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A Conservatism Parasitic on the Liberal Tradition: Yoram Hazony’s Conservatism: A Rediscovery

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Forged from below, conservatism has none of the calm or composure that attends an enduring inheritance of power…Even Maistre’s professions of divine providence cannot conceal or contain the turbulent democracy that generated them. Made and mobilized to counter the claims of emancipation, such a statement does not disclose a dense ecology of deference; they open out onto a rapidly thinning forest. 

Corey Robin, The Reactionary Mind

Post-liberal or “national conservatism” has enjoyed a high profile in recent years, as the intellectual vanguard or cutting edge of the political right. Challenging established dogmas across the spectrum and positioning itself as a conservatism for the 21st century, it has also begun deepening traction with a broader public that is skeptical of libertarian pieties and wants to see stronger protections for national identities and socially conservative values. This is in spite of the fact that for the past few years post-liberals have been better at offering criticisms of liberalism than offering systematic alternatives much beyond pointing to unappealing quasi-authoritarian “illiberal” regimes like Hungary and Poland. That has begun to change as post-liberal national conservatism gains confidence, and early 2022 has seen the release of major works like Adrian Vermuele’s Common Good Constitutionalism and Sohrab Ahmari’s new magazine Compact  . 

Far and away the most systematic work in this vein is Yoram Hazony’s Conservatism: A Rediscovery. Clocking in at almost 500 pages it can only be compared to something like George Will’s similarly girthy The Conservative Sensibility, which was the literary equivalent of pouring 1000 tons of intellectual concrete into the widening cracks of right-wing American liberalism. Hazony will have none of that. He makes an unambiguous case for rejecting what he perceives to be an often “worthless” Enlightenment rationalism, contemporary liberal “decadence,” and the imperial violence of cosmopolitan universalism. 

I have actually spoken to Hazony, and in person he’s amiable, charitable, and dialogical towards his opponents. I like him personally and admire his religious dedication to Orthodox Judaism. There’s also no doubt about the depth of his convictions. The conclusion of Conservatism: A Rediscovery includes a lengthy final section on living a “conservative life” which includes the kind of intimately autobiographical ruminations one finds in Søren Kierkegaard or bell hooks. Much of this is genuinely moving and Hazony is to be commended for the bravery required to expose so much of himself to public scrutiny. 

But as both a critique of liberalism and a political philosophy I found Conservatism: A Rediscovery highly unconvincing. It doubles down on many of the frustrating habits that have marred Hazony’s work since he shot to prominence with 2018’s The Virtue of Nationalism. These have led even sympathetic critics to accuse him of “intellectual shuffleboard[ing]” and of selectively bifurcated readings of history. I would add to that a frustrating tendency to not engage seriously or carefully with the liberal and leftist views he dislikes, something I already pointed out in a lengthy critique of Hazony’s account of Marxism (reprinted in the present book). Hazony doubles down on these tendencies in Conservatism: A Rediscovery, which means despite its epic sweep and undoubted literary virtues it has many fatal flaws. 

The critique of enlightenment rationalism 

One of the more interesting contributions of Conservatism: A Rediscovery is Hazony’s argument that conservatism is predicated on a different epistemological outlook than liberalism. While liberals from Locke through Kant are committed to abstract Enlightenment rationalism, Hazony argues that conservatives derive their political convictions from “historical empiricism.” I will have a great deal to say about historical empiricism shortly. First, it is worth noting how dubious Hazony’s claims about liberal rationalism are. 

Hazony blames rationalism for bringing us into the “abyss” of our often “grotesque” modern world. Sometimes Hazony castigates it as a kind of neo-pagan polytheism which allows each individual to worship whichever idol he prefers, at other points it’s a godless and nihilistic materialism where the divine spark of reality has been withdrawn. Sometimes rationalism is dogmatically universalistic, at others dangerous, corrosive, and sophistical. Early in the book Hazony characterizes Descartes as the founder of modern rationalism, in the sense of arguing that the way to proceed to truth is through starting with unassailable premises and proceeding deductively to systematize an outlook from there. At other points he goes back further and diagnoses classical Stoicism as the real manure out of which liberalism coagulated. 

The problem of course is that many of the major early liberal and proto-liberal thinkers don’t fit the rationalistic mold into which Hazony tries to shove them. Hobbes was a materialist; Locke was an empiricist (a point Hazony acknowledges before shrugging it aside); Kant was not a rationalist but a transcendental idealist. J.S. Mill and Karl Popper were fallibilists, and as Hazony admits, F.A. Hayek endorsed a kind of historical empiricism very similar to his own. Despite Hazony’s claims none of the major liberal theorists ever argues that human reason was “infallible” and “available to all men” regardless of circumstance. 

If anything, a standard liberal claim since at least Kant is that our reasoning capacities are profoundly limited, which is one of the reasons we should foster a free exchange of ideas while challenging the imposition of heteronymous dogmas. Nor is it the case that liberals simply asserted as axiomatic truths principles like the moral equality of all human beings and insisted on their legitimacy without argument. The doctrine of moral equality has been defended with argument many times and in many different ways. Utilitarians have stressed how each individual’s equal capacity to experience pleasure or pain implies his or her preferences deserve as much moral weight as anyone else’s (some have even included animals). Various deontological arguments stress either the intrinsic or ascribed equal worth of all individuals on the basis of their shared autonomy, capacity to reason, rights, or membership within the community, and so on. 

Nor has any liberal, or even proto-liberal, ever endorsed the claim that human reason was all powerful. To give just one example, Hobbes’ Leviathan opens with an extended discussion of all the different ways even the reason of “prudent men” can be distorted. This was primarily through the use of words which refer to unempirical objects—including many of Hazony’s cherished transcendent categories like the “nation” or God—which, since they don’t correspond to sense experience, must be literally nonsensical and “absurdities.” Since we can have no sense of these objects, there is no possibility of settling disputes between them by reference to the real world; human beings can thus only fight over them. One reason Hobbes argues for a Leviathan is the need for a positive system of law to inhibit the violence that invariably comes from all too human arguments about such absurdities, which individuals are often incapable of settling on their own. In this respect Hobbes’ empiricism—not to mention his rather conservative statism—is far more consistent and demanding than Hazony’s, which carves out big exceptions for the unempirical and transcendent concepts he expects to further glue the nation together.    

The anxieties behind the critique

My suspicion is that Hazony’s shifting critiques of rationalism have less to do with a close reading of the liberal epistemology, and more to do with his underlying anxieties about the uncertainty and egalitarianism that results. He makes this quite clear later in the book:

Enlightenment rationalism supposes that individuals, if they reason freely about political and moral subjects without reference to tradition, will quickly discover the truth concerning these matters and move toward a consensus. But experience suggests just the opposite: When people reason freely about political and moral questions, they produce a profusion of varying and contradictory opinions, reaching no consensus at all. Indeed, the only thing that reasoning without reference to some traditional framework can do with great competence is identify an unlimited number of flaws and failings, both imagined and real, in whatever institutions and norms have been inherited from the past. Where individuals are encouraged to engage in this activity, the process of finding flaws in inherited institutions proceeds with ever greater speed and enthusiasm, until in the end whatever has been inherited becomes a thing of lightness and folly in their eyes. In this way, they come to reject all the old ideas and behaviors, uprooting and discarding everything that was once a matter of consensus. This means that Enlightenment rationalism, to the extent that its program is taken seriously, is an engine of perpetual revolution, which brings about the progressive destruction of every inherited institution, yet without ever being able to consolidate a stable consensus around any new ones. In reality, consensus does not arise from free debate without reference to any particular tradition of ideas. Instead, consensus is a characteristic of human hierarchies, and it is only within a given hierarchy that this characteristic appears.

This has long been a conservative talking point against Enlightenment reason; whether in its rationalistic, empiricist, or transcendental forms. As a philosophical argument against reason it has never been that convincing, in no small part because it is often compelled to draw upon rational premises to try and launch a sustainable critique of reason. For conservatives like Hazony, the fundamental problem isn’t epistemological, but political and cultural. Joseph de Maistre opined that to submit hierarchy and government to “the discussion of each individual” was to destroy it. Roger Scruton made the point even more explicitly in his The Meaning of Conservatism when he praised the “natural instinct in unthinking people—who, tolerant of the burdens that life lays on them, and unwilling to lodge blame where they seek no remedy, seek fulfillment in the world as it is—to accept and endorse through their actions the institutions and practices into which they are born.” Hazony’s belief in hierarchical political structures where those at the bottom largely accept what they are told and cease trying to find “unlimited flaws”—even if real!—in traditions he happens to venerate flows from the same impulse. 

This impulse works its way past the many contradictions and interpretive errors in the book, since at its core it is unappealing but consistent. Hazony wants a world where traditional hierarchies and beliefs are venerated and largely unquestioned, except along the narrow fronts necessary to repair and re-legitimate them over generations. To the extent the liberal conviction that everything should remain perennially open to philosophical and political questioning challenges this, it is to be rejected; though to what extent is a point on which Hazony is never entirely clear. As he acknowledges, for a long time conservatives in the American South propped up a slave hierarchy by arguing that racial inequality was an incontestable natural fact which liberalism wasn’t to question. We’re all better off that it did, and naturally Hazony is unwilling to go all the way with someone like Maistre in insisting everyone simply submit to established dogma or face the hangman. 

Another strange claim, echoing Patrick Deneen, is Hazony’s argument that liberal “rationalism” has failed or is in the process of failing. This is in part because Hazony believes no universalistic doctrine has ever managed to successfully detach individuals from  ties of family, tribe, and nation and the moral particularism and favoritism which flow from them. This sits with profound discomfort next to other parts of the book where the exact opposite argument is made. As when Hazony argues:

As the cultural revolution has progressed, everything that was once honored has become a matter of public indifference. And as this has happened, every traditional constraint has been lost. At first, it was thought that the result would be only license and abandon. And indeed, this is a fine description of what Enlightenment liberalism looked like one generation after its triumph. At that time, one could win praise and honor for daring acts of transgression—for evading military service, for sexual profligacy and adventurism, for drug use, for blasphemy and obscenity, for desecration of the sabbath, and so on. But by the second generation, this too has dissipated, and little is to be gained by violating the old norms with acts that are by now commonplace. No one is left who will be impressed by them. Now an entirely different kind of decay is ascendant: a growing lassitude and despair, a true decadence in which no praise is to be gained from moving in any direction. And so meaningful movement ceases, and all that is left is the monotonous parade of sensations induced by alcohol, drugs, and flickering screen

This doesn’t look like liberal rationalism failing. If anything this passage suggests it has been dramatically successful. Indeed Hazony often resents the “hegemony” liberalism has over more people and wider swathes of the globe than any other historical doctrine. At the conclusion of the book he even admits that it’s unlikely that his kind of conservatism will garner majoritarian support in staunchly liberal countries, in part because citizens remain enamored with liberalism. This would seem to imply that, even if its rationalistic claims were not true, from the pragmatic standpoint of historical empiricism it seems to be working. Too well for Hazony’s liking. How to square this Yazony doesn’t really say, exceptby  grumbling that it was upheld by the previous and more esteemed traditions still in place. Sometimes Hazony tries to evade this problem by defining Anglo-liberalism itself as a tradition. Though, as Jeremy Waldron points out, if it is a tradition that happens to be characterized by a universalistic outlook, one wonders how Hazony could criticize its universalism without presuming the very kind of external and rationalistic standpoint his analysis is intended to preclude. If universalism is so intrinsic to the liberal “tradition” no immanent criticism can touch it. 

This tendency reflects a deeper ideological propensity within the conservative tradition since at least Maistre waffled between presenting the French revolutionaries as an existential threat to the cosmos and insisting that providence had already ordained their downfall. The ideological tendency of conservatism is to shift fluidly between caricaturing liberal universalism as defunct, unrealistic, and uncompelling when criticizing it and describing it as omnipresent, dangerous, potentially hegemonic, and even a nihilistic force threatening to sweep over the entire world. This tendency is irritating, but one needs to recognize that both sides of this ideological maneuver are necessary. Liberal modernity must be too stupid for anyone to buy into it while still threatening enough to pose a real danger. Tilt too much towards the former and one cannot mobilize, tilt too much towards the latter and one risks presenting it as a doctrine of such extraordinary strength and appeal it cannot be defeated.  In the book’s better moments Hazony grudgingly admits that liberalism has proven attractive to many because some of its features may actually be appealing. 

The contradictions of historical empiricism 

To his credit, Hazony does present an alternative epistemology to Enlightenment rationalism to help answer these questions. That is historical empiricism, which Hazony defines as believing that 

the authority of government derives from constitutional traditions known, through the long historical experience of a given nation, to offer stability, well-being, and freedom. These traditions are refined through trial and error over centuries, with repairs and improvements being introduced where necessary, while seeking to maintain the integrity of the inherited national edifice as a whole. Such historical empiricism entails a degree of skepticism regarding the divine right of the rulers, the universal rights of man, and all other abstract, universal systems. Written documents express and consolidate the constitutional tradition of the nation, but they neither capture nor define this political tradition in its entirety.

Hazony goes on to describe historical empiricism as the philosophical underpinning of much of Anglo-American conservatism from John Selden through Madison and Burke. One could contest this, but even at face value, is historical empiricism an attractive philosophy on its own merits? Saying we should rely on historical experience alone to guide us to well-being means little because the argument is precisely over what constitutes well-being. For the millions of enslaved and colonized peoples of the British empire, there was little charm in maintaining institutions which had proved themselves valuable to men like Selden. So the question then becomes which position we should prioritize, and can only be answered by appealing to principles which go beyond experience and tradition itself. But these are precisely the kinds of abstract ideals which historical empiricism intends to preclude. And of course this is exactly what happens, since Hazony quickly argues that the traditions and institutions which have proven themselves are those predicated on Judeo-Christian mores ultimately backed up in the transcendent truths revealed by scripture. 

Indeed Hazony’s condemnation of liberal rationalism and universalism sometimes take on an overtly religious tone, as when he argues that liberals have 

confused [their] own local, limited perspective for that of God. He has forgotten that he approaches truth by means of a scheme of ideas that blinds him to whatever it was not framed to grasp, and that there are, inevitably, hidden factors that his principles are not taking into account. These hidden factors will eventually emerge and demand their due, often bringing on a calamity that a less arrogant theory of knowledge might have avoided. For this reason, a man who has confused his own local, limited perspective for that of God is potentially a very dangerous person indeed.

In hot blooded passages like this, one recalls Albert Hirschman’s famous argument about the conservative’s attraction to the “perversity thesis,” a kind of mythologized assertion that liberalism and progressivism will bring about their own destruction. Unfortunately such assertions are better remembered for their rhetorical glamor than their argumentative punch.  

One of the critical weaknesses of empiricism—historical or otherwise—is that it quickly turns into a kind of idealism. In Hazony’s case this takes the form of reifying sublime idealization like the “nation” or postulating the existence of abstract principles or transcendent entities like God to legitimate his outlook. Marx’s historical materialism is more analytically probing because it can account for how these reified idealizations emerge and gain support. The mechanism is often less impressive than Hazony would have it. 

Consider his cherished concepts of the “tribe” and the “nation.” For all his references to empiricism, it is very clear that these entities—from the standpoint of pure empirical realism—do not exist. There is no material object we can associate with any given nation in empirical reality. So Hazony’s argument is that in fact the nation is a kind of lived empirical reality, one that is created by human beings and invested with affective meaning and significance. As an anthropological point that may be true. But then it is a “real abstraction”—a social imaginary or “imagined community” existing first in the heads and then through the behaviors of empirically existent individuals at a given historical moment. To say something is not actually an empirical entity isn’t to devalue it; our relationships with other people are among the most important facets of our lives. But it is to say that their existence is not ontologically necessary; our relations are human creations that can transparently be—and indeed have been—changed, rejected, and abandoned if so desired. Hazony doesn’t want this and so we see the “nation” transformed into a kind of ideal.

The problems with nationalism 

Like many conservative theorists, Hazony is never able to wean himself entirely from the liberal tradition. This goes beyond just admitting that some of the concrete achievements of liberalism, like the civil rights movement, warrant commendation. There is a sense in which many of Hazony’s arguments affirm Edmund Neill’s apt observation in his recent Conservatism that the intellectual right often reacts to liberalism and leftism by developing “symbiotic opposites to progressive concepts in order to rebut them.” 

This is evident in Hazony’s arguments for nationalism. At one point he suggests the varieties of national governments should be “be regarded as so many experiments, which, by trial and error, permit mankind to discover the principles most conducive to strengthening the nation against its rivals and securing the welfare of its members.” This transparently echoes Mill’s famous argument about the value of individual experiments in living, through which humankind could discover the ideal forms of the good life while enabling each person to qualitatively develop their selfhood in line with their own “inner tendencies.” Except Hazony applies this idea to the national level, with more than a twinge of geopolitical social Darwinism thrown in for good measure. But if these experiments are good at the national level, why would they not be good for individuals and the communities they are a part of, especially since denying individuals the opportunity to engage in such experiments in living both violates their consent and compels them to live inauthentically. 

This also applies to Hazony’s religious views; nowhere does he answer Kierkegaard and Charles Taylor’s observation that national religions backed by state power undermine the capacity of their members to live genuinely religious lives. They contend the individual’s relationship to God—what is of highest existential concern—becomes subordinated to the merely ethical needs of man and the demands of totalizing political homogeneity. 

Hazony’s account of nationalism is highly loaded. He often contrasts the kind of imperialist inclinations of universalistic doctrines with the more modest regionalism of nationalism. For Hazony, nationalist oriented states are more pacific and refrain from the kind of grand expansionist projects that brought immeasurable suffering to the world through the mid 20th century.  Except, oddly for a historical empiricist, none of Hazony’s historical examples of nationalist states bear this out. Indeed all the examples of nation states he gives in both Conservatism: A Rediscovery and the earlier The Virtues of Nationalism—France, Britain, and the United States, just to name a few—have engaged in titanic imperialist ventures on a global scale, often justified by very ugly forms of nationalist chauvinism. Over the course of their expansionist projects millions have perished. Sometimes this chauvinistic imperialism blended with certain kinds of liberalism and capitalism, while in other contexts liberal nationalism could be an emancipatory force. Hazony might remember that, as Hobsbawm points out in his excellent The Age of Imperialism, the standard flags of the nationalist independence movements liberated Europe and Latin America took from conservative Ancien Régimes were not some variation on the Union Jack or the Fleur de Lis, but the revolutionary Tricolor. 

This isn’t the only context where Hazony engages in some politically correct reconfigurations of history. Many of these are quite transparent, and undermine the credibility of the larger story he is trying to tell. For instance Hazony argues that the “decision of the 2015 German government to admit a million immigrants from the Middle East was plainly a destructive measure.” This is part and parcel of his more general resistance to generous immigration policies. No mention is made of the fact that these “immigrants” were in fact Syrian refugees fleeing from one of the most deadly wars of the 21st century. Or that this same conflict was made bloodier by the kinds of tribalistic loyalties Hazony fetishizes, much as the refugee crisis was exacerbated by the refusal of illiberal democracies like Hungary and Poland to take in their share of refugees. 

Enlightenment liberalism has only begun

I don’t agree with much of Hazony’s new book. Far from regarding Enlightenment liberalism as having run its course, I think we have only just begun to create a genuinely fair and just world where moral equals learn from each other as we all try to live our best possible lives. In this pursuit, liberals should begrudge no one the right to live a deeply conservative life if that is what they find meaningful. But to the complaint that inhibiting conservatives from imposing their own conception of the good life on others limits their political freedom, we need only say “not nearly as much as you’d limit the fundamental liberties of others if you get your way.” To the extent we wish to extend traditions into the future this must be done on a voluntary basis, and where hierarchies of domination exercise power to dominate others they should be democratized. 

Nevertheless Conservatism: A Rediscovery is a magisterial book by an important conservative intellectual. To conceptualize and defend as sweeping a political philosophy as Hazony does is a real accomplishment, and his book will undoubtedly provoke a healthy debate about every part of Hazony’s argument. But I know which side of that debate I will be on. 


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Lawful and Unconstitutional: Rule of Law in America Today

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Is America built on a foundation of broken promises? Many constitutional fundamentalists in the legal academy today believe this is without question the case. Joining this conviction is the fear that the promises broken to date will pale in comparison to those broken in the future; that to deviate from the text of our foundational document opens the door to any behavior whatsoever. Outside of the academy, with the typical American, the legitimating qualities of the Constitution take on a deeper moral tone. For the scholar, “unconstitutional” becomes synonymous with “lawless.” Among Americans, it is closer to “wicked.” An anxiety that our government as its stands simply is unconstitutional, that this will someday be revealed and the whole thing will come tumbling down, hangs over the American imagination like the Sword of Damocles.

The law is indeed a body of promises, in the form of constitutional and statutory text, executive orders, contracts, and organizational rules, and also both explicit and tacit norms. Some of these promises are substantive commitments, such as the government’s promise to punish murderers or a supplier’s promise to fulfill a customer’s order by some agreed upon date. Other promises are procedural in nature, such as the promise that a simple majority of presiding Supreme Court justices are required to render a binding verdict, or that a majority of the House of Representatives and the Senate are required to send a bill to the president to sign, and that the bill will not gain the force of law until it obtains that signature.

The lawfulness of a given system rests on the extent to which promises are kept—whether by government actors swearing to uphold and implement the law or by private citizens swearing to follow it. Americans have a poor habit of viewing lawfulness in simple binary terms, and of making faithfulness to the word and letter of the Constitution the sole lens through which we view this question.

In truth, the lawlessness in the American system has very little to do with its constitutionality. We have legislatures which produce reams of statutory law that are too broad, vague, or incoherent to put effective guard rails around the behavior of executives. We have a party system that is undermining some of the basic institutions of democracy and actively fomenting unlawful behavior on the part of the public. And while our court system overall behaves relatively lawfully, it must cope with the capricious behavior of any five Supreme Court justices who decide to impose their will upon it.

It is nearly impossible to render a truly overall judgment of America’s lawfulness; the governance structures and the society are too vast, fragmented, and complex, the question itself is too multidimensional. There are certainly aspects, even very large aspects, which appear world class in their lawfulness. On the other hand, a nontrivial amount of American governance and social life seem world class in their lawlessness.

Though we will touch on aspects of America’s lawfulness in what follows, I will not pretend to have firm or final answers. What I can say for certain is that lawfulness in America, or anywhere, cannot and should not be judged by simply reading legal documents and peering about to see if the institutional landscape resembles what we have read. Lawfulness is a matter of what the agents of the law do, not a matter of how well they fit a formally prescribed formula laid out in advance. We need to attend more to how the system actually works, how it can actually be changed and improved, what the sources of its strengths are and how to guard its vulnerabilities, its tendency to break into lawlessness.

Lawfulness in ignorance of the law

In Robert Ellickson’s study of social order among Shasta County, California ranchers, he found a remarkable ignorance of the laws of trespass:

I found no one in Shasta County—whether an ordinary person or a legal specialist such as an attorney, judge, or insurance adjuster—with a complete working knowledge of the formal trespass rules[1]

The situation there was a bit special, with two different types of trespass rules in operation depending on where in the county you were. The landowners were the most familiar with which type of trespass law their lands fell under the jurisdiction of, but had very poor understanding of the legal implications of either type. Yet the “legal specialists” that Ellickson interviewed fared even worse. And the insurance adjusters Ellickson spoke to, whose livelihood depended upon being precise about financial risk, did worst of all, lacking working knowledge of the different trespass type jurisdictions and failing to understand the basic distinctions between them.

Can a promise be honored if no one—not the people charged with honoring it, nor the people to whom the promise is made—knows what it is? To the legal scholar, it may seem of paramount importance to recover the true meaning of the statutory promises and to begin to implement them faithfully.

The institutional arrangement which produces such a checkerboard of statutes and ordinances on the books in Shasta County certainly leaves something to be desired. To produce numerous complex promises that are difficult for even legal specialists to understand or remember is not especially lawful behavior.

Yet in Shasta County at the time that Ellickson studied it, most of the neighbors kept their promises about how to deal with the unavoidable damages that arise among one another due to the nature of their trade. The legal system kept its promise to settle conflicts peacefully where it was its authority was invoked. Social life was as orderly as can be hoped for from real human beings looking after their own interests and facing such problems as arise in the real world. Even though the relationship of the written law to this outcome is minimal at best, counterproductive at worst, Shasta County provides an excellent example of lawfulness.

Lawful societies do not originate in legal texts. Instead, they originate in history and sociology. They originate in the wrestling of specific actors with specific social problems and the institutionalization of specific approaches for managing those problems. Legal texts can be useful instruments for achieving institutionalization or influencing existing institutions. They can serve as the means for actors to coordinate in the reshaping of existing practices or the creation of new ones. They are not, however, the foundation of practice. If such a foundation exists at all, it can be found in the structure of the society itself, in the particular coordination challenges which spring from that structure, and from the society’s ongoing traditions.

Tradition over text

Some promises in the Constitution are quite plainly stated and clearly understood by all; the minimum age required to run for president or the fact that each state will have exactly two Senators is not subject to any great controversy. They are “particular and concrete.”

On the other hand, phrases such as “due process,” “cruel and unusual punishment,” and “equal protection” have a semantic openness that no amount of linguistic or historical analysis can do away with. The lack of concreteness can, in some cases, even threaten the apparent concreteness of other requirements. After all, if an amendment updates the Constitution’s meaning, and an ambiguous clause can be interpreted as being at odds with an unambiguous one from the original articles—if, say, the equal protection clause can be understood to be at odds with setting a high age requirement for running for president—then even semantic concreteness appears to be little barrier to judicial discretion.

For originalists, a phrase such as “cruel and unusual punishment” must only be taken to refer to what would have been commonly considered “cruel and unusual” at the time of ratification. But they were no less human then, and were just as prone to disagreement as we are now. And one thing that none of them believed was that the notion of cruelty at one moment in time needed to be frozen in place for legal purposes. For them, as for most people, the call not to be cruel is akin in substance as a call to act reasonably or decently. There’s no formula dictating what counts as cruel, reasonable, or decent. Everyone knows this, everyone knew this in the 1780s, and it is an exercise in intellectual desperation for legal scholars to ask us to pretend otherwise.

Outside of the hopes and dreams of scholars, open-ended promises in legal text and contracts are largely a signal of the shared spirit of the endeavor. The concrete and specific provisions, such as the procedure by which a bill becomes law or by which a case reaches the Supreme Court, end up providing the framework within which what is open-ended at the outset can be made specific and actionable.

Judges and other institutional actors are further constrained by, on the one hand, a set of institutionalized practices, and on the other, a tradition of contested but specific interpretations of the text.

It is the latter which historian James Oakes invokes in his blistering critique of Noah Feldman’s recent book The Broken Constitution. To Feldman, there is a straightforward interpretation of the Constitution that was understood by the mainstream players from the founding to the Civil War. Oakes, however, correctly points out that the American political and legal system contained conflicting interpretations within it from the beginning.

During the debates over its ratification, the Constitution’s proslavery opponents often denounced it as an existential threat to slavery, and its antislavery supporters sometimes hailed it as a harbinger of slavery’s abolition. Still others defended or denounced it because it protected slavery. Yet Feldman barely mentions these conflicting interpretations in The Broken Constitution. Antislavery constitutionalism was the majority view among northerners, but Feldman restricts it to a tiny group of misguided radicals and quickly hurries them offstage to make room for those who believed the Constitution was thoroughly compromised by its protections for slavery

Antislavery interpretations of the Constitution vied with proslavery interpretations of it in races for federal and state office, as well as among judges and lawyers. In a free society, the public sphere is also a place for public figures and ordinary citizens alike to try and persuade one another as constituents with the aggregate power of the vote, as well as to engage in direct persuasion of institutional elites. Ultimately, members of Congress decide what they believe to be constitutional based on what they are willing to vote for, the president decides what he believes is constitutional based on what he is willing to sign, the executive orders he issues, and makes use of the many other institutional tools at his disposal. And of course, judges make rulings based on their own best understanding.

That is one way of looking at how actors in a society work to advance defensible understandings of legal texts in order to open a lawful path to goals they wish to pursue. But even this is incomplete. Institutional practice is not just a matter of what each actor personally feels is the correct reading of a text. The canons of construction, for example, appear nowhere in our Constitution or in our statutory law, but the tradition of their use predates either. They are not a method for arriving at precise interpretation, for no such method exists, but they do help to structure the questions being asked, to bound the possibilities somewhat. The norm of respecting precedent in common law systems is another sort of scaffolding, which aims to make the court system more lawful by encouraging judges to treat similar cases the same way.

Such scaffolding makes the system more predictable, and therefore more reliable—and therefore more lawful. Sometimes this means that its relationship to texts is better aligned than it otherwise might have been. But mostly what we care about is that, as in Shasta County, it plays its role as mediator of social conflicts well, and if we do not like the manner in which it currently does so, there are democratic mechanisms in place in order to change it. Here, then, is why lawfulness cannot be boiled down to the mere correspondence of legal practice to legal text. A system in which judges sometimes make promises at odds with constitutional text, but in which those promises are then honored for decades, is more lawful than a system which faithfully adheres to a Constitution which promises the supremacy of presidential rule by decree.

Lawfulness is an important value, but it does not stand alone. And we should not confuse lawfulness with the desirability of specific laws. a regime that keeps its promises can and will make bad promises. An excessively restrictive occupational licensing regime may exclude many perfectly competent professionals from their trade and drive up the costs for customers, but it is still better to live under a regime that actually honors the license once you have it than one which may arbitrarily treat some licensed professionals like criminals anyway. In some cases, though by no means all, keeping bad promises is better than keeping no promises. And in every case, to be able to implement reforms which replace bad laws with good ones, a regime must be able and willing to actually fulfill promises once they have been made.

We can afford ourselves a dose of realism without cynicism when it comes to the law, and take some peace of mind in this. America’s small-c constitution, the character of our institutions as they actually operate, has soldiered on for quite some time under this arrangement, and it is not going to come tumbling down because someone points out some clause of the written Constitution which has been left out of constitutional practice. It is the overall ability of the system to keep the promises it makes which determines its ultimate lawfulness, rather than constitutionality specifically.

The judiciary

When it comes to honoring professional and business licenses, building permits, intellectual property, the sale of products subject to government pre-approval processes, and enforcing contracts, our system is very lawful. It may be among the most lawful in the world. One can quibble with the desirability of legal instruments such as licenses or product pre-approval, but these are areas in which lawfulness is definitely to be desired over lawlessness. In many countries these exist in what cannot even be called a black market, because their legal status is extremely uncertain even if the individuals involved have gone through expensive regulatory processes to try to operate within the law. Hernando de Soto, an expert on such markets, described the case of the Tunisian street vendor Mohammed Bouazizi as follows:

For years, Bouazizi had endured harassment at the hands of deeply corrupt petty officials — most notably, the municipal police officers and inspectors who lived off street vendors and other small-scale extralegal business-people. The police officers helped themselves to the vendors’ fruit whenever they felt like it or arbitrarily fined them for running their carts without a permit.

(. . .)Bouazizi might have tried legalizing his business by establishing a small sole proprietorship. But that’s easier said than done. We calculated that doing that would have required 55 administrative steps totaling 142 days and fees amounting to some $3,233 (about 12 times Bouazizi’s monthly net income, not including maintenance and exit costs).

Even had he cleared these impossibly high regulatory hurdles, it’s not clear that the police and inspectors would have left him alone. De Soto calls Bouazizi’s business “extralegal,” but The New York Times comments that it “may or may not have been legal; no one seems to know.” A government that cannot even make, never mind keep, promises of this kind, cannot be called lawful by any stretch of the imagination.

The court system in America has never really threatened bog-standard commercial relations of this kind, and even when cases of this sort make it to the Supreme Court, they tend to produce 9-0 or 8-1 majorities.

But the Supreme Court’s governance over the court system is frequently a source of lawlessness. Every so often, the Supreme Court rolls out of bed like some spoiled young king and decides to effect some big change. Perhaps for good, jurisprudential reasons, or perhaps because, as Lucas Powe said of the Warren Court, “these were men with power happily exercising it.” Regardless, the Supreme Court is capable of injecting a sudden and unexpected change into the system, to which the great body of the American court system must adjust.

But the Supreme Court is only asked to hear around 7,000 cases per year, and only actually hears around 80. Meanwhile, there are 400,000 cases filed in federal courts each year, and 100 million cases filed in state courts. The system is much larger than even the most capricious of Supreme Courts, and even among relatively activist Courts most of the 80 cases do not result in a particularly notable change.

And the system does display lawfulness in implementing the zigs and zags of the highest court. When, after Allen v State Board of Elections in 1969, the Supreme Court elevated the importance of preclearance for the execution of the Voting Rights Act, the states subject to the terms of that law began submitting their changes to the Department of Justice. When, after Shelby v Holder in 2013, the Court struck down the coverage formula in section 4 of that same statute—leaving no states subject to preclearance any longer—the DOJ shut down its preclearance division. The Court has no enforcement arm, it simply has a formal and, more crucially, an institutional authority:

Congress could not federalize all of the police in the nation—this is an uncontroversial fact. But it’s not because our Constitution says they couldn’t. It is because our Supreme Court would say so, and Congress and whoever was president would both accept the authority of that verdict. The Court would justify it in terms of their interpretation of the text of the Constitution, though relevant precedent might also be cited. But the fundamental reason that Congress couldn’t federalize the police is that the state officials would challenge it, the Court would side with them, and Congress would accept the verdict. And the reason that state officials would take matters into court rather than resisting by force, and that the Court would side with them, and that Congress would then accept the verdict, has very little to do with words on paper, and everything to do with the expectations on the part of everyone involved of what everyone else involved expects and believes is supposed to happen.

Many actors in the system have promised the governed that they will follow the verdicts rendered by the Court rather than their own judgment. Perhaps even more importantly for the lawfulness of the system overall, these actors in the federal and state government have essentially promised one another that they will do so. This allows them not only to cooperate and coordinate, but to resist and oppose one another as well, because it provides a framework in which to do so which is less likely to break out into open warfare or (what they fear perhaps even more) to lead to the disintegration of the mechanisms of institutional power on which they all rely.

So long as the rest of the system continues to accept the Court’s authority, five individuals have an enormous amount of potential power, even if they do not frequently make use of it. They could order that any federal or state program be dismantled, any executive department or agency liquidated. They could, like its Bolivian equivalent, declare term limits unconstitutional on equal protection grounds, or do the same for the Electoral College or for the apportionment of the Senate. The Warren Court essentially did this last one for state senates!

At some point, political, socioeconomic, and institutional reality would almost certainly assert itself against the whims of a handful of judges. The potential power that they wield depends, as all such power does, on using it sparingly, on avoiding overreach. It’s not entirely clear what would happen if, for example, the Court attempted to assert the non-delegation doctrine and thereby demand an end to the basis of nearly all federal regulatory power. Would this prompt Congress to act, and to drastically restructure the Court? Would federal executives simply ignore the verdict, carry on as before, and ignore lower and upper court verdicts that followed the Supreme Court? Would the court system divide itself between those that followed the Court in this and those that did not?

There is an instructive incident, if a depressing one given its substance, from the 1950s. In 1955 and 1956, the Court’s rulings in over a dozen cases to curb the excesses of anti-communism in general and the House Unamerican Activities Committee (HUAC) in particular. This so enraged members of the Eighty-Fifth Congress that, as Powe describes:

The House passed measures which created a presumption against finding that a federal statute preempted state counterparts, terparts, rewrote the Smith Act provisions on “organizing,” and authorized rized summary discharges of nonsensitive government personnel for security reasons. Senate action focused on William Jenner’s proposal to strip the Court of jurisdiction in all the areas where it had interfered with the anticommunist programs. [2]

These bills came the closest to passing of any such bills aimed at the Court since Jefferson’s day. It was only through the political acumen of then–Senate majority leader Lyndon Johnson and labor union leaders that they were defeated.

A clear message had been sent, and the Court, or at least a five-man bloc of the Court, got it. Black, Douglas, and two Eisenhower appointees, Chief Justice Earl Warren and William J. Brennan, held firm, but now in dissent.

A year later, in Barenblatt v. United States, the Court offered HUAC carte blanche[.][3]

Our system does make it possible for the other branches to answer the Court. But the nature of this example leaves room for pessimism about the politics that are likely to bring it about.

And so long as there is structurally a single top Court with final authority on matters of constitutionality, and so long as there is effectively no way to update the Constitutional text in response to Court interpretations, the Court is always going to be a lightning rod, a source of instability in our legal system. It would clearly be less so if there were many more justices than there are now. After all, part of the problem, part of what raises the stakes of every nomination, is that a single justice retiring or dying can have dramatic long-term consequences. If the Court is supposed to be a source of stability and lawfulness as a partner to legislatures that are constantly updating statutory law, the fact that a single justice can have so much impact is counterproductive. If a justice, or even multiple justices, could retire without discernible impact on the Court’s rulings, that would be a very good thing.

By comparison, consider France’s Constitutional Council, which until 2008 could not rule on the constitutionality of laws after they were enacted at all. Instead, there are some categories of proposed laws that they review all of, and others which they must be asked to review by some specific officials within the French government. If they find the laws unconstitutional, they are never enacted in the first place. This creates a clear division of labor between elected officials who draft new laws, and appointed officials who judge the constitutionality of the drafts, without giving the latter any power to create instability or overturn large facets of the legal system (until the 2008 change which now allows them to do so). Clearly a superior approach to ensuring lawfulness of both legislation and the judicial authority to check it.

A French-style Constitutional Council is clearly not in the cards for us. More realistic would be moving to a nomination approach that aligns with presidential election results. Each presidential term could come with multiple appointments to the Supreme Court, regardless of whether or not anyone leaves it. As the size of the Court expanded, it could operate like the federal circuit courts, in which a subset of judges decide on any given case, which can then be reopened in an en banc hearing if enough of those who were left out feel strongly about the matter. The larger size would also reduce the stakes of any one nomination or of any one judge leaving the Court.

This or any other potential reform are, so far, off the table politically. Institutional trust is at rock bottom levels at precisely the moment that the polarization of our politics is reaching historic heights. Right now there is one side of the party structure that stands to gain from leaving the Court composition untouched, and one that stands to gain from changing it. Republicans will therefore never propose or support any change, and Democrats cannot trust that any change they make will last beyond the next Republican unified government. Fearing they may trigger a series of escalations, the ultimate result of which is uncertain, Democrats do nothing at all.

In truth, even with the overly expansive powers of its top governing body, the judicial branch is the least of America’s problems when it comes to lawlessness today. Our dysfunctional party system, on the one hand, and executive branch at every level of government, on the other, produce and exhibit a great deal of lawlessness compared to many of our peer nations. In as much as the judicial branch is a problem it is largely a symptom of the problems in our party system; a healthy party system would be capable of reforming the nomination process or the structure of the courts generally when they began to get out of hand.

The party system

In the German system, when the Constitutional Court interprets the Basic Law in an unpopular way, its legislature has often passed amendments. Whereas we have ratified amendments to our Constitution 33 times since the first Congress over two centuries ago, Germany has—thanks to their much simpler but still very supermajoritarian amendment process—done it 62 times since 1949. But in America, even when the Court interprets statutory law in a way that many in Congress didn’t intend and do not want, the two chambers of Congress and the president are rarely able to come together to update the statute. This is in part because of the toxic combination of a strict two-party system, extreme voter polarization, and party organizations made toothless by the primary system.

Some of this is endogenous to the structure of our government; both its presidentialism and the symmetrical bicameralism. We have had weak parties from the beginning; even in the era of the infamous party machines, party strength was always local, never national. But polarization at the national level was a late development, not really culminating until the Republican midterm victories of 1994. Congressional budgetary politics exhibit the worst symptoms of this disorder. Whereas no government shutdown had lasted longer than three days prior to 1995, the 104th Congress resulted in a shutdown of over 20 days and ushered in an era of recurring crises of this sort. If the elected officials overseeing our legislative process cannot even reliably perform the basics of setting budgets and appropriating funds, how can we expect them to be nimble in response to a Court which only requires agreement among five individuals to act?

In most party systems, party leadership is able to decide whom to recruit and whom to nominate for what office, and to impose party discipline on party members that have won elections. In our system, a reality TV star who had no experience in public office whatsoever could hijack the nomination of one of only two major parties for the most powerful office in the country. The Trumpification of the Republican Party has, among other things, turned the forces of polarization towards actively undermining the possibility of free and fair elections. Much like judicial reform, fears that lack of bipartisan buy-in on election reform would poison the institutional well has led some Democrats to hesitate to take action, and the weakness of American parties means that those individuals can halt what actions a majority of both chambers might in principle take.

One of the chief goals of a party system is to provide, as Nancy Rosenblum put it, “regulated rivalry” in order to “mitigate rather than aggravate the evils that lead to violent political strife” by adding “organized opposition within government to political criticism and opposition outside government.[4]

Though our party system is certainly subject to regulations, and indeed some of the most intrusive regulations in the world, it is certainly not “regulated” in the sense of exhibiting moderation or orderliness. In my lifetime, I cannot think of a time when the party system could be said to “mitigate rather than aggravate the evils” that lead to social unrest.

The party system as it currently stands is a source of great lawlessness and disorder in our system. We ought to take more seriously the need to reform it.

The executive branch

The most lawless aspects of the American system is neither judicial nor legislative, but executive. This should come as no surprise, as nearly all of the federal government’s 2.9 million employees and state governments’ 19.8 million employees fall under some executive body or other. As such, there are many executive bodies which are quite lawful, but most lawless bodies in American government are executive ones.

On one end you have the very local policeman or elected prosecutor who may be more lawless than the typical such official in this country but who cannot be reached by any countrywide reform. I have elsewhere discussed this problem and how to instill greater lawfulness at this level. But the typical situation, indeed the overall situation, is not wonderful either. Forget the two million imprisoned after being found guilty of some crime in this country; more than 400,000 individuals who are legally innocent until proven guilty are being held in pretrial detention. A system that can throw someone in prison for 80 days without proving their guilt can hardly be described as lawful. In many cases people are charged, held, and then released some long time later without any restitution or apology.

It is a common observation that, taken literally, statutory law in this country renders virtually everything illegal. But neither the political, nor the administrative, nor the legal systems are reducible to the sum total of statutory law as written. The chief problem in America specifically is less the expansiveness of statutory law per se than the ways in which our (largely elected) prosecutors strategically combine statutory charges to bully defendants into accepting plea bargains. In other countries with independent prosecutors and judges and lawful institutional traditions, this problem of statutory combinatorics does not arise, or at any rate does so less acutely.

On the other end are highly funded and highly staffed federal agencies such as ICE and CBP who operate with broad discretionary mandates, and little oversight. Worse, the primary courts where their cases are heard is a part of the DOJ, not the judicial branch. These agents terrorize broad swaths of the American population and regularly deport citizens in their zeal to take no chances on missing an undocumented non-citizen. Few other parts of the federal executive branch are quite as bad as these. The ATF does have a similar bad reputation but is much smaller.

Then there is lawlessness of a less dramatic sort, though still important. For example: the NSA, which has repeatedly bucked the courts and Congress and done as it pleased to illegally surveil the American populace and many others.

All executive branches struggle with this. A strong court system can encourage an executive to behave more lawfully, and to some extent ours does. But the real power lies in the legislature, which can reallocate budgets, redirect resources, restructure the organization and make stipulations. Unfortunately, Congress is quite hobbled in this capacity. The overall design, with its three veto points, has struggled in the best of times. As already discussed, the current partisan configuration makes it hard for it to pass a budget at all. To hold the administrative state to account, to keep it lawful and responsive to elected officials, a legislature has to be nimble enough, energetic enough. Neither of these adjectives could be justly applied to our Congress, much less the coordination between it and the president.

As a result, American government is always at risk of becoming a closed loop between administrators and judges; hardly an ideal state of affairs. The unilateral powers of the presidency add some element of electoral accountability into this, but relying on a single unilateral actor who is only around for four to eight years is hardly an approach likely to lead to greater lawfulness.

There is unfortunately not much that can be done about the role of the Senate and the president in the legislative process. Doing away with primaries and strengthening parties could help, as could doing away with the filibuster. But the three elected arenas of the federal government will always, by design, face distinct electoral incentives, and as a side effect will weaken the power of parties to coordinate action.

Deflating constitutional anxieties

None of this is intended to imply that we ought merely to ignore the Constitution or other legal documents in our quest for lawful institutional practice. But I do think that Americans can afford to take it down a notch when it comes to our anxieties about constitutionality.

On the one hand, many horrible things are possible within the confines of the Constitution. Slavery famously was, and its abolition was accomplished by a combination of northern ratification of the 13th amendment and southern encouragement to do the same at the barrel of a gun. Treating marital rape as a legal oxymoron was and would still be constitutional, but was done away with through state-level laws. The conditions of immigration detention centers and overcrowded prisons full of American citizens have not been ruled “cruel and unusual punishment” by the nation’s highest Court.

Both inhumane and unlawful behavior is quite possible within the strict confines of what can defensibly be called constitutional.

On the other hand, lawfulness is bigger than the Constitution. Constitutional promises are not the only promises that are made or need to be honored in our system, and they aren’t always the most important ones in order for the system to exhibit lawfulness in its operation.

We need to care about much more than constitutional promises. We need to aim higher, to work towards a system that is more lawful, and more decent and just.


[1] Robert C. Ellickson, Order without Law: How Neighbors Settle Disputes (Cambridge, MA: Harvard Univ. Press, 2005), 49.

[2] Powe L A Scot, The Supreme Court and the American Elite, 1789-2008, Kindle Edition (Cambridge, MA: Harvard University Press, 2011), Kindle Locations 2610-2613.

[3] Ibid, Kindle Locations 2620-2623.

[4] Nancy L. Rosenblum, On the Side of the Angels: An Appreciation of Parties and Partisanship (Princeton, NJ: Princeton University Press, 2010), 121.


Featured Image is The Trial of a Horse Thief, by John Mulvany

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Identity Pluralism and the Indian Left: A Complicated Story

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The recent outlook for Indian secularism hasn’t been optimistic. General disappointment within the left abounds in our state institutions, and violent attacks from the right continue apace. Neither these facts, nor the recent judicial abdications in the face of them, are particularly surprising or new. What was shocking was the fact that a bench of non-Muslim justices could take upon themselves the task of interpreting a Muslim holy text for the sake of limiting constitutional rights of Muslim women. The absurdity of this entire farce is evident to anyone. 

In January, a Karnataka-government run school prohibited Muslim girls from wearing hijab, the name for the cloth used for Muslim head-covering. Understandably, protests broke out nearly immediately. As if to punish this assertion of dissent, other schools started banning head-coverings for Muslim students too. India, having a robust judicial culture, if not a robust judiciary, soon saw this controversy taken to the highest court in the state. Astoundingly, the Karnataka High Court prohibited Muslim students from wearing the hijab (well, all religious clothing; this will be important later) in all public schools until they could pronounce a judgement. An expansion that went further than even the state government’s actions! And now, a few days ago, the Karnataka high court has come out with a whopper of a judgement: the hijab is not an essential part of Islam (“India court upholds ban on Hijab in schools and Colleges”)! Having pronounced their views on the nature of Islam, this vaunted judicial protector of rights against state overreach ultimately decided that the state has the legal authority to ban wearing the hijab in its entirety from educational institutions. 

When Hindutvadis defended the Bharatiya Janata Party’s (BJP) toxic brand of nationalism just a few years ago, they claimed that Indian secularism was one of pluralism, where different faiths could participate by virtue of their own religious reasons. They opposed this to the uniform, repressive model of French secularism. Of course, it is evident to anyone that this is not true any longer. This judicial decision exemplifies the asymmetry of power implied in this Hindutvadi vision of secularism: Hindu justices overrule the religious beliefs of Muslim women by enforcing norms that are formally neutral but substantively discriminatory. This discriminatory aspect occurs in two phases: only Muslim women are barred from wearing their religious dress, and also, only Muslim women are barred from wearing their religious dress. Was, after all, the Hindu male’s sacred thread banned as well by the court’s initial order? Hypothetically, yes, but the hijab is in the field of vision, in the enforcer’s gaze, while the Hindu thread is hidden away. No crackdown manifested. Similarly, the calculation of non-necessity for the hijab opens up to the possibility of regulation of the sacred thread as well. But executive decision-making for the BJP government in Karnataka is not interested in regulating religion, it is interested in regulating Muslim religion. 

The fact of the hijab’s sheer visibility offers a challenge to the Hindu nationalist government, which is challenged by the existence of its Muslim minority, and seeks to control its identity by targeting Muslim women, for whom oppression is doubled over itself; a multiplication of identities that excludes them from larger Indian society while simultaneously affirming the repression of their agency within their communities through fixing identities in opposition to the BJP’s politics. Politics such as this does not want to see sincere religious belief, but wants to replace them with fixed identities, so as to prevent resistance and reform from forming internally. See, what we said is true, these Muslims hate us and hate their women by forcing them to adopt X. We are saving them. 

But what is happening here is not just politics, but something embedded deeper into the Indian milieu, something that structures Indian politics in the first place. For the hijab’s visibility does not just discomfit the Indian right; it also discomfits the Indian left. 

Those of us on the left would love to believe that the country was a beautiful haven of religious liberty and freedom before the demonic BJP demolished Babri Masjid and entered into politics to permanently change it. This nostalgia for this pre-BJP history is coupled with idolization of the Congress or the CPI(M) and similar groups. There’s a fundamental problem here: the BJP didn’t arise ex nihilo. It arose under conditions laid out by the left. Obviously, the “real” left’s assertion would be that this was the expected response of its abdication of anti-capitalist struggle in favor of neoliberalization of the Indian economy. This is simply a myth. There is something deeper, something more dangerous baked into our idea of India itself that produced the BJP. Hindutva is a product of the process of identity-creation that occurred in post-colonial India. It is the dark underside of the Indian left wing project brought to the surface, in presently partial form, but at an increasingly violent pace. 

Let’s start with that object of international left adulation: the CPI(M). An almost unique example of long-term communist success, the CPI(M) in Kerala has turned that state into possibly the highest developed one in the entire country. A resounding success, any would agree. But the CPI(M) does not merely exist in Kerala. Before the Kerala faction came to dominate the party, attention was lavished on the West Bengal faction. For much of its history, the West Bengal faction was what one would think of when they thought of the CPI(M). A successful democratic communist party! It seeks land reforms! Obviously good, right? A decline of poverty from 54.9% to 24.7% is plainly a triumph (India Human Development Report 2011, pp. 266-7). But as Chakraborty (2019) points out, “LF’s success in the reduction of poverty cannot be ignored. However, we should simultaneously admit that there remain significant disparities in poverty reduction between urban and rural areas as well as between different social groups, the rates of poverty being higher among SCs, STs and Muslims.”

You can already see the contradiction implicit in an ostensibly left political economy. Despite egalitarian motives, the Left Front’s development strategy was structured in such a way that it reproduced inequalities in wealth distribution. Chakraborty (2019) further points out that development was centered around urban areas, leaving behind rural areas as severely underdeveloped. Most damning, of course, is Aleaz (2019) in the same volume. Before illustrating a policy of deliberate exclusion in the rhetoric of the Left Front in mentioning religious issues since its first election, it also points out that the Rajinder Sachar Committee found that Muslims in West Bengal were worse-off than Dalits nationally. Even more stunningly, Muslims in West Bengal were worse off than Muslims in Gujarat, which had just had an Islamophobic pogrom 3 years ago. So much for egalitarianism. The first mention of the West Bengal government’s duty to religious minorities came in 2008. It is shocking that the most powerful left-wing government in India did not recognize religious minorities in its policy for thirty years, by any standard of left wing egalitarianism. It is even more shocking that after thirty years, they were doing worse than their compatriots in a state where a violently Hindu supremacist government led by Narendra Modi was in power. 

The differential success of the Left Front in West Bengal and the Left Front in Kerala in minority politics is explained away in Desai (2001) as a result of pre-colonial political strategies employed by communist organizers in the two states, with Keralite organizers using the pre-existing apparatus of the Congress to pursue entryism while Bengali organizers chose to practice outside. Combined with concerted effort to break down social caste and religious barriers, the Keralite communists were much more successful than their Bengali counterparts. There is a Gramscian tenor to her argument, where the political society and civil society of Kerala are intimately tied together in such a manner that power is decentralized and distributed to the “publics” of Kerala so as to come close to a sort of participatory democracy. But what’s more interesting in Desai is the exploration of the underlying conditions of these two states. In Kerala, caste/class polarization would be akin to what is classically apparent in understandings of Indian caste sociology, hegemonic castes maintaining ownership over land while marginalized castes were turned into subalterns whose only existence was in relation to the hegemony. The dissolution of boundaries sufficed to destroy the nexus of caste/class in Kerala. Indeed, caste boundaries were already breaking down when the Keralite left began its programme. In West Bengal, however, rich farmers (known as jotedars) were drawn from the same castes as their poorer, more marginalized tenants. The Keralite strategy would seem impossible here as caste solidarity triumphed over class solidarity. 

To me, what is interesting here is the counterintuitive conclusion that from the fact that class and caste correspondence was dissolved in Bengal, arises a situation where class politics is rendered caste politics. We here reach something similar to the position of many subaltern subjects in the modern West as opposed to the classical exploitation mechanism found in Kerala. Just like antisemitism crossed a transversal across all Jews regardless of social class, just as structural racism affects rich and poor African-Americans, casteism and Islamophobia in West Bengal became part of a matrix of oppression that included class but always was in excess of it. Third-wave feminists have discovered the insight that oppressions are multiplicative and it is necessary to overthrow all systems in order to overthrow one system of oppression. This is routinely ignored by progressive governments around the world. But what is worse for the Left Front in West Bengal was that it adamantly excluded discussion of these oppressions from its program, let alone de-emphasizing them in favor of class politics. 

The Left’s dominance over Bengali political life for over 30 years had a structuring effect in turn on society. By rendering invisible particular political identities, the Left government affected subject groups in totality, organizing them on a field of class-distinctions as opposed to any other identity-distinctions. In Birth of Biopolitics, Foucault laments the lack of a socialist governmentality. To this, I would say, the CPI(M)’s production of an entire population around class is arch-socialist governmentality! The summit of classical socialism, where a proletarian class is produced by the “annihilation” of other identities, where state resources that affect the very life of the people are distributed on an axis of class alone, amounts to a stunning exercise of biopower, the power over populations, over lives that states hold (Foucault 2020 (1976)). 

This control over lives is doubled over itself: one a control of subtlety, reliant on technologies of resource distribution, and another that renders itself visible in violence. Once you exclude an identity X from political consideration, you render their possessors qua X as non-subjects, excluded from politics if they assert their identities. They are not citizens. My distaste for Agamben aside, it would be fair to say that this is a classic state of exception, where two regimes of law operate for minorities in Left Bengal: as Indians obviously deserving of rights, but as Dalits, as Muslims, they have no rights. The Marichjhapi massacre is a violent testament to this, where perhaps thousands of Dalit migrants who were promised welfare and social support were murdered in cold blood by a Left government (Haldar 2019). Their description of the victims? “Illegal occupants”. 

The Left government in West Bengal was more illustrative of the Left in India, including the pre-liberalization Congress, than the Left in Kerala. The Naxalbari uprising occurred in the context of significant oppression of caste and religious minorities that were ignored by the entirety of the Left. They festered and blew up as the Left doubled down on its denial of subjectivity and agency to people holding these identities, instead constructing political discourses which actively excluded them, creating a feedback loop that could only result in greater revolt. This also led to increasing fragmentation of the Left itself, as regionalist parties appealing to specific identities started chipping away. Another feedback loop, now it was ok to assert minority interests in an Indian political world where the dominant groups were still not attacked by the Left parties in power. This threat of identity-affirmation led to right wing death squads in Bihar and Jharkhand, it led to severe reactions against the Dalit and Muslim friendly Janata Dal government and its Mandal Commission (a rare example of minoritarian power at the Indian center) and eventually culminated in the demolition of the Babri Masjid, and the path we now find ourselves in. 

My point is not that the Left is responsible for the BJP’s crimes today. My point is that the Congress, the Socialist Left, for all of them the very visibility of minoritarian markings was (and still is, to a large extent) a distraction from their own models of politics, which are extremely exclusionary and violent. There is no perfect utopia to return to before the BJP. The Indian politics we have today is a direct lineage and indeed a result of national political parties now opposed to the BJP, and it is hard to ignore complicity in this. After all, in order to be better than the BJP, it is necessary to act better. 

References

Saaliq, S. (2022, March 15). India court upholds ban on Hijab in schools and Colleges. CTVNews. Retrieved March 17, 2022, from https://www.ctvnews.ca/world/india-court-upholds-ban-on-hijab-in-schools-and-colleges-1.5819629

Chatterji, R., Basu, P. P., & Chakraborty, S. (2020). Lost Decades? Human Development in West Bengal with Special Focus on Health. In West Bengal under the left, 1977-2011 (pp. 157–159). essay, Routledge, Taylor et Francis Group.

Chatterji, R., Basu, P. P., & Aleaz, B. (2020). Muslims, Christians and The Left in Bengal. In West Bengal under the left, 1977-2011 (pp. 223–242). essay, Routledge, Taylor et Francis Group.

Desai, M. (2001). Party Formation, political power, and the capacity for reform: Comparing left parties in Kerala and West Bengal, India. Social Forces, 80(1), 37–60. https://doi.org/10.1353/sof.2001.0062

Foucault, M. (2020). Society must be defended: Lectures at the College de France, 1975-76. PENGUIN Books.

Halder, D. (2019). Blood island: An oral history of the Marichjhapi Massacre. HarperCollins Publishers.


Featured Image is First Central committee of CPI(M)

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Liberalism versus Reaction in Ayn Rand

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We are as gods and might as well get good at it. – Stewart Brand, Whole Earth Catalog

Ayn Rand was a brilliant, inventive thinker whose contributions go largely unsung outside libertarian circles. Rand developed a secular eudaimonist ethics decades before the 20th century revival of virtue ethics ignited. She pioneered a thick ethical and aesthetic defense of capitalism that celebrated business and innovation as heroic; her frontal assault on altruism represented a fundamental shift away from defending economic freedom under the pall of suspicion of the profit motive. She erected a philosophical permission structure for rational self-interest, achievement, and the pursuit of happiness.

Rand forged a synthesis of possessive and expressive individualism and fashioned a perfectionist political doctrine of truly human flourishing, sweeping away the Marxist monopoly on such rhetoric and anticipating its reemergence in the capabilities approach by several decades. She promised a vision of human possibility, progress, and triumph over limitations that boldly assumed that we are indeed as gods, and that the greatest threats to our future are philosophies prioritizing impossibility, failure, and weakness. 

Rand achieved all this as a refugee from Soviet Russia by way of a couple of gripping, wildly successful philosophical novels that cast rail networks and steel production in romantic glory. She launched a movement that rocked conservative politics, shaped the nascent libertarian movement, and is still going strong some four decades after her death.

I’ll have several sharply critical things to say about Rand in this essay, which explores how her philosophy of Objectivism relates to the liberal tradition. Indeed I’ll question whether Rand really belongs within the liberal tradition at all, as several aspects of her thought reveal an illiberal, even reactionary hue. For whatever harsh words follow, I maintain that Rand was an ingenious thinker and a talented novelist who deserves respect and sympathy. Despite the doubt I will cast on Rand qua liberal and indeed qua social thinker, I will conclude by sketching what a liberal and genuinely emancipatory Objectivism might look like.

Rand and the politics of liberalism

Rand is usually seen as one of the pillars of the modern classical liberal tradition. For libertarians, famously, “it usually begins with Ayn Rand.” Yet at a time when some major political parties in the world’s liberal democracies, once so comfortingly colonized by liberal habits, are flirting with or openly endorsing antiliberal values, it’s worth reevaluating foundational assumptions. It is in that spirit that I explore points of tension between Rand’s philosophy and the liberal tradition, and argue that she is better understood as a heterodox conservative.

I’ll set the stage by specifying what I mean by liberalism and its alternatives. Liberalism is an approach to politics that seeks to defuse, redirect, or even harness conflict in a society of reasonable individuals who differ in beliefs, backgrounds, and concerns. At minimum, liberalism holds to some level of representative government with genuinely open elections, basic freedoms of religion, speech, assembly, and commerce, and a tolerance for internal pluralism and diversity. Liberalism stands explicitly against absolutist power, in the form either of monarchies or totalitarian communist regimes, among other possibilities. Its closer (and overlapping) neighbors are socialism—which weakens or opposes the sanctity of commerce and in its extreme forms undermines the other liberal desiderata in order to empower the working class—and conservatism—which tends to weaken pluralism and the freedoms of minorities and in its extreme forms compromises representative government and the rule of law to favor a preferred racial or religious group.

Rand advances a comprehensive doctrine, Objectivism, that sits uneasily with the political liberalism of democratic authority. Rand’s idealist views of the history and meritocracy of capitalism naturalized traditional hierarchies and justified contempt for the poor and marginalized. While Rand despised religious faith and thus the traditional religious authority much of conservatism appeals to, in her own life she thought of herself as on the political right, focused most of her rhetorical fire against the left, and exemplified a kind of reactionary anti-leftism. Rand’s illiberal conservatism—however heterodox—is showcased with particularly stark clarity in her epic masterpiece, Atlas Shrugged, in which a vanguard party engineers a total social and economic collapse to pave the way for a society ordered according to Objectivist values.

The role of comprehensive worldviews in a pluralist society is one of the perennial sources of tension in liberal thought. So-called liberal neutrality requires that a government favor no comprehensive doctrine over any other. But some comprehensive doctrines (like Catholic integralism) require that society be reshaped in their favored mold; some doctrines simply don’t play well with others. Rand insisted, even in her nonfiction, that there can be no conflicts of interest between individuals whose interests are rational. This idea first appears in Atlas Shrugged at steel industrialist Hank Rearden’s trial for violating regulations on the use of Rearden Metal.

“Are we to understand,” asked the judge, “that you hold your own interests above the interests of the public?” 

“I hold that such a question can never arise except in a society of cannibals.” 

“What . . . what do you mean?” 

“I hold that there is no clash of interests among men who do not demand the unearned and do not practice human sacrifices.”

Rand, represented here by Rearden, goes beyond the belief that people may be mistaken or taken in by erroneous ideologies. She instead introduces the idea that a clash of interests must involve error or evil. Where bog standard political liberalism assumes innocent conflicts of interests and a boisterous polity of worldviews in tension with each other that must be managed for the sake of peace—or in a stronger vein, this diversity actually provides greater resources for solving social problems—in Rand’s Objectivism some party must be illegitimate. If, as Rand insists, any compromise of good with evil only profits evil and some party of every social conflict is evil then the idea that disagreement should be settled by elections is abominable. Democracy is by necessity a handmaiden to evil.

In Atlas Shrugged democracy is entirely sidelined. The plot follows the quickening erosion of economic freedom and its replacement with an economy of political threats and favors. All of the politics in the novel takes the form of corrupt, backroom deals between dishonest businessmen, lobbyists, political hacks, and ultimately economic czars of one kind or another. Rand’s virtuous heroes stay above this fray, and struggle valiantly to conduct ordinary business in an increasingly hostile environment. Importantly, Rand’s heroes really are virtuous: incorruptibly honest, just, hard-working, dependable, and even benevolent. The novel explores how such virtue is punished in statist economic regimes, those that fall short of laissez-faire capitalism.

While there is a legislature, an executive, and legal courts, there’s no mention of democratic elections or formal political parties (though there are factions). In So Who Is John Galt, Anyway? Objectivist commentator Robert Tracinski suggests this absence of the expected democratic institutions is because they had already been swept away in political turmoil prior to the main events of the novel. But this is unsatisfying. Such a cataclysm would surely leave marks on the main characters who would have ample reason to reference it. And if Rand’s heroes simply ignored the political world—wholly engaged as they were in their productive toil—until the looters’ government bore down on them, then this would reveal culpable negligence. 

Rand conveniently includes a perfect being in Atlas Shrugged, John Galt, whose philosophical determinations and emotional reactions are beyond reproach. In the momentous scene at the heart of the novel that sets in motion Galt’s strike of the “men of the mind” there is no mention of prior or present political activism. Voting is rarely mentioned throughout the novel, and when it is it’s usually denigratory, as in Galt’s speech where he accuses his misguided audience of “[voting politicians] into jobs of total power over arts you have never seen, over sciences you have never studied, over achievements of which you have no knowledge, over the gigantic industries ….”

Objectivists may think that honest business people shouldn’t have to be bothered with politics, but this reveals the problem with Rand’s conception of no rational or innocent conflict of interest. Good, rational people simply do see the world from different angles and come to different conclusions, and democratic politics is in part about managing these differences peacefully. When this essential vice of disagreement is coupled with the extreme conclusions of Rand’s political philosophy—such as that taxation is theft and all regulation of business violates the prohibition on the initiation of force—the entire range of normal democratic politics is rendered illegitimate, vicious, and evil. This weakens any hold normal liberal democratic politics has on the Objectivist and frees them from any restraint of perspective.

This antidemocratic element in Rand’s thinking finds its fully antiliberal expression in Galt’s Gulch, where Galt’s strikers—Rand’s heroes—decamp to withdraw their productive capacity from society, watch it collapse, and prepare to reenter society on their own terms. Rand scholar Chris Matthews Sciabarra notes in Ayn Rand: The Russian Radical that Galt’s Gulch is effectively organized as an ideological commune, with every person adhering to the same belief system, obviating both politics and government. But this misses the planned hostile takeover of the outside world. The strikers are not passive communitarians engaging in some kind of Benedict Option, but vanguardists specifically seeking to overthrow the current regime. Ostensibly, this vanguardism is nonviolent, but the strike is effective only in Rand’s fantasy worldbuilding, wherein the removal of a thousand or so of the most talented industrialists, engineers, and capable people of all kinds would reduce society to a state of total dysfunction, literally unable to keep the lights on.

I must note here that in her actual life, Rand participated avidly in democratic politics, campaigning for (Republican) candidates and encouraging her followers to vote in certain ways. So Rand’s no-compromise-with-evil position never took the antidemocratic, anti-voting turn popular among some Marxist-Leninists and anarcho-capitalists. So it’s certainly possible to be an Objectivist and still be a small-d democrat. My purpose here is to explore the tensions between Objectivism and liberalism, which sometimes but not always result in illiberal politics. 

Ayn Rand: the unknown ideal theorist

Rand sits uneasily with the liberal idea of inescapable political conflict and democratic politics. But how could Rand be a conservative when she opposed the religious right, fiercely defended the right to abortion, and was an outspoken atheist who condemned religious faith? Rand’s philosophy is on the surface quite liberal. Her own vision of capitalism was one of progress, openness to new ideas, and an openness to strivers from all backgrounds to test their mettle in the market and strike it rich. 

Rand’s critics who assume she merely shilled for the rich and business interests face an awkward set of facts. Most of Rand’s villains in Atlas Shrugged were wealthy businessmen, her heroes all discard or destroy their worldly riches, and her ideal man, John Galt, was a manual rail laborer. 

At times Rand goes out of her way to admire the quiet, modest dignity and competence of the regular laborer. Track workers saluting Dagny Taggart, Rand’s rail heiress protagonist, and cheering the initial run of the John Galt Line is a notable example of this, and it’s paralleled by the good relations both Rearden and Francisco, Rand’s ultra-capable and flamboyant copper industrialist, have with their respective employees.

The first main character we meet is Eddie Willers, a decent man and ally of Dagny and unwitting confidant of Galt, but no übermensch. Cheryl Taggart, Dagny’s sister-in-law and a victim of Jim Taggart’s psychopathic need for warrantless love and praise, provides an example of a simple store clerk discovering the values of Rand’s heroes. Rand gives at least two redemption arcs, in the railroad tramp Jeff Allen who Dagny deputizes in an emergency, and in the “Wet Nurse” sent by the government to spy on Rearden who is converted to Rearden’s cause and values.

Rearden rose from unskilled, dangerous work in ore mines as a teenager to owning his own steel mills and even inventing a lighter, stronger alloy. Such rags-to-riches stories are to be expected in Rand’s capitalism. But so is the obverse. In his famous money speech, Francisco argues that those who are born rich must eventually fritter away their wealth if they are incompetent. This is the morality of capitalism: ability and hard work are rewarded and sloth and venality are punished. To the extent capitalism fails to match Rand’s vision, it’s because we mix capitalism with socialism in a mixed economy. Rand associates the explosive innovation and productivity of the 19th century with the relatively purer capitalism of that era.

In its ideal form, Rand’s capitalism embraces liberal equality and universalism. It is color-blind, recognizes equal rights for women, and is open to ambitious, freedom-seeking immigrants (like Rand herself). Dagny is a capable, confident woman thriving by her own lights in a man’s world. In what might be viewed as an early manifestation of sex-positivity, Dagny knows what she wants in love and sex and is undeterred in pursuing her sexual ends on her own terms, which incidentally never involves marriage.

Reaction by sleight of hand

Rand in practice differs markedly from her ideal theory. In the end she does endorse many traditional values. But her conservatism assumes the form of an orientation toward upholding extant social hierarchies. Rand’s capitalism is free and equal in the ideal, but by a rhetorical sleight of hand Rand in practice naturalizes and romanticizes hierarchy in a way that neatly maps onto existing social strata. 

In tension with the respect she sometimes shows for workers, Rand’s heroes frequently show contempt for the poor. An early example of this is when Dagny measures herself against both her peers and the adults around her and notes the “regrettable accident” that she is “imprisoned among people who were dull.” Later she contrasts normal people with her fellow superlative, Rearden.

Watching him in the crowd, she realized the contrast for the first time. The faces of the others looked like aggregates of interchangeable features, every face oozing to blend into the anonymity of resembling all, and all looking as if they were melting. Rearden’s face, with the sharp planes, the pale blue eyes, the ash-blond hair, had the firmness of ice; the uncompromising clarity of its lines made it look, among the others, as if he were moving through a fog, hit by a ray of light. (Emphases added)

Note the physical differences between Rearden and others under Dagny’s gaze. Rand persistently associates physical attractiveness with superior capability and moral uprightness throughout Atlas Shrugged. Capability for Rand is a singular value; in what might be considered a tension with another liberal tenet—the division of labor—Rand’s heroes are good at anything and everything they do. Where ordinary people are often portrayed as untalented and unmotivated about whatever job they find themselves in, Rand’s superlatives can farm and sew with the same elite skill they apply to their chosen profession.

By strongly associating—if not exactly equating—attractiveness, capability, and morality, Rand naturalizes hierarchy. This association becomes all the more alarming when we consider that all of Rand’s heroes are white, most of them blond. There is something essential within heroic individuals that fundamentally sets them apart from normal folks, just as Dagny surmised at age nine. Of course there are some rags-to-riches cases in actual capitalism. But this is far from the norm, and contra Francisco’s faith that fools and their money are soon parted, phenomenally venal and incompetent people—think Donald Trump—are born to wealth and live their lives in luxury and power as their wealth maintains itself on autopilot.

While ordinary folks are not always contemptible, they are always expendable in Atlas Shrugged. The non-superlative but ethical characters discussed above—Eddie, Cheryl, and the Wet Nurse—all meet grisly fates. The strike of the “men of the mind” is itself the prime example of the expendability of the mediocre, as millions die or are brutally impoverished (though it’s worth considering how many children are victimized by the strike who may have grown into superlative adults). It was part of Rand’s romantic vision that none of the denizens of Galt’s Gulch ever died or suffered serious misfortune. Rand insisted that pain, fear, and guilt should not be taken as primary. But lesser characters, like real world mortals, don’t have this plot armor, and have plenty of reason for fear. 

Rand insists that real capitalism has never been tried, and capitalism à la Rand really never has existed, but this doesn’t stop Rand from appealing to the meritocratic and productive properties of ideal capitalism to defend actually existing capitalism. This creates a perilous discursive situation in which Objectivists can with suspicious convenience attribute all the good results of modern mixed economies to capitalism and all the bad results to the failure to adhere to Rand’s precise specifications. 

In practice this constitutes a justificatory algorithm for defending the esteem of anyone who is rich—and the legitimacy of their wealth whether it was acquired by inheritance, implicit or explicit government transfers, or Herculean effort and Promethean innovation—and blaming the poor, regardless of their circumstances. Rand thus defended the upper classes from incursions by the lower orders in both theory and in practice, and Objectivists have followed her lead.

Despite Dagny, Rand affirms patriarchal values. Rand believed it was a woman’s purpose to worship a man who embodied her greatest values. She believed there would be something sinister about a woman ever being President because such a woman would be betraying her feminine nature. For all Dagny’s assertiveness and capability, she is the only female titan of industry, and even in Galt’s Gulch there appear to be few women, most of whom remain unnamed and have come to join their menfolk. Dagny’s sex-positivity must be understood alongside Rand’s persistent slut-shaming, as when Francisco lectures Rearden that he can tell everything about a man’s values just by seeing the woman he sleeps with.

Rand is untroubled by sexism and misogyny. In an early throwaway exposition Dagny dismisses sexual prejudice and casually resolves not to consider it again. Perhaps Rand envisaged a world without misogyny. Indeed Dagny receives no abuse, denigration, or lowered expectations from men in a book littered with scenes of otherwise all-male board rooms. Yet if that’s the case, we’re left with the troubling question of why Rand’s fiction isn’t peopled with more women like Dagny. The ready answer is that women aren’t natural leaders or innovators.

In real life women cannot shrug off sexual and domestic violence, discrimination and harassment in the workplace, objectification, and non-remuneration of reproductive and domestic labor as easily as Dagny can. In her nonfiction and her public comments, Rand loathed feminists, even referring to herself as a male chauvinist. Firmly supporting the right to abortion on grounds of bodily autonomy, though laudable, doesn’t absolve her of her traditionalist views about women’s roles or her reaction against social movements to liberate women from those roles. 

Rand averred that homosexuality was immoral, the result of psychological disorder, even “disgusting.” Needless to say there’s no distinction between sex and gender for Rand, and these are strictly binary. The government has no role in enforcing sexual values, but gender and sexuality are a site of judgment, with nary a presumption of innocent difference or respecting human diversity. In Atlas Shrugged Rand evades the problem of gays, lesbians, and transexuals by—blank-out—simply leaving them out of her world-building. In the real world, homophobic and transphobic rhetoric supports narratives of non-Objectivist rightwing parties that do not so scrupulously refrain from force and fraud. This matters. Young Objectivists tend to think Rand was wrong about homosexuality but Objectivists generally endorse anti-trans talking points.

An epistemology of ignorance

Another tool Rand deploys for justifying hierarchy is an epistemic vice she decried in her adversaries: what the great liberal philosopher Charles Mills would dub the “epistemology of ignorance” but Rand named “blanking out.”

Thinking is man’s only basic virtue, from which all the others proceed. And his basic vice, the source of all his evils, is that nameless act which all of you practice, but struggle never to admit: the act of blanking out, the willful suspension of one’s consciousness, the refusal to think—not blindness, but the refusal to see; not ignorance, but the refusal to know. It is the act of unfocusing your mind and inducing an inner fog to escape the responsibility of judgment—on the unstated premise that a thing will not exist if only you refuse to identify it, that A will not be A so long as you do not pronounce the verdict “It is.”

Rand doesn’t discuss race at all in Atlas Shrugged, but omission speaks volumes. Slavery for Rand is usually a histrionic metaphor for the oppression of the industrialist. When she refers to genuine slavery in history, it’s the non-racialized slavery of antiquity, and it’s followed by an apparent denial of the racialized slavery of antebellum America.

That phrase about the evil of money … comes from a time when wealth was produced by the labor of slaves—slaves who repeated the motions once discovered by somebody’s mind and left unimproved for centuries. So long as production was ruled by force, and wealth was obtained by conquest, there was little to conquer. 

[…]

To the glory of mankind, there was, for the first and only time in history, a country of money—and I have no higher, more reverent tribute to pay to America, for this means: a country of reason, justice, freedom, production, achievement. For the first time, man’s mind and money were set free, and there were no fortunes-by-conquest, but only fortunes-by-work, and instead of swordsmen and slaves, there appeared the real maker of wealth, the greatest worker, the highest type of human being—the self-made man—the American industrialist.

Rand blanks out slavery itself in a stunning hagiography of America, notes that she knows real slavery has existed in history and studiously blanks out race throughout the rest of the novel except when describing the white features of her heroes.

Rand’s history is no better when she engages race in her nonfiction, where she argues that “racism was strongest in the more controlled economies, such as Russia and Germany—and weakest in England, the then freest country of Europe.” There might be some truth to this if Rand judged 19th century America as unfree, but for Rand “in its great era of capitalism, the United States was the freest country on earth—and the best refutation of racist theories.” Rand continues,

It is capitalism that broke through national and racial barriers, by means of free trade. It is capitalism that abolished serfdom and slavery in all the civilized countries of the world. It is the capitalist North that destroyed the slavery of the agrarian-feudal South in the United States.

Such was the trend of mankind for the brief span of some hundred and fifty years.

Rand explicitly rejects the notion that some races have greater “incidence of men of potentially superior brain power” but her historical analysis reveals she viewed slavery and the oppression of Jim Crow as minor deviations from a system of full individual freedom.

In her essay on racism, Rand goes on to condemn Black leaders as racist for supporting affirmative action, compulsory school integration, and anti-discrimination laws on private establishments. Like today’s anti-anti-racists, Rand projects the notion of “collective racial guilt” onto whites for “the sins of their ancestors” for policies aimed at repairing racial inequities despite no significant Black thinker using such concepts, certainly not the specific activist Rand quotes in her essay. Such inequalities obtained, Rand recognized, on account of government policies, but Rand ignored or didn’t understand the extent to which the government continued to support racial inequality with policies like redlining, segregation, relative deprivation of public funds for Black communities, and a long laissez-faire approach to anti-Black terrorism. But even if, as Rand imagined, direct government racism had ended, a vast difference in life prospects would have remained for Black and white individuals. Rand’s just-so story in which racism is a minor problem and the graver threat comes from the redistributionist policies of anti-racists functions as an ideological bulwark against policies to promote racial equality, once again reinforcing the status quo socio-economic hierarchy.

In all these cases Rand instinctively defends the relatively advantaged and inveighs against the claims of the disadvantaged. Rand and her followers would claim that she merely defends individual rights, especially those of property, and does so in accordance with equality before the law. But this reactionary—a word Rand self-applied—kind of nominal liberalism erodes the rule of law in fact while upholding it in name. Liberalism cannot be collapsed into rights alone; there must be a dimension of political contestation. A highly hierarchical society that jealously guards property rights without real political contestation is not any kind of liberalism, but feudalism.

Consider the disproportionate violence inflicted on Black men by police. On its face this is a failure to uphold equality before the law, but if the resulting protests are successfully framed in terms of alleged looting of private property, then Objectivists will flock to the defense of the rights-violating police. In contrast to Rand’s version of the “great era of capitalism,” real people who are not wealthy white men have not enjoyed equality under the law. By aggressively objecting to alleged excesses of any appeal to social justice, blanking out historical evidence of oppression, and insisting the most legally and institutionally coddled classes are really the most oppressed, Rand undermines the civic equality of all persons. 

Blanking out inconvenient truths combines with the antidemocratic elements of Rand’s political philosophy to brutal effects. The illegitimacy of actually existing governments renders the supposedly “objective” political theory subjective in practice. This enabled Rand to endorse deeply illiberal ideas, such as the right to invade “dictatorships”—what does this mean when all actual governments are illegitimate by her lights?—and the lands inhabited by “savages” who don’t share Rand’s concept of property rights (neither has America, ever). Yaron Brook, the erstwhile Executive Director of the Ayn Rand Institute, would take this reasoning further to condone torture and preemptive nuclear strikes. Rand adopted a kind of American exceptionalist outlook based not on the actual proximity of American governance to Objectivist doctrine, but to her biased views of America’s founding ideals and her largely imagined history of early American capitalism. Rand pitted America in theory against the rest of the world in practice.

Randian reaction today is expressed by befuddlement in the face of genuinely antiliberal, antidemocratic authoritarianism. I have no doubt that Rand would have condemned Donald Trump—he really is like one of her villains, only less believable—but it’s not at all clear she could have held her nose enough to support Democrats. The mere presence of democratic socialists like Bernie Sanders and Alexandria Ocasio-Cortez in the wings would likely have spooked Rand into a “pox on both houses” stance. Some prominent Objectivists today exhibit such both-sidesism, and even invite Trumpist figures like Peter Thiel to their galas.

Varieties of Randian liberalism

To recap, Ayn Rand is more fruitfully understood as a heterodox conservative than as a liberal, and is at best a rightwing liberal with illiberal tendencies. Rand advanced a politics of the good that viewed its ideological adversaries as fundamentally illegitimate. Her totalizing vision of the political order—however easily stated on one foot as strict laissez-faire capitalism—allowed her to be a kind of nationalist, an American chauvinist. Rand defended the rule of law in principle, but undermined civic equality in practice by promoting hierarchy and reaction. 

To touch grass for a moment, of course Rand was a conservative, or at least a rightwinger. Rand saw herself as on the political right, was active in rightwing political campaigns throughout her entire life until the rise of Reagan, and is embraced almost exclusively by the political right. These claims aren’t controversial. My controversial claim is that Rand’s heterodox conservatism—especially as expressed in her magnum opus—has underappreciated tensions with liberalism (even classical variety) that sometimes slips into illiberalism.

It is not so hard for admirers of Rand to stay on the side of liberalism. It means firmly supporting democratic institutions and practices. Some Rand enthusiasts remain firmly liberal. Robert Tracinski is admirable in this. In academic philosophy, Douglas Rasmussen and Douglas Den Uyl have fleshed out a Randian liberalism that plausibly manages the tension between political liberalism and Rand’s perfectionism. Neera Badhwar lessens the tendency for Objectivism to view other ideologies as basically illegitimate. 

Gestalt-shifting Rand

It’s no accident that Rand has many fans in gay and queer communities. It’s not unheard of even for some prominent progressives to signal appreciation for Rand, a recent case being Stacey Abrams. I attribute this to Rand’s celebration of individualism against the crowd, of triumph over adversity, and of joy in one’s own projects and self-directed life. These sentiments have cross-political appeal. The fact is, people will continue reading and finding inspiration in Rand because she was a fascinating and inspiring figure. It is thus worthwhile both for those dismissive of Rand to see what is valuable in Rand and for her enthusiasts to identify and jettison the illiberal elements of her philosophy. I end by offering an under-explored left Randian liberalism that I hope can serve as a bridge over the apparently impassable chasm separating Rand from social liberalism.

Rand’s exaltation of the innovative and productive powers of capitalism is shared by Marx and other socialists. Marx associated productive labor with the essence of human nature. The dimension of Rand that evokes the unfolding of human potential mirrors both Marxism and the expressivist left liberal branch of the liberal tradition stretching from Adam Smith through J.S. Mill and T.H. Green to the capabilities approach of Martha Nussbaum and Amartya Sen. Sciabarra recounts,

Peikoff … argues that at the core of Objectivism is a belief in the actualization of human potentialities. In this regard, Objectivism follows the Aristotelian conception of eudaemonia as the human entelechy. For Aristotle, the proper end of human action is the achievement of “a state of rich, ripe, fulfilling earthly happiness.” [Branden] argues that human life involves the expansion of “the boundaries of the self to embrace all of our potentialities, as well as those parts that have been denied, disowned, repressed.” The actualization of human potential is a form of transcendence, an ability “to rise above a limited context or perspective—to a wider field of vision.” This wider field does not negate the previous moments; it is a struggle “from one stage of development to a higher one, emotionally, cognitively, morally, and so forth …”

This provides the basis for a Randian left liberalism: securing the conditions for the free development of capabilities for all persons. This requires a reevaluation of certain empirics and a gestalt shift in how the demands of social justice are perceived. A move away from Rand’s categorical prohibition on the initiation of force to a more complicated limitation of coercion within the rule of law is also needed. A categorical non-aggression principle is a floating abstraction in a world characterized by pervasive historical injustice and complex social relations and institutions that persist over generations. Redistribution toward some base level of relational equality for all and effective capability to pursue one’s own flourishing is more akin to Rand’s philosopher pirate Ragnar Danneskjold’s liberatory antics than it is to kleptocratic predation.

Rand gets a number of facts about the world simply wrong. The reality of global warming is one of the least controversial examples. Objectivists deny global warming in defiance of a broad scientific consensus, perhaps because it is seen as a threat to capitalism. But the fossil fuel industry has feasted on subsidies, has an entrenched lobby for political pull, enjoys implicit advantages like the government embrace of suburbs and car culture. The fossil fuel industry hardly embodies laissez-faire capitalism. Pollution causes real harm and is best tackled not by courts and litigation, as Rand preferred, but by legislation and regulation, preferably by pricing in externalities. 

There’s no intrinsic reason to glamorize Big Oil and its tycoons instead of Big Renewables and their own heroic scientists, engineers, and business leaders. Environmentalism is not, as Rand maintained, inherently anti-human or anti-development. The gestalt shift here is to see fossil fuel companies as villains clamoring for handouts (by not paying the full cost of greenhouse gases) and solar, wind, and nuclear companies as heroic innovators struggling against the odds to usher forth an era of energy abundance. Stewart Brand, whose epigraph opens this essay, combines just such a Randian vision for human potential with no-nonsense environmentalism.

Even orthodox Objectivists should accept this revision. But social justice issues are thornier because they directly challenge Rand’s reactionary tendencies. The extent, contours, and social and economic impact of sexual harassment and sexual violence is matter for objective study, one where perhaps feminists know whereof they speak. There’s little reason for Objectivists to categorically dismiss these concerns other than by slavish adherence to Rand’s prejudices.

Rand loathed feminists for making demands on the government, but the gestalt shift here is that the domestic and reproductive labor typically performed—unpaid—by women is socially necessary (wait til you see what a strike of the womb can do) and men feel entitled to the fruits of that labor. Patriarchy is rule by the moochers and looters of sex, care, and reproduction. Institutions to reward feminine-coded labor like subsidized child care and paid parental leave would engender a more consistent capitalist order, even if they are built upon a platform of social provision.

Philosopher Kate Manne persuasively describes patriarchy as a set of entitlements, and one of these entitlements is for women (and men in a roundabout way) to conform to a normative image and set of functions. The backlash against trans and nonbinary persons owes to the failure or refusal to conform to the patriarchal model. That’s it; there’s not even a significant demand for redistribution in the struggle for trans rights and dignity. But a Randian feminist sees trans liberation as a heroic refusal to perform gender on anyone’s terms but one’s own.

I already discussed above that Rand’s understanding of the history and legal reality of race in America is largely a fabrication. Objectivists who want to take individual liberty seriously should reckon not only with the profound unfreedom of slavery but with the persistent resistance to policies conducive to Black equality and Black flourishing. Objectivists imagine that the impediments of racism have largely been removed. The racial disparities in policing and incarceration suggest this is overstated. But the entanglement of race in American policies and institutions makes merely removing superficial impediments a deceptive goal. White Americans have been showered with political advantages, legal privileges, and asset-building handouts like the G.I. Bill, land grants, and preferential home loans that have enabled them to accumulate intergenerational wealth and disproportionate political power. Banning only public discrimination and doing nothing to repair the damages caused and permitted by the state constitutes a failure of the state to secure equality before the law. Rand’s idea that this is about collective racial guilt is defensive histrionics. 

The gestalt shift here is that policies of Black flourishing are not special pleading for collectivist redistribution. They reverse more than two centuries worth of white collectivism and upward redistribution of wealth and esteem to whites. The white plantation owner should be seen as the most profound of Randian villains, along with the white legislator, the white prison warden, and the white NIMBY. 

Securing the conditions for all persons to fully participate in capitalist enterprise is the lodestar of Randian left liberalism. To do this requires understanding that social justice is not collectivism but the appropriate, targeted response to the collectivism of white supremacist patriarchy. Just as Galt’s sense of benevolence and his desire to live in a free world prompted him to liberate his fellow heroes from an unfree system, we should likewise foster the conditions of freedom and abundance in which more heroic innovators will emerge. Though Rand may not have approved, this vision retains a distinctively Randian sense of life by celebrating achievement, damning genuine collectivism, and affirming the rational joy of the world where the rail lines merge. 

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adamgurri
20 days ago
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Russia’s Atrocities in Ukraine Are Part of a Pattern, Not An Exception

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Despite the hesitancy in some quarters to acknowledge the likelihood of an invasion before February 24, the landscape of analysis and punditry since that entire calamity earnestly began has come to terms with the fact that what Russia is doing in Ukraine right now is absolutely dreadful⁠—including myself. The barbarism, the brutality aimed at and against civilians, the indiscriminate killings, and the terror campaigns, are revolting⁠—but they should not be surprising, as it is without question, not the first time that we have witnessed this from Russian President Vladimir Putin, his administration, and his nation’s military. 

In fact, since Vladimir Putin took over for Boris Yeltsin⁠—as his handpicked successor as active-Prime Minister on the ninth of August, 1999, officially two days after the Second Chechen War is considered to have officially begun⁠—and later as the President of Russia in early-2000, this current chosen solution to regional issues has actually been quite the normal course of action and recourse for this nation when faced with some sort of allegedly existential crisis, challenge or allied request for military assistance: They move their military in, bomb, blow and destroy much of what lays before them⁠—with either their own troops or private mercenary groups⁠—and create havoc that brutalizes the very society that the war is occurring around, while assaulting, raping, stealing, terrorizing, traumatizing those people all the while. 

None of this is to say that US interventions have avoided the same outcomes; even if we accept claims that it is better intentioned, it has still started conflicts leading to hundreds of thousands of civilian deaths in the War on Terror.  Moreover, American actions in Iraq especially also served to help normalize the kind of unprovoked invasion we are seeing today. No nation or military on this planet should escape punishment for crimes against humanity and other war crimes, and the US is no exception⁠—though its insistence on exceptionalism does weaken the entire concept of international criminal justice. But the United States has, especially since the inauguration of Joe Biden, actually curbed its worst excesses and made progress, however halting, towards a less barbarous foreign policy. Russia, on the other hand, with its conflict in Ukraine, is perpetuating a pattern in the most disgusting ways of its previous conflicts in Chechnya and Syria.

Chechnya in 1999

While Russia began its second conflict with Chechnya in late 1999, that conflict requires some foreknowledge of circumstances within that region and regarding Russia, Chechnya, and other, neighboring nations. Tensions had been high since before the First Chechen War which began in December of 1994 when the land that is now referred to as Chechnya decided it wished to be its own Republic and not just a part of the Russian Federation of nations that was formed in 1991. That angst and uneasiness did not dissipate much throughout the relatively long Yeltsin administration, or after that first conflict officially ended in 1996 either, and would fuel terrible fires in the years since.

During that first conflict, the First Chechen War, which was precipitated in part by the multiple attempts at “covert” regime change by the Russian government against the Separatist President Dzhokar Dudayev, another leader within the Chechen people was growing in prominence in that nation as well. He was a Muslim man from a family that had been, a generation earlier, expelled from Chechnya during the reign of Stalin, and which had previously founded the Islamic Institute in Kurchaloy and whom, around this period, began to support the Separatist President more vocally and outwardly than he had previously. His name was Akhmad Kadyrov, and he came to greater prominence in the formally unrecognized Chechen Republic of Ichkeria around this time, serving and fighting for that polity during this conflict. In 1995, in fact, he would be given the title of Chief Mufti of the Chechen Republic of Ichkeria. During this time, he had become a well-respected leader and figure amongst certain groups of Chechens in their struggle for national sovereignty and separation from Ingushetia, as well as from Russia after the disintegration of the Soviet Union and satellite Soviet nations like the Chechen-Ingush Autonomous Soviet Socialist Republic that had disintegrated alongside the Soviet Union itself. 

While the Russian government was not thrilled with any of this, nor with the elections of Presidents like either Dudayev, his successor post-assassination, Zelimkhan Yandarbiyev or the final elected President of the Chechen Republic of Ichkeria, former Soviet Colonel, and First Chechen War commander and war hero, Aslan Maskhadov, this did not really come to a head once more until the late-Summer of 1999⁠—Chechnya was effectively self-governing for this in-between period.

It was the Chechen invasion of the Republic of Dagestan that created a domestic pretext for Russia to begin once again its machinations concerning and within the Chechen Republic of Ichkeria, while the alleged bombings of buildings across Russia, allegedly planted by sympathetic, Islamic figures, added fuel to the metaphorical Russia-Chechen fire. When forces that included Wahhabists and other extreme elements violently entered Dagestan from the unrecognized Chechen Republic of Ichkeria before declaring Dagestan a free Islamic nation, the Russian response was to first drive those forces out of that nation and back to where they came from. After that, however, it turned its eyes upon the area from which they had entered Dagestan⁠—the de facto independent Chechnya. 

And so, it was late-1999, September and October precisely, only weeks and months after Vladimir Putin was handed the Premiership in Russia by Yeltsin, when he and his nation bombed and subsequently invaded the Chechen Republic of Ichkeria, beginning in earnest what is known as the Second Chechen War, after accusing Chechnya and its government of being both illegitimate and simultaneously incapable of effectively or safely governing its people. Russia claimed that Grozny had failed⁠—and was actively failing⁠—to handle or control the nation or its diverse and multicultural population in the face of competing warlords and government figures and offices; therefore, of course, Russia would have to secure the region. 

But as Russia had surrounded, bombarded and was invading Chechnya for this second time⁠—and even as Chechnya, like Ukraine today, was earnestly fighting back⁠—things were not good in the unrecognized Republic of the Chechens. As the nation was being roughed up by the brutal and renewed Russian assault, to put it nicely, Akhmad Kadyrov, who had formerly fought and led Chechens and their society against Russia with the larger majority of the nation, did what, for many Chechens, was and remains unthinkable: He changed sides and threw his hat in with the Russian government, President Vladimir Putin and those pro-Russian Chechens. 

The former rebel and religious leader turned his back on his nation, its people, and many of his Muslim followers in return for power and security in and for Chechnya, which Putin assured him and granted him after the Second Chechen War was over; Chechnya was, after the “Major Combat Phase” officially ended in the middle of 2000, to be aligned with Moscow. Kadyrov would become the first President of the Chechen Republic in 2003, after serving as a head figure since May of 2000. Despite the Russian military presence remaining in Chechnya until 2009, all was stable and peaceful⁠—from the Russian perspective of course. 

There is still,  to be sure, throughout Chechnya, violence with and concerning those anti-Russian Chechens who do not agree with the since assassinated Ahkmed Kadyrov’s still-living son,  Ramzan Kadyrov. Kadyrov has ruled as the President of the recognized successor nation to the Chechen Republic of Ichkeria, the Chechen Republic, since 2007. The younger Kadyrov now has sent Chechen soldiers into Ukraine to do to that nation what was done to his during his childhood, continuing his father’s shame for power and the phantom of prestige.

The alleged and confirmed atrocities committed in that small and relatively brief conflict, the Second Chechen War, by the Russian government that Vladimir Putin would come to lead and dominate for the next twenty years are, without question, as bone-chilling as anyone might read about in the books or hear about today on the television or radio. They include rape, torture, murder, terror campaigns, bombings, artillery shelling, the targetting of innocents and many of the crimes that are now being discussed in relation to the Russian invasion of Ukraine. 

The entire story is barbarous, grotesque and fascinating in equal portions, and for a number of reasons. While the indiscriminate violence and barbarism was already touched upon previously, the entire political circumstance also warrants further discussion, for it is similarly interesting vis-a-vis this current Ukraine circumstance. While the brutality of Russia’s time in Syria is also important for understanding what is being witnessed in Ukraine, and is the more immediately available point of reference, the political angles of Ukraine are much similar to that which was seen in Chechnya. Both cases represent  the Russian variant of the infamous international diplomacy of targeted “Regime Change.”

Syria

Russia supplies weapons to the legitimate authorities of the Syrian Arab Republic.

Russian President Vladimir Putin, December 2015

The Syrian Civil War is another difficult matter to address, largely because there is such a massive propaganda campaign to make it all appear as though it is exclusively a made-up or overblown circumstance, proliferated and perpetuated by the usual cabal of Western powers. While American involvement in this crisis hasn’t been glorious, to say the least, it cannot bear the entire weight of an issue that Russia is simply much more involved in, and over the course of nearly a decade. 

Much as we have seen with the campaign within Ukraine regarding their claims of nazis and needing to “denazify” the nation, what Russia does perhaps better than any other is certainly the art of bending and molding information that might have some shred or shreds of truth into something that is way different than it actually is. For example, while Ukraine has neo-nazis, so does Russia and most of the rest of the world to some degree. While Syria was unstable and suffering before their pr0-Assad intervention, as the US was aiding rebels during the administration of Barack Obama, Russian involvement has not necessarily added any humanity or relief to the conflict, and the Russian air campaign has led to thousands of civilian deaths. 

The excuses that Russia uses to justify the widespread violence and criminality of their efforts to assist peoples or regimes have a certain common logic to them. Just as Russia now claims that it must “denazify” Ukraine⁠—with Nazis, mind you⁠—it once claimed that Chechnya needed invading to suppress the Wahhabists that attempted to secure Dagestan before the Second Chechnyan War, and emphasized the threat of jihadists in Syria as it first sent soldiers and mercenaries there as well. While there is evidence enough to believe that Nazis, Wahhabists and Jihadists are not fabrications of Russian propaganda, that does not mean that those groups were anything more than the convenient pretenses to invade. They serve as internationally arguable or justifiable pretenses when it serves them to conceal alternative, regional or international interests, an old story in foreign policy (and one the US is certainly guilty of as well).

While living under the Assad regime is likely quite better than living under Daesh, which has found itself embroiled in the complicated fighting that has unfolded over the last decade-plus, along with anti-Assadists, Sunni Jihadists, Kurds and other volunteer foreign fighters, that is hardly the standard that nations should be striving to live up to. Syrian President Bashar al-Assad is almost certainly guilty of crimes against humanity. He is not a good leader, nor has his leadership⁠—and Russian intervention⁠—left Syria a secure or even, for many Syrians, a tolerable place to live. This is due only in part to the sanction regime that hangs as a yolk around the collective, metaphorical neck of that nation for the deeds of their President and his administration. The iron fist with which Assad rules (and which he largely shares with his father, who ruled before him) is a major factor in sabotaging Syrians’ quality of life, and it has been enabled by Russian military might.[1] 

Over the course of the Civil War, Russia has backed Syria with both its military and its vast array and supply of neo-nazi, pro-Russian mercenaries in working to maintain control over that nation from a hodgepodge, unrelated and uncooperative bunch of rebels including various branches of the Islamic State, Kurdish freedom fighters on the edges and borders of the unofficial yet widely recognized Kurdistan that straddles four different nations, as well as many other groups and peoples from across that region and the greater world. 

Here too, stories abound of the gruesome and disturbing war crimes that have been committed against innocents by the armies of Syria and Russia, as well as those lackeys who work for them. And this conflict still goes on, rarely being discussed even when Russia isn’t actively invading an Eastern European nation, despite the quite sizable mass of people ⁠—it unfairly displaces⁠—another parallel to Ukraine. Had the rest of the world to have reacted in as multilateral a fashion to those circumstances concerning nations like Chechnya and Syria over the past thirty years⁠—as they have taken notice regarding Ukraine⁠—then perhaps the conflict in Ukraine would not be happening at all today.

Ukraine

Yet instead, Ukraine has always been the primary focus. While the Russians were first targeted by sanctions in 2014, that foray into the sanction regime occurred only after Russia invaded the Ukraine⁠—not for their involvement in Syria years earlier, their brief invasion of Georgia in 2008, and not for their involvement in Chechnya nearly 15 years later. Would an earlier sanction regime have pushed Russia away from future aggression? I do not believe so. 

However, sanction regimes are not the only recourses for each and every international ailment⁠— events like the aforementioned should have created volition for international conferences aimed at creating mutual procedures and agreements for avoiding these types of grotesque atrocities, no matter who the perpetrator. Such an international agreement, however, would require truly international participation, and would need to be binding on all parties⁠—including the United States, which has often rejected such previous efforts. 

The lack of massive, multilateral responses, collective protestations or consequences regarding either the Chechnya affairs or the Syrian civil war helped to create the perceived environment in which Putin invaded Ukraine expecting little international uproar or blowback. 

While the world looked at 2014 in Ukraine as a tough, fast response to an international issue within Europe itself, the Russian President simply appraised things on a scale that extended back nearly twenty years earlier. He was able to remember the lack of resistance to his use of military force in other nations, like those mentioned above and others, and based on that scale, he saw that the relatively weak response that his invasion of Crimea earned him was the first such response any such incursion had earned him in over 15 years. Moreover, in the post-Crimea period, Russia had carefully constructed its economy to be less susceptible to economic sanctions

Vladimir Putin gambled, felt what the repercussions were, and doubled down moving forward that he could get more without suffering too terrible a burden proportionately speaking. He attempted to create an economy that could withstand a sanctions barrage⁠—despite that he never imagined the sanction regime created for his deeds would be so massive or multilateral⁠—and his wager was unwise. However, he was likely correct that, after years of preparations, sanctions would be insufficient to stop him from achieving his goal. Long term, forever sanctions simply do not “work” in the ways in which their authors or applicators intended, because, while they destroy society, the economy, and the lives of many millions of innocents⁠—should they not immediately force the desired capitulation⁠—their continual application does not necessarily incentivize any greater mutuality or diplomatic cooperation after the tenth or twentieth year than after the first month or so of the conflict in question; what once was a massive, widely felt punishment eventually becomes the detestable, everyday reality for people who steadily forget what things were once like.

Furthermore, should executive prevarication occur within most any illiberal, pseudo-democratic state⁠—such as Russia and Iran to name two⁠—and so long as the hierarchy and military remain supportive of those leaders, sanctions will mostly wither away men, women and children instead of the intended target and targets. Now, this does not mean that Vladimir Putin or his regime are entirely safe from either the serious external or internal repercussions, of which have spawned from his regional machinations, yet the sanction often weakens without entirely creating the conditions to prevent a conflict, dissolve active conflicts or administrative regimes.

While President Putin believed that he could make his dreams come to life in Ukraine quickly, decisively, and without much blowback from Western nations, he was incorrect in this estimation. While Putin can likely withstand sanctions in isolation, the physical resistance of the Ukrainian army has created serious problems for the operation which were likely unforeseen. This was an obvious miscalculation, and the uproar against Russia’s actions has been swift and terrifying in its sheer magnitude and scope,while support for Ukraine has gradually built into a real challenge for Putin.  it could very well be the conflict of which marks the beginning of the end for Vladimir Putin as President and leader of Russia, as well as for Russia as a nation in its current iteration. While he maintains his security apparatus’ and speaks with firm, aggressive language, cracks, both within the government as well as the society, are beginning to appear.

Should he lose this “special operation” in Ukraine, however; should he be unable to maintain a proper and functionally positive territorial hold over enough land in either the Donbas or elsewhere⁠—with or without a bilateral and multilateral treaty in place between Russia, Ukraine, and the rest of the international community⁠—or should he remain in prevarication as his economy and society literally shrink and shrivel up to levels last seen many decades ago, his continual leadership will simply be untenable in the most basic and necessary of diplomatic, economic, and practical conditions and matters. 

This can be considered a byproduct of a long term sanction regime should one desire to declare it to be as much, but, again, even when sanctions inflict damage or affect change, context is important. These sanctions do not appear to be stopping this violence in Ukraine as of yet, despite that they are obviously working in the sense of deprivation and isolation of various sorts; Vladimir Putin is also in no imminent danger of losing his current grip on power. Yet if the aforementioned deprivation tactics lead not to the desired effect regarding this current conflict in Ukraine, but, instead, to some change many, many years down the line, those sanctions failed in regards to their actual and primary objectives; hence, two seemingly incongruent points⁠—that sanctions in the long-term will not affect the desired changes vis-a-vis Russia, any more than short-term sanctions have thus far, and that Vladimir Putin has set both himself and his nation on an undeniable path towards change⁠—can coexist without much issue.

Chechnya but 20 times larger

Over the previous years and decades, Vladimir Putin’s persistent, and pervasive use of force and brutality against innocents is unmanageable and unreasonable, as well as obviously and blatantly illegal. His use of neo-nazi mercenaries⁠—while simultaneously claiming to be saving populations and nations of whom Putin often calls nazis or extremists in some other sense⁠—is as unreasonable, when analyzed, as claiming that you must invade a nation to save it from genocide, only to bomb, shell and annihilate the cities, towns and citizens of the polity into nothingness.

In Ukraine, like Chechnya and Syria before it, Russian interference has only exacerbated what issues were already existing within the polity⁠—but Russia has so far been unable to identify and prop up an allied ruler like Kadyrov or Assad. While the Ukrainian resistance has been in large part due to the incredible resilience of those people and their military, as well as the resources that much of the world has given them, individual external forces have also made a difference. Here are many Chechens fighting Russia and its allies currently who were previously driven from their homes by pro-Kadyrovites and pro-Russian forces and supporters, as well as the Syrians,  and are other foreign fighters fighting with or against Russia and its allies for similar feelings,  including the neighboring  Belarusians. The foreign fighters in Ukraine to a great extent represent a very tangible blowback to decades of violent intervention. 

What is being witnessed in Ukraine is only the further expansion of violence that has been experienced for years already by so many peoples across this globe. Russia has backed and supported groups loyal to them for years, including neo-nazi laced mercenary groups, fascists, alleged-psuedo-Socialists and violent, despotic strongmen at each and every turn. What Russia now seems intent on doing regarding the strip of Eastern Ukrainian land (and which it likely intended for the whole country at the beginning of the invasion) is not dissimilar to those previous atrocities; President Vladimir Putin, his administration, and his Russian military and bands of mercenaries, are simply behaving that way on a stage with much greater spotlight than the previous targets of large-scale Russian involvement, and the results are similar. We are seeing a familiar barbarism on a scale that is like Chechnya, but 20 times larger.


Featured Image is After battle. BTR-80, lined with militants, by Svm-1977

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adamgurri
22 days ago
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Moderate Reformers and the American Administrative State: Jesse Tarbert’s When Good Government Meant Big Government

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Conservatives have long cast a suspicious eye on American government. They have questioned the efficacy and indeed, the constitutionality of the modern American state. Political debate surrounding the administrative state has raged within the courts, within Congress, and within the administrative apparatus of the executive branch itself. Pejoratively dubbed “the deep state,” conservatives have assailed “big government” as an affront to first constitutional principles. According to the orthodox historical narrative, Progressive reformers such as Theodore Roosevelt and Woodrow Wilson advocated the expansion of federal administrative capacity to address the complications posed by the expansion of capitalism and big business. On the other side of the equation were conservatives such as William Howard Taft and Henry Stimson who opposed the expansion of federal power in favor of federalism. In short, it was conservative Republicans who opposed “big government.”

Jesse Tarbert’s new book When Good Government Meant Big Government complicates this narrative. Tarbert argues that—contrary to the orthodox narrative—it was a group of moderate to conservative “elite reformers” in the years between 1913 and 1933 who advocated the expansion of the federal government as a way to promote “good government”. These reformers, inspired by notions of corporate governance, advocated the empowerment of the federal government to efficiently govern the United States. 

Tarbert’s narrative focuses on a group of reformers, among them Taft, Stimson, Warren Harding, and future chief justice Charles Evans Hughes. These men brought with them not the goal of shrinking the administrative state, but to make it efficient. They sought to empower the government to effectively execute national policy in response to burgeoning business. 

Among the reforms advocated were a national budget and presidential reorganization of the executive branch. To these reformers, the ability to reorganize the executive branch was crucial because it allowed the president to shift bureaus and agencies to administer federal law more effectively. Scholars of reorganization generally focus on the New Deal and the work of the Brownlow Committee, but Tarbert builds on the scholarship of John Dearborn, Noah Rosenblum, and others, and argues that the idea of reorganization began much earlier—in the 1910s and 1920s. Tarbert’s argument thus complicates the image of the New Deal as a singular “constitutional moment,” and contributes to a robust literature on the development of the American State.

Perhaps Tarbert’s most interesting contribution is his argument that the defeat of the federal anti-lynching bill in 1922 sounded a death knell for the elite reformers. Moderate Republicans had adhered to Booker T. Washington’s accommodation of racism up until World War I. Building on work by Megan Ming Francis, Tarbert shows how those same Republicans joined forces with the NAACP in the postwar period and sought to weaponize congressional power to combat lynching. The introduction and support by Warren Harding of the anti-lynching bill was frightening to white supremacist southern Democrats and conservative western Republicans. They saw the potential threat posed by federal power to Jim Crow. These two coalitions then joined forces to successfully curb the expansion of federal power. It was not until Franklin Roosevelt’s sweeping election in 1932 that the expansion of federal power came back in vogue.

Interestingly, the Supreme Court is largely absent from Tarbert’s account, and the narrative would have benefitted from its inclusion. For example, in Myers v. United States, the Court struck down an 1876 federal statute that placed limits on the president’s power to remove a postmaster. Chief Justice Taft, a prominent member of the “elite reformers,” held that the statute violated the separation of powers. As Andrea Katz and Noah Rosenblum have pointed out, Taft was careful not to condemn the civil service, stating that “[t]he independent power of removal by the President alone, under present condition, works no practical interference with the merit system.” Taft’s opinion in Myers thus fits nicely within Tarbert’s book, and even bolsters his argument. 

The book’s lack of engagement with the Supreme Court and legal doctrine is, in many ways, a virtue. Tarbert’s book is an engagement with scholars of American Political Development (“APD”) and historians, not necessarily lawyers. But the lack of engagement is also a missed opportunity given the increasing prominence of the administrative state in the federal courts. As an example, the Court recently held the structure of the Consumer Financial Protection Bureau unconstitutional, citing Chief Justice Taft’s opinion in Myers approvingly. Curiously, the Court failed to grapple with Chief Justice Taft’s language about the civil service or other historical evidence of broad congressional power over the state. Justice Neil Gorsuch is also leading a charge to more stringently police delegations of power by Congress to the executive branch; a turn to “Americana Administrative Law.” The history that Tarbert supplies is therefore a powerful critique of Justice Gorsuch’s and others’ positions on the administrative state. The book would have benefited had the Court been integrated into the argument a bit more. Of course, this critique is tantamount to asking Tarbert to write a much longer book, but the Court’s absence from the narrative might obscure some of the contributions that the book supplies.

Tarbert’s book joins a rich literature on the creation and development of the American state. It will require historians, APD scholars, and lawyers to grapple with the argument. The book also raises many questions: What role does race and racism play in conservatives’ quest to shrink the administrative state in the mid-twentieth century? What is the relationship between racism and constitutional-political developments such as the unitary executive theory and the nondelegation doctrine? These are important questions with answers that are still being developed. Tarbert’s book thus provides a path forward for legal historians, APD scholars, and political historians alike.


Featured Image is Supreme Court, U.S. Taft Court

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adamgurri
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