Two untenable arguments, and one constitutional solution, surround the debate roiling over Justice Antonin Scalia’s successor. One argument, from the Right, is that President Obama is duty-bound, with nearly a year left in his term, not to appoint a successor at all—a claim with no constitutional basis and whose supposed authority in custom is a phantasm. The second, from the Left, is that the Senate’s duty is reflexively to confirm whomever he selects. Yet the Senate is not the executive’s Human Resources Department, confined to checking references and résumés.
Archives for February 2016
On the centennial of Lincoln’s birth, February 12, 1909, Booker T. Washington delivered an important speech before the Republican Club of New York City. His “Address on Abraham Lincoln” deserves to be better known. Not only does it provide an astute assessment of the Great Emancipator’s virtues and legacy, but it demonstrates the ability of a talented statesman to deploy the memory of Lincoln to meet pressing needs of the moment.
Justice Scalia is one of the few jurists who vindicate Carlyle’s great man theory of history. Because he brought three large and different talents to the Court, he changed the course of its jurisprudence. He had the intellect to fashion theories of interpretation, the pen to make them widely known, and the ebullience to make it all seem fun.
More than any other individual, Justice Scalia was the person responsible for the turn to both originalism in constitutional law and textualism in statutory interpretation on the Court and in the legal world more generally. Indeed, it was Scalia who made a crucial move in modern originalist theory. While a variety of scholars had argued that the Constitution should be interpreted according to the intent of the Framers, original intent originalism had some disabling flaws, the most important of which it is impossible often to find a unitary intent in a multimember deliberative body. Scalia championed a theory of original meaning that made the Constitution depend not on the intent of the Framers but on the publicly available meaning of its provisions.
The tension between conservatism and classical liberalism began with the Enlightenment’s insistence on the freedom of inquiry necessary to advance science. And science in turn was to empower man to dominate nature—learn its secrets and turn it to man’s will. Francis Bacon saw this free inquiry as creating prosperity, lengthening life, and ultimately perhaps forestalling death.
This core tenet of the Enlightenment poses profound difficulties for conservatism. It unleashes technology as a driving force in human affairs, continually upsetting the status quo and requiring the reworking of human conventions. Some of these conventions are social, like the sense of settled hierarchy that was dissolved by the markets that freedom and technological innovation generated. Other revolutions were even more profound, because they reversed conventions that defended an understanding of what was natural in man. For instance, technologies that separate birth from reproduction are the heart of the rise of family reordering and even identity politics.
But the challenge to conservatism is deeper than the new realities that technology creates. Conservatism posits that man should in some sense live in accordance or harmony with nature. Bacon’s view, in contrast, is that man should plunder nature for energy, for longevity– for everything that man desires.
The “Rooney Rule” is the latest debasement of academia. The controversial halftime show at Super Bowl 50 demonstrated–if any proof was needed–that the NFL is in the entertainment business. The football cartel's ratings-conscious bean counters carefully assessed television demographics to maximize the spectacle's appeal to the broadest possible audience–bread and circuses for the masses. It worked. The musical trifecta of Coldplay, Beyoncé, and Bruno Mars was a cynical mishmash of genres that helped attract a viewing audience of nearly 112 million people to an otherwise boring game. Professional football is big business, and it was fitting that the 50th iteration of…
Professors Eric Posner and Adrian Vermeule have famously argued that the Executive is “unbound” and cannot be constrained by law—not by Congress, and most certainly not by the courts. There is some truth to this in emergencies. The Supreme Court’s wartime decisions, for instance, show a fairly consistent pattern: the justices bob and weave and cut the President an awful lot of slack. But they usually try to salvage what they can—and to preserve the option of reasserting their power when the emergency ends.
The prospects for law and tradition are difficult to discern. This is in no small measure because the most frequent predictions about tradition’s future have little time for any traditions other than those of science and technology. And these generally are not presented as traditions but instead as repudiations of tradition—as simply rational responses to changing circumstances in the service of progress and present need. The prophets of the traditionless society never go quite so far as to strike out the traditions of science from their predictions.
Peggy Noonan recently suggested that “elites are often the last to see their system is under siege. ‘It couldn’t be, I’ve done so well.’” There is much to this idea, especially in a nation like America where many are, in fact, doing very well, and are often socially isolated from others who are not doing so well. Near zero interest rates have flooded the stock market with money, and that, among other things, has been good for the wealthy. Outside of that, however, things are tougher, and not only economically. Because Americans are increasingly isolated socially and economically, our governing class often has trouble seeing this reality.
Our system was supposed to be designed to ensure regular contact between elites and the common citizen.
The X-Files at its best celebrates that “the truth is out there”—objective, weird, and always slipping from our complete grasp. At its worst, the show makes heroes out of cranks and confuses power for politics.
Over the course of nine seasons and a miniseries now airing on FOX, the show portrays two FBI agents investigating bizarre events. The dour, imaginative Fox Mulder (David Duchovny) partners with the second best sci-fi heroine that has ever been, the calming, rational, and courageous Dana Scully (Gillian Anderson).
There are basically two—and in fact incompatible—kinds of X-Files episodes, with two distinct approaches toward the truth that is “out there.” There are the show’s conspiracy episodes: Is our world controlled by evil cliques manipulating reality and hiding the truth? Then there are what fans call the monster episodes: Is human life by its nature given to evil, good, and in between; to weirdness and wonder, harboring some truths that, happily, remain beyond us?
Margaret Thatcher at Her Zenith: In London, Washington and Moscow not only celebrates Thatcher’s many virtues but brilliantly captures the tragic flaws that were to bring her career to a bitter and unplanned end. Her fall was sad not only for her personally, but for classical liberalism more generally, because she left without grooming a successor who could have continued her reforms.
To begin, there is Thatcher’s character. The very single-mindedness and refusal ever to admit error that helped her push though transformative policies alienated everyone. Her opponents within the Conservative party were energized to wait for an inevitable misstep. But even Thatcher’s closest allies fell out with her. The book recounts how, as Prime Minister, Thatcher irritated and belittled Norman Tebbit, a star of her cabinet who had both the common touch and toughness to carry on her policies. Sadly, part of the reason for her abusive treatment was fear: she worried that he might gain the grassroots support to oust her, although he was in fact one of her most loyal acolytes.
Moreover, without a sound successor, Thatcher was unable to safeguard her legacy when she resigned for lack of sufficient support in the party. She had to choose John Major, who had been inadequately vetted as a short-term member of the cabinet. He turned out to be something of an opportuntist who was both unwilling and incapable of pushing Thatcher’s revolution further.
The other great tragic flaw was an intellectual mistake.