Gonzo constitutionalism on the right, norm erosion on the left

I’m in the New York Review of Books this morning, offering my thoughts on the election as part of the magazine’s series on November 2020. I make three points:

  1. The right used to be thought of as a “three-legged stool” made up of economic libertarians, statist Cold Warriors, and cultural traditionalists. Whether that characterization was true, it expressed an understanding of the right as a political entity capable of creating hegemony throughout society. That is no longer the case. Today, the right’s three-legged stool is an artifact, a relic, of counter-majoritarian state institutions: the Electoral College, the Senate, and the courts.
  2. However undemocratic these three institutions may be, they are are eminently constitutional. The most potent source of the right’s power is neither fascism nor authoritarianism; it is gonzo constitutionalism.
  3. Should the Democrats win the White House and the Senate come November, they will have to engage in a major project of norm erosion just to enact the most basic parts of their platform. Should they do so—eliminating the filibuster, say, for the sake of achieving voting rights for all citizens—we will see that norm erosion is not how democracies die but how they are born.

Check the rest of it out here. And if all goes well, my piece on Max Weber should be out soon.

18 Comments

  1. Benjamin David Steele October 21, 2020 at 10:02 am | #

    You linked the wrong article. This appears to be the one you intended:
    https://www.nybooks.com/daily/2020/10/21/the-gonzo-constitutionalism-of-the-american-right/

    • Corey Robin October 21, 2020 at 10:22 am | #

      Thanks, fixed!

  2. John MacLean October 21, 2020 at 11:20 am | #

    Nice piece, Corey. Early I was thinking about Karl Popper’s book “The Open Society & It’s Enemies”, particularly the first volume, the critique of Plato. Plato was raised in a family of tyrants and wrote of a return to a more desirable “Form” or “Idea”, recoiling from a decadent present. For Popper he’s foundational to totalitarianism. The second volume is a criticism of Hegel and Marx, particularly of what he calls historicism. The later part of the essay had me thinking about my own life. Recently at a group meeting, a participant brought up the machinations of China through the pandemic, and I brought it back to the failings of our own response; another group member started talking about how there was a war that police faced every time they were on duty, and I tried to bring it back to the reality of all the police killings and militarization of the institutions. Then there is always the response that you can’t talk about politics.

  3. John MacLean October 21, 2020 at 12:06 pm | #

    I just read the “gonzo-constitutionalism” article that you intended. Having just experienced Popper I’m wondering how significant Plato was in the drafting of the Constitution. One thing that came out strongly was the importance of arresting change, for the ancient Greek thinker. The Democratic party, and the media, used control of the selection process to beat back the possibility of change. There’s a quotation, in the first volume, that speaks right to this use of selection processes. Given this, how reasonable is it to expect enough Democrats to engage in what you call “norm erosion”?

    • Benjamin David Steele October 21, 2020 at 1:08 pm | #

      @John MacLean – During the Enlightenment and early modern revolutionary period, there was much interest in and debate about natural law. It comes out of Christian thought that inherited it from the Stoics and before that I suppose it originated in Platonism or some similar system of Greek thought.

      Plato might have had either a direct or indirect influence on the US Constitution. But it’s interesting that the original draft of the Articles of Confederation was written by John Dickinson who was raised a Quaker and his draft was heavily influenced by Quaker constitutionalism that disavowed natural law. That is maybe what makes the Articles more of an Anti-Federalist (AKA true Federalist) document, as opposed to the Federalism (or rather pseudo-Federalism) of the Constitution.

      Quaker constitutionalism, in denying natural law, believed that a constitution was a living covenant between God and a specific people. That goes to some Anti-Federalists who thought one generation had no moral justification to impose themselves upon later generations, such that Jefferson thought each generation had to create its own constitution. Only a living people could have a living agreement, not the dead hand of law written by the dead, as if the ghosts of our forefathers floated above us ready to smite us if we challenge their authority.

      This idea of a living constitution is now considered liberal interpretation, but in reality it’s a very ancient idea. The idea of a never-changing document of abstract ideals is the more modern conception of a constitution. This is one of the ways in which reactionary thought is opposite of traditionalism. The reactionary mind creates a nostalgia of historical revisionism and invented traditions. But in reactionary times like these, both political parties have become reactionary and both seeking to maintain variations on the status quo.

      • John MacLean October 21, 2020 at 10:03 pm | #

        This is an interesting subject, Benjamin. I don’t know nearly enough about Dickinson and the Quakers, or the differences between the Articles and the Constitution. I recently read a book about the Christian destruction and defacement of ancient Greek and Latin artifacts, but it seems that some of Plato survived nonetheless, and might have been available to consult. The idea of arresting change is something that Popper focuses on. The addenda to the first volume includes a response to a serious Plato scholar. The reaction from this quarter was often strongly against the work.

      • John MacLean November 13, 2020 at 3:45 pm | #

        Benjamin, I just started reading Bailyn’s book The Ideological Origins of The American Revolution. I have the fiftieth anniversary edition. In his 2017 preface he mentions the ancients who influenced the founders, and an author named Vertot who wrote about Rome. Also, the prison images of Piranesi seem to capture, for him, the fearful obsession they had with dark aspects power. I would have understood if Bailyn mentioned what today is called mass incarceration but he doesn’t. Have you ever read him?

        • Benjamin David Steele November 13, 2020 at 4:50 pm | #

          I may have that book by Bailyn around somewhere. I know I’ve looked at it before, but I don’t recall much about it now. I’ve come across some of his other books. I should see if I can find any of his books around my place.

          • John MacLean November 15, 2020 at 10:03 am | #

            Bailyn claims to have followed a “contextualists approach to history”, to have immersed himself in the “circumstances of a distant era” as a way of understanding the time, and then he says “not as it anticipated the future…” This sentence is in the preface to the twenty-fifth anniversary edition. He favors the Federalists, and casts the opposition aside, saying “the future lay not with them.” What seems possible from my reading of these various prefaces and forewords is that the founder’s obsessional fears concerning power have come to pass in a future that can’t be looked at. I’m just starting the first chapter, and apparently it deals with some of the writings during the revolution, and perhaps the influence of the ancients. I just read this obituary: https://www.nytimes.com/2020/08/07/books/bernard-bailyn-dead.html .

          • Benjamin David Steele November 15, 2020 at 11:31 am | #

            @John MacLean – That might be where I differ from the likes of Bailyn. My loyalty is to the typically forgotten and often misunderstood Anti-Federalists. They considered themselves to be the real Federalists, as opposed to some of the pseufo-Federalists who were really just nationalists and imperialists, occasionally longing for a return of monarchy.

            A distinguishing feature of the Federalists is that they were much more supportive of self-governance that was local, decentralized, and democratic with strong and clear divisions of power such as between purse and sword, taxation and military. The original constitution, the Articles of Confederation, was an Anti-Federalists (true Federalist) document.

            https://benjamindavidsteele.wordpress.com/tag/anti-federalism/
            https://benjamindavidsteele.wordpress.com/2017/01/29/you-might-be-an-anti-federalist-and-not-know-it/

    • Jonnybutter October 21, 2020 at 4:41 pm | #

      I don’t see where he said it’s reasonable to expect Democrats to engage in norm erosion.

      • John MacLean October 21, 2020 at 9:41 pm | #

        Here’s the conclusion of the piece, Jonny: “…If the Democrats win the White House and the Senate in November, and if they hope to implement the merest plank of their platform, it will be they, and not the Republicans, who will have to engage in a major project of norm erosion. It will be they who will have to abolish the filibuster. It will be they who will have to pack the Supreme Court or limit the courts’ jurisdiction. It will be they, after the longest period of stability in American history in terms of the number of states in the union and seats in the Senate, who will have to admit more states in order to increase the number of Democratic senators.

        “Should the Democrats take any of these measures—whether to secure the voting rights of African Americans, reduce economic inequality, or address climate change—we will see that norm erosion is not how democracies die but how they are born.”

        I was thinking about something Dean Baker wrote recently, in Beat the Press. He wrote about how China might develop a vaccine before the U.S. because it chose more of an “open source” approach. Trumps’ “Operation Warp Speed” is based upon a monopoly patent profit incentive. This “norm” is unquestioned, Baker writes, by progressives, Democrats and Republicans. There is, I believe, a patents clause in the U.S. Constitution. This is a norm that costs us $400 billion in excess every year.

        • jonnybutter October 22, 2020 at 4:42 am | #

          Hi John, I read the piece, and it’s clear that he’s not predicting, or speculating about, what anyone is going to do. He’s continuing a theme: that ‘norm erosion’ vis a vis the GOP (which liberals bleat about so much) is a barking up exactly the wrong tree. More democracy *is* norm erosion.

          • jonnybutter October 22, 2020 at 4:44 am | #

            I messed up the parentheses, but I hope you get the idea.

  4. Chris Morlock October 21, 2020 at 5:59 pm | #

    “Should the Democrats win the White House and the Senate come November, they will have to engage in a major project of norm erosion just to enact the most basic parts of their platform.” Considering “nothing will fundamentally change”, isn’t this meaningless? Isn’t this just manufacturing a story to cover the future inadequacies, excuses, and failures of the corporate democrats to intact anything of value to working people? You know, just like the Obama and Clinton administrations.

  5. franz November 2, 2020 at 1:55 pm | #

    I wonder if you establish a false antagonism between fascism and the constitution. Yes, the three institutions EC, the senate, and the courts are eminently undemocratic – and, as you say, at the same time constituional. But gonzo constitutionalism is an element of authoritarianism and fascism insofar as the constitution itself implies the sheer possibility of authoritarianism and fascism.
    The early Frankfurt School discusses in great length the relationship between capitalism, state (law) and fascism. Horkheimer famously said: “But whoever is not willing to talk about capitalism should also keep quiet about fascism.”
    From a dialectic perspective one can add: But whoever is not willing to talk about the liberal state (law, institutions, police, military, that is monopoly of violence) should also keep quiet about fascism. Its foundation is the antagonism between violence and law, between sovereignty and freedom (cf. Franz Neumann: “The Change in the Function of Law in Modern Society.” In: Zeitschrift für Sozialforschung. Jahrgang VI/1937, p. 542-596)

  6. franz November 3, 2020 at 3:23 am | #

    I wonder if you establish a false antagonism between fascism and the constitution. Yes, the three institutions the EC, the senate, and the courts are eminently undemocratic – and, as you say, at the same time constituional. But gonzo constitutionalism is an element of authoritarianism and fascism insofar as the constitution itself implies the sheer possibility of authoritarianism and fascism.
    The early Frankfurt School discusses in great length the relationship between capitalism, state (law) and fascism. Horkheimer famously said: “But whoever is not willing to talk about capitalism should also keep quiet about fascism.”
    From a dialectic perspective one can add: But whoever is not willing to talk about the liberal state (law, institutions, police, military, that is monopoly of violence) should also keep quiet about fascism. Its foundation is the antagonism between violence and law, between sovereignty and freedom (cf. Franz Neumann: “The Change in the Function of Law in Modern Society.” In: Zeitschrift für Sozialforschung. Jahrgang VI/1937, p. 542-596)

  7. mark November 7, 2020 at 4:51 am | #

    1752 Denis Diderot coins ‘general will’ concept.

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