The American experiment, or so I would suggest, is the attempt to articulate a "closed doctrine" that nevertheless creates an "open society." Again, in brevis, it relies on a core text, the constitution, alone with a set of official interpreters of that text, the Supreme Court, who serve as final arbiters for any internal disputes. The difference between the totalitarian and the American experiment lies in the separation of "powers." While the Supreme Court is the final arbiter in the interpretation of the Constitution, it does not exercise legislative or executive power. It cannot create law nor can it enforce the laws the land. It's power, as such, is wholly "negative." It can only "strike down" laws it finds in conflict with the core text, the constitution, and enjoin against their enforcement. Moreover, the "closed doctrine" of the constitution attempts to institutionalize, not an insider/outsider dynamic, per se, but "tolerance." The first amendment enjoinders against the establishment of a religion and curtailment of free speech, for example, specifically prohibited the creation of an insider/outsider dynamic relative to church or ideology. Moreover, though it took some time and a civil war, the 14th amendment prohibited the creation of an insider/outsider dynamic relative to race. "Enemies" still require vigilance, but they are enemies of the "closed doctrine" that creates the "open society." Public officials are sworn to protect and defend not a religions, not an ideology, but the constitution of the United States which has institutionalized, to an imperfect degree, tolerance. The president swears, in other words, to be intolerant of intolerance, a somewhat paradoxical position that is always fraught -- e.g. although the constitution specifies that I have a "right" to my religion as well as the "right" to official tolerance of my religion, if my religion requires that I be intolerant to a specific class of people (e.g. "blacks" or "jews") do I still have a "right" to my religion and the "right" to an official tolerance of my religion? If I am a member of that religion, my answer will be "yes." If I am a member of that class of people, my answer will be "no." Such clashes of "values" are inherent to the open society. If the religion is not tolerated, they will feel oppressed. If the religion is officially tolerated, the "blacks" or "jews" will feel oppressed. There really are few ways to reconcile the conflicting values.
The American experiment may yet fail along a fissure of conflicting values. Before I touch on that, however, let me take a brief detour by saying that I believe the tide of American history has pushed toward greater and greater "tolerance" of human differences, and a good deal (though not all) of that "push" has resulted from "open markets." Consider, for example, the curious case of Hobby Lobby and birth control. On the one hand, insofar as "Hobby Lobby is a craft store chain that says it operates "in a manner consistent with Biblical principles," as CNN reports, "the company refuses to cover contraception methods for its employees that it views as abortive such as Plan B and Ella. Hobby Lobby fought the Affordable Care Act's mandate that businesses pay for birth control all the way to the U.S. Supreme Court and won this week." Although I find their "biblical principles" dubious, I have not seen fit to boycott Hobby Lobby, in part because there is an element of choice on the part of the employee -- that is to say, they can decide they share Hobby Lobby's values or they can decide to merely tolerate Hobby Lobby's values as a condition of employment, but in either case they decide to work at Hobby Lobby. If Hobby Lobby suddenly found themselves unable to recruit employees within the "open market" because their health plans do not offer certain forms of birth control, THEY would need to decide whether their "biblical principles" or a broader "tolerance" came first. I do not know, and honestly do not care, how they would decide, but should they find it difficult to recruit employees for that reason they would need to reconcile their now competing values. On the other hand, although Hobby Lobby may operate "in a manner consistent with Biblical principles," I have never faced a religious test at the cash register of a Hobby Lobby and we are regular customers. Should they wish to do so, they would likely lose that challenge at the supreme court, but they seem perfectly willing to "tolerate" my lack of faith when it comes to taking my money within the "open market." Given that non-christians of various stripes represent a significant swath of the American market, one is unlikely to see a sign above the cash register saying "we refuse to serve buddhists and muslims, but especially atheists."
In other words, I think Hayek is correct in seeing a link between an "open society" and "open markets," but that is just a more philosophical way of saying "money talks, bullshit walks," and it might help to press a bit deeper. The American experiment, I've suggested, is the attempt to articulate a "closed doctrine" that nevertheless creates an "open society." We want to assert that the open society is also a "free society," but it depends. Hobby Lobby will claim, of course, that they want freedom to run their business in their way, and they want to be free from government regulatory regimes that would coerce employment practices they find objectionable. Those employees who might not agree that Plan B and Ella are "abortive," however, might want to preserve their freedom to choose those products as their birth control, and might want to be free from an employer's regulatory regime of coercive employment practices. It is, however, one thing to think of a corporation, where one can choose (or choose not) to work for them. It is quite another thing, however, to imagine Hobby Lobby's values extended nationally. A government run by the "biblical principles" of a Hobby Lobby would limit the people's freedom to choose among the various forms of birth control, indeed might limit their ability to choose birth control at all. It would not be unreasonable for those women who might want to seek abortion, or birth control that might appear to be "abortive," might also want their freedom from government regulatory regimes that would coerce reproductive practices they find oppressive. So far as the American experiment is concerned, however, it is reasonably clear that Hobby Lobby's values should not extend nationally, insofar as their values are overtly religious and the "closed doctrine" of the constitution prohibits the establishment of a religion, a government run by biblical (or for that matter, Koranic principles) and as a result left the core conflict of values in play. Those who subscribe to Hobby Lobby's values are nevertheless free to act on those values. Those who do not are also free to act on those values. Neither will be free from the values of the other, and as a consequence, if the "closed doctrine" of the constitution prescribes any value, it prescribes the reciprocal duty of tolerance each on the other.
The tide of American history has pushed toward greater and greater tolerance of human difference, and part of that "push" has come from the constitution itself and the unarticulated, but nevertheless real duty of tolerance. We want to assert as well that the open society is also an egalitarian and democratic society. For the moment, I don't want to get side-tracked into the institutional differences between direct democracy and representative democracy, and there are real and important differences. For the moment, however, let me just suggest that the reciprocal duty of tolerance itself implies a sort of "egalitarianism." While I am sure Barbara Green, one of the co-founders of Hobby Lobby, would assert her values are better than my values, in part because they are divinely inspired, I would assert the contrary, and in the absence of an "official" interpretation, which would "decide" the question once and for all, we are left with something like "majority rules" to make governing decisions. "Majority rule" does not decide once and for all. It merely captures the shifting sands under the prevailing winds of public opinion. Such implies, of course, that one opinion is as good as another, but we all know that isn't actually the case. Some opinions ARE better than others. Occasionally, when teaching, I would be confronted with what students believed was a killing argument to set aside a failing grade. "I am," they would argue, "entitled to my opinion." I would answer, "yes, indeed you are. You can choose to believe whatever you choose to believe. You are also entitled to believe that the moon is made of green cheese, that demons impregnate young girls in their sleep, and that aliens will come an rescue us from our perfidy by whisking off the best of us to the planet Kronos, but you would still be wrong and would still get a failing grade from me." For those who sincerely believe the question HAS been decided once and for all, the shifting ambiguity of "majority rules" will always be somewhat disheartening, particularly if the majority is simply and clearly wrong, but on whose authority do we call something "simply and clearly wrong?" I defer to the authority that accrues to verifiable evidence and peer reviewed science, others to the authority of divinely inspired testimony and texts, itself a conflict of values that cannot be decided "officially." So, in the absence of an "authority," we are left with the reciprocal duty to tolerate, which for many becomes increasingly burdensome, which prompts the follow on question, "at what point does the reciprocal duty to tolerate itself become intolerable?"
All of which brings me round to the argument by Andrew Sullivan. I have to admit, it plays at the back of my mind for a variety of reasons, not least of which it scares me. He begins with this description of a "late stage democracy:"
the longer a democracy lasted,
Plato argued, the more democratic it would become. Its freedoms would multiply;
its equality spread. Deference to any sort of authority would wither; tolerance
of any kind of inequality would come under intense threat; and multiculturalism
and sexual freedom would create a city or a country like “a many-colored cloak
decorated in all hues.”
This rainbow-flag polity, Plato
argues, is, for many people, the fairest of regimes. The freedom in that
democracy has to be experienced to be believed — with shame and privilege in
particular emerging over time as anathema. But it is inherently unstable. As
the authority of elites fades, as Establishment values cede to popular ones,
views and identities can become so magnificently diverse as to be mutually
uncomprehending. And when all the barriers to equality, formal and informal,
have been removed; when everyone is equal; when elites are despised and full
license is established to do “whatever one wants,” you arrive at what might be
called late-stage democracy. There is no kowtowing to authority here, let alone
to political experience or expertise.
This is, of course, a description of a social state that conservatives find as anathema, particularly, of late, anything that resembles the "rainbow-flag polity" of sexual freedom and gay rights. One can wax more or less apocalyptic in what various conservative commentators have described as "moral decline," but conservative commentators, particularly those animated by religion, can identify the causes, and by implication, the remedies fairly easily. As one, Susan Stamper Brown, put it, "America's moral decline began with Presidents Woodrow Wilson and President Franklin D. Roosevelt [FDR] and their arrogant defiance and blatant hostility toward the U.S. Constitution which inspired them to lead an insurrection from the Oval Office, effectively convincing good people that government dependence is a morally acceptable alternative to dependence on God, family, community and self." I am not sure what exactly a "dependence on God" might resemble, particularly when family and community find themselves in dire straits like that of the Great Depression, but Brown's reading of the defiance and blatant hostility toward the U.S. Constitution is relatively common in conservative circles. "Progressives understood the "God-factor" must be removed to accomplish their goal of secularization," she writes, "wherein religion loses cultural and social significance. In 1947, the Supreme Court, largely packed with FDR appointees, decided the First Amendment instituted a 'wall of separation' between church and state in Everson v. Board of Education. In so doing, they were able to separate morality and ethics from government and everyday life." I am reasonably certain that FDR did not hijack the great depression for his real "goal of secularization," and would have found the notion laughable, in part because, as the supreme court affirmed, the U.S. government was already secular. The closed doctrine of the Constitution does not allow for the "institutionalization" of religion, which in turn protects an "open society" wherein various forms of religion can flourish under the reciprocal duty of toleration. It certainly does not separate morality and ethics from everyday life, insofar as Brown is free to follow whatever moral and ethical doctrine sees fit to follow. Additionally, it does not separate morality and ethics from government, insofar as the shifting sands of majority rule would allow for the legislation and enforcement of various moral rules -- e.g. "thou shalt not kill" legislated and enforced as a "murder statute." Indeed, one can argue that the U.S. is a christian nation, insofar as the christian religion is the majority religion, and with the outsize influence of any majority, it has influenced our political life for some time.
Ultimately, however, what Susan Brown finds intolerable is the First Amendment -- that part of the "closed doctrine" of the constitution that specifically insures an "open society" where traditions other than the christian tradition must be tolerated. Implicit to her argument, and to Sullivan's reading of Plato above, is the assumption that all morality and all ethics flow from authority. One cannot cede authority to the shifting sands of majority opinion, because, well, they are shifty. They lack "once and for all" authority. As Brown writes, "The only way Progressivism wins is without the presence of absolute truth. Without it, morality is defined by ever-changing social whims; what's wrong today is right tomorrow. Truth is, it's impossible to define morality without a plumb line or divine standard." For Brown, and those who think like Brown, there can be only one plumb line, one divine standard, and it is her version of evangelical christianity. It cannot be the "divine standard" articulated in the koran and sharia law -- indeed, she finds it distressing that "mosques are being raised at record levels in towns and cities across America and Europe" -- and I suspect she would find the prevalence of the Torah equally distressing. She would, in other words, have the "closed doctrine" of the constitution establish the "closed doctrine" of her religion, and her church as the only arbiter of "absolute truth," and there is a good deal of contorted historical revisionism to suggest the "founding fathers" intended a christian nation all along, an intention distorted and usurped by today's "progressives." I don't know what Brown thinks of the current election (and honestly don't have enough interest to find out) but the ChristianPost, where she published her take on constitutional history, suggests that "as Trump and many Americans feel that the nation has become extremely divided, Trump contended that it can only be America's 'faith in God' and 'His teachings' that will reunite the country. He stressed that 'we all come from the same Creator' and if Americans can remember that fact, 'then our future is truly limitless.'" Of course, there are Americans like me, who do not see it as a given "fact" that we "all come from the same creator," and find it no more compelling than the notion that Gaea gave birth to Uranus, nor will I likely come round to a profession of "faith in His teachings," as such, at least not willingly, and so it will take an exercise of a different "authority" to "reunite the country." It is a familiar sort of authority exercised by true believers, for whom "failing to acknowledge the gods the city acknowledges" is a crime punishable by death, as Socrates learned, and may have learned since and are still learning for a wide variety of Gods.
I am suggesting that the tide of American history, with its ever increasing demands on our duty to tolerate difference, has pushed the evangelical christians and many conservatives beyond the limits of their tolerance, enough so that it threatens the American constitutional experiment in an open society bound by its duty to tolerate difference. It is one thing for a methodist to tolerate a presbyterian, perhaps even a catholic or a norman but a muslim? It is one thing to tolerate interdenominational marriage, even to a degree inter-racial marriage, but gay marriage? It is within this perceived climate of "moral decay," where there is no one recognized authority, that, as Sullivan goes on to argue,
Ultimately, however, what Susan Brown finds intolerable is the First Amendment -- that part of the "closed doctrine" of the constitution that specifically insures an "open society" where traditions other than the christian tradition must be tolerated. Implicit to her argument, and to Sullivan's reading of Plato above, is the assumption that all morality and all ethics flow from authority. One cannot cede authority to the shifting sands of majority opinion, because, well, they are shifty. They lack "once and for all" authority. As Brown writes, "The only way Progressivism wins is without the presence of absolute truth. Without it, morality is defined by ever-changing social whims; what's wrong today is right tomorrow. Truth is, it's impossible to define morality without a plumb line or divine standard." For Brown, and those who think like Brown, there can be only one plumb line, one divine standard, and it is her version of evangelical christianity. It cannot be the "divine standard" articulated in the koran and sharia law -- indeed, she finds it distressing that "mosques are being raised at record levels in towns and cities across America and Europe" -- and I suspect she would find the prevalence of the Torah equally distressing. She would, in other words, have the "closed doctrine" of the constitution establish the "closed doctrine" of her religion, and her church as the only arbiter of "absolute truth," and there is a good deal of contorted historical revisionism to suggest the "founding fathers" intended a christian nation all along, an intention distorted and usurped by today's "progressives." I don't know what Brown thinks of the current election (and honestly don't have enough interest to find out) but the ChristianPost, where she published her take on constitutional history, suggests that "as Trump and many Americans feel that the nation has become extremely divided, Trump contended that it can only be America's 'faith in God' and 'His teachings' that will reunite the country. He stressed that 'we all come from the same Creator' and if Americans can remember that fact, 'then our future is truly limitless.'" Of course, there are Americans like me, who do not see it as a given "fact" that we "all come from the same creator," and find it no more compelling than the notion that Gaea gave birth to Uranus, nor will I likely come round to a profession of "faith in His teachings," as such, at least not willingly, and so it will take an exercise of a different "authority" to "reunite the country." It is a familiar sort of authority exercised by true believers, for whom "failing to acknowledge the gods the city acknowledges" is a crime punishable by death, as Socrates learned, and may have learned since and are still learning for a wide variety of Gods.
I am suggesting that the tide of American history, with its ever increasing demands on our duty to tolerate difference, has pushed the evangelical christians and many conservatives beyond the limits of their tolerance, enough so that it threatens the American constitutional experiment in an open society bound by its duty to tolerate difference. It is one thing for a methodist to tolerate a presbyterian, perhaps even a catholic or a norman but a muslim? It is one thing to tolerate interdenominational marriage, even to a degree inter-racial marriage, but gay marriage? It is within this perceived climate of "moral decay," where there is no one recognized authority, that, as Sullivan goes on to argue,
a would-be tyrant will often seize
his moment. He is usually of the elite but has
a nature in tune with the time — given over to random pleasures and whims,
feasting on plenty of food and sex, and reveling in the nonjudgment that is
democracy’s civil religion. He makes his move by “taking over a particularly
obedient mob” and attacking his wealthy peers as corrupt. If not stopped
quickly, his appetite for attacking the rich on behalf of the people swells
further. He is a traitor to his class — and soon, his elite enemies, shorn of
popular legitimacy, find a way to appease him or are forced to flee.
Eventually, he stands alone, promising to cut through the paralysis of
democratic incoherence. It’s as if he were offering the addled, distracted, and
self-indulgent citizens a kind of relief from democracy’s endless choices and
insecurities. He rides a backlash to excess—“too much freedom seems to change
into nothing but too much slavery” — and offers himself as the personified
answer to the internal conflicts of the democratic mess. He pledges, above all,
to take on the increasingly despised elites. And as the people thrill to him as
a kind of solution, a democracy willingly, even impetuously, repeals itself.
It is, of course, rather odd to see a very wealthy man, who has wallowed throughout his life in a tabloid hedonism, quoting scripture, as Trump did at the Family Research Council's Values Voters Summit. It would be easy enough to dismiss it as mere hypocrisy, revving up a particular crowd at a particular place and time, and it might be enough to remind the cheering crowd at the values summit of another scripture, Matthew 19:23. Nevertheless, I have also suggested that he relies on "a particularly obedient mob," and a "mob mentality" for personal affirmation, as a sort of viagra to his ego, but it is also serves to affirm that he is in fact the "authority," that the people (or perhaps more precisely, HIS people) affirm that only he can reverse the moral decay and make America great again. He is "the personified answer to the internal conflicts of the democratic mess," and a constituency who believes in "faith based authority" seems willing enough to place their faith in his sole authority.
Though his argument is much more nuanced and much more historically convincing, Sullivan too sees an erosion of constitutional authority as the particular threat, particularly those aspects of the constitution that created a "representative elite" apart. "The
Founding Fathers had read their Plato," he suggest, and "To guard our democracy from the tyranny
of the majority and the passions of the mob, they constructed large, hefty
barriers between the popular will and the exercise of power." Many of those barriers exist in the difference between a representative democracy and a direct democracy, and the particular difficulty that we face is the continuing erosion of the former by the latter. I won't detail the full extent of his argument, but most of the "hefty barriers" were the constitutionally defined aspects of representative government. I am not a constitutional scholar, and though I suspect a bit of historical revisionism in Sullivan as well, he cites the electoral college as a case in point. "The
president and vice-president were not to be popularly elected," he tells us, "but selected by
an Electoral College, whose representatives were selected by the various
states, often through state legislatures." He goes on to tell us a bit later, that "the
barriers to the popular will, especially when it comes to choosing our
president, are now almost nonexistent." Though In 2000, "George W. Bush lost the popular
vote and won the election thanks to Electoral College math," for most Americans, the electoral college math is an archaic impediment to a more direct democracy, and for most Americans, particularly the democrats, the election result was deeply tainted, even more so because there followed "a partisan Supreme Court vote" that confirmed Bush's election. As Sullivan notes, "Al Gore’s eventual concession
spared the nation a constitutional crisis, but the episode generated widespread
unease," and "not just among Democrats."
Setting aside the issue of the electoral college, the most telling statement is the notion of the "partisan Supreme Court vote." It is no secret that the constitutionally defined process for selecting Supreme Court justices has been set aside pending the partisan presidential election. If the Supreme Court is the final arbiter, interpreting the "closed doctrine" of the constitution, then the next election does provide a set of special circumstances: "a particularly polarized electorate, the presumptive selection of an outsider candidate for the Republican Party, Justice Antonin Scalia’s death, an aging Court, and the Republican Senate’s unusual success in avoiding confirmation hearings to fill the Scalia vacancy," not to mention the possibility that the next president may appoint up to four judges, all have conspired to make the presidential election a high stakes election for the future of the country. Many republicans feel it a sufficient reason for voting Trump in the next election. As Trump warned conservatives "In Cedar Rapids, Iowa, on July 28, "If you really like Donald Trump, that's great, but if you don't, you have to vote for me anyway. You know why? Supreme Court judges, Supreme Court judges. Have no choice, sorry, sorry, sorry. You have no choice.” Which was followed by a tissue thin veiled threat of violence against those judges and/or Hillary Clinton by 2nd Amendment people. Nevertheless, it leads some republicans to vote Trump on the possibility that "If Hillary Clinton wins, the Left gavels in a solid, lasting, perhaps even permanent majority on the Supreme Court. Every political issue has a theoretical path to SCOTUS, and only self-imposed judicial restraint has checked the Court's appetite and reach for two centuries." David Frum writing in the Atlantic identifies six reasons why it is an insufficient reason for voting Trump, not least that "Trump commitments are notoriously worthless. The only thing you can be sure you get with Trump is … Trump himself. Every other offer is subject to cancellation without notice." As Frum also notes, "Trump’s lack of understanding and interest in constitutional issues is notorious," and he has given every reason to believe that he will appoint justices to serve Trump's own narrow and opportunistic purposes. Although he has battled with the party "elite" on numerous occasions, even assuming he makes nice and accedes to their choices for the Supreme Court as indicated by his list of potential appointees, it is unclear to me, given the predispositions of most conservatives today, that they will protect and defend a constitution designed to protect an "open society." As a case in point, Don Willett, an elected judge on Trump's list, "helped defend the right of Texas to display the (Bible's) Ten Commandments and fought the liberals who tried to remove the words 'under God' from our pledgeof allegiance, his campaign said in a 2012 advertisement." As Reuter's reports, "before becoming a judge, Willett was part of Texas' legal team that won a Supreme Court battle to display the Ten Commandments on a monument in the state Capitol despite opponents' concerns that it amounted to government endorsement of a religion." While a relatively minor issue, one should remember that the 10 commandments contain the imperative that "thou shalt have no other gods before me," and its display in the building housing state government could only be interpreted as a government endorsement of a particular religious tradition, unless of course one tolerated as well displayed segments of the koran, the buddhist precepts, among other religious traditions.
Ultimately, I am suggesting that the real threat to our experiment in an open society comes in three successive stages, each precipitated by conservative recalcitrance. The first stage, to use Sullivan's term, comes in "late stage democracy" when the duty to tolerate within a "progressively open" society transgresses the line and becomes intolerable. Each successive line, of course, is met with those who would defend that line, and you have William Pryor, another justice on Trump's list, proclaiming that "a constitutional right that protects 'the choice of one's partner' and 'whether and how to connect sexually' must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia." Pryor said in a legal filing to the Supreme Court." Although there are well established ways to differentiate between "the choice of one's partner" for gay sex, and the "choice of one's partner" for child pornography and pedophilia -- think consenting adults and the ability to give meaningful consent between adults -- one must nevertheless assume his outrage is real and sincere. The second stage comes when a "would be tyrant" seizes the moment and offers himself as the "personified" answer to the conflicting values inherent to an open society. If I am correct, if the constitution is a "closed doctrine" protecting the "open society," the third stage comes when the would be tyrant simply sets the constitution aside as irrelevant to the "new order," which Trump gives every indication would be his preference. As Sullivan notes, "if Trump’s policies are checked by other branches of government, how might he react? Just look at his response to the rules of the GOP nomination process. He’s not interested in rules. And he barely understands the Constitution. In one revealing moment earlier this year, when asked what he would do if the military refused to obey an illegal order to torture a prisoner, Trump simply insisted that the man would obey: 'They won’t refuse. They’re not going to refuse, believe me.'” One should read this in the context of his latest statement that the Obama administration has reduced the current set of military leaders "to rubble" and that he would replace them with his own men. Even assuming that he maintains the current "checks and balances," however, as Sullivan also notes, were he to win the white house, "he would likely bring a GOP majority in the House, and Republicans in the Senate would be subjected to almighty popular fury if they stood in his way. The 4-4 stalemate in the Supreme Court would break in Trump’s favor," and if his list is any indication of the composition of a Trump supreme court, there would be little need for fury. He would nominate and the Senate would appoint justices who see the constitution, not as a closed doctrine protecting an open society, but as a closed doctrine subordinate to the absolute truth of a more comprehensive and compelling "closed doctrine," one that justifies racial, religious, and gender hegemony with the clarity of a strict authoritarian hierarchy that sets whites over colored, christians over non-christians, and men over women. This election is a choice between two competing values, not the miscellaneous moral outrage at such things as gay sex or adultery, but between a democratic party (sometimes ineptly) defending our experiment in a constitutionally defined "open society," and a conservative party increasingly at war with its inevitable challenges and confusions, a conservative party willing to subvert constitutionally defined processes now for partisan outcomes later, a conservative party increasingly willing to embrace (or if not wholehearted embrace, then reluctantly submit to) the proto-fascism of the so-called alt-right, and the list goes on. Even if Trump loses or turns out to be as feckless as many politicians of late, if he isn't the "extinction level event" for the open society that some of us fear, he nevertheless represents an oddly apocalyptic and messianic desire for an "extinction level event" that dominates one party of our two party system. What will come of it is anyone's guess.
Setting aside the issue of the electoral college, the most telling statement is the notion of the "partisan Supreme Court vote." It is no secret that the constitutionally defined process for selecting Supreme Court justices has been set aside pending the partisan presidential election. If the Supreme Court is the final arbiter, interpreting the "closed doctrine" of the constitution, then the next election does provide a set of special circumstances: "a particularly polarized electorate, the presumptive selection of an outsider candidate for the Republican Party, Justice Antonin Scalia’s death, an aging Court, and the Republican Senate’s unusual success in avoiding confirmation hearings to fill the Scalia vacancy," not to mention the possibility that the next president may appoint up to four judges, all have conspired to make the presidential election a high stakes election for the future of the country. Many republicans feel it a sufficient reason for voting Trump in the next election. As Trump warned conservatives "In Cedar Rapids, Iowa, on July 28, "If you really like Donald Trump, that's great, but if you don't, you have to vote for me anyway. You know why? Supreme Court judges, Supreme Court judges. Have no choice, sorry, sorry, sorry. You have no choice.” Which was followed by a tissue thin veiled threat of violence against those judges and/or Hillary Clinton by 2nd Amendment people. Nevertheless, it leads some republicans to vote Trump on the possibility that "If Hillary Clinton wins, the Left gavels in a solid, lasting, perhaps even permanent majority on the Supreme Court. Every political issue has a theoretical path to SCOTUS, and only self-imposed judicial restraint has checked the Court's appetite and reach for two centuries." David Frum writing in the Atlantic identifies six reasons why it is an insufficient reason for voting Trump, not least that "Trump commitments are notoriously worthless. The only thing you can be sure you get with Trump is … Trump himself. Every other offer is subject to cancellation without notice." As Frum also notes, "Trump’s lack of understanding and interest in constitutional issues is notorious," and he has given every reason to believe that he will appoint justices to serve Trump's own narrow and opportunistic purposes. Although he has battled with the party "elite" on numerous occasions, even assuming he makes nice and accedes to their choices for the Supreme Court as indicated by his list of potential appointees, it is unclear to me, given the predispositions of most conservatives today, that they will protect and defend a constitution designed to protect an "open society." As a case in point, Don Willett, an elected judge on Trump's list, "helped defend the right of Texas to display the (Bible's) Ten Commandments and fought the liberals who tried to remove the words 'under God' from our pledgeof allegiance, his campaign said in a 2012 advertisement." As Reuter's reports, "before becoming a judge, Willett was part of Texas' legal team that won a Supreme Court battle to display the Ten Commandments on a monument in the state Capitol despite opponents' concerns that it amounted to government endorsement of a religion." While a relatively minor issue, one should remember that the 10 commandments contain the imperative that "thou shalt have no other gods before me," and its display in the building housing state government could only be interpreted as a government endorsement of a particular religious tradition, unless of course one tolerated as well displayed segments of the koran, the buddhist precepts, among other religious traditions.
Ultimately, I am suggesting that the real threat to our experiment in an open society comes in three successive stages, each precipitated by conservative recalcitrance. The first stage, to use Sullivan's term, comes in "late stage democracy" when the duty to tolerate within a "progressively open" society transgresses the line and becomes intolerable. Each successive line, of course, is met with those who would defend that line, and you have William Pryor, another justice on Trump's list, proclaiming that "a constitutional right that protects 'the choice of one's partner' and 'whether and how to connect sexually' must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia." Pryor said in a legal filing to the Supreme Court." Although there are well established ways to differentiate between "the choice of one's partner" for gay sex, and the "choice of one's partner" for child pornography and pedophilia -- think consenting adults and the ability to give meaningful consent between adults -- one must nevertheless assume his outrage is real and sincere. The second stage comes when a "would be tyrant" seizes the moment and offers himself as the "personified" answer to the conflicting values inherent to an open society. If I am correct, if the constitution is a "closed doctrine" protecting the "open society," the third stage comes when the would be tyrant simply sets the constitution aside as irrelevant to the "new order," which Trump gives every indication would be his preference. As Sullivan notes, "if Trump’s policies are checked by other branches of government, how might he react? Just look at his response to the rules of the GOP nomination process. He’s not interested in rules. And he barely understands the Constitution. In one revealing moment earlier this year, when asked what he would do if the military refused to obey an illegal order to torture a prisoner, Trump simply insisted that the man would obey: 'They won’t refuse. They’re not going to refuse, believe me.'” One should read this in the context of his latest statement that the Obama administration has reduced the current set of military leaders "to rubble" and that he would replace them with his own men. Even assuming that he maintains the current "checks and balances," however, as Sullivan also notes, were he to win the white house, "he would likely bring a GOP majority in the House, and Republicans in the Senate would be subjected to almighty popular fury if they stood in his way. The 4-4 stalemate in the Supreme Court would break in Trump’s favor," and if his list is any indication of the composition of a Trump supreme court, there would be little need for fury. He would nominate and the Senate would appoint justices who see the constitution, not as a closed doctrine protecting an open society, but as a closed doctrine subordinate to the absolute truth of a more comprehensive and compelling "closed doctrine," one that justifies racial, religious, and gender hegemony with the clarity of a strict authoritarian hierarchy that sets whites over colored, christians over non-christians, and men over women. This election is a choice between two competing values, not the miscellaneous moral outrage at such things as gay sex or adultery, but between a democratic party (sometimes ineptly) defending our experiment in a constitutionally defined "open society," and a conservative party increasingly at war with its inevitable challenges and confusions, a conservative party willing to subvert constitutionally defined processes now for partisan outcomes later, a conservative party increasingly willing to embrace (or if not wholehearted embrace, then reluctantly submit to) the proto-fascism of the so-called alt-right, and the list goes on. Even if Trump loses or turns out to be as feckless as many politicians of late, if he isn't the "extinction level event" for the open society that some of us fear, he nevertheless represents an oddly apocalyptic and messianic desire for an "extinction level event" that dominates one party of our two party system. What will come of it is anyone's guess.
No comments:
Post a Comment