The prevailing intellectual culture is becoming more and more convinced that concepts like liberty do not have any reference in reality.
Quite a few conservatives, beginning maybe with George Will, are saying that the victory of Trump would be the end of conservatism. Others, maybe beginning with Damon Linker, are saying that the nomination of Trump signaled the end of conservatism. There are many ways of evaluating such claims. Here’s one.
Trump isn’t going to win the election. A narcissistic amateur—a flim-flam man in way over his head—is being sliced and diced by a coalition of all the country’s respectable experts. All means necessary will be deployed to defeat him, but probably no more will be necessary beyond the recent “bragging about groping” tape. The spectacularly self-destructive Trump is doing the rest on his own.
I’m not denying, of course, that all the experts are right to think he’s unfit to serve. Still, at this point: If you’re going to vote for a candidate who might win the election, you’re going to vote for Hillary Clinton.
The success that Trump has had so far, however, has been most impressive and equally instructive. He’s revealed the hollowness of the existing definitions of conservatism, and he dashed the hopes of many a conservative reformer.
The definition of conservatism that is favored by Will and other “originalist” interpreters of the Constitution, such as Randy Barnett, is that the change we can believe in will come mostly through “judicial engagement.” Our Framers were about protecting individual rights and against oppression by legislative majorities—or what they called “majority factions.” From this view, all forms of majoritarianism tend to be collectivism, and the resulting “general will” is often at the expense of “individualism” or the freedom of particular persons.
Our Framers thought liberty was the bottom line, and so in many respects they distrusted democracy. And they certainly wouldn’t have embraced the abdication of judicial responsibility that allowed the Court to defer to the democratic expansions of government that constitute the endlessly amorphous welfare state.
As a result of various Supreme Court appointments by Republican Presidents, Will and Barnett notice, the Court has been lurching unevenly in the direction of more aggressive engagement. Sure, it came up short in the key Obamacare decision, but one can still see in, for example, the opinions of Justice Kennedy an unevenly fervent dedication to the “presumption of liberty” in evaluating laws and policies for their constitutionality.
It’s time for Republicans, Will and Barnett say, to stop using the phrase “judicial activism.” It has negative connotations. Our Court should be active or engaged on behalf of the Constitution and individual rights.
One problem with this optimistic line of argument is that the justices praised for their engagement so often were appointed in reaction to perceived activism. Republican Presidents have repeatedly pledged mainly to appoint justices who would reverse Roe v. Wade (1973). Subsequent abortion decisions, of course, have been condemned as particularly egregious examples of an active or engaged Court, one that removes abortion policy from legislative deliberation (and often compromise), and “resolves” the issue on the basis of the high constitutional principle of individual liberty.
In Planned Parenthood v. Casey (1992), the Court even said it had definitively resolved the question of abortion and no more deliberation is needed. Roe, claimed the Court, is a kind of superprecedent that is as firmly established as Brown v. Board of Education (1954). Bringing up the possibility of significant legal restrictions of abortion is now considered as anti-constitutional as bringing up the possibility of a return to racial segregation.
The same approach to using “liberty” to resolve matters formerly assumed to be under the domain of state legislatures was followed in the Obergefell case in 2015 that announced the new right to same-sex marriage. Talk about judicial engagement! The Court gets to tell us what marriage is, without specific guidance from the actual text of the Constitution.
Our conventional view of constitutional law now rests on two forms of observed evolution in American political economy. The first is the kind that got the Court to back off on the feds’ economic regulations, given the changed conditions of the contemporary economy. This evolution is basically anti-individualistic, insofar as it slights the rights of free individuals in the face of big government on issues such as health insurance and eminent domain.
On this front, evolution or “living constitutionalism” has meant judicial deference, against which the libertarian originalists hope to encourage a new birth of judicial assertiveness on behalf the individual.
The second form, by contrast, claims to serve the individual against the moralism of government on abortion, marriage, and so forth. Thanks to the Court’s timely judicial engagement, Justice Kennedy claims individuals have become more free in this generation than they were in the one before. Presumably, as this evolution continues, new dimensions of liberty or autonomy will be discovered on the right side of history.
To highlight a big takeaway: The first form of observed evolution has in general been anti-individualistic, as government’s domination of the economy, and its constant output of more regulation, continue to push us down the road to serfdom.
There is another way of looking at this, favored by some libertarians and by Hillary Clinton in her secret teaching to Goldman Sachs. The progress of American individualism—a growing number of elderly persons and a dearth of babies—combined with the techno-development of the division of labor—will cause our entitlements, as well as our remaining pensions, unions, employer and employee loyalty, and various other forms of employment security—to wither away. Here we are supposed to find a new—an unavoidable—birth of individual liberty in the emerging world of independent contractors marketing their flexible skills. From this vantage point, the road to serfdom never arrives at serfdom.
The trouble with that optimistic view of the arc of liberty is that it’s contradicted by changes in public opinion. Fewer Americans—and especially fewer young Americans—think first and foremost about economic freedom. And that rebellion against “neoliberalism”—including against open borders and perfectly free trade—is bipartisan. It’s an important reason behind the youthful voters drawn to Bernie Sanders on the Democratic side, and also middle-aged voters drawn to Trump on the Republican side. The young might be called “libertarian securitarians,” wanting a secure environment in which to choose safely diverse modes of self-expression. Meanwhile the older group is nostalgic for an America where safety nets of all kinds were secure, and where it was easier, in these voters’ recollection, to live a life of relational dignity as respected American citizens, parents, friends, and creatures.
Now, Clinton may have given private assurances to members of our “cognitive elite” that she needs to talk up the plight of the economic losers but doesn’t intend to do much of anything that would impede the dynamism of the global marketplace. But she’s stuck with a party that lurched to the Left under the influence of Sanders, and likely a Congress that will want to take further steps toward significant “Progressive” economic reform.
The evolution of the division of labor has generated an equal (or more) and opposite evolution in public opinion, as I say, and I would go further and characterize it as reactionary. But “reactionary,” of course, suggests that there are economic forces that can’t be countered effectively by political decisions, and we shouldn’t be either Marxist or libertarian enough to succumb to that lullaby. I wouldn’t bet against any counter-trend that has the support of both Sanders and Trump supporters, and anyone with eyes to see knows that “classical liberalism” has had a terrible year.
The second form of evolution, typified by Justice Kennedy, has been about the individual defining himself according to his own lights in his or her relational life free from the coercion of the state. Who can deny there’s been one victory after another for individualism or personal autonomy—driven by the Courts and other expert elites—over the moralistic animosity that inspires the collectivism of the majority of ordinary people?
Now in the case of Barnett in particular (Will has gone strangely silent on issues such as abortion and marriage), it’s clear that the goal is more freedom across the board. Barnett agrees with Kennedy, for example, that Obamacare should have been overturned and also that there’s a constitutional right to abortion, and another constitutional right to same-sex marriage.
But that view has never been the mainstream conservative view, which is equally hostile to both Obamacare and Roe and its successors. The basic libertarian originalist case for judicial engagement has been parasitic on the partisans of the judicial restraint that would get the Court out of the marriage and the especially abortion businesses. The justices who are touted as the apostles of judicial engagement owe their seats on the bench to voters wanting judicial restraint.
Given that Trump is unlikely to win the election, all conservatives will have to reconcile themselves to the unwelcome fact that the “Progressive” judges appointed by the second President Clinton won’t be interested in using judicial review to roll back big government or the welfare, administrative state. That lane of the road to serfdom will be encountering less and less judicial resistance.
And the new Court will be equally keen to expand protections of the individual or autonomous person against the moralism of legislatures. We already see that one result of this will be the constraining of the free exercise of religion. We can see in many “Left” or “lifestyle” libertarians, beginning with presidential candidate Gary Johnson, the prioritizing of “nondiscrimination” over religious liberty.
Now there are libertarians (or extremely classical liberals), such as Richard Epstein and John McGinnis, who mainly think of their agenda as being about leaving people alone to define themselves in authoritative, voluntary communities such as the church. But their view is not the one that’s surging now. The Court, we can see, will be very selective, at best, in protecting the right of people to live according to their convictions as members of communities, as vibrant, observant parts of various authoritative “intermediate associations.” It’s on this front that an alliance of judges, bureaucrats, and other experts will advance part of the intrusive agenda of soft despotism—or the elitist scripting of the lives of ordinary people. The lonely right of conscience will remain, but not as a way of inspiring effective dissent against the fashionable prejudices of our time.
The form of libertarianism that is surging now is based on a kind of atomistic individualism and it is the truest friend of a degrading—and deeply undemocratic—form of collectivism. That’s the form that most contributes to the sapping of the resistance to the expert-driven administrative/corporate abolition of political life, the real life of citizens.
So maybe one good thing about the rise of Trump and the election of Clinton is that conservatives will abandon their illusions about our courts being reliable defenders of our liberty. It probably never was the true job of the Court to protect us from Obamacare. Surely the Republicans should have spent their quality time trying to elect a President who would take it out, instead of waiting for the Godot that is judicial review.
Most of the excesses of the administrative state can, moreover, be undone by congressional legislation. President Obama’s unconstitutional executive orders can be unordered by the next President.
Above all, can we not lay aside the notion that the Court is going to protect religious liberty? In this respect, it’s easy to see why quite a few of our Evangelical leaders have decided that there’s no substitute for relying on an elected leader such as Trump (even if they’ve been misled on how constitutional government actually works, and on who the oafish, incorrigibly ignorant buffoon Trump really is).
Here’s what is most needful: a restoration of the dignity of legislative deliberation and compromise as reconciling the human goods and diverse opinions that characterize a free people in a flourishing society. One way to make a start would be to remember that our Framers, in truth, thought of legislative deliberation channeled through strong institutions as the norm—they thought of judicial review the exception—in giving us good government that protects individual rights.
Now, you might say, the result of the coming election might be the Democrats controlling the presidency and Congress, and the Court soon enough. Not much room for deliberation there! For one thing, it’s likely, despite the hollowness of the Democratic Party that was exposed this year, that they will regain both Houses in 2018. On the other hand, if there’s one thing Republicans are good at, it’s winning off-year elections, and this time it would be a natural reaction to Clinton’s basically unearned control of the political branches.
Then will come the hard and perhaps humbling work of compromising with President Clinton, undertaken in the undeluded recognition that Republicans will not elect a President or control the Court any time soon. In retrospect, of course, it’s easy to be astonished at how little leading Republicans planned for winning November’s presidential election, given that their congressional behavior has been premised on that likelihood.
Those Clintons, however, are nothing if not pragmatic; they adjust as well as anyone to changes in their environment. We should remember back to 1994, and how much better President Clinton became in the realm of domestic politics after the dramatic Republican congressional landslide of that year. We might even remember that he and House Speaker Gingrich—two kindred souls in many respects—were about to get down to the business of sustainable entitlement reform when the Lewinsky affair broke (and Newt had to feign indignation). There probably will not be sex scandals rocking the administration of the second President Clinton.
The populism of Trump should show us conservatives, at least, that conservatism had grown too undemocratic, too oligarchic, too detached from the republican deliberation of citizens about their common future. The same, of course, is true of the expert-driven liberalism that had grown too contemptuous of and too driven by the intrusive scripting of the lives of so many deplorable ordinary Americans.