Wednesday 2/8/17

  1. The Waterbeetle of Politics
  2. American Exceptionalism
  3. Natural Law and Textualism
  4. What’s the matter with Kansas?

1

I missed this vivid image two days before Trump’s inauguration:

He flabbergasts the Human Race
By gliding on the water’s face
With ease, celerity and grace;
But if he ever stopped to think
Of how he did it, he would sink.

Hilaire Belloc, on the waterbeetle

Leaving aside the missing element of grace and the improbability of his ever stopping to think, Donald Trump is the waterbeetle of politics.

(George Will)

2

In an interview that aired before the Super Bowl, Fox News’ Bill O’Reilly noted to Trump that “Putin is a killer.” Trump responded with the world weariness of a mafioso. “There are a lot of killers. We have a lot of killers… What, you think our country is so innocent?”

… [I]n the aftermath of this interview, a number of unTrumpified Republicans, like Sens. Ben Sasse and Marco Rubio, criticized the president for the suggested equivalence of the U.S. and Russia. America is a force of unadulterated good, the senators insisted. We’re not like those thugs in Russia at all. How dare anyone suggest otherwise.

There’s a kind of unreality to this exchange between Trump and his Republican critics. And it highlights the way in which the GOP’s understanding of American exceptionalism collapses into a self-deluding sentimentalism, and how the critique of it can likewise collapse into a kind of cynicism — or even nihilism.

Rubio’s and Trump’s dueling views of America’s role in the world are both permissive, but in their own ways. Rubio and other partisans of American exceptionalism trust that America is fundamentally good and benevolent as it engages the world. This belief acts as a kind of moral license for America to intervene. And it led to some of the messianism of our foreign policy after 9/11. America would bring democracy to the Middle East, and rout dictators. America’s actions would win hearts and minds. We were a force for goodness in the world.

The Trumpian idea that we are a “normal country” that has a “lot of killers” is permissive in another way. “You think our country is so innocent?” is exactly what a man who intends to bring back “worse than waterboarding” would say to disarm his moralizing critics.

(Michael Brendan Dougherty) I thank Dougherty for those first and last paragraphs. I was thinking Trump was oafishly engaging in realpolitik, expressing a willingness to work with Russia despite Putin’s thuggery at times, and condemning our own lethal covert operations as well. I’m less inclined to think that now, and to think that waterbeetle Trump is setting the stage for Any Means Necessary.

But Dougherty’s column is good beyond calling out Sasse, Rubio and their ilk. He gave me a fresh appreciation for what is exceptional about the U.S. — and what isn’t:

One way around the dilemma presented by these two views is to look to an older form of American exceptionalism — one that recognizes that America is the lucky inheritor of the Anglo-Protestant tradition of common law. It also recognizes that America’s liberty is partly guaranteed by America’s utterly unique position as a continent-spanning colossus, blessed with incredible natural resources. America has friendly neighbors and giant oceans that separate it from great powers, meaning that it has rarely faced the temptation of militarizing or regimenting its society. It’s no accident that Anglo traditions of liberty tend to thrive on islands like the U.K. or continent-sized powers like Australia and America.

Now, imagine if we were located in a neighborhood surrounded by pre-WWII Japan, Germany, China, and Turkey. Our people would put up with — or even admire — a much more brutal government than the one we have. Human nature is a constant in America and Russia. But history, culture, geography, and the arrangement of power shape us in profoundly different ways.

Do read it all: America is not innocent. But it is exceptional. It’s a keeper.

3

Bruce Frohnen, a law professor who writes very frequently at the Imaginative Conservative, strikes me as frustratingly inconsistent in quality. I can easily chalk that up to pressure (self-imposed?) to write, and perhaps some of my regular readers feel the same about me.

But as a fan of natural law thought, I found Tuesday’s effort interesting:

Cultural context aside, Judge Gorsuch displays significant intellectual differences from Scalia. But the central difference here is of little relevance to judging today. And that is both good and bad news for our legal order.

The difference relates to the natural law. Scalia, reared within a religious tradition that holds natural law central to every person and community’s ability to pursue virtue in this life and beatitude in the next, dismissed that tradition as irrelevant to the craft of judging. Judge Gorsuch is a devotee of the “New Natural Law”—that instrumentalist reduction of the natural law tradition to Kantian universalist precepts and casuistry propounded by John Finnis and a few American followers. It is unnecessary for Judge Gorsuch to disavow applying New Natural Law in his decisions because, properly applied, it would have little impact there.

Legal texts that fall into the hands of the majority of judges who adhere to this ideology or come under scrutiny by our virtually single-minded legal academy are read in light of whatever good happens to seem most important to elite opinion at the time. Whatever the text happens to say, it is interpreted as “really” serving this overall, higher and more abstract good, then reinterpreted to demand political action furthering that goal. Thus the “right to privacy” was ginned up out of disparate “emanations from penumbras” in the Constitution, then further distorted as a guarantee for the right to kill unborn children. Same-sex marriage provides another relevant example, as would many more arcane uses of this technique of distortion-through-abstraction.

Textualism is the only antidote to this fundamentally dishonest perversion of law. It insists, quite simply, that the text of a Constitutional provision or other statute must be read and applied according to its accustomed meaning at the time of its drafting; it cannot fairly let alone legally be read to mean something more abstract. Textualism is and should be universally demanded by a free people as the basis for judicial decision-making because it is the only method of interpretation that recognizes law as law—fixed statements forbidding or demanding particular actions by persons and institutions.

But textualism is merely the common sense of the law; it is not the whole of legal reasoning. Here it is important to recognize the very real weaknesses in Scalia’s own jurisprudence. He was a master of legislative construction. He knew how to read legislative texts better than perhaps any other man of his era. But law is not just texts. It also entails understanding of circumstances and reasoning from previous cases. Law is about custom. Even in purely statutory systems, law must recognize and uphold people’s customary understandings of terms and practices. It must recognize the common law—that long tradition of judicial decisions that formed the rules of conduct and common understandings undergirding American law to this day.

The third paragraph of that block quote is a different expression of what I’ve called framing the “level of abstraction.” If you successfully frame the question as “Does the Constitution protect a right of privacy that encompasses the right to make one’s sexual decisions free of intrusion” (high level of abstraction), you’re likelier to win than if your adversary frames it successfuly as “Does the Constitution protect homosexual sodomy?” (low level of abstraction). In other words, the high level of abstraction untethers judges from history to pursue the “overall, higher and more abstract good” (which is often a creature of the current transient cultural obsessions).

If I’m not misreading him, Frohnen would welcome more “activism” (roughly, decisions not based entirely on the text) based on circumstances, customs and such if only today’s judges were in tune with natural law.

4

Because Kansas added a law in 2016 that that enabled college campus religious groups to require that members adhere to their religious beliefs and standards, California has banned state-funded travel to Kansas. I thought you’d want to know.

Through some manner of tortured logic, this almost axiomatically appropriate law is considered a green light for “discrimination against lesbian, gay, bisexual, and transgender people,” and first amendment religious freedom be damned. I lose track of whether the rubric for this is “equality” or “diversity,” but the diversity rationale is particularly Orwellian and galling. “In the holy name of Diversity, we say to religious groups that aren’t on board with the sexual revolution, Anathema!

The focus seems to be on whether California teams will be allowed to travel to Kansas for NCAA tournaments. I’d wager that the Kansas Chamber of Commerce favors repeal of the law.

* * * * *

“The truth is that the thing most present to the mind of man is not the economic machinery necessary to his existence; but rather that existence itself; the world which he sees when he wakes every morning and the nature of his general position in it. There is something that is nearer to him than livelihood, and that is life.” (G.K. Chesterton)

Some succinct standing advice on recurring themes.