Tag Archives: Antonin Scalia

Nino! Now Playing at the Schubert Theater

29 Jun

In case you missed the whole Justice Scalia series, here’s a recap.

Prologue: I’ve Got a Crush on You

Scalia’s mission, by contrast, is to make everything come out wrong. A Scalia opinion, to borrow a phrase from New Yorker writer Margaret Talbot, is “the jurisprudential equivalent of smashing a guitar on stage.” Scalia may have once declared the rule of law the law of rules—leading some to mistake him for a stereotypical conservative—but rules and laws have a particular frisson for him. Where others look to them for stabilizing checks or reassuring supports, Scalia looks for exhilarating impediments and vertiginous barriers. Where others seek security, Scalia seeks sublimity. Rules and laws make life harder, and harder is everything. “Being tough and traditional is a heavy cross to bear,” he tells one reporter. “Duresse oblige.”

Act One: Diva of Disdain

Scalia’s conservatism, it turns out, is less a little platoon than a Thoreauvian counterculture, a retreat from and rebuke to the mainstream, not unlike the hippie communes and groupuscules he once tried to keep at bay. It is not a conservatism of tradition or inheritance: his parents had only one child, and his mother-in-law often complained about having to drive miles and hours in search of the one true church. “Why don’t you people ever seem to live near churches?” she would ask Scalia and his wife.  It is a conservatism of invention and choice, informed by the very spirit of rebellion he so plainly loathes—or thinks he loathes—in the culture at large.

Act Two: American Nietzsche

Left unresolved, however, the contradiction reveals the twin poles of Scalia’s faith: a belief in rules as arbitrary impositions of power—reflecting nothing (not even the will or standing of their makers) but the flat surface of their locutionary meaning—to which we must nevertheless submit; and a belief in rules, zealously enforced, as the divining rod of our ineradicable inequality. Those who make it past these blank and barren gods are winners; everyone else is a loser.

Act Three: Affirmative Action Baby

Scalia preys on and profits from the very culture of liberalism he claims to abhor: the toleration of opposing views, the generous allowances for other people’s failings, the “benevolent compassion” he derides in his golf course dissent. Should his colleagues ever force him to abide by the same rules of liberal civility, or treat him as he treats them, who knows what might happen? Indeed, as two close observers of the Court have noted—in an article aptly titled “Don’t Poke Scalia!”—whenever advocates before the bench subject him to the gentlest of gibes, he is quickly rattled and thrown off his game. Prone to tantrums, coddled by a different set of rules: now that’s an affirmative action baby.

Affirmative Action Baby

28 Jun

This is last of my 3-part series on Justice Scalia, Diva of Disdain.  Part 1 is here; Part 2 is here.  The introduction is here.

In the United States, Tocqueville observed, a federal judge “must know how to understand the spirit of the age.” While the persona of a Supreme Court Justice may be “purely judicial,” his “prerogatives”—the power to strike down laws in the name of the Constitution—“are entirely political.” If he is to exercise those prerogatives effectively, he must be as culturally nimble and socially attuned as the shrewdest pol.

How then to explain the influence of Scalia? Here is a man who proudly, defiantly, proclaims his disdain for “the spirit of the age”—that is, when he is not embarrassingly ignorant of it. (When the Court voted in 2003 to overturn state laws banning gay sex, Scalia saw the country heading down a slippery slope to…masturbation.) In 1996, he told an audience of Christians that “we must pray for the courage to endure the scorn of the sophisticated world,” a world that “will not have anything to do with miracles.” We have “to be prepared to be regarded as idiots.” In a dissent from that same year, Scalia declared, “Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize.” As Maureen Dowd wrote, “He’s so Old School, he’s Old Testament.”

And yet, according to Elena Kagan, the newest member of the Court, appointed by Obama in 2010, Scalia “is the justice who has had the most important impact over the years on how we think and talk about the law.” John Paul Stevens, the man Kagan replaced and until his retirement the most liberal Justice on the Court, says that Scalia has “made a huge difference, some of it constructive, some of it unfortunate.” Scalia’s influence, moreover, will in all likelihood extend into the future. “He is in tune with many of the current generation of law students,” observes Ruth Bader Ginsburg, another Court liberal. Give me a law student at an impressionable age, Jean Brodie might have said, and she is mine for life.

It is not Scalia’s particular positions that have prevailed on the Court. Indeed, some of his most famous opinions—against abortion, affirmative action, and gay rights; in favor of the death penalty, prayer in school, and sex discrimination—are dissents. (With the addition of John Roberts to the Court in 2005 and Samuel Alito in 2006, however, that has begun to change.) Scalia’s hand is more evident in the way his colleagues—and other jurists, lawyers, and scholars—make their arguments.

For many years, originalism was derided by the left. As William Brennan, the Court’s liberal titan of the second half of the twentieth century, declared in 1985: “Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance.” Against the originalists, Brennan insisted that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”

Just a decade later, however, the liberal Laurence Tribe, paraphrasing the liberal Ronald Dworkin, would say, “We are all originalists now.” That’s even truer today. Where yesterday’s generation of constitutional scholars looked to philosophy—Rawls, Hart, occasionally Nozick, Marx, or Nietzsche—to interpret the Constitution, today’s looks to history, to the moment when a word or passage became part of the text and acquired its meaning. Not just on the right, but also on the left: Bruce Ackerman, Akhil Amar, and Jack Balkin are just three of the most prominent liberal originalists writing today.

Liberals on the Court have undergone a similar shift. In his Citizens United dissent, Stevens wrote a lengthy excursus on the “original understandings,” “original expectations,” and “original public meaning” of the First Amendment with regard to corporate speech. Opening his discussion with a dutiful sigh of obligation— “Let us start from the beginning”—Stevens felt compelled by Scalia, whose voice and name were present throughout, to demonstrate that his position was consistent with the original meaning of freedom of speech.

Other scholars and jurists have helped bring about this shift, but it is Scalia who has kept the flame at the highest reaches of the law. Not by tact or diplomacy. Scalia is often a pig, mocking his colleagues’ intelligence and questioning their integrity. Sandra Day O’Connor, who sat on the Court from 1981 to 2006, was a frequent object of his ridicule and scorn. Scalia characterized one of her arguments as “devoid of content.” Another, he wrote, “cannot be taken seriously.” Whenever he is asked about his role in Bush v. Gore (2000), which put George W. Bush in the White House through a questionable mode of reasoning, he sneers, “Get over it!” Nor, contrary to his camp followers, has Scalia dominated the Court by force of his intelligence. (“How bright is he?” exhales one representative admirer.) On a Court where everyone is a graduate of Harvard, Yale, or Princeton, and Ivy League professors sit on either side of the bench, there are plenty of brains to go around.

Several other factors explain Scalia’s dominance of the Court. For starters, Scalia has the advantage of a straightforward philosophy and nifty method. While he and his army march through the archives, rifling through documents on the right to bear arms, the commerce clause, and much else, the legal left remains “confused and uncertain,” in the words of Yale law professors Robert Post and Reva Siegel, “unable to advance any robust theory of constitutional interpretation” of its own. In an age when the left lacks certainty and will, Scalia’s self-confidence can be a potent and intoxicating force.

Second, there’s an elective affinity, even a tight fit, between the originalism of duresse oblige and Scalia’s idea of the game. And that is Scalia’s vision of what the good life entails: a daily and arduous struggle, where the only surety, if we leave things well enough alone, is that the strong shall win and the weak shall lose. Scalia, it turns out, is not nearly the iconoclast he thinks he is. Far from telling “people what they don’t like to hear,” as he claims, he tells the power elite exactly what they want to hear, that they are superior and that they have a seat at the table because they are superior. Tocqueville, it seems, was right after all. It is not the alienness but the appositeness of Justice Scalia, the way he reflects rather than refracts the spirit of the age, that explains, at least in part, his influence.

But there may be one additional, albeit small and personal, reason for Scalia’s outsized presence in our Constitutional firmament. And that is the patience and forbearance, the general decency and good manners, his liberal colleagues show him. While he rants and raves, smashing guitars and dive-bombing his enemies, they tend to respond with an indulgent shrug, a “that’s just Nino,” as O’Connor was wont to say.

The fact may be small and personal, but the irony is large and political. For Scalia preys on and profits from the very culture of liberalism he claims to abhor: the toleration of opposing views, the generous allowances for other people’s failings, the “benevolent compassion” he derides in his golf course dissent. Should his colleagues ever force him to abide by the same rules of liberal civility, or treat him as he treats them, who knows what might happen? Indeed, as two close observers of the Court have noted—in an article aptly titled “Don’t Poke Scalia!”—whenever advocates before the bench subject him to the gentlest of gibes, he is quickly rattled and thrown off his game. Prone to tantrums, coddled by a different set of rules: now that’s an affirmative action baby.

Ever since the 1960s, it has been a commonplace of our political culture that liberal niceties depend upon conservative not-so-niceties. A dinner party on the Upper West Side requires a police force that doesn’t know from Miranda, the First Amendment a military that doesn’t know from Geneva. That, of course, is the conceit of 24 (not to mention a great many other Hollywood productions like A Few Good Men ). But that formulation may have it exactly backward: without his more liberal colleagues indulging and protecting him, Scalia—like Jack Bauer—would have a much more difficult time. The conservatism of duresse oblige depends upon the liberalism of noblesse oblige, not the other way around. That is the real meaning of Justice Scalia.

Justice Scalia: American Nietzsche

27 Jun

This is Part 2 of my series on Justice Scalia, Diva of Disdain.  Part 1 is here; an introduction to the whole is here.

Like many originalists, Scalia claims that his jurisprudence has nothing to do with his conservatism. “I try mightily to prevent my religious views or my political views or my philosophical views from affecting my interpretation of the laws.” Yet he has also said that he learned from his teachers at Georgetown never to “separate your religious life from your intellectual life. They’re not separate.” Only months before Ronald Reagan nominated him to the Supreme Court in 1986, he admitted that his legal views were “inevitably affected by moral and theological perceptions.”

And, indeed, in the deep grammar of his opinions lies a conservatism that, if it has little to do with advancing the immediate interests of the Republican Party, has even less to do with averting the threats of judicial tyranny and judicial anarchy. It is a conservatism that would have been recognizable to Social Darwinists of the late nineteenth century, that mixes freely of the premodern and the postmodern, the archaic and the advanced. It is not to be found in the obvious places—Scalia’s opinions about abortion, say, or gay rights—but in a dissenting opinion about that most un-Scaliaesque of places, the golf course.

Casey Martin was a champion golfer (he’s now an ex-golfer) who because of a degenerative disease could no longer walk the eighteen holes of a golf course. After the PGA Tour refused his request to use a golf cart in the final round of one of its qualifying tournaments, a federal court issued an injunction, based on the Americans with Disabilities Act (ADA), allowing Martin to use a cart.

Title III of the ADA states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

By the time the case reached the Supreme Court in 2001, the legal questions had boiled down to these: Is Martin entitled to the protections of Title III of the ADA? Would allowing Martin to use a cart “fundamentally alter the nature” of the game? Ruling 7–2 in Martin’s favor—with Scalia and Thomas in dissent—the Court said yes to the first and no to the second.

In answering the first question, the Court had to contend with the PGA’s claims that it was operating a “place of exhibition or entertainment” rather than a public accommodation, that only a customer of that entertainment qualified for Title III protections, and that Martin was not a customer but a provider of entertainment. The Court was skeptical of the first two claims. But even if they were true, the Court said, Martin would still be protected by Title III because he was in fact a customer of the PGA: he and the other contestants had to pay $3,000 to try out for the tournament. Some customers paid to watch the tournament, others to compete in it. The PGA could not discriminate against either.

Scalia was incensed. It “seems to me quite incredible,” he began, that the majority would treat Martin as a “‘custome[r]’ of ‘competition’” rather than as a competitor. The PGA sold entertainment, the public paid for it, the golfers provided it; the qualifying rounds were their application for hire. Martin was no more a customer than is an actor who shows up for an open casting call. He was an employee, or potential employee, whose proper recourse, if he had any, was not Title III of the ADA, which covered public accommodations, but Title I, which covered employment. But Martin wouldn’t have that recourse, admitted Scalia, because he was essentially an independent contractor, a category of employee not covered by the ADA. Martin would thus wind up in a legal no man’s land, without any protection from the law.

In the majority’s suggestion that Martin was a customer rather than a competitor, Scalia saw something worse than a wrongly decided opinion. He saw a threat to the status of athletes everywhere, whose talent and excellence would be smothered by the bosomy embrace of the Court, and also a threat to the idea of competition more generally. It was as if the Homeric rivals of ancient Greece were being plucked from their manly games and forced to walk the aisles of a modern boutique.

Games hold a special valence for Scalia: they are the space where inequality rules. “The very nature of competitive sport is the measurement,” he says, “of unevenly distributed excellence.” That inequality is what “determines the winners and losers.” In the noonday sun of competition, we cannot hide our superiority or inferiority, our excellence or inadequacy. Games make our unequal natures plain to the world; they celebrate “the uneven distribution of God-given gifts.”

In the Court’s transposition of competitor into customer, Scalia saw the forced entry of democracy (a “revolution,” actually) into this antique preserve. With “Animal Farm determination”—yes, Scalia goes there—the Court had destroyed our one and only opportunity to see how unequal we truly are, how unfairly God has chosen to bestow his blessings upon us. “The year was 2001,” reads the last sentence of Scalia’s dissent, “and ‘everybody was finally equal.’”

Like the Social Darwinists and Nietzsche, Scalia is too much a modernist, even a postmodernist, to pine for the lost world of feudal fixities. Modernity has seen too much flux to sustain a belief in hereditary status. The watermarks of privilege and privation are no longer visible to the naked eye; they must be identified, again and again, through struggle and contest. Hence the appeal of the game. In sports, unlike law, every day is a new day. Every competition is a fresh opportunity for mixing it up, for throwing our established hierarchies into anarchic relief and allowing a new face of supremacy or abjection to emerge. It thus offers the perfect marriage of the feudal and the fallible, the unequal and the unsettled.

To answer the second question—does riding in a golf cart “fundamentally alter the nature” of golf—the majority undertook a thorough history of the rules of golf. It then formulated a two-part test for determining whether riding in a cart would change the nature of golf. The dutifulness and care, the seriousness with which the majority took its task, both amused and annoyed Scalia.

It has been rendered the solemn duty of the Supreme Court of the United States . . . to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer?

Scalia is clearly enjoying himself here, but his mirth is a little mystifying. The ADA defines discrimination as

a failure to make reasonable modifications in the policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations that the entity provides.

Any determination of discrimination requires a prior determination about whether the “reasonable modification” would “fundamentally alter the nature” of the good in question. The language of the statute, in other words, compels the Court to inquire into and decide What is Golf.

But Scalia won’t have any of it. Refusing to be bound by the text, he prefers to meditate on the futility and fatuity of the Court’s inquiry. In seeking to discover the essence of golf, the Court is looking for something that does not exist. “To say that something is ‘essential,’” he writes, “is ordinarily to say that it is necessary to the achievement of a certain object.” But games “have no object except amusement.” Lacking an object, they have no essence. It’s thus impossible to say whether a rule is essential. “All are arbitrary,” he writes of the rules, “none is essential.” What makes a rule a rule is either tradition or, “in more modern times,” the edict of an authoritative body like the PGA.

In an unguarded moment, Scalia entertains the possibility of there being “some point at which the rules of a well-known game are changed to such a degree that no reasonable person would call it the same game.” But he quickly pulls back from his foray into essentialism. No Plato for him; he’s with Nietzsche all the way.

It is difficult to reconcile this almost Rortyesque hostility to the idea of golf’s essence with Scalia’s earlier statements about “the very nature of competitive sport” being the revelation of divinely ordained inequalities. (It’s also difficult to reconcile Scalia’s indifference to the language of the statute with his textualism, but that’s another matter.) Left unresolved, however, the contradiction reveals the twin poles of Scalia’s faith: a belief in rules as arbitrary impositions of power—reflecting nothing (not even the will or standing of their makers) but the flat surface of their locutionary meaning—to which we must nevertheless submit; and a belief in rules, zealously enforced, as the divining rod of our ineradicable inequality. Those who make it past these blank and barren gods are winners; everyone else is a loser.

Tomorrow: How and why Scalia is the real affirmative action baby, and how liberals enable him.

Diva of Disdain: Justice Scalia in Three Parts

26 Jun

Thanks to his rant from the bench yesterday—about the Arizona immigration law, which the Supreme Court mostly struck down—Justice Scalia is back in the news. But where many on the left see Scalia as a partisan hack, who twists the Constitution into a pretzel to get the result he wants, I’m more impressed by the  underlying consistency of his jurisprudence. That’s not to say he’s never inconsistent, but hackery is not his main problem. But to see the problem, you have to have a better sense of the man and his vision.

In The Reactionary Mind, I devoted a chapter to that question. Last fall, I excerpted the introduction to that chapter. Given all the attention now being paid to Scalia, I thought I’d continue providing some excerpts.

So today I’m launching a three-part series. Part 1 below provides some biographical details. Part 2, which will appear tomorrow, provides a close reading of one of Scalia’s lesser known decisions. Part 3, which will appear on Thursday, steps back to assess the overall vision and its relationship to liberalism on the Court.

If you want to read the introduction to the chapter, which gives you more sense of the man and his vision, start here.

Antonin Scalia was born in Trenton, New Jersey, in March 1936, but he was conceived the previous summer in Florence, Italy. (His father, a doctoral student in romance languages at Columbia, had won a fellowship to travel there with his wife.) “I hated Trenton,” Scalia says; his heart belongs to Florence. A devotee of opera and hunting—“he loves killing unarmed animals,” observes Clarence Thomas—Scalia likes to cut a Medicean profile of great art and great cruelty. He peppers his decisions with stylish allusions to literature and history. Once upon a time, he enjoys telling audiences, he was too “fainthearted” an originalist to uphold the eighteenth century’s acceptance of ear notching and flogging as forms of punishment. Not anymore. “I’ve gotten older and crankier,” he says, ever the diva of disdain.

When Scalia was six, his parents moved to the Elmhurst section of Queens. His lifelong conservatism is often attributed to his strict Italian Catholic upbringing there; alluding to Burke, he calls it his “little platoon.” He attended Xavier High School, a Jesuit school in Manhattan, and Georgetown, a Jesuit university in Washington, D.C. In his freshman year at Georgetown, the senior class voted Senator Joseph McCarthy as the Outstanding American.

But Scalia comes to his ethnicity and religion with an attitude, lending his ideology a defiant edge. He claims he didn’t get into Princeton, his first choice, because “I was an Italian boy from Queens, not quite the Princeton type.” Later, after Vatican II liberalized the liturgy and practices of the Church, including his neighborhood church in suburban Washington, D.C., he insisted on driving his brood of seven children miles away to hear Sunday Mass in Latin. Later still, in Chicago, he did the same thing, only this time with nine children in tow. Commenting on how he and his wife managed to raise conservative children during the sixties and seventies—no jeans in the Scalia household—he says:

They were being raised in a culture that wasn’t supportive of our values, that was certainly true. But we were helped by the fact that we were such a large family. We had our own culture . . . . The first thing you’ve got to teach your kids is what my parents used to tell me all the time, “You’re not everybody else . . . . We have our own standards and they aren’t the standards of the world in all respects, and the sooner you learn that the better.”

Scalia’s conservatism, it turns out, is less a little platoon than a Thoreauvian counterculture, a retreat from and rebuke to the mainstream, not unlike the hippie communes and groupuscules he once tried to keep at bay. It is not a conservatism of tradition or inheritance: his parents had only one child, and his mother-in-law often complained about having to drive miles and hours in search of the one true church. “Why don’t you people ever seem to live near churches?” she would ask Scalia and his wife.  It is a conservatism of invention and choice, informed by the very spirit of rebellion he so plainly loathes—or thinks he loathes—in the culture at large.

In the 1970s, while teaching at the University of Chicago, Scalia liked to end the semester with a reading from A Man for All Seasons, Robert Bolt’s play about Thomas More. While the play’s antiauthoritarianism would seem at odds with Scalia’s conservatism, its protagonist, at least as he is portrayed by Bolt, is not. Literally more Catholic than the pope, More is a true believer in the law who refuses to compromise his principles in order to accommodate the wishes of Henry VIII. He pays for his integrity with his life.

Joan Biskupic, Scalia’s biographer, introduces this biographical tidbit with a revealing setup: “Yet even as Scalia in middle age was developing a more rigid view of the law, he still had bursts of idealism.” That “yet” is misplaced. Scalia’s rigidity is not opposed to his idealism; it is his idealism. His ultraconservative reading of the Constitution reflects neither cynicism nor conventionalism; orthodoxy and piety are, for him, the essence of dissidence and iconoclasm. No charge grieves him more than the claim, rehearsed at length in his 1995 Tanner Lectures at Princeton, that his philosophy is “wooden,” “unimaginative,” “pedestrian,” “dull,” “narrow,” and “hidebound.” Call him a bastard or a prick, a hound from hell or a radical in robes. Just don’t say he’s a suit.

Tomorrow: Justice Scalia vents his rage on a handicapped golfer, revealing his true inspiration is neither Catholicism nor the Constitution but Friedrich Nietzsche and Richard Rorty

Isn’t It Romantic? Burke, Maistre, and Conservatism

3 Mar

 

Over at The American Conservative, political theorist Sam Goldman offers a thoughtful response to The Reactionary Mind. Among its many virtues, Goldman’s post manages to get my argument right. As we’ve seen, that can be something of a challenge for some reviewers.

Goldman also agrees with me on some fundamentals. Conservatism, he says, is a reactionary ideology. It is a defense of hierarchy against emancipatory movements from below. It’s not a disposition or an attitude; it’s not a philosophy of liberty or even of limited government.  (It supports the idea of limited government, Goldman says, but that’s a consequence, not a premise, of the theory.)  It is first and foremost a coherent set of ideas about inequality that gets forged in the crucible of revolution.

Where some liberal and moderate writers react to my argument with all the rage of a blasphemed church—even though they’re not members—here we have one of our more serious right-wing journals calmly taking my claims in order and agreeing with a great many of them. Interesting.

But Goldman has two criticisms of my book. First, he doesn’t think I do justice to the conservative critique of revolution and defense of hierarchy. Goldman doesn’t claim that what I say about that critique is wrong (though that might be out of mere politeness on his part.) Instead, he says:

Robin is so eager to make the connection between past and present that he does not develop the classic [conservative] position in detail. A “consistent and profound argument” deserves careful analysis. In The Reactionary Mind, we get a few intriguing but not exactly dispositive quotes from Burke and his Francophone disciple Joseph de Maistre.

Goldman’s second criticism follows from his first. Because conservatism is, in his account, a critique of any politics that rests its claims to legitimacy on the need for consent—a politics, Goldman suggests, that includes not only revolutionary Jacobinism but also liberalism and contemporary conservatism—it has nothing to do with contemporary conservatism.

What does this backward-looking, theologically inflected ideology of hierarchy have to with the contemporary America conservative movement? The answer is: not much….Classical conservatism is essentially communitarian, and locates individuals in structures of obligation that are not derived from their choice or consent. The American conservative movement, on the other hand, appeals to many of same beliefs about natural freedom and equality that inspired the French Revolution.

I’ll confess to feeling slightly disoriented in reading that statement, coming on the heels of a two-week controversy over the right of women to sexual autonomy, in which the Catholic Church has played a not insignificant part. Goldman seems to think the center of gravity of the American conservative movement is to be found in Robert Nozick’s Anarchy, State, and Utopia—an error all too common among political theorists who don’t know much American or European history and don’t keep up with the facts on the right-wing ground. I’m not saying that’s true of Goldman—I suspect it’s not—but it’s definitely true of a great many political theorists. (Mark Lilla’s comments about the contemporary conservative movement in his review of my book, for example, were positively wince-inducing to anyone who’s read the historiography.) In any event, I’m confident I provide plentiful evidence in the book demonstrating the continuities between the classic and the contemporary position, so I won’t dwell on that part of Goldman’s article here.

Let me focus instead on Goldman’s characterization of the classic position, particularly the role of history in the arguments of Burke and the notion of sovereignty in the arguments of de Maistre. Goldman’s is an influential if standard account, for good reasons. So while much of this will seem like fairly rarified intellectual history, it’s important that we have this discussion because I fear that certain set pieces of academic political theory are preventing us from getting clear on the nature of the contemporary right.

Burke and History

Goldman’s account of Burke’s theory of history is, as I said, a fairly standard one, for good reasons, so it’s worth giving it some space here:

Burke’s answer was that the French Revolution was the consequence of an extraordinary new theory of society. According to this theory, which Burke attributed to the philosophers of the Enlightenment, human beings are naturally free and self-sufficient. Because each man is potentially a Crusoe, any relations between individuals are essentially voluntary.

The question, then, is whether the “chains” that bind one person to another reflect the will of every individual involved. If so, they are legitimate—a term that Jean-Jacques Rousseau was the first to transform from a principle of dynastic succession into the moral justification of rule as such. If not, they lack moral authority and may be rejected, potentially with violence. So, in Burke’s view, went the philosophical argument behind the revolution.

This reasoning was mistaken, Burke argued, not so much in its logical structure as in its first principle. In fact, human beings are born into networks of sympathy, obligation, and authority. These networks make us what we are, transforming unformed potential and dispositions into concrete identities. On this view, there is no Archimedean point from which the legitimacy of existing social relations can be assessed. As Maistre put it in a brilliant formulation, “In the course of my life, I have seen Frenchmen, Italians, Russians….But, as for Man, I declare that I have never met him in my life. If he exists, I certainly have no knowledge of him.”

If the social arrangements that characterize national communities are background conditions of humanity, they are not legitimatized by the consent of those who participate in them at any given time. Instead, they derive their authority from the way that they bind together past, present, and future in an enduring partnership. It follows that men and women of today have no right to dissolve the partnership in which they are involved merely because it seems inconvenient to them. Society, which always means a particular society, is an “entailed inheritance,” like a landed estate whose owner is legally prohibited from selling.

Now it’s certainly true that Burke puts a great store on the value of history and tradition. (Though it’s also true, as I show in my book and have argued repeatedly since its publication, that Burke can be positively scathing about the role of history and tradition—a point Goldman steers clear of in his piece. This becomes a bit problematic later in his article, when Goldman talks about the virtues that are acquired by those who are longstanding witnesses to power; for Burke, that kind of experience can be as much a curse as it is a blessing. Again, something I’ve already talked about at length, so I won’t dwell on it here.) But I think Goldman, like many interpreters of Burke, misses the point of what Burke says about history and tradition.

Goldman assimilates Burke to a standard communitarian position, which holds that our history, culture, and inheritance make us who we are. It’s a root theory of identity, in which the past and society more generally are the soil and seed of our personhood and agency, the condition of our possibility without which we would be stumbling in the dark, unable to find our way.

The problem with this claim is twofold. First, it’s not a particularly conservative claim. Nor did Burke, assuming he made it, originate it. As Sankar Muthu has argued, both Diderot and Kant were firm in the conviction that men and women were not the isolated monads of a stereotypical Enlightenment but “cultural agents.”  That view—this is me now talking—had little bearing on their predilection or aversion to radical politics: Diderot was a key inspiration of the French Revolution, Kant a prominent defender. And as Alex Gourevitch noted in his critique of Lilla’s review of my book, one can find versions of that rootedness position throughout the liberal and radical tradition, from the nineteenth century onward; no necessarily conservative conclusions—at least not in the reactionary sense that Goldman agrees is essential to conservatism—follow from it. It simply doesn’t tell us very much that’s distinctive about conservatism.

More important, it misses what’s most interesting in Burke’s account of our historical being. To fully appreciate that account, one has to understand the kind of moral psychology Burke lays out much earlier in his career in his essay on The Sublime and the Beautiful. Forgive the very long quotation from my book, but it helps situate what I’m about to say about Burke’s view of history.

The Sublime and the Beautiful begins on a high note, with a discussion of curiosity, which Burke identifies as “the first and simplest emotion.” The curious race “from place to place to hunt out something new.” Their sights are fixed, their attention is rapt. Then the world turns gray. They begin to stumble across the same things, “with less and less of any agreeable effect.” Novelty diminishes: how much, really, is there new in the world? Curiosity “exhausts” itself. Enthusiasm and engagement give way to “loathing and weariness.” Burke moves on to pleasure and pain, which are supposed to transform the quest for novelty into experiences more sustaining and profound. But rather than a genuine additive to curiosity, pleasure offers more of the same: a moment’s enthusiasm, followed by dull malaise. “When it has run its career,” Burke says, pleasure “sets us down very nearly where it found us.” Any kind of pleasure “quickly satisfies; and when it is over, we relapse into indifference.” Quieter enjoyments, less intense than pleasure, are equally soporific. They generate complacency; we “give ourselves over to indolence and inaction.” Burke turns to imitation as another potential force of outward propulsion. Through imitation, we learn manners and mores, develop opinions, and are civilized. We bring ourselves to the world, and the world is brought to us. But imitation contains its own narcotic. Imitate others too much and we cease to better ourselves. We follow the person in front of us “and so on in an eternal circle.” In a world of imitators, “there never could be any improvement.” Such “men must remain as brutes do, the same at the end that they are at this day, and that they were in the beginning of the world.”

Curiosity leads to weariness, pleasure to indifference, enjoyment to torpor, and imitation to stagnation. So many doors of the psyche open onto this space of inertial gloom we might well conclude that it lurks not at the edge, but at the center of the human condition. Here, in this dark courtyard of the self, all action ceases, creating an ideal environment for “melancholy, dejection, despair, and self-murder.” Even love, the most outward of raptures, carries the self back to a state of internal dissolution. Suicide, it seems, is the inevitable fate awaiting anyone who takes pleasure in the world as it is.

If the self is to survive and flourish it must be aroused by an experience more vital and bracing than pleasure or enjoyment. Pleasure and enjoyment act like beauty, “relaxing the solids of the whole system.”  That system, however, must be made taut and tense. The mind must be quickened, the body exerted. Otherwise, the system will soften and atrophy, and ultimately die. What most arouses this heightened state of being is the confrontation with non-being. Life and health are pleasurable and enjoyable, and that is what is wrong with them: “they make no such impression” on the self because “we were not made to acquiesce in life and health.” Pain and danger, by contrast, are “emissaries” of death, the “king of terrors.” They are sources of the sublime, “the strongest”—most powerful, most affecting—“emotion which the mind is capable of feeling.”  Pain and danger, in other words, are generative experiences of the self.

Pain and danger are generative because they have the contradictory effect of minimizing and maximizing our sense of self. When sensing pain or danger, our mind “is so entirely filled with its object, that it cannot entertain any other.” The “motions” of our soul “are suspended,” as harm and the fears it arouses “rush in upon the mind.” In the face of these fears, “the mind is hurried out of itself.” When we experience the sublime, we feel ourselves evacuated, overwhelmed by an external object of tremendous power and threat. Everything that gave us a sense of internal being and vitality ceases to exist. The external is all, we are nothing. God is a good example, and the ultimate expression, of the sublime: “Whilst we contemplate so vast an object, under the arm, as it were, of almighty power, and invested upon every side with omnipresence, we shrink into the minuteness of our own nature, and are, in a manner, annihilated before him.”

Paradoxically, we also feel our existence to an extent we never have felt it before. Seized by terror, our “attention” is roused and our “faculties” are “driven forward, as it were, on their guard.” We are pulled out of ourselves. We are cognizant of the immediate terrain and our presence upon it. Before, we barely noticed ourselves or our surroundings. Now we spill out of ourselves, inhabiting not only our bodies and minds but the space around us. We feel “a sort of swelling”—a sense that we are greater, our perimeter extends further—that “is extremely grateful to the human mind.” But this “swelling,” Burke reminds us, “is never more perceived, nor operates with more force, than when without danger we are conversant with terrible objects.”

In the face of the sublime, the self is annihilated, occupied, crushed, overwhelmed; in the face of the sublime, the self is heightened, aggrandized, magnified. Whether the self can truly occupy such opposing, almost irreconcilable, poles of experience at the same time—it is this contradiction, the oscillation between wild extremes, that generates a strong and strenuous sense of self. As Burke writes elsewhere, intense light resembles intense darkness not only because it blinds the eye and thus approximates darkness, but also because both are extremes. And extremes, particularly opposing extremes, are sublime because sublimity “in all things abhors mediocrity.” The extremity of opposing sensations, the savage swing from being to nothingness, makes for the most intense experience of self hood.

Burke, it should be clear from this discussion, has an extraordinarily subtle and supple theory of human nature, in which the experience of selfhood is especially fragile and fraught. If we now apply this account to what he has to say in the Reflections about the relationship of the self to history, we find two critical points.

First, far from situating an integrated self in the warm and loamy soil of a nurturing history, Burke’s history is an altogether more enigmatic, impenetrable, and agitated affair. Listen to the old man:

Our political system is placed in a just correspondence and symmetry with the order of the world, and with the mode of existence decreed to a permanent body composed of transitory parts; wherein, by the disposition of a stupendous wisdom, moulding together the great mysterious incorporation of the human race, the whole, at one time, is never old, or middle-aged, or young, but in a condition of unchangeable constancy, moves on through the varied tenour of perpetual decay, fall, renovation, and progression. Thus, by preserving the method of nature in the conduct of the state, in what we improve we are never wholly new; in what we retain, we are never wholly obsolete.

History is permanence and flux, birth and decay. At each and every moment, we inhabit three modes of time: past, present, and future. The self is not simply situated in time; it is distended by time. The implication of that kind of temporality is that multiplicity and fragmentation—not integration or rootedness—are the essence of our experience. Flux and fluidity—those proverbial specters of postmodernity—haunt the Burkean self, making for the kind of sublimity that Burke believes is necessary to sustain the self in the face of its ever present and irrepressible drive toward death.

History, in short, is not the root of our identity, making us who we are; it’s the contradictory poles of our experience, forever pushing and pulling us in opposite directions. History is the extremity that threatens us with fragmentation and thereby makes it possible for us to feel, however fleetingly, the potential density and perimeter of our being.

Second, Burke sees in the past a great weight. But far from intimating some kind of plodding traditionalism or conventionalism, that weight is also suggestive of the sublime:

Always acting as if in the presence of canonized forefathers, the spirit of freedom, leading in itself to misrule and excess, is tempered with an awful gravity. The idea of a liberal descent inspires us with a sense of habitual native dignity, which prevents that upstart insolence almost inevitably adhering to and disgracing those who are first acquirers of any distinction. But this means our liberty becomes a noble freedom. It carries an imposing and majestic aspect. It has a pedigree, and illustrating ancestors. It has its bearings, and its ensigns armorial. It has its gallery of portraits; its monumental inscriptions; its records, evidences, and titles.

Notice that this is not a simple theory of history’s constraints. It’s not that history limits our freedom; it’s that that limit enlarges and magnifies our freedom. It gives it depth, majesty, grandeur, awe—“an awful gravity.” The weight of the past does not simply weigh down on the present; it gives weight to a present that would otherwise be weightless. Through that weight, the present—and the small selves of that present—acquires largeness, profundity, extent. (The backdrop of religious notions of awe should be obvious here; in fact, later in the Reflections Burke makes oblique allusion to the story of Noah and his sons, particularly Shem and Japheth, when he says that one “should approach to the faults of the state as to the wounds of father, with pious awe and trembling solicitude.”)

So what function is history serving for Burke? Rather than securing for us an identity, without which we would be at sea, history is the source of sublimity, of dissonant experience and agonistic passion, without which we would be dead. Not because history is the secure ground of everyday experience but because it subverts the secure ground of everyday experience. The real threat lurking beneath the revolutionary assault on history, to Burke’s mind, is not anarchy or disorder; it’s weightlessness, the—to be sure, avant la lettre—proverbial emptiness and existential nausea of modernity that later theorists like Tocqueville, Nietzsche, and Schmitt will lament. And while that sense of weightlessness is by no means exclusive to the right, the connections that Burke draws between it and the antinomian forces of egalitarian revolution is. (“This is one among the revolutions which have given splendour to obscurity,” Burke writes in the Reflections, “and distinction to undiscerned merit.” Revolution flattens the world by pressing its extremities of high and low together; inequality keeps them apart, endowing the world with texture and depth.)

It’s important that we not assimilate, as do Goldman and many others, Burke’s theory of history to an anodyne communitarian position in part because we will overlook the much more turbulent and novel theory that is being forged there, a theory that doesn’t look backward to the eighteenth century but forward, to the nineteenth and twentieth centuries.  It’s also important because we’ll fail to see the ways in which Burke—and other “classic” conservatives—stand at the headwaters of what will become the raging torrent of the radical right, in Europe and the US. In Burke’s focus on constraint and overcoming, we see not only glimmers of the figures I mention in the previous paragraph but also, as I show in my book, glimmers of the economics of Ayn Rand and the jurisprudence of Antonin Scalia.

Maistre and Sovereignty

We can see this forward-looking dimension even more clearly in another “classic” conservative figure Goldman discusses: Joseph de Maistre.  Here’s Goldman (again quoting him at length):

Yet the counterrevolutionaries were not simply authoritarians. Unlike Hobbes, to whom it was a matter of indifference who ruled so long as someone did so, Burke and his disciples were deeply concerned with the character of the wielders of power. This was not simply a matter of natural endowments, although the conservatives did observe reasonably enough that men are not born equal in strength, intelligence, or other capacities. Instead, the classical conservatives insisted that only certain persons are in a position to develop the skills and habits that fit them for rule, not for their personal enjoyment, but rather to secure the common good that is available only when men acknowledge the distinctions that God and nature have established.

The content of the relevant distinctions, however, is a point of difference between the conservative tradition as it developed in the English-speaking world and on the Continent. Although it was fundamentally anti-egalitarian, the former took its bearing from the ideal of the gentleman, who did not necessarily bear a title of nobility and was most at home on his rural estate. For Burke, the possession and care of landed property had a central role in cultivating the virtues necessary to rule others well. As the reference to an “entailed inheritance” suggests, Burke saw the management of an estate and its tenants as the basic model of harmonious social relations. On the other hand, those who earn their living from rapid exchange can hardly resist habits of short-term thinking, deference to the whims of customers, and the less than frank speech necessary to succeed in business.

Even a successful merchant, then, could not make himself into a gentleman. He might, however, hope to be successful enough that his grandsons would be. The assumption that social mobility is possible, although never frequent or easy, inclined English-style conservatism to the idea of a powerful but permeable aristocracy. Burke’s own rise from obscure man of letters to the ideologue of the establishment testifies to the plausibility of this assumption.

But “the spirit of the gentleman,” as Burke called it, did not exist in the same way on the Continent, partly because European titles passed to all of a nobleman’s sons rather than only to the eldest. In its place, Bonald, Maistre, and German counterparts like Friedrich Gentz deferred to the nobility of the sword. The natural rulers, as they saw them, were not a class of squires periodically refreshed by talented outsiders. They were the titled commanders of armies.

Continental conservatives generally acknowledged the necessity of a class of civil servants to administer the state. But they rejected the Aristotelian principle that participation in politics is an important component of virtue, in favor of a military monasticism that alienated the elite from the society that it was supposed to lead. Among the reasons that Burke’s conservatism supported his commitment to parliamentary government, by contrast, was that he saw politics as a fit occupation for a gentleman. Indeed, one of Burke’s central criticisms of the French Revolution is that its subversion of all civil authority made military dictatorship inevitable—an outcome for which he had no sympathy whatsoever.

Despite their disagreement about who the natural rulers were, Burke and his European counterparts agreed about how this rule was to be exercised. In both cases, power was to be constrained by the complex structure of relationships that make up a whole society. A father might be the authority in his own home, but he owed obedience to the local lord of the manor. The lord might rule his estate, but not in defiance of the king. And the king had to be prepared to account for himself before God for his stewardship of these relationships, which are not of his making or subject to his will.

Burke’s insistence that good government is always limited government is well known. But Maistre, who has the reputation of a crazed absolutist, insisted on the same principle. Elaborating his theory of sovereignty, Maistre explains that while sovereignty must, in certain senses, be absolute, it should never be arbitrary or exercised outside its proper sphere. Although the king’s will must not be challenged, “Religion, laws, customs, opinion, and class and corporate privileges restrain the sovereign and prevent him from abusing his power…”

The insistence that power be embedded in restraining traditions and institutions is the crucial distinction between classical conservatism and the fascism that would eventually replace it on the European right. Conservatism defends the authority of lords, of generals, of kings—but not of a “leader” who emerges from and rules over the disorganized mob.

I’ve already indicated, here and elsewhere, why I think this account of the virtues of the Burkean gentleman is at best incomplete. But when it comes to Maistre, it’s, well, not particularly Maistrean. In his St. Petersburg Dialogues, to cite only one example (I discuss Maistre’s Considerations on France in my book, so I won’t repeat that here), Maistre offers a chilling account of power and its exercise that looks very little like the picture Goldman paints here.

Maistre opens the Dialogues by saying, “God, wanting to govern men by men, at least exteriorly, has handed over to sovereigns the eminent prerogative of punishing crimes, and it is in this matter especially that they are his representatives.” To the casual reader, this sounds conventional enough: the sovereign is God’s anointed representative on earth. But Maistre’s focus on punishment—“and it is in this matter especially that they are his representatives”—strikes a discordant note. With the exception of Nietzsche and Foucault, possibly Bentham, no modern political theorist has ever placed so much emphasis on the potency and power of punishment. For Maistre, punishment is not the unfortunate sign of a fallen world, a sad concession to a corrupt reality; it’s an endlessly generative postulate with enormous creative potential.

Quoting from an English translation of the Indian “laws of Manu,” Maistre goes on to write:

Punishment is an active ruler; he is the true manager of public affairs; he is the dispenser of laws; and wise men call him the sponsor of all the four orders for the discharge of their several duties. Punishment governs all mankind; punishment alone preserves them; punishment wakes, while their guards are asleep….The whole race of men is kept in order by punishment.

Notice the subtle inversions and subversions. We’ve gone from the sovereign being God’s anointed on earth, especially in his capacity to punish, to punishment now being the “true manager of public affairs.” The significance of that shift will become clear momentarily, but for now it should alert us to the fact that this is hardly a standard account of sovereignty we’re seeing. Where punishment was first a capacity, albeit a critical one, of sovereignty, it is now sovereignty itself.

Also notice Maistre’s dig at conventional political authority: “punishment wakes, while their guards are asleep.” Who are these guards? What are they guarding? It’s not entirely clear, but what Maistre may be suggesting is that the customary protectors of men and women—kings and magistrates and constables—may not be up to the task. They are asleep (Maistre voices that suspicion, so common to the conservative tradition, that established elites and rulers are decadent and dissolute.) Punishment is the real protector.

But who or what is “punishment” if not the king and his agents? According to Maistre, it is a figure of a tremendously frightful and awful countenance: the executioner.

And yet all greatness, all power, all subordination rests on the executioner; he is both the horror and the bond of human association. Remove this incomprehensible agent from the world, and in a moment order gives way to chaos, thrones fall, and society disappears. God, who is the author of sovereignty, is therefore also the author of punishment.

Two things are going in this passage. First, Maistre has completely shifted the source of order and sovereignty: it’s not the king wielding punishment, it’s the punisher himself. The executioner is not the king’s agent; it’s the reverse, with the executioner now standing in direct relation to God. The world has been turned upside down, possibly reflecting Maistre’s own absorption of the Revolution’s democratic ethos. (As I argue in my book, conservatism often works by borrowing from the very revolution it opposes.)

Second, and even more suggestive, in claiming that violence is the source of order, Maistre registers the newly dynamic and turbulent world of democratic history—a revolutionary world, as I noted in my first book Fear: The History of Political Idea, where dynasties rose and fell within a matter of years, if not months—that Burke points to in his Reflections.

As the word suggests, violence hints at movement or change: there’s the physical fact that violence requires the movement of bodies acting upon other bodies; there’s also the fact that violence is used to engineer change—war, for example—or signifies that a change, a violation, has occurred and needs to be remedied—as is the case in punishment.

Kings rest their power on God, tradition, law: these are things of stability, if not permanence. To say that the violence of the executioner governs the world is to say that something more active, more dynamic, is necessary to maintain the world as it is. The very features that Goldman maintains are essential, in the conservative argument, to the long-term stability and security of a polity are, for Maistre (and for Burke, as I’ve argued elsewhere), its liabilities.

As Maistre proceeds to describe the executioner, these inversions of sovereignty become even clearer—and, oddly, more democratic.  Or at least more plebeian.  Who is this executioner? He is “in effect, found everywhere.” He’s a family man. He’s a professional: he cares about his job, he does it well, he likes to get paid. He’s an everyman; he eats, he sleeps. “He is made like us; he is born like us.”

And yet there’s something uncanny and extraordinary about him.  He’s chosen this awful profession for reasons that no one can fathom (the fact that he’s chosen it also suggests that he is a creature of this new democratic world where men choose their professions.) He’s not only inscrutable; his very existence is sui generis: “For him to be brought into existence as a member of the human family a particular decree was required, a FIAT of creative power.  He is created as a law on to himself.” Much like Schmitt’s later discussions of sovereignty in Political Theology (“Looked at normatively, the decision emanates from nothingness”), the executioner is the closest thing on earth to the Creation itself: the making of something from nothing.

And there is, finally, the grisliness of his chosen task, which Maistre does not shrink from describing:

An abject minister of justice knocks on his door to warn him that he is needed. He sets out. He arrives at a public square packed with a pressing and panting crowd. He is thrown a poisoner, a parricide, a blasphemer. He seizes him, stretches him out, ties him to a horizontal cross, and raises his arms. Then there is a horrible silence, there is no sound but the crack of bones breaking under the crossbar and the howls of the victim. He unties him and carries him to a wheel. The broken limbs are bound to the spokes, the head hangs down, the hair stands on end, and the mouth gaping like a furnace, occasionally emits a few bloody words begging for death. He has finished; his heart is pounding, but it is with joy. He congratulates himself. He says in his heart, No one can break men on the wheel better than I. He steps down; he holds out his bloodstained hand, and justice throws him from afar a few gold coins, which he carries away through a double row of men drawing back in horror. He sits down to table and eats; then he goes to bed and sleeps.

There’s are lot more of this kind of stuff in the St. Petersburg Dialogues—“the decree of violent death written on the very frontiers of life;” “there is no instant of time when some living thing is not being devoured by another”; tables piled with corpses, museums built out of bones; the kind of stuff that makes Adorno’s (really Brecht’s) observation that high culture is “built on dogshit” look mild by comparison—as well as in the Considerations. But you get the picture.

We are, in other words, far away from Goldman’s world of squires and generals, of limited government and restraint. Whether we are in the world of the Blitzkrieg and the Konzentrationslager, as Isaiah Berlin famously suggested, is another question.

What’s not in question is that this is not a world that the contemporary right would find entirely foreign. This valorization of violence as a creative force, as I show in my book, plays a critical role in neoconservative thought. The mixing of high and low, the transfiguration of patrician into plebeian and vice versa—this also plays a critical role in contemporary conservatism.

But more interesting to me is the figure of the executioner himself: this miraculous appearance from nowhere, inscrutable yet democratic, self-willed and self-created, this lowly, uncredentialed being upon whom kings depend and sovereignty hangs, that is sovereignty itself. As I’ve suggested in some interviews, the reason Sarah Palin is/was such a suggestive figure on the right is precisely that she reflects this romance of the extraordinary ordinary. Like the executioner—and Joan of Arc, who occupies such a central place in the French radical right—she comes from nowhere, acts for inscrutable reasons, is unlicensed and untutored, and yet, to her followers, is ready to assume command of the free world. Her lack of interest and preparation in political matters only seem to confirm, in the eyes of her admirers, her fitness to rule.

All in all, this is an extremely romantic view of power: turbulent, tormented, stormy.  It has its own logic and integrity, but it also has tremendous potency as a political ideal. For it manages, in one single figure, to embody the central imperative of conservative politics: to provide a defense of hierarchical rule for a democratic age.

 

Easy To Be Hard: Conservatism and Violence

19 Jan

This is the second post in my (very) occasional series of excerpts from The Reactionary Mind. (You can read my first, on Justice Scalia, here.) This excerpt is from chapter eleven, “Easy to Be Hard,” in which I examine the relationship between conservatism and violence. I’ve removed all the footnotes; if you want to follow them up, buy the book!

(Fun fact: an earlier version of this chapter appeared two years ago in The Chronicle Review.  It drove Jonah Goldberg crazy: “This piece at the Chronicle of Higher Education may be one of the uniformly dumbest piece [sic] of intellectual claptrap I’ve read in a good long while.”)

 

I enjoy wars. Any adventure’s better than sitting in an office.

—Harold Macmillan

Despite the support among self-identified conservative voters and politicians for the death penalty, torture, and war, intellectuals on the right often deny any affinity between conservatism and violence. “Conservatives,” writes Andrew Sullivan, “hate war.”

Their domestic politics is rooted in a loathing of civil wars and violence, and they know that freedom is always the first casualty of international warfare. When countries go to war, their governments invariably get bigger and stronger, individual liberties are whittled away, and societies which once enjoyed the pluralist cacophony of freedom have to be marshaled into a single, collective note to face down an external foe. A state of permanent warfare—as George Orwell saw—is a virtual invitation to domestic tyranny.

Channeling a tradition of skepticism from Oakeshott to Hume, the conservative identifies limited government as the extent of his faith, the rule of law his one requirement for the pursuit of happiness. Pragmatic and adaptive, disposed rather than committed, such a sensibility—and it is a sensibility, the conservative insists, not an ideology—is not interested in violence. His endorsements of war, such as they are, are the weariest of concessions to reality. Unlike his friends on the left—conservative that he is, he values friendship more than agreement—he knows we live and love in the midst of great evil. This evil must be resisted, sometimes by violent means. All things being equal, he would like to see a world without violence. But all things are not equal, and he is not in the business of seeing the world as he’d like it to be.

The historical record of conservatism—not only as a political practice, which is not my primary concern here, but as a theoretical tradition—suggests otherwise. Far from being saddened, burdened or vexed by violence, the conservative has been enlivened by it. I don’t mean in a personal sense, though many a conservative, like Harold Macmillan quoted above or Winston Churchill quoted below, has expressed an unanticipated enthusiasm for violence. My concern is with ideas and argument rather than character or psychology. Violence, the conservative intellectual has maintained, is one of the experiences in life that makes us feel the most alive, and violence is an activity that makes life, well, lively. Such arguments can be made nimbly—“Only the dead have seen the end of war,” as Douglas MacArthur once put it —or laboriously, as in the case of Treitschke:

To the historian who lives in the world of will it is immediately clear that the demand for a perpetual peace is thoroughly reactionary; he sees that with war all movement, all growth, must be struck out of history. It has always been the tired, unintelligent, and enervated periods that have played with the dream of perpetual peace….However, it is not worth the trouble to discuss this matter further; the living God will see to it that war constantly returns as a dreadful medicine for the human race.

Pithy or prolix, the case boils down to this: war is life, peace is death.

This belief can be traced back to Edmund Burke’s A Philosophical Enquiry into the Origin of Our Ideas of the Sublime and the Beautiful. There Burke develops a view of the self desperately in need of negative stimuli of the sort provided by pain and danger, which Burke associates with the sublime. The sublime is most readily found in two political forms: hierarchy and violence. But for reasons that shall become clear, the conservative—again, consistent with Burke’s arguments—often favors the latter over the former. Rule may be sublime, but violence is more sublime. Most sublime of all is when the two are fused, when violence is performed for the sake of creating, defending, or recovering a regime of domination and rule. But as Burke warned, it’s always best to enjoy pain and danger at a remove. Distance and obscurity enhance sublimity; nearness and illumination diminish it. Counterrevolutionary violence may be the Everest of conservative experience, but one should view it from afar. Get too close to the mountaintop, and the air becomes thin, the view clouded. At the end of every discourse on violence, then, lies a waiting disappointment.

I Got a Crush on You

12 Oct

With this post, I start an occasional (very occasional) series on this blog, which will feature brief excerpts from The Reactionary Mind. This excerpt is from chapter six, “Affirmative Action Baby,” which profiles the thought and theory of US Supreme Court Justice Antonin Scalia. Many think of Scalia as either a social conservative or fussy originalist. I argue that he’s neither. He’s something far stranger, more wild: one part Nietzschean, one part Social Darwinist, one part post-modernist, and two parts crazy.

 

 

Next to Clarence Thomas, Antonin Scalia is the most conservative justice on the Supreme Court. He also loves the television show 24. “Boy, those early seasons,” he tells his biographer, “I’d be up to two o’clock, because you’re at the end of one [episode], and you’d say, ‘No, I’ve got to see the next.’” Scalia is especially taken with Jack Bauer, the show’s fictional hero played by Kiefer Sutherland. Bauer is a government agent at a Los Angeles counterterrorism unit who foils mass-murder plots by torturing suspects, kidnapping innocents, and executing colleagues. Refusing to be bound by the law, he fights a two-front war against terrorism and the Constitution. And whenever he bends a rule or breaks a bone, Scalia swoons.

Jack Bauer saved Los Angeles . . . . He saved hundreds of thousands of lives . . . . Are you going to convict Jack Bauer? Say that criminal law is against him? You have the right to a jury trial? Is any jury going to convict Jack Bauer? I don’t think so. So the question is really whether we really believe in these absolutes. And ought we believe in these absolutes?

Yet Scalia has spent the better part of his career as a lawyer, professor, and jurist telling us that the Constitution is an absolute, in which we must believe, even when—particularly when—it tells us something we do not want to hear. Scalia’s Constitution is not a warming statement of benevolent purpose, easily adapted to our changing needs. His Constitution is cold and dead, its prohibitions and injunctions frozen in time. Phrases like “cruel and unusual punishment” mean what they meant when they were written into the Constitution. If that produces objectionable results—say, the execution of children and the mentally retarded—too bad. “I do not think,” Scalia writes in Nixon v. Missouri Municipal League, that “the avoidance of unhappy consequences is adequate basis for interpreting a text.”

Scalia takes special pleasure in unhappy consequences. He relishes difficulty and dislikes anyone who would diminish or deny it. In Hamdi v. Rumsfeld, a plurality of the Court took what Scalia thought was a squishy position on executive power during wartime. The Court ruled that the Authorization for the Use of Military Force, passed by Congress after 9/11, empowered the president to detain U.S. citizens indefinitely as “illegal enemy combatants” without trying them in a court of law. It also ruled, however, that such citizens were entitled to due process and could challenge their detention before some kind of tribunal.

Scalia was livid. Writing against the plurality—as well as the Bush administration and fellow conservatives on the Court—he insisted that a government at war, even one as unconventional as the war on terror, had two, and only two, ways to hold a citizen: try him in a court of law or have Congress suspend the writ of habeas corpus. Live by the rules of due process, in other words, or suspend them. Take a stand, make a choice.

But the Court weaseled out of that choice, making life easier for the government and itself. Congress and the president could act as if habeas corpus were suspended, without having to suspend it, and the Court could act as if the writ hadn’t been suspended thanks to a faux due process of military tribunals. More than coloring outside the lines of the Constitution, it was the Court’s “Mr. Fix-It Mentality,” in Scalia’s words, its “mission to Make Everything Come Out Right,” that enraged him.

Scalia’s mission, by contrast, is to make everything come out wrong. A Scalia opinion, to borrow a phrase from New Yorker writer Margaret Talbot, is “the jurisprudential equivalent of smashing a guitar on stage.” Scalia may have once declared the rule of law the law of rules—leading some to mistake him for a stereotypical conservative—but rules and laws have a particular frisson for him. Where others look to them for stabilizing checks or reassuring supports, Scalia looks for exhilarating impediments and vertiginous barriers. Where others seek security, Scalia seeks sublimity. Rules and laws make life harder, and harder is everything. “Being tough and traditional is a heavy cross to bear,” he tells one reporter. “Duresse oblige.”

That, and not fidelity to the text or conservatism as it is conventionally understood, is the idée fixe of Scalia’s jurisprudence—and the source of his apparent man-crush on Jack Bauer. Bauer never makes things easy for himself; indeed, he goes out of his way to make things as hard as possible. He volunteers for a suicide mission when someone else would do (and probably do it better); he turns himself into a junkie as part of an impossibly baroque plan to stop an act of bioterrorism; he puts his wife and daughter at risk, not once but many times, and then beats himself up for doing so. He loathes what he does but does it anyway. That is his nobility—some might say masochism—and why he warms Scalia’s heart.

It means something, of course, that Scalia identifies the path of most resistance in fidelity to an ancient text, while Bauer finds it in betrayal of that text. But not as much as one might think: as we’ve come to learn from the marriages of our right-wing preachers and politicians, fidelity is often another word for betrayal.

[To read more, buy The Reactionary Mind.]

 

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