed republican government" for "socialism".

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Scott Amorian
on September 28, 2020 at 00:10:57 am

Constitutional restoration must reach back to 1787 and the proffered people’s proposition: responsible human independence. (See Genesis 1:28.)

Focusing on progressivism during FDR and then after 1968 seems traditional scholarly distraction from the political corruption that was committed by the First Congress. In 1789, Congress hired factional-American-Protestant Chaplains in order to feign divinity--mimic the upper house of Parliament with its 26 seats for the Church of England. Then in 1791, Congress imposed civil “freedom of religion” in order to repress the preamble’s 1787 proposition for responsible human independence. The preamble assigns to privacy the citizen’s choice to be religious or not, in order to establish national humility.

The Founders expressed humility in the 1776 Declaration of Independence: “We, therefore, the Representatives of the united States of America . . . appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States . . . . And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

Nothing in the 1787 U.S. Constitution or its preamble lessens “the Supreme Judge of the world,” or “the good People” or “divine Providence” or “our sacred Honor” or the national humility.

However, Congress’s repression of the preamble as a “secular” sentence and imposition of civil religion rather than encouragement to civic integrity is not merely tyranny. It is arrogance toward the providence of France’s aid in securing Cornwallis’ surrender at Yorktown and hubris toward the superior power that holds humankind responsible for peace on earth.

Hopefully, the Trump/Pence administration, an integral Supreme Court, and the GOP will perceive “the Framers’” folly: Winning physical independence from England in 1781 and ratifying the treaty in 1784; in 1787 framing the world’s only government predicated on domestic discipline by the people; in 1789 allowing Congress to usurp the good People’s responsibility by re-establishing civil Anglo-American religion. The Supreme Judge of the world does not usurp humankind’s responsibility to constrain chaos: Congress did and still does. Congress is the cause of 2020 chaos. We tolerate Congress’s hubris.

America can be great, if most citizens accept that they are human beings and therefore responsible for peace under the U.S. preamble’s proposition. We the People of the United States is too humble to rebuke the Supreme Judge of the world.

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Phillip Beaver
on September 26, 2020 at 01:11:36 am

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