Category: statism
What is the essence of conservatism in America?
There is an outstanding “reprint” at the Imaginative Conservative, Mark C. Henrie’s The Conservative Reformation. You could do worse than chew on it for an hour or two.
Isn’t imaginative conservatism an oxymoron? Glad you asked!
Contrary to popular belief, conservatism always requires creativity, for it only arises when customs are already under attack and can thus no longer be maintained unselfconsciously.
(All block quotes except as indicated are from Henrie)
Henrie begins with the need for reformation.
Two decades ago, George Nash, in his The Conservative Intellectual Movement in America Since 1945, told the story of how American conservatism was forged rather uneasily as a political movement from three intellectual groupings: traditionalists, libertarians, and anti-communists. Today [apparently, the early 1990s] on the conventional “Right,” however, we find many libertarians who argue as vigorously against the opponents of abortion as they do against economic central planners while we also find some religious traditionalists who see no particularly compelling reason not to support fairly activist regulation of both economic and social life. These disagreements are nothing new, of course, and, as conservatives are nothing if they are not historically informed, it would be wise to return to Nash’s book to learn from the older disputes which took place on the way to political victory in the 1980s.
A re-reading of Nash’s book raises a more important question: Was there a logic to American conservatism, or was the movement merely a marriage of political convenience? My belief is that there was and is a general logic to conservatism, to which American conservatism is no exception; but this conservative logic has heretofore often been misunderstood in America. Thus, our central theoretical question is: What is, and should be, the essence of conservatism in America? If we can determine the nature of authentic conservatism, then perhaps we can come to understand better the political and social challenges that confront us in our new historical circumstances. What will conservatism have to say to America in the 1990s and beyond?
(Emphasis added)
With Communism out of the way as a common enemy, what counts as true conservatism’s common friend? (If we must unite against a common enemy again, I’m outta here.)
To answer this, we must try to understand what it was about communism that galvanized us against it. The Soviet communists claimed the mantle of the French Revolution of course, the first incarnation of the conservatives’ perennially recurring adversary. What is it then that conservatives have repeatedly opposed for the past two centuries?
… [T]he only consistent theme in European conservative thought, both in England and on the continent, is opposition to … that claim by the centralized, “rationalized,” and liberal democratic political state to a monopoly on the “legitimate” use of coercion, a claim which expanded imperceptibly to a tacitly presumed monopoly of social authority … This presumptuous expansion of the sphere of the political sovereign acted to delegitimize other social authorities and intermediate institutions to which conservatives felt themselves bound, and which conservatives believed were integral to a good life.
(Emphasis added) Here enters civil society as a common denominator of conservatism. But how does the state threaten civil society?
What is centrally important about this rise of sovereignty is that it proceeded in large part through theories of natural rights and the social contract: Individual liberties, therefore, have only abetted the growth of Leviathan. Robert Nisbet highlights this hidden dynamic in the best short study of conservatism in English, Conservatism: Dream and Reality. Nisbet observes what would seem to Americans to be an historical paradox: The power of the state in our lives has risen hand in hand with the rise of the individual “rights” about which we are so proud … Nisbet argues that these two movements—increasing political power and increasing individual “freedom”—are directly related. For the rights that have been “recognized” by the modern liberal state are not so much rights against the state as they are rights against other social bodies that used to have some measure of authority in the lives of men and women.
Nisbet traces the rise of the sovereign liberal state at the expense of the Church, the guilds, universities, social classes, the extended family, and now at long last, even the nuclear family—everything except “the individual.”
(Emphasis added)
The attack on the institutions of civil society is far more pernicious today than when Henrie wrote.
First, it seemingly has become a Democrat party cliché that “Government is simply the name we give to the things we choose to do together,” but the cliché is obviously a half-truth, for we do many other things together, too. Or maybe the Democrats have in mind Government being the only thing we do together, or homogenizing civil society to where it’s no more that the ladies’ auxiliary to government.
But we have far worse to fear that subversive cliché. The latest of which I’m aware doesn’t even come from government, but from neo-McCarthyite homophiles seeking to enlist the aid of big business to crush colleges and universities that resist (by asking for Title IX waivers or allowing free speech) homogeneously diversifying:
The business case for equality is clear. If companies take pride in “being inclusive and welcoming to all” and say that “discrimination is wrong,” these same corporations must consider their associations with these 102 anti-LGBTQ campuses. Discrimination under the guise of religion is still discrimination. It is the most oppressive and hurtful kind of bias and prejudice to LGBTQ people, who have been victimized by religion-based bigotry for many years.
… Don’t donate to these campuses. Don’t recruit or hire at these colleges. Simply choose not to do business with those who choose discrimination over inclusion and diversity.
Thus did Shane Windmeyer, M.S., ED., McCarthyite creep, call for discrimination over inclusion and diversity while accusing others of doing so. Seriously: what kind of idiotic LGBT jackbootery will it take before corporate America realizes qui cum canibus concumbunt cum pulicibus surgent?
Before that, it was Iowa and Massachusetts Civil Rights Commissions beginning the progressive campaign to refashion “deep-seated cultural codes, religious beliefs and structural biases” by making Churches into public accommodations subject to our new raft of gender-bending pseudo-laws, rooted in nothing more substantial than a “Dear Colleague” letter from Washington. The Iowa and Massachusetts bureaucrats won’t say exactly what they mean, but one possible example would be be refusing to call Trans Jack by his preferred name of “Suzy” at evangelistic spaghetti dinner.
When the state comes around offering you more rights, you can safely wager a large amount of money that it’s offering a zero-sum game at the expense of someone other than the state.
If conservatives wish to remain true to their historical concerns, they should recognize as their adversary the Universal and Homogeneous State.
Even the pretense that we’re free is tacitly abandoned:
The homogenizing power of liberal market logic is revealed in contemporary political arguments that speak of the necessity of “competitiveness” in international markets. While it is often claimed that modern technological production has freed humanity from nature or necessity, the unrestrained market has itself become the realm of necessity that cannot be opposed.Here, it is contended that we are not free to resist the demands of market efficiency. We are not free to seek such social goods as higher environmental standards. We are not free to defend settled ways of life by protecting older domestic industries. Owing to lower real wage levels brought on by a competitive labor market, women are not free to remain at home as mothers, regardless of the non-quantifiable harm to children. In short, we are not free to organize any of our social relations in a manner that will lead to production inefficiencies. Indeed, the free trade agreements of the last decade which seek to eliminate “non-tariff barriers to trade” aim to establish supra-state mechanisms that will prevent nations from freely choosing for any reason any path for their society that conflicts with the demands of the market; all peoples will be subjected to the “necessities” of efficient market competition. How ironic that the liberal partisans of individual “freedom” have led us to a situation where the demands of the market itself preempt or obscure free choice.
Henrie did not fully anticipate the totalizing role of American Corporate power when he wrote, not of giant corporations, but of “the market economy.”
Most controversially to American conservatives, we can begin to see here that what is at issue in our confrontation with modernity is not state authority, considered an evil, against the freedom of the market, considered a good. What Kojève understood, what the older and especially the Continental conservatives understood, and what American conservatives in the 1990s must come to understand, is that the liberal state is a cooperative venture between a certain form of political association (democracy) and a certain form of economic association (the market economy)—both founded on an atomized and atomizing individualism. Together, these act to “rationalize” society and persons in society. In this analysis, the market is not experienced positively as a realm of unique freedom, but instead is experienced as a realm where uniform laws of rational efficiency act to the end of homogenization and therefore dehumanization. Human goods such as community, solidarity, and indeed, even eccentricity, which are threatened in the process of homogenization, are what conservatives ultimately must be about “conserving.”
As demonstrated by the bullying of Indiana during its RFRA adventures and now North Carolina for politically incorrect toilet laws, corporations are a huge enemy of freedom.
So what do we do about this?
Also at the formal level of political life, conservatives should continue their critical attention to rights-discourse. For as we have seen, this is the lever by which the sovereignty of the liberal state has progressed at the expense of the various intermediate associations. There are good arguments to be made for abandoning or at least severely curtailing our use of “rights-talk.” Still, if Americans must speak in this idiom, at least for the time being, conservatives should make it their primary aim to investigate and elaborate upon the one right that is most often neglected in American political thought: the freedom of association. In legal philosophy today, this subject largely remains terra incognita, yet it may provide the first key for conservatives to roll back the homogeneous state.
Henrie proposed a possible antidote to excessive corporate power, though he saw the problem of corporate power being somewhat different than what actually has shaped up:
… Southern Agrarians might suggest how a creative logic of resistance against homogenization can be extended into the world of business. The Agrarians believed that private property was good because of the sense of independence and responsibility it elicited from persons who owned property. But corporate or “abstract” property-ownership does not seem to have this effect. Thus, one conservative reform might be a reconsideration of the legal status of the limited liability corporation, which systematically biases the economy in favor of large and impersonal corporate property over proprietary business concerns. Such a scheme might well be less efficient at the production of material goods, but its effect would also be profoundly humanizing. Are we willing to pay such a price?
This last question is crucial, for seeking changes in public policy so that a humane associational life may flourish will come to naught if we do not ourselves seek in our own local contexts to “live well” together, to build a common life within our families and with our neighbors that might be strong enough to resist homogenization. This may require some sacrifices; it will require us to say “no” to some of the temptations of the market and the state. Yet only if our families, churches, and other associations mean something to us, indeed become part of us, will a defense of them in public policy be plausible. Living “conservatively”—living generously within our concrete contexts—always has priority over any political or ideological project.
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“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)
Progressives Destroy Civil Society
It has been a rather long time, I think, since I devoted a blog to a single topic, but this is well worth it.
I am gratified and grateful to welcome a new ally to the “front ranks” of the fight for religious freedom; a somewhat distinctive voice; a voice ironically in better tune with my knowledge of the history of legal development than what I usually hear and read (the irony being that the voice comes from Judaism, not now or ever my own religious tradition). A big, grateful shout-out to Ben Craton for posting this on Facebook, too:
Coming to the fore over issues of personal identity, most saliently in relation to the gay-rights movement, same-sex marriage, and transgender rights, it has resulted in a legal battle in which the radioactive charge of “discrimination,” borrowed from the civil-rights movement of the 1960s, is wielded as a weapon to isolate, impugn, and penalize dissenting views held by Americans of faith and informing the conduct of their religious lives.
Jews are hardly the only group at risk from developments in this area of progressive agitation; up till now, its main targets have been believing Christians. Perhaps for that same reason, Jews have also not been in the front ranks of those raising an alarm. Nevertheless, the threat to them, and to the practice of Judaism, especially by Orthodox Jews, is very real. Unlike in the past, the threat comes not from private initiatives; it comes from government.
…
The United States could practice this unprecedentedly “enlarged and liberal policy,” as Washington rightly called it, because it featured a very limited national government, one that allowed a large sphere of civil society to flourish outside of government regulation …
Regulation would be the exception; liberty the rule. This same open space left Jews free to be Jews just as Christians were free to be Christians; as between faiths, with a few lingering exceptions in some states, government was indifferent.
This was indeed a “liberal policy” for a liberal society—a society in which, as the philosopher Leo Strauss, echoing the first president, would put it a century and a half later, “there are no longer any legal disabilities put on Jews as Jews.” But, Strauss went on pointedly, such an arrangement “stands or falls by the distinction between the political (or the state) and society, or by the distinction between the public and the private. In the liberal society there is necessarily a private sphere with which the state’s legislation must not interfere.” Therefore, in that private sphere, such an arrangement would allow for discrimination.
…
One can occasionally still see, usually in an old diner somewhere, the venerable sign “We reserve the right to refuse service to anyone.” The sign is an anachronism; it does not carry either the force of law or the weight of public opinion. But it once did, and more recently than we might think. For most of American history, for better or worse, the common view was that private institutions, companies, clubs, and so forth had the right to choose with whom to associate and not to associate, whom to accept as customers, whom to decline or refuse to serve. There were, to be sure, exceptions: by law, a small class of businesses, most notably railroads and other conveyances, as well as inns and public amusements, had to take all comers. Somewhat more broadly, the same rule applied to monopolies, like the local grain elevator. The class was narrowly defined precisely because the liberty to associate with whom we choose was recognized as essential in a liberal nation that made a hard distinction between the realm of the state and the realm of civil society.
…
When it came to race, early America did not simply allow individuals to “discriminate” if they chose to do so. On the contrary, the government positively required such discrimination. Both slavery and segregation were creations of law. Throughout the South, government not only segregated public places and activities but also forced private corporations—railroads, restaurants, and other places where Americans gathered—to maintain separate sections for blacks and whites. [N.B. This is a truth I tend to forget. I’m not certain the 60s Civil Rights laws would even have been needed had it not been for Jim Crow laws that forced businesses to behave in a manner that was economically irrational.]
… In principle, the 1964 Civil Rights Act held that people were still generally free to decide with whom to associate, being prohibited from discriminating against only a small list of people in what the Act designated as “protected classes.” As Epstein has observed, the original law exempted some small businesses like the proverbial “Mrs. Murphy’s boarding house.” But it also declared that henceforth almost all businesses, and all charitable institutions, were, in essence, “public accommodations” in the eyes of the law. As such, the federal government had the right to tell every business whom it must serve or, even, hire.
…
Since 1964, moreover, the list of officially “protected classes” has grown beyond the list (defined, again, by race, color, sex, national origin, and religion) stipulated by the Civil Rights Act to include such markers as age, pregnancy, citizenship, familial status, disability, veteran status, and genetic information. Nowadays, the Justice Department has been creating new “protected classes” on its own recognizance, without even a pretense of seeking congressional approval for so radical a change from the originating statute.
This captures our situation today. A large body of American opinion holds that it is the government’s job to prevent any and all discrimination. [N.B. This opinion is authoritarian progressive dogma, a huge historic departure, unwarranted by anything like Jim Crow] That belief is pushing government more and more deeply into our daily affairs. Along the way, instead of easing social tensions, it has exacerbated them by establishing a permanent legal relationship between growing classes of legally recognized victims and their designated protectors at every level of society. As each generation assimilates the mindset more thoroughly, we begin to see situations like those on today’s campuses, awash in the frantic demand for “safe spaces.” There, Jonathan Haidt has written, “the very presence of administrative bodies” in charge of enforcing non-discrimination “gives rise to intense efforts to identify oneself as a fragile and aggrieved victim.” In such a culture, students “must not obtain redress on their own; they must appeal for help to powerful others.” And so the cycle of dependency on one side, suffocating paternalism on the other, perpetuates itself.
III. Today’s Threats to Religious Liberty
Do any Americans still understand the prohibition of discrimination as an exception, and a carefully hedged one, to the general rule of liberty? …
Today, even as it claims to defend religious liberty, the civil-liberties lobby proclaims a new danger: namely, that “religion is being used [by religious believers] to discriminate against and harm others.” The better to camouflage this piece of verbal jujitsu, the organization has also adopted a definition of religious liberty as a matter of belief only, separate from the realm of conduct or, as the First Amendment explicitly has it, “free exercise.” In similar fashion, the Obama White House has taken to quietly replacing the phrase “freedom of religion” with “freedom of worship,” a purely private affair with no permissible impact on either speech or conduct.
… Already in his 1962 lecture, “Why We Remain Jews,” from which I have been quoting, Leo Strauss warned against efforts to end “discrimination,” period. This enterprise, he predicted, would kill liberalism. “The prohibition against every ‘discrimination,’” he said, “would mean the abolition of the private sphere, the denial of the difference between the state and society, in a word, the destruction of liberal society.” (Sensitive to the newly invidious sense of the term “discrimination,” Strauss insisted on using it only with quotation marks. “I would not use it of my own free will.”) Absent that private sphere, he concluded, Jews would no longer be free to be Jews in America.
(Richard Samuelson, Who’s Afraid of Religious Freedom, Mosaic, August 1, 2016; emphasis added)
This is a very long ready by internet standards, but it is excellent — I would even say “essential” for friends of religious liberty. I heavily annotated and saved it.
Bravo! Bravissimo!
Let us begin demolishing Leviathan and returning to Civil Society.
* * * * *
“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)
Cinco de Mayo/Yom Hashoah
Obamacare v. The Little Sisters
The question in the Zubik case is a simple one: Do religious objectors get to disobey the laws they dislike, even when that places burdens on others?
(New York Times Editorial Board)
Question Presented
…
2. Whether RFRA allows the Government to divide the Catholic Church by creating a narrow “religious employer” exemption that applies to “houses of worship” but excludes the Church’s separately incorporated nonprofit entities that implement core Catholic teaching by providing charitable and educational services to their communities.
(Petition for Certiorari, Zubik v. Burwell; that’s “Most Reverend David A. Zubik, by the way.)
The current iteration of the religious-freedom challenge to the Affordable Care Act’s preventive-services mandate (not, as is sometimes suggested, to the act itself) is called Zubik v. Burwell. This is unfortunate. True, the caption choice improves the “optics” for the Obama administration and reduces the likelihood of awkward headlines and embarrassing talking points. However, calling the case – as I will – Little Sisters of the Poor better captures its bizarre core and character. Calling it by this name reminds us that the administration has not reluctantly stumbled into but has instead doggedly pursued a conflict with a religious community of Roman Catholic nuns over whether and how its employees will receive government-mandated, cost-free insurance coverage for prescription contraceptives. Regardless of how the Court rules, that this pursuit appears to have been for the administration a matter not merely of policy but also of principle is extraordinary.
(Richard W. Garnett at SCOTUSBlog) How about calling it “ObamaCare vs. Little Sisters of the Poor“?
For my money, this “simple question” was answered by RFRA 20+ years ago. A religious entity that is substantially burdened by a law is entitled to an exemption or work-around as commodious as the most commodious afforded anyone else under the law. Exxon, Pepsi Bottling, Chevron, Visa, New York City and the United States Military are among those entirely exempt from the mandate. QED. A simple answer to a tendentiously-framed “simple question.”
That’s probably why the government’s argument has been bringing the Little Sisters to heel with mockery of the idea that there’s a substantial burden. “What’s the big deal about signing a form?” they insist. (“Shut up,” he explained.)
But:
A Roman Catholic Cardinal, two Bishops, and leaders of Catholic organizations testified that the conduct required of them, including signing and submitting the self-certification form, violates their sincerely-held religious beliefs. Yet if they refuse to take these actions, they are subject to severe penalties. Thousands of religious organizations face the same improper choice.
The Accommodation is not a simple “opt out,” as the Government contends. Petitioners’ signing and submitting the required documents is an essential step, without which their TPAs have no authority nor obligation to provide the morally objectionable coverage. Instead of an opt out, the Government requires continuing actions from Petitioners, within the context of their health plans, that make them complicit in a moral evil with “eternal” consequences.
(Reply Brief of Petitioners, emphasis added)
These witnesses are not part of some vast right-wing conspiracy against Obama or the Affordable Care Act. The Roman Catholic Church repeatedly and famously is supportive of “progressive” legislation in many areas. They just happen in this case to be gloriously out of step with the Zeitgeist.
On September 17, 2015, the U.S. Court of Appeals for the Eighth Circuit issued two unanimous opinions holding that the plaintiffs in those cases “were substantially likely to succeed on the merits of their claim that the contraceptive mandate and the accommodation process substantially burdens their exercise of religion in violation of [the Religious Freedom Restoration Act (RFRA)] and that the current accommodation process is not the least restrictive means of furthering the government’s interests.” Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 14-1507, 2015 WL 5449491, at *13 (8th Cir. Sept. 17, 2015); Dordt Coll. v. Burwell, No 14-2726, 2015 WL 5449504 (8th Cir. Sept. 17, 2015).
(Supplemental Brief of Petitioners, showing the “Circuit split” on this “simple question.”)
Do you remember Bart Stupak? He was the pro-life Michigan Democrat who was browbeaten and cajoled into voting for the ACA.
He was betrayed by the contraceptive mandate. The issue statement in his Amicus Brief:
Whether an unelected, unaccountable regulatory agency can create a compelling interest without clear authority from Congress, and thereby unilaterally burden the exercise of religion as long as it meets narrow tailoring?
It’s actually worse than that. the “unelected, unaccountable regulatory agency” “commissioned an outside non-profit group, the Institute of Medicine, to make recommendations.”
At the outset of its report, the Institute of Medicine noted that it had broadly interpreted the statutory language, “preventive care and screenings,” to encompass all “measures—including medications, procedures, devices, tests, education and counseling—shown to improve wellbeing, and/or decrease the likelihood or delay the onset of a targeted disease or condition.”
…
“The committee [responsible for the report] looked at women’s preventive service needs more broadly to account for women’s health and well-being.” … Instead of just the common understanding of “preventive measures” dealing with “traditional indicators, such as morbidity and mortality,”—the kinds of life-threatening diseases repeatedly referenced by Senator Mikulski in her Senate floor speech supporting the amendment she had proposed—the Committee included in its understanding of “preventive measures” other things it thought to be “more generally supportive of a woman’s well-being.”
…
Less than two weeks later … the HRSA adopted the Institute of Medicine’s recommendation almost verbatim as “amended interim final regulations,”… directly contradicting both the President’s Executive Order and the Stupak/Waxman colloquy on the House floor on March 21, 2010.
(Stupak Amicus Brief) Stupak argues that the “amended interim final regulations” violate the Administrative Procedures Act, the due process provisions for allowing public comment before the notions of an “unelected, unaccountable regulatory agency” become de facto law.
The Administration’s pretense that the contraceptives aren’t paid for by the objecting religious employers is dubious to the point of economic voodoo:
Many employers, like Catholic University, hire an insurance company to handle their employees’ health claims. In return, we pay our insurer an annual premium, set to cover our usual claims experience. HHS proposes that instead of paying for abortions (and other objectionable services) ourselves, we can opt out, and the government will direct our insurance company to pay. The regulations add that the payments can’t come out of our premiums.
So where does the money come from? HHS suggests that insurers should front the money themselves, and it says that they will actually save money by offering free abortions and “preventive services.” According to the regulations, because the mandated services reduce childbirths, insurers can recoup their costs “from reduced pregnancy-related expenses and other health care costs.”
There isn’t much empirical evidence for this, but let us suppose it is true. In that case, the premiums that Catholic University pays once again cover the costs of abortifacients, contraceptives and sterilizations. Our insurance company simply moves the change around in its pockets so the objectionable services don’t get posted to our account. But we pay the insurer enough to cover the bills.
So why is the Obama Administration so adamant about forcing the Little Sisters of the Poor, Catholic University of America and others to “just sign the certification”?
A more tolerant solution would be for the federal government to fund “preventive services.” But President Obama had to promise not to do that to get the law passed.
And, as Russell Moore says, these days the culture wars always come down to sex.
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“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)
Thursday, 1/7/16
Feast of St. Stephen
- Nothing succeeds like failure
- Judicial UnAmerican Activities Committee
- An Evangelical distinctive
- If Trump, then what?
- Culling and sorting
- Sprawl does not compute
- 1st thing we do is not “kill all the lawyers”
If you’re all blissed out from Christmas and don’t want a downer, you might want to start at item 7, which is at least bracing, and finish from there. I understand.
Continue reading “Feast of St. Stephen”
Tipsy Teetotaler ن 