Saturday, October 10, 2020

The Truth About Unwritten Constitutions

One of the basic maxims of American political thought is that having a written constitution is necessary to protect a nation from tyranny.

My own view of the utility of written constitutions is more nuanced. In the real world, there are times when written constitutions are necessary, but there are also times when they are useless, or worse than useless.

Imagine, for a moment, that you are brought back in time to late 1945, and given a choice of living in one of two European countries. One of these countries is a federal republic with a written constitution which guarantees freedom of speech, the press, and religion, the separation of powers, and all the other rights and liberties which citizens of a modern liberal democracy generally expect to have. The other country is a monarchy with no written constitution.

Most Americans wouldn’t know any better than to say that they would prefer to live in the federal constitutional republic. Only a minority would recognize that the first country I described is the Soviet Union, and the second one is Great Britain.

Yes, you read that right. The Soviet Union had a written constitution (actually, it had several written constitutions; new ones were adopted in 1924, 1936, and 1977.) Its constitutions protected freedom of speech, freedom of the press, and freedom of religion. They enforced the separation of powers, and limited the role of the head of state. (The head of state at the time was a man named Mikhail Kalinin, who held that role from the USSR’s creation in 1922 until his death in 1946. Most westerners have never heard of him.)

Also, none of that had much practical impact on the way that the Soviet Union was governed. That was because, under the soviet system, while the constitution might say a lot of nice-sounding things, those things meant whatever the Chairman of the Communist Party wanted them to mean.

If the Chairman interpreted “freedom of speech” in a way that still allowed for the summary execution of dissidents, then the summary execution of dissidents was constitutional. The Chairman’s interpretation was the only interpretation that mattered.

So while the USSR had a written constitution, it also had an unwritten constitution. And during that particular period of soviet history, the unwritten constitution could be summed up in a single sentence: Josef Stalin must be obeyed.

Great Britain also had, and still has, an unwritten constitution. Unlike the USSR, Britain never had a written constitution to go along with its unwritten one.

Also, the unwritten British constitution differed from the written soviet constitution in that it provided meaningful protection to the liberties of the people. How was it able to do that, despite being unwritten? Because the British constitution consisted of a set of commonly accepted norms of how a government should function, and deviating from those norms could cause civil unrest, mutiny in the armed forces, or the removal from office of the party responsible, even if that party was the King. (Have you ever wondered why the Stuarts no longer sit on the British throne?)

What am I getting at here? Well, written constitutions are simply not as important as many Americans think. What matters most, in the end, is not whether the people’s rights are written down in a single place, but whether or not the government can violate them with impunity.

As I’ve said before, a constitution that means whatever the people in power want it to mean is the functional equivalent of no constitution at all.

Which is not the same as having an unwritten constitution.

For example, the unwritten British constitution has done a fairly good job of protecting freedom of speech, within reasonable limits. The United States, with its written constitution, has also protected free speech, within reasonable limits. (Remember that Justice Holmes’ famous remark about there being no right to shout “Fire!” in a crowded theatre dates from 1919, long before the present age of judicial activism, and the First Amendment has coexisted with libel law since 1791).

Both countries, then, accept limits on free speech; the difference lies only in who gets to decide what is an appropriate limit. In Britain, Parliament does the deciding; in the United States, it’s the Supreme Court.

Now, I happen to believe that, at least in the case of free speech, there are some benefits to doing things the American way. The fact that a law limiting speech has to first be passed by a legislature, and then upheld in court, provides a layer of double security that the British don’t have. Still, the difference isn’t as big as it may seem.

Even though most written constitutions are not mere formalities like the Stalin Constitution, their meaning is always heavily filtered through unwritten assumptions about how the government should work. Or in other words, even a country like the United States will still have a constitution which is, in large part, unwritten.

It has been this way from the beginning. While the constitution of 1787 is fairly specific about things for which tradition could provide no guide – for instance, that the President should serve a four year term – other things, just as important, are mentioned without ever being defined. For example, all that the constitution has to say about Habeas Corpus is that it is not to be suspended except in times of rebellion or invasion.

            Now, for another example of just how much faith in commonly-held, unwritten rules of good government went into the US constitution, take a look at the clause in Article IV which says: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

            Is there any specific listing of these privileges and immunities? No; that is left to tradition and custom. The people who wrote the constitution were less concerned about listing privileges and immunities – something in which they had the whole body of the English Common Law to look back on – than they were about making sure that each state allowed the inhabitants of other states to enjoy the same rights as its own inhabitants.

            Bushrod Washington, a nephew of George Washington who sat on the Supreme Court from 1798 to 1829, once wrote an opinion in which he talked for a while about the Privileges and Immunities Clause. Here is some of what he had to say:

“What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state….”

Wow! So here we have a US Supreme Court justice listing scads of unwritten constitutional rights, long before the invention of substantive due process, or emanations and penumbras, or Footnote 4, or any of the other mainstays of twentieth century jurisprudence. And it wasn’t even controversial, because Bushrod Washington didn’t use his authority as a Justice to push through new policies without the consent of the elected legislature; he just defended rights that were clearly based in the English Common Law.

(The actual dispute here, in case you were wondering, was over whether or not New Jersey had the right to prohibit non-residents from collecting oysters and clams on its beaches; Justice Washington ruled that it did.)

One might wonder how many times the English Common Law, important as it is to American jurisprudence, is mentioned in the original text of the constitution? The answer is zero. Everybody knew that America was using, and would keep using, a Common Law system, so there was no need to write this down and vote on it.

Now, did the fact that the American constitution relied so heavily on unwritten rights mean that judges could interpret these rights however they wanted? No.

Suppose, for example, that a circuit judge has arrived in some frontier settlement in the Appalachian Mountains in 1798, where he announces that, in his court, a jury will henceforth consist of five men, empowered to convict or acquit the defendant by a simple majority vote. He explains that the constitution mentions juries without giving any details as to how they should work, and that, as a federal judge, he can rule on constitutional questions as he pleases.

Everybody knows that a judge who did this would have been run out of town on a rail, because by longstanding tradition, a jury had to consist of twelve men, and it had to give its verdict unanimously.

Americans living in 1798 still had the courage to fight for their liberties. Their willingness to resist abuses of power put a practical limit on what the government could do – and it protected both written and unwritten rights.

In the year 2020, America is in a very different situation. Our written constitution is a largely meaningless formality, with most of its provisions having been interpreted out of existence. And the unwritten constitution that we have adopted in its place is rooted in progressive ideology rather than the English Common Law.

Is it a problem that, in our system, judges have the authority to rule on constitutional questions? No, not really. The judiciary had that power under George Washington; the main difference is just that, nowadays, the checks and balances are gone. The impeachment of judges on a charge of “unlawful rulings” hasn’t been seriously discussed since the Jefferson Administration; the Exceptions Clause hasn’t been used since Reconstruction; and court packing, apart from some recent talk from Democrats, hasn’t been a live issue since the New Deal.

To get a better grasp of the idea that the present state of judicial supremacy arose over time, and wasn’t built into the system from the beginning, just think about the following alternate-history scenario.

Imagine that, at some point in America’s history, each house of Congress has started using its constitutional power to be “the Judge of the Elections, Returns and Qualifications of its own Members” to disqualify new Senators and Representatives whenever the outgoing Senators and Representatives believe that their replacements won office by lying to the electorate. Then, to the surprise of nobody, this gimmick is used to ensure that the same party always maintains control of Congress, no matter what the citizens do in the voting booth.

You could argue that the founders didn’t intend for it to work this way. “What they really meant,” you could say, “was that Congress needed to have the power to resolve good-faith disputes about who had the most votes.” On the other hand, the power of judging elections belongs to Congress, and if you’re not a member of Congress, then your opinion about how that power should be used doesn’t really matter.

Everyone knows that if this happened, the United States would no longer be a constitutional republic in any meaningful sense of the word.

As it turns out, a very similar thing has happened with the part of the constitution that says: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…” – i.e. the clause that provided the seed for the Supreme Court, by means of creative interpretations of various parts of the constitution, to give itself unlimited legislative authority.

That the Court was able to do this isn’t an indictment of the American founders; it’s just one more piece of evidence that the ability of written constitutions to restrain the abuse of power is not unlimited. (If it was unlimited, then Stalin would not have been willing to put up with a written constitution.)

The plain fact is that a man, or group of men, may hold legitimate power under the constitution, and still abuse that power so badly that, unless resistance is in the offing, the country no longer has a constitution in any real sense.

The truth about unwritten constitutions is that they can protect a nation's rights just about as well as written constitutions. And the truth about written constitutions is that, in the hands of sufficiently ambitious and unprincipled men, they can be perverted just as easily as unwritten constitutions.

In the end, the question of which, if any, of your rights are enshrined in a written document is not the most important question. Rather, in the long run, the only rights that matter are the rights which the government can’t violate without risking an insurrection. This is why, when the English barons made King John grant the Magna Carta in 1215, he had to include a clause authorizing them to renew their war against him if he violated the rights he had just granted.

It is also why the American founders were willing to wage a War of Independence against Britain in order to protect traditional rights that weren’t part of any written constitution, and which Britain’s highest legal authorities – the Houses of Parliament – said did not exist.

And it was the absence of serious resistance when the First, Second, Fourth, Sixth, and Tenth Amendments were gutted and stuffed by the mid-twentieth-century judiciary and an alphabet soup of regulatory agencies that has given America its present form of government: a post-constitutional oligarchy.

Saturday, September 26, 2020

Six Observations On Amy Coney Barrett

Yesterday, President Trump announced his nomination of Amy Coney Barrett to fill the Supreme Court seat that has been open since Ruth Bader Ginsburg’s death last week. As this is a major plot twist in what is already a bizarre year in American politics, nearly every news site in the country is buzzing with commentary. Hence my desire to add my own brief observations on Barrett’s nomination.

1.      This Was Never About Election Years

Back in 2016, when Antonin Scalia died and Mitch McConnell announced that the Republican Senate wouldn’t be considering Obama’s nomination of Merrick Garland to replace him, he justified it on the grounds that Supreme Court vacancies shouldn’t be filled during election years. Everybody with half a brain suspected that the “McConnel Rule” wouldn’t last thirty minutes beyond the moment that a Republican president got a vacancy during an election year.

My own prediction, at the time, was that the new precedent that McConnel & Co. were actually setting was that no justice should ever be confirmed under divided government.

Well, if Trump wins re-election but then loses the Senate in 2022 (as presidents in their sixth years usually do) I will not be holding my breath and waiting for the Democrats to vote on any of his Supreme Court nominations – or perhaps on any judicial nominations at all – during his final two years in office.

2.     Barrett Was Trump’s Best Possible Choice

I am on the record criticizing President Trump for not picking a woman for his last Supreme Court vacancy in the summer of 2018. Simply put, the absence of any female conservatives from the Court makes it more likely for wishy-washy justices like John Roberts to vote with the Left to avoid ending up on the wrong side of a perceived battle-of-the-sexes. Well, Trump didn’t make that mistake this time around.

And that’s not even the beginning of the good things that there are to say about Amy Coney Barrett. As a law professor at Notre Dame, she’s racked up a record of promoting originalism far superior to what Kavanaugh or even Gorsuch had. She is deeply religious and has seven (!) children, which is exactly the sort of countercultural thing that signals that a person fully embraces old-fashioned values rather than merely flirting with them from time to time. (Antonin Scalia, for that matter, had nine children.)

3.     The Democrats Will Have To Be More Creative Than Last Time

Back in 1987, Democrats could attack Robert Bork on ideological grounds because they had a majority in the Senate. In 2018, when Brett Kavanaugh went before a Republican Senate, the Democrats had to try something different. So they got a woman who had known Kavanaugh as a teenager to come forward and make thin-as-vapor rape allegations, and then get all hysterical about how hurtful it was when Kavanaugh insisted that the senators shouldn’t believe her.

But with a female nominee, that particular line of attack will be a lot harder. It is remotely possible that the Democrats will try to derail Barrett’s nomination by finding somebody to claim that, early in her career, she had sex with a boy. But what is more likely is that they will just try to paint her as a dangerous religious fanatic.

Barrett is a Roman Catholic, but she also belongs to an interchurch charismatic association called People of Praise. Its members believe in the gifts of prophecy and healing, and they commit to live by traditional gender roles. (You can tell that it isn’t too traditional by the fact that it has room for a woman who chose a career as an appellate judge).

But you can expect leftists to get apoplectic over People of Praise anyway, especially since the association used to call its female officers “handmaids.” If you are biblically literate, then you will be familiar with the passage in Luke 1 that inspired this choice of title:

And Mary said, Behold the handmaid of the Lord; be it unto me according to thy word.

Nevertheless, most Americans aren’t biblically literate these days, and the fact that religious men and women often use the language of servitude in describing their relationship with God isn’t taken for the mundane fact of life that it once was.

4.    This Is A Win For The Deplorables

Right now, everybody on the Supreme Court is a graduate of either Harvard or Yale. And all of them, with the exception of Clarence Thomas, grew up in wealthy families, and lived most of their lives in wealthy counties in blue states. (Thomas grew up as a dirt farmer in Georgia.)

The justices are, again with the exception of Thomas, very strongly accultured in America’s bicoastal ruling class. This is the reason why so many justices who are supposed to be conservatives end up consistently voting to the left of the Republican base that puts them into power.

If you analyze the justices not by party, but by whom they hobnob with and whether or not they grew up in comfortable circumstances, you do not get the usual conservative/liberal breakdown; rather, you get Clarence Thomas versus everyone else. While the other justices are, for the most part, opera lovers who go on expensive foreign vacations, Thomas spends his summers driving around Middle America in an RV, overnighting in Wal-Mart parking lots, and chatting with the Deplorables.

When Donald Trump was elected President, a lot of his more optimistic supporters looked forward to seeing him make the Court more diverse by adding people from non-coastal states with Alma Maters other than Harvard or Yale. (You may not think that getting your degree at Notre Dame makes you a Deplorable, but to a very large percentage of America’s ruling elite, it does).

With Gorsuch, Trump sort of fulfilled those expectations. While he was a Harvard alumnus like most justices, he was from Colorado rather than a coastal state. And his mother’s poor treatment at the hands of respectable Washington society when she served as head of the EPA under Reagan left the younger Gorsuch with a sour feeling toward said society. Kavanaugh, on the other hand, was born in Washington DC and had always been comfortable there – not a promising trait!

But Barrett is better than either. She was born in Louisiana, went to school in Indiana, lived in Indiana for most of her adult life, gave birth to five children, and adopted two more from Haiti.

This alone does not prove that she will be a consistent conservative on the bench. After all, power can corrupt anyone; Sandra Day O’Connor grew up on a ranch in Arizona and ended up as a socially liberal swing-voter. But Barrett’s background should still count in her favour.

5.     The Democrats Won’t Pack The Court

Some liberals, having realized that the Democratic party is completely helpless to stop Barrett’s confirmation, have started threatening to add new seats to the Supreme Court if Biden wins in November, so as to move its balance back into safely liberal territory.

I am not opposed, in principle, to court-packing, because I see the ability of Congress to engage in such tactics as a necessary – but alas, never used – constitutional safeguard against dictatorship by committee. (For obvious reasons, I am not in favour of the pro-dictatorship-by-committee party packing the Court).

But right now, it is all empty bluster. Even if they win the Presidency and all the close Senate races, the Democrats will only have 50 or 51 senators to work with. That just isn’t enough to get such a major reform through, even if they abolish the filibuster, which is something they are also talking about doing. There are too many Democrats who would get cold feet – people like Joe Manchin of West Virginia, who has found himself stranded in Trump country and now must cling to office by taking a centrist line on most issues.

6.    Abortion Rights Are Probably Here To Stay

Alarmist Democrats and optimistic Republicans have been talking up the Ginsburg-Barrett transition as a threat to Roe v. Wade. This is because Barrett is an almost-certain vote to overturn that decision. But the trouble is that, like in 1992, there are far too many moderate Republicans gumming things up.

Back then, when the conservative bloc came closest to overturning Roe v. Wade but still fell short by one vote, the Court had eight Republican appointees. (To add to the irony, the lone Democrat, Byron White, was a moderate who always voted against abortion rights).

The Court’s conservatives failed to defederalize the abortion issue back then because most Republican politicians do not care about abortion and only pay lip-service to the pro-life movement. The result is that they nominate judges about whose judicial philosophy they know little or nothing: people like O’Connor, Kennedy, and Souter. Then they palm these appointments off as wins to their gullible base.

The same thing happened with John Roberts in 2005. In order to maintain his status as leader of the Court’s conservatives, the new Chief Justice mostly followed the original constitution for his first 12 or so years on the bench, then made a hard run to the left just in time to step into Anthony Kennedy’s role as de facto King of America.

In order to keep Roe v. Wade in place after Barrett, the liberals will need to pick off another Republican appointee. Barrett herself is not swingable; neither is Thomas or, in all likelihood, Alito. I am optimistic about Gorsuch; I put his odds at voting against abortion rights at 80 percent.

Kavanaugh seems like the weak link; my guess is that there is only a 40 percent chance that he will vote against abortion when it’s his turn to decide. Multiply out those probabilities and you get a 32 percent chance that Roe v. Wade will be overturned by the new six-justice Republican majority.

I sure hope it happens, but I am not holding my breath. Trump chose well with Barrett, and to a lesser extent with Gorsuch, but with Kavanaugh, he picked someone whose beliefs were way too murky.

The sad truth of the matter is that when you are trying to get people to divest themselves of power voluntarily, you will almost always fail. That is what the conservative movement has been doing with the Supreme Court for the last fifty years or so, when it has, time after time, placed seemingly principled men (and one woman) into a position of practically unlimited power and then crossed its fingers in the hopes that the power wouldn’t corrupt them.

What we needed after the abuses of the Warren Court was structural reform; we didn’t get it, and we have spent more than 50 years dealing with the consequences. One of those consequences is that the stakes of Supreme Court nominations are way higher than they ought to be. Another is that, for conservatives, the occasional win – like what they are about to get with Judge Barrett – is not enough to offset the broader pattern of losses.

Sunday, September 20, 2020

The United Nations and the Conspiratorial Worldview

For a very long time – longer than I’ve been alive – the standard way for someone on the Right to begin a book or a speech, draw attention to a website, or launch a political campaign has been to say that something is deeply wrong with America’s present form of government.

It’s a cliché, but it’s a cliché that carries a lot of weight. Entering right-wing politics without declaring that America has gone astray from its founding principles, and that the government is trampling on our liberties, would be somewhat like joining a Pentecostal church but refusing to say that Jesus is Lord.

It isn’t that you couldn’t do it – just ask Jeb Bush. It’s just that you won’t get very far in either a religious or a political community if you don’t repeat and expound upon the core tenets of that community’s faith.

Now, among the people who are saying that something is deeply wrong with America’s present form of government, there are a lot of variations of belief about just what that something is. To people who aren’t on the right, this is often taken as evidence that right-wingers are blowing smoke.

I don’t see it that way. Rather, I think that the situation is more like the old story of the Blind Men and the Elephant. If different people can spend years pondering the decline of the American empire and come to different conclusions about what is happening and why, it’s simply because the decline is so big and multifaceted that a single person’s insights are never enough to understand it.

For example, watching a pair of right-wingers arguing over whether central banking or leftist jurisprudence is the true cause of their country’s loss of freedom over the last century is somewhat like watching the blind man with his hand on the elephant’s tusk saying to the blind man with his hand on the tail, “There’s no truth to your theory that the elephant is like a rope; clearly the object that it resembles the most is a spear.”

That being said, there is one strain of belief, common among the Right, which I wholly and unabashedly reject. I have no point of agreement with the people who think that the biggest threat to our liberties and our country’s well-being is a single, well-organized conspiracy working behind the scenes to subvert the US constitution, and that, one day, this conspiracy will emerge from the shadows and subject us all to a new and radically different form of government.

This is a theme that is played with many variations. Conspiracy theorists disagree about what the shadow group is, what sort of government it is trying to set up, which publicly-known organizations are front groups for it (Skull and Bones, Council on Foreign Relations, etc.) and why the shadow-rulers felt the need to pull off the Kennedy Assassination, the 9/11 attacks, and so forth.

My plan here is to discuss why I don’t believe these theories, and also to try to answer the question of just what it is about the conspiratorial worldview that makes it so appealing – and so wrong.

Consider, to begin with one of the (relatively) less insane conspiracy theories: the one that claims that the United Nations is on the brink of taking over the United States, suspending the constitution of 1787, and imposing martial law.

If the UN is on the brink of doing something like that, then they’ve been on the brink for a very long time. Controversy over whether it was a good idea for the US to create and join the UN has been an off-and-on theme in American politics since 1945. Before that, there was a similar controversy over the League of Nations at the end of World War I.

In both cases, the controversy started the same way: Americans were afraid of the establishment of a supranational governing body which might compel the United States to go to war without the consent of the US Congress.

The first time around, the more cautious faction won out – the Senate voted against ratifying the Treaty of Versailles, and the United States did not join the League of Nations. The second time around, owing largely to a belief that American isolationism was a factor in the rise of Nazi Germany, a great many Americans reversed course and became enthusiastic supporters of the United Nations.

But not everybody was happy about the new situation. Some American statesmen voiced reasonable fears of what might happen if the UN, in which the Soviet Union under Josef Stalin had an equal voice with the United States, began acting too aggressively in its new role as the policeman of the world. Indeed, there were good reasons, at the time, to think that a decision to grant plenary powers to the United Nations might end with a Marxist concept of human rights being enforced by the sword.

Except that that isn’t the way that history played out. The first real attempt of the UN to enforce its new ideals came with the partition of Palestine in 1947, which would have divided the Holy Land into separate Jewish and Arab states while leaving Jerusalem and Bethlehem as international cities. The plan didn’t work – the Arabs rebelled against the UN, which proved unable to enforce its authority, the Jews had to go it alone, and it’s quite the understatement to say that Israel has had a tangled relationship with its neighbours ever since.

Then there was the Korean War – this is the one that really scared Americans, because it involved President Truman sending US forces into a conflict on the basis of a resolution of the UN Security Council, without ever getting Congress to declare war. Then, after the Chinese crossed the Yalu in October of 1950, Truman’s refusal to allow General McArthur to strike any targets in China, not even the Chinese ends of the bridges that the PLA was crossing to get into Korea, on the grounds that doing so would be harmful to world peace, caused a lot of consternation within the halls of Congress.

As it turned out, Korea was indeed the beginning of a new way for the United States to make war, but the UN had little to do with it. In future conflicts – Vietnam, the Gulf Wars, Libya, Syria, Yemen, etc. – the President alone would decide when, where, and against whom a war would be fought, without having to go to Congress for declarations of war on specific foreign countries.

And what became of the United Nations? It was a big deal for about a decade, after which it subsided into a largely ceremonial role. That  doesn’t mean that its new role is useless – there are benefits to having a deliberative body in which representatives of every nation in the world can talk out their issues under an air of equality. But nobody is ever going to go to war again because of a decision made at the UN. (I say “because of” since the UN can still play a ceremonial role in authorizing wars that were going to happen anyway).

Meanwhile, in America, a lot of the things that the most ardent opponents of the UN feared would happen under a world government ended up happening anyway under the ever-morphing American government. Even without the UN wielding real power, Congress still lost its authority over wars. The size and scope of the federal government were dramatically expanded. Policies that would have been revolting to nearly anybody in 1945 are now cheerfully supported by half the American populace, and grudgingly endured by the other half.

The cause of representative government in America ended up taking most of its blows on the domestic front. Back in the 1950s, the Warren Court decided that, by declaring itself the protector of every minority group who felt that its rights were being violated by more democratic institutions, it could become America’s Top Legislature (that’s what “interpreter of the constitution” is a euphemism for). The Justices then used that power to make a lot of dramatic changes to the way America was governed, going quite a ways beyond suppressing the racial injustices which originally justified their power trip.

None of this had much of anything to do with the United Nations. The UN seemed threatening for a while, but the threats didn’t materialize, and the world moved on. The important struggles for American liberty between 1945 and today mostly happened in other contexts, and the supporters of limited government and the Bill of Rights usually lost.

Conspiracy theorists, unwilling to admit that they were wrong, have tried to frame all of this in terms of the United Nations anyway. The people who make decisions within the US government must be secretly controlled from somewhere, they say, and any day now the UN troops will be marching down our streets and herding us off to detainment centres.

The problem with that mindset is that no theories that elaborate are actually needed in order to explain the evidence. Or in other words, decision makers within the US government are perfectly capable of acting the way they do without taking covert orders from anybody else.

If you want to understand why Supreme Court Justices rule the way they do, then read their opinions. If you want to know how their worldview was formed, then just look at where they went to law school, what media they read, and who they hobnob with at the upper end of DC society. Then do the same thing with all the lawyers and appellate judges who determine which questions will make it to the Supreme Court.

The same thing goes for the army of neoconnish State Department officials who make America’s foreign policy. They are trained at specific universities, read specific media, hobnob with likeminded people, and come out of it all holding a specific worldview which just happens to give them a vastly inflated sense of their own ability to improve the world by forcing their ideology upon it.

Repeat the process with any other group of decision makers in American society, whether their decisions relate to law, politics, education, business, finance, medicine, the media, or whatever, and you will have an idea of what is going on.

There is no shadowy, centralized control system. The United States is simply run by a collection of human beings who act according to a combination of idealism and self-interest to implement agendas which they themselves don’t see as sinister, and which they aren’t trying very hard to conceal from the public.

Do conspiracies happen? In the dictionary-sense of the word ‘conspiracy,’ yes, they do. Over and over again, men of wealth and power conspire. They make plans, in secret, to do legally or morally questionable things which they wouldn’t have done if they had expected everybody else to find out. Sometimes, there is a leak and a public outcry: think the Pentagon Papers, or the Iran-Contra scandal, or all the lying and obfuscation about nuclear weapons in Iraq.

But the main fact revealed by these scandals is not that the schemers are controlled by any centralized force. Rather, it is that they are acting out of the same combination of idealism and self-interest that drives normal government and corporate activity, but with a bit more zeal/recklessness than is generally acceptable.

Politicians like Lyndon Johnson and Richard Nixon obfuscated the fact that the US was losing the Vietnam War because they knew that both of the other options – either admitting defeat, or escalating the war like Goldwater wanted – would be bad for their popularity. Ronald Reagan kept funding the Contras in defiance of Congress because his idealism impelled him to support the global struggle against Communism by fair means or foul. And so forth.

When I criticize the conspiratorial worldview, I am not criticizing the idea that some very unnerving things have happened in America in the last 70 years or so. I am just criticizing the idea that they are happening according to some sort of master plan, and that there is some sort of master planner whose machinations could be resisted if more Americans were in the know.

It is comforting to some people to think this way. It lets them feel more powerful than other Americans who aren’t aware of the conspiracy. And when a right-winger sees his side losing at politics over and over again, conspiracy theories help him feel like a victim of an evil mastermind rather than a member of a political faction which consistently gets beaten because of its poor organization and lack of courage.

And the conspiratorial worldview is great for people who want to engage in provisional living. If your feelings of patriotism revolve around making plans for what you are going to do in the future, when an imaginary foreign occupying force shows up in America, then guess what? Your patriotism poses zero threat to the forces that are doing America in right now.

Just think of what would have happened if one of the blind men in the old story had said: “I’ve got it! I know all about this elephant critter! It’s about two feet long, and it has four legs and a cold, leathery head, and its body is protected by a hard, bony shell.”

You would know, even if you were a blind man too, that he wasn’t feeling the same animal that you were. And you would also know that if you ever wanted to figure out what the elephant was really like, then you would be best off not listening to him.

So it is with the people who claim that the United Nations poses a serious threat to American liberties.

Saturday, September 12, 2020

Why I Will Be Voting To Legalize Weed

This November, my home state will be holding a referendum on whether to legalize recreational marijuana. My plan is to vote yes in the referendum, and, owing to the rising generation’s almost complete lack of support for marijuana prohibition, I am fairly certain that my side will win.

Now, as my audience consists mainly of people on the right, and because right-wingers are less likely to vote yes on questions like this than are leftists, I figured that I should explain my thoughts on the matter.

To begin with, I don’t support marijuana legalization out of a general belief that government shouldn’t enforce morality. Rather, I support it because I think that America’s last few decades of experience with marijuana prohibition has shown it to be impractical. That is to say, the potential benefits are not worth enough to justify the downsides.

But as for that maxim that “government shouldn’t enforce morality,” I think it to be nonsense. The reason that we have laws against murder, arson, stealing, etc. is that nearly everybody considers those acts immoral. So when someone says that “government shouldn’t enforce morality” what he or she really means is “government shouldn’t enforce other people’s morality, but as I don’t happen to think that the thing we’re discussing right now is immoral...”

Now, one could reasonably argue that murder, arson, stealing, etc. are different because they’re things which every society has prohibited, for the simple reason that a society that doesn’t prohibit them can’t survive for very long. But here’s the problem: there are also plenty of aspects of modern American morality which nearly every American agrees should be enforced by law, even though, historically speaking, they’re not as universal as the taboos against murder and stealing.

For example, sex between an adult and an eleven-year-old child is illegal in the United States because nearly everybody agrees that it is immoral, while in past societies which did not consider it to be immoral, such as ancient Greece, it was not illegal. A libertarian might say that this is different because of the element of consent, but that argument has at least two flaws.

First, the idea that children below a certain age cannot consent to sex had to be established by legislation; it isn’t some kind of objectively verifiable fact. And second, not all societies share our belief that nonconsensual sex is always immoral. For example, it was only fairly recently, in the big picture, that Euro-American law codes began to frown upon married men having sex with their wives against their will.

So in reality, the marijuana question is less about whether government should enforce morality, and more about what sorts of moral principles can be enforced by the government in a practical and/or worthwhile way. Or in other words, the real debate is about which moral concerns should be transformed into public, enforceable legislation, and which ones shouldn’t.

For example, I think that even among people with the most traditional views on sexual morality, few would want to go as far as the Puritan founders of New Haven, Connecticut, who, in 1656, wrote a law code in which masturbation was a capital offense. This is obviously an extreme case, but it demonstrates an important point: before outlawing something, it isn’t enough to just ask if it’s immoral; you also need to do a cost-benefit analysis and ask yourself what you can practically expect to accomplish by making it illegal as well. (FYI, as far as the records show, New Haven’s masturbation law was never enforced).

For people who will be voting in my state’s weed referendum (or in any other state’s weed referendum) this analysis is made a lot easier by the fact that most states have had laws against marijuana for several decades, so we can see exactly how ineffective they are.

To begin with, nearly every member of my generation has smoked marijuana, and the vast majority have completely gotten away with it. But even though, from the individual stoner’s point of view, being arrested and tried is a rare event, marijuana is so widespread that a huge amount of police resources are being tied down in what has become, in effect, a quest to disrupt the lives of an almost-random sampling of the American population.

The failed campaign against marijuana not only distracts the police from cracking down on more serious threats to the public safety (i.e. drunk driving, violent crime, sex crimes, etc.), it also gives them more opportunities to violate Americans’ civil rights.

For example, young black men are a lot more likely to be stopped and searched just for being black when the police know that any search of a young person is likely to turn up evidence for a crime. Now, it so happens that smoking weed in one’s youth is the norm among all races, with the possible exception of Asians, so if they really wanted to, the police could routinely search young white men on the same grounds. But for a variety of reasons, they choose to mostly search blacks.

As an even more egregious example, nearly every American police department gets a large portion of its revenue from civil asset forfeiture, a legal process in which assets suspected to have been used in the commission of a crime – for instance, a drug dealer’s truck – can be seized in a civil proceeding without the defendant having to be convicted of, or even charged with, the crime in question. While the attempts by a few right-wingers to abolish civil asset forfeiture haven't accomplished much, it will at least become less common if marijuana is legalized.

It is also worth noting that, right now, young people who buy and smoke weed – i.e. the majority of young people – have to get it from an illegal drug dealer (or an “unlicensed pharmacist” if you want to use euphemisms along the lines of “undocumented immigrant.”) Once connected to the world of the underground drug trade, these dealers will have a strong incentive to get their customers to try out worse drugs – cocaine, methamphetamine, heroin, fentanyl, and so forth.

Take away the need for marijuana users to buy their product on the black market, and fewer of them will end up regularly doing business with the sorts of people who are hankering to get them hooked on hard drugs, too.

This is a big deal, because most other illegal drugs are so much more harmful than marijuana that putting them in the same category is bound to cause trouble. (And I’m not talking about the schedule system; to most people, all illegal drugs form one big category). To put things in perspective: nobody has ever died of a marijuana overdose, stoned driving is less dangerous than drunk driving, and it’s a lot easier to deal with an employee or a family member who is stoned a lot than one who is a habitual drunk, which is in turn easier than dealing with someone who is addicted to cocaine, heroin, fentanyl, or something else along those lines.

Don’t get me wrong – if I was designing the ideal society, recreational drug use of all sorts would have no place in it. And as far as personal morality goes, I’m a complete abstainer. I’ve never smoked marijuana, and I don’t have any plans to start. I liked Elon Musk’s assessment of it during his Times interview two years ago: “Weed is not helpful for productivity,” he said. “There's a reason for the word ‘stoned.’ You just sit there like a stone on weed.”

But I just don’t consider the problems with marijuana to be serious enough to justify the government trying to control it the way it controls hard drugs, which I am unabashedly against. (And that includes their legal as well as their illegal uses – I have explained here and here why I think that putting young children on amphetamines for ADHD is one of the biggest human rights abuses going on in the world right now).

But weed is a separate thing. It simply doesn’t provoke strong opinions from me, and while I won’t partake of it myself, I have no desire to stop anybody else from partaking.

And even though I don’t reject the idea, in principle, that government should sometimes enforce morality, I am also a pragmatist who thinks that all of our laws should be subject to level-headed cost/benefit analysis. And in the case of the laws against marijuana, I think that the costs – both to the public well-being and to our liberties – far outweigh the benefits.

And that is why, this November, I will be voting to legalize weed. 

Tuesday, September 8, 2020

How to Live in an Age of Decline

One of the more frustrating aspects of being a political commentator with a good mind is that it is easier to see what is going on in America these days than to figure out what patriotic Americans should do about it. My blog’s relative neglect of the latter subject has had strange consequences. For example, some of my readers apparently think that I am saying that the “solution” to our national predicament, insofar as there is one, if for right-wingers to emigrate to Russia.

While Russia’s willingness to take a better position than the United States on a number of human rights issues has earned that country some favorable mentions on my blog, the truth is that I have only advocated actual resettlement there for a very specific (and rare) set of people – parents who are in child custody fights in which the other parent wants to raise the child as the wrong sex.

There are a number of reasons why Russia is, in my opinion, the best place to seek asylum if you find yourself in such a nightmare scenario. Russia is generally hostile to the LGBT agenda, is not bullyable by the US, and is the closest foreign country after Canada and Mexico.

But for literally anybody else, there is very little reason to go there. To begin with, the place isn’t exactly run by open-borders liberals who would be happy to let you in. And if you did manage to get legal residence, you would still be looking at a difficult language barrier: Russian is not easy to learn, owing in part to the fact that it has retained elements of the Proto-Indo-European case system which western European languages haven’t used since before Roman times.

Does the rarity of circumstances in which fleeing to Russia makes sense mean that it is a mistake for me to talk about that subject so often? Not at all. The fact that several hundreds or thousands of people have allowed their exes and/or the state to mutilate their children without at least trying to escape to a country with a less demented concept of human rights says something important about the present state of the American nation.

I have chosen to use the absence of US transgender child cases from the dockets of Moscow’s asylum courts as Exhibit A in my case that the American people presently suffer from an almost complete lack of courage. This is a big deal, because “complete lack of courage” isn’t a trait that you find in an imperial nation unless the imperial nation is well along in the process of decline and fall.

This raises an interesting question: if you are an ordinary American with no unusual circumstances that would necessitate emigration, what should you do about the American Empire’s ongoing decline and fall?

And this is a question which is not easy to answer. In fact, I don’t think that anybody has a full answer. But I can at least provide, and elaborate on, two useful insights.

1.      Learn To Alienate Yourself From The System

If you want to think realistically about America’s future, you have to admit the complete institutional dominance of the Left. The Left runs the universities, the media, the professional organizations (law, medical, etc.), the major corporations, and so forth.

One consequence of this is that the Left does not need to win elections in order to enact its agenda. Think back on the big victories which the Left has won over the last half-century or so: Legal abortion, a much-reduced role for religion in public life, de facto open borders, affirmative action, the re-interpretation of civil rights laws to penalize criticism of homosexuals, the normalization of sex-changes for children, etc. None of these required a legislative majority. (If they did, many of them would have gotten enacted anyway, they just would have taken longer).

I have talked before about how the American people are not innocent in allowing their democracy to be subverted. In short, if twentieth-century Americans had faced the challenges of their own time with as much courage as George Washington, Thomas Jefferson, etc. did back in 1776, then America’s transformation from a democracy into an oligarchy, which began around 1933 and was essentially complete 40 years later, would likely never have happened.

However, that is not the world in which we presently live. Right now, we need to take a good, honest look at the present situation and admit that we are not going to vote our way out of it. And we need to admit that control of mainstream society belongs to the people who run the universities, the media, the professional organizations, the major corporations, etc. – i.e., to radical leftists.

Once you’ve recognized that these institutions are hostile, you will have some choices to make. Usually, your choices are between either a) whining about it, or b) detaching yourself from the system even though doing so makes your life harder.

For example, right-wingers who want to pass their values on to the next generation need to be choosy about where they send their children to school. Sometimes, this means choosing the right public school out of several that are available to you. Sometimes, it means going with a charter school, private school, or parochial school. Sometimes, it means homeschooling.

If you do not do this, it means that, at best, your children will grow up in almost complete ignorance of their own country’s history (and also of other countries’ histories, and of science, geography, etc). At worst, it means that they will be taught to hate their race, and to doubt whether or not they were ‘assigned’ to the correct sex when they were born.

In addition to schools, you also need to be choosy about what media you let your children watch. And I’m not just talking about avoiding smut. Films like Zootopia or the new Star Wars trilogy may be chaste, but their basic ethos is anything but harmless.

Go to the movies these days, and what you most often see is a tale in which the young, inexperienced protagonist saves the day on the basis of his or her righteous enthusiasm and inborn specialness, while traditional authority figures are shown to be clueless and/or morally compromised. Think of that scene from Star Wars VIII in which Luke gets in an argument with the girl he’s supposed to be training, and shortly afterward the ghost of Yoda shows up and burns a library full of ancient Jedi texts while telling Luke that they hold “nothing that the girl does not already possess.” I could name plenty of other examples if I had time.

Childhood gender-changes and the George Floyd Riots are just two of the many things that our country is presently experiencing, at least in part, because we raised so many children on this dreck.

Can America’s decline be reversed if the Right makes a decision not to let its own children’s worldviews be shaped by such forces? No, it can’t. People who care enough to act are a small minority. But your own family will be better off if you are a part of that minority.

2.     Learn To Get By With Less

Right-wingers need to become comfortable with downsizing and economic decline, especially on the personal level.

I know that this idea is probably even less popular with doctrinaire conservatives than what I said about the schools and the media. But if we make it a plank of our ideology that people can or ought to expect constant material enrichment, then we’re dooming our cause.

To begin with, if people believe that the measure of whether something in politics is ‘good’ or not is whether it makes them richer, they will never do things like go on strike to protest the firing of a colleague who said the wrong thing about homosexuals or BLM or whatever. For much the same reason, none of the world’s revolutions have been fought by economic libertarians. Rather, successful revolutions are the work of people like Sam Adams who, motivated by a desire to defend their people’s collective rights, are willing to do things that temporarily wreck the economic fortunes of themselves and their fellow citizens.

But here’s the thing: even if you never decide to put your career on the line by defying the Left, you will likely still face hard times in the future.

Early in 2019, I remarked that the real, median income for an American household – once you uncook the books on inflation – was only 65 percent of what it was in 2000. (Note: it’s gotten worse in the year-and-a-half since then). One may debate the causes of the collapsing fortunes of the middle class, and there are good reasons to believe that unbalanced trade arrangements, open borders, overregulation, rent-seeking, a slackening work ethic, loose monetary policy, and peak oil have all played a role. But whatever the causes may be, decline is the order of the day, and the decline will continue for the foreseeable future.

Now, the good news is that, even today, people in most parts of the world manage to get by just fine on an income level much lower than what a typical middle-class American family makes.

There are a number of reasons for this. One is that Americans spend so much of their money servicing their debts: college tuition is expensive, and most degrees won’t pay for themselves; most Americans live in bigger houses than they need to, and so forth. At the structural level, the American economy is set up so that it’s impossible for the average person to not be deeply in debt. However, this does not require any particular individual to be a debtor, and if you live frugally enough, you’ll be fine.

Choose your profession carefully. If you are young, it is generally a good idea to learn to work with your hands, as a carpenter, mechanic, farmer, etc. The immediate benefits are a lower debt load and a much-reduced risk of being fired from your job at the behest of the SJW mob. The downside is that, at the present time, those professions are on the bottom of the economic heap.

But when the US dollar ceases to be the global currency – which I expect to happen sometime in the next 20 to 30 years – that will change. The United States will no longer be able to finance a huge trade deficit, and Americans will have to get used to mainly consuming the goods which their own country can produce.

The upper classes will see this as a tragedy because their standard of living will go down. But for the working class, it will be a good thing, because it will mean that, without cheap foreign imports to compete with, there will be a better market for their labor.

After the phase change, America’s workers will still be poor compared to the present-day American upper-middle-class. (This is because the upper-middle-class lifestyle depends on unequal economic arrangements viz a viz the rest of the world, as well as the rapid drawdown of nonrenewable resources like petroleum. It probably can’t be made sustainable for anybody in the long term).

Nevertheless, people who produce tangible goods for a living will generally be better off under the new system than the old one, provided they make the right changes in their own lives to equip themselves to get by on fewer expenses.

If you live in a place where it is practical to travel by bicycle, do so whenever you can. It is much more efficient than driving. Also, take good care of your health: don’t smoke, be careful about what you eat, and so forth. Doctors are going to get more expensive before they get cheaper. Alcohol, in addition to its potential ill effects on your body and mind, is also expensive. Thus, you should only drink it in moderation, preferably when somebody else is paying for it.

Erotic entanglements, especially those which produce offspring, can lead you to incur huge financial expenses at unexpected times, and they are a big part of the reason why most of the poor stay poor. The solution is as simple as it is unpopular: don’t have sex with anyone you’re not married to, and teach your children to do the same.

Yes, I know that trying to get a kid to remain a virgin until his or her wedding night is often a fool’s errand, and I know that the whole of the mainstream media will be working at cross-purposes to you. (For what it’s worth, I think that telling young people that casual sex is “safe” if they use the proper protection is the moral equivalent of telling them that it’s safe to drive drunk if they are wearing a seatbelt. The latter is clearly less bad than driving drunk without a seatbelt, but that’s not saying much.)

Even so, the benefits to your child’s life if he or she listens to you – in terms of freedom from disease and surprise pregnancies, less emotional distress from failed relationships, and a lower chance of divorce once married – are enough that it is worth at least trying to get the point across.

So that is my advice for people living through the decline of the American empire who aren’t in the tiny minority for whom fleeing to Russia is the most sensible option.

Will taking this advice lead to an immediate turnaround? No. But you need to remember the constraints within which we are working – the vast majority of today’s right-wing Americans do not have the courage for a revolution.

That can change over long timescales. Hard times, extended over many generations, tend to toughen people up. Also, the day will come when the regime in Washington no longer has the resources to keep order, and locally-organized militias, in whichever towns prove capable of organizing them, will be the only government that’s left.

What you do right now will determine the probability that you or your descendants will be involved in the building of new civilizations on the American continent.

If you want that probability to be high, then first, remember that the system does not share your values, and do what it takes to alienate yourself and your family from the system, in terms of education, media, and so forth. And second, learn a profession that will have value during an age of economic decline, and live your life in the expectation that money and other resources will always be tight.