The Equal Protection Clause of the 14th Amendment Supports a Constitutional Right to Abortion: Alito's Deceptive Opinion Reveals His Political Partisanship

THE EQUAL PROTECTION CLAUSE

David Mills has made some interesting comments on my post arguing for there being a constitutional right to abortion in the 14th Amendment's "equal protection" clause.  He thinks a better constitutional text for this would be the Third Amendment (on the quartering of soldiers in someone's house), which implicitly suggests a right to privacy that could include the right to have an abortion.

I thought I should respond to one of his comments in a separate post.  Here's the comment:

"The equal protection clause is just one more amendment that tries to put a round peg in a square hole. Equality implies a comparison between two similar things. In the case of a woman applying to membership with the bar she can be compared with men. In the case of homosexual couples, they can be compared with heterosexual couples.

"But in the case of pregnancy, what is the thing you would compare it to? Well nothing, unless you want to compare a fetus with a tumor, which as you point out does not have the possibility of becoming a person like a fetus does.

"So that is why I think the 3rd amendment should be looked at as by far the best amendment to support abortion. No other amendment makes as good a case for the right to privacy.

"And I really don't like the idea of abortion being a state matter. Under amendment 3, it is difficult to see how a state could whittle away the right."

For my response, I can quote the words of Jack Balkin ("Abortion and Original Meaning," 322-23):

"One might argue that, because only women can become pregnant, laws restricting abortion do not violate sex equality, because they do not treat women differently from similarly situated men.  There are no similarly situated men.  The principle of equal citizenship, however, is not limited to the requirement that laws be formally equal in this way.  The relevant question is not whether men and women are different in their capacity to bear children, but the difference that this difference should be allowed to make in terms of women's status in society and their enjoyment of basic rights of citizenship.  The text of the Fourteenth Amendment, and principles underlying the Amendment stand for the proposition that the state may not create or maintain a lower caste of citizens, impose second-class citizenship, or effect subordination of a social group through law.  When the state uses women's capacity to become pregnant as a lever to subordinate women, assign them a second class status in society, or deny them full and equal enjoyment of their rights of citizenship, it violates the equal citizenship principle.  It may not use pregnancy as a device to deny women equal citizenship or subordinate women precisely because only women can get pregnant."

So, for example, I assume that we would all agree that prohibiting women from admission to law schools and from practicing law, as was done in the 19th century, was a denial of their equal rights.  Now, in many law schools, there are as many women as men; and women have excelled in the practice of law.  

But for many of those women, their success as students and lawyers in achieving equality with men in their careers has depended on their being free to delay motherhood when it would interfere with their careers.  For many of these women, if they had been denied the right to abortion and thus forced to become mothers early in life, and forced to have many children, that would have prevented them from achieving success in the legal profession equal to that of men.  Thus, laws that criminalize abortion tend to reinforce the subordination of women to men, and in this way, they violate the Equal Protection Clause of the Fourteenth Amendment.

I have written previously about how women in a liberal society naturally desire to become a mother, but they need to balance this desire with other natural desires.  When women pursue professional careers, and they want to have children, they have to decide how to organize their lives to balance one desire with another.  In the United States, most women (80% to 90%) will become mothers before they reach the end of their reproductive lives; but many of these women decide to delay motherhood until they have become established in their professional careers.  For many of these women, the freedom to decide on abortion is an important part of their decision-making, which is taken away from them by laws forbidding abortion.

ALITO'S DECEPTION REVEALS HIS POLITICAL PARTISANSHIP

At some points in his opinion overturning Roe, Justice Samuel Alito resorts to a rhetoric of deception that shows he is writing as a political partisan advancing a policy preference rather than as a judge interpreting the law.

It is true, as he says, that the "right to abortion" is never explicitly mentioned in the Constitution.  But he admits that, of course, the Supreme Court has recognized many constitutional rights that are not explicitly enumerated in the Constitution.  The Court must do this to comply with the 9th Amendment's declaration that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

The question then is how does the Court identify those rights "retained by the people" but not enumerated in the Constitution?  The answer must be that these rights can be inferred as implicit in the original meaning of the constitutional text.  But then, again, the Court looks for some help in interpreting that original meaning.

Alito's answer is to appeal to a doctrine stated in the opinion in Washington v. Glucksberg (1997).  The question in Glucksberg was whether a Washington state law criminalizing assisted-suicide for terminally ill patients was an unconstitutional violation of a person's right implicit in the Due Process Clause of the 14th Amendment to make fundamental decisions about their life and health.  The Court unanimously said no.  Their reasoning was that the Court recognized rights as implicit in the Fourteenth Amendment only when these rights were "so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment" (727).

Alito appeals to this language in Glucksberg in arguing that there is no constitutional right to abortion because it is not "deeply rooted in our history and traditions."  (See page 5 of his opinion.)

But in the oral arguments on the Dobbs case in December, when Alito made this argument, one of the lawyers pointed out to Alito that this passage in the Glucksberg opinion has a footnote--note 19 on page 727--identifying the decision in Roe v. Wade as one of the many decisions of the Court that rightly identified rights "deeply rooted in our history and traditions," because in the common law, abortion was not a crime when it was done before "quickening"--that is, before the mother felt the fetus moving in her womb.  The states that began towards the middle of the 19th century to criminalize abortion at every stage of pregnancy were violating this deeply rooted common-law tradition of allowing abortion before quickening.  (See pages 75-76 of the oral arguments.)

That note 19 in Glucksberg also identifies the right to use contraceptives (Griswold) and the right to interracial marriage (Loving v. Virginia) as examples of constitutional rights that are not explicitly enumerated in the Constitution, but which can recognized as implicit in the original meaning of the Fourteenth Amendment, just like the right to abortion.  Note 19 also quotes from Meyer v. Nebraska (1923) as saying that liberty in the 14th Amendment includes "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."  This would include the common law rule that abortion is not a crime when it is done before quickening.

Notice that in his opinion (page 5), Alito remains completely silent about this point--that he was distorting the decision in Glucksberg by claiming that its standard of constitutional interpretation would support overturning Roe.  This kind of deceptive distortion of the law is characteristic of a political partisan who has a policy preference against abortion rather than a judge interpreting the law.

This is one of many flaws in Alito's opinion that reveal it to be an exercise in raw political power rather than an impartial interpretation of the law.

Curtis Yarvin's Argument for Filmerian Monarchy and Against Lockean Liberalism Ignores the Empirical Evidence: The Historical Decline in Violence

Curtis Yarvin praises Sir Robert Filmer as "the baddest-ass reactionary who ever lived," and he identifies Filmer's Patriarcha as the best defense of absolutism and divine-right monarchy.  Although Filmer died in 1653, Patriarcha was not published until 1680, when it was recognized as a defense of the Stuart restored monarchy against its Whig critics.  John Locke's Two Treatises of Government were published in 1689 as a theoretical justification of the overthrow of King James II and the Stuart monarchy in the Revolution of 1688.  Locke's First Treatise was a fervent critique of Filmer's Patriarcha.  His Second Treatise laid out the political thought of Whig liberalism.

Yarvin sees 1688 as the critical turning point in history--the turn from feudal monarchy to modern liberalism.  If you want to be a true reactionary, Yarvin insists, you need to be a Jacobite arguing for the restoration of the Stuart monarchy.  

That's exactly what Yarvin proposes.  Today, the legitimate heir to the Stuart throne of England is the 27-year-old Prince Joseph Wenzel of the Royal House of Liechtenstein.  The solution to England's problems would be to put King Joseph I on the throne and allow him to rule with the absolute power once held by the Stuart monarchs.  There are two ways to do this.  Either persuade a majority of the English people that this is what needs to be done.  Or persuade the British Army to stage a military coup to bring this about.

Yarvin indicates that the persuasive argument for doing this is simple.  It's a choice between order and disorder: absolutist monarchy promotes order, while liberal democracy promotes disorder.  In Great Britain, the only way to restore order is to restore the Stuart monarchy.

But to make this persuasive, wouldn't we have to offer some empirical evidence to back it up--evidence that while absolutist monarchies have generally secured social order, liberal democracies have generally inclined to social disorder?  Yarvin almost never considers the empirical evidence.

The one possible exception is that at least twice in his writings, Yarvin refers briefly to some data about the crime rate in Great Britain.  Obviously, one measure of order or disorder in society is the rate of crime, particularly violent crime.  If Yarvin is correct, we would predict that feudal illiberal societies have low rates of violent crime, while modern liberal societies have high rates.

Here's the one short passage where Yarvin claims the empirical evidence is on his side:

"According to official statistics, between 1900 and 1992 the crime rate in Great Britain, indictable offenses per capita known to the police, increased by a favor of 46.  That's not 46%.  Oh, no.  That's 4,600%.  Many of the offenders having been imported specially, to make England brighter and more colorful.  This isn't a government.  It's a crime syndicate."

Unfortunately, Yarvin's internet link to his source is broken, so I can't see exactly what he's citing, but it's some kind of British government website with crime statistics.

His selection of data is a bit odd.  Why does he start in 1900 and stop in 1992?  It is widely known that crime rates in Western Europe and North America rose dramatically from the 1960s to the early 1990s.  But then, in the mid-1990s, crime rates dropped dramatically and reached historically low levels around 2010.

Did Yarvin stop in 1992 so that he could ignore the drop in crime rates over the past three decades?

And if he wants to find data for low crime rates under the rule of premodern absolutist monarchies, shouldn't he be looking at the historical data long before 1900?

I suspect that Yarvin doesn't do this because he doesn't want his readers to see the quantitative evidence presented by many scholars (Eisner 2003, 2014; Muchembled 2012; Pinker 2011; Sharpe 2016) that from high rates of violence and homicide in the Middle Ages, there has been a long decline in modern liberal societies, which shows that liberalism promotes moral self-command, and that people in pre-modern illiberal societies suffered from a lack of self-control. 

Some of this historical evidence is neatly presented in a graph by Max Rosser.  As you can see, the homicide rate was about 23 per 100,000 population in 1300 (King Edward I), 4.0 in 1675 (the restored Stuart monarchy), 2.0 in 1725 (the Hanoverian monarchy with Parliamentary supremacy), and 0.5 in 2015.  So the homicide rate under the Stuarts was 8 times as great as the rate today.  Does this mean that the Stuart monarchy was not a government but a crime syndicate? 

I have written about this evidence here, here, and here.

Manuel Eisner (2003, 2014) is a criminologist who has assembled the History of Homicide Database, which is the most comprehensive collection of quantitative estimates of homicidal levels from 1200 to the present.  His data show that the average estimates of homicide rates across Europe from 1200 to about 1450 converge at a rate of about 27 per 100,000 inhabitants.  This average rate then begins to decline:  20.1 (1500-1549), 12.0 (1600-1649), 5.5 (1700-1749), 3.5 (1800-1825), 2.0 (1900-1924), and 1.0 (2000-2012).  Over a period of 500 years, the peacetime criminal homicide rate in Europe fell by half every century.

Eisner's data also show that most of this decline in homicide rates was due to a fall in lethal male-to-male fighting of about 99%!

Eisner provides evidence that the best explanation for this dramatic drop in homicidal violence in Europe over the past 500 years is that there was what Norbert Elias called a "civilizing process" (Elias 2000; Linklater and Mennell 2010).  European societies went through a change by which average levels of self-control, standards of decency, and disgust for open displays of cruelty tended to increase, which arose from the move away from the incivility of the Middle Ages to the civility of European modernity.  Locke spoke about his in his book on the education of children when he advised parents to use the "law of reputation" to teach the virtues of "civility."

So why is Yarvin silent about all of this empirical evidence that premodern illiberal societies tended to promote violent disorder?  Is it because this kind of evidence would work against persuading the British people or the British Army to restore the Stuart monarchy?

REFERENCES

Eisner, Manuel. 2003. "Long-Term Historical Trends in Violent Crime." Crime and Justice 30:83-142.

Eisner, Manuel. 2014. "From Swords to Words: Does Macro-Level Change in Self-Control Predict Long-Term Variation in Levels of Homicide?" Crime and Justice 43:65-134.

Elias, Norbert. 2000. The Civilizing Process. Revised ed. Cambridge, MA: Blackwell.

Linklater, Andrew, and Stephen Mennell. 2010. "Norbert Elias, The Civilizing Process: Sociogenetic and Psychogenetic Investigations--An Overview and Assessment." History and Theory 49 (October): 384-411.

Muchembled, Robert. 2012. A History of Violence: From the End of the Middle Ages to the Present. Cambridge, MA: Polity.

Pinker, Steven. 2011. The Better Angels of Our Nature: Why Violence Has Declined. New York: Viking.

Sharpe, James. 2016. A Fiery and Furious People: A History of Violence in England. London: Random House Books.

Curtis Yarvin's Deceptive Account of the Confederate Firing on Fort Sumter, and His "Confederate Racist Fascism"

Curtis Yarvin's deceptive history of the American Civil War is part of his neoreactionary history of what he calls the Three Modern Wars.  As an illustration of his deception, I will concentrate on his explanation of the Confederate firing on Fort Sumter, which initiated the Civil War.

Yarvin identifies the Three Modern Wars as the War of Secession (the American Civil War), the First German War (World War I), and the Second German War (World War II).

Yarvin claims that these three wars share five common features.

"Feature A:  In each Modern War, we see an archaic side (anti-democratic, right-wing, reactionary, etc.) and a modern side (democratic, left-wing, revolutionary, etc.).  It is easy to see which is which: the Confederacy, Wilhelmine Germany, and Nazi Germany are archaic."

"Feature B:  In each Modern War, the archaic side initiated military activity by attacking the modern forces.  The Confederates shelled Fort Sumter, the Kaiser invaded Belgium, Hitler invaded Poland, and the Japanese bombed Hawaii, etc.  This might of course be a mere military coincidence, but I don't think it is."

"Feature C:  In each Modern War, the archaic side was substantially weaker on paper than the modern.  The Union was substantially more populous and industrially productive than the Confederacy, the Triple Entente than the Triple Alliance, the Allies than the Axis."

"Feature D:  In each Modern War, the modern side defeated the archaic, and imposed its own terms of surrender without negotiation.  The defeated political structures were thoroughly liquidated, and replaced by new structures of the victor's design."

"The conjunction of B, C, and D is especially intriguing.  If the archaics always look like they will lose the war, and indeed always do lose the war, why do they always start the war?"

"The obvious theory is that they're so evil, they just can't help it.  Perhaps this works for you, and perhaps it always will.  But we will suggest another solution to this mystery."

"Feature E:  For at least most of the duration of the Modern Wars, the modern side is the plaintiff, and the archaic side is the defendant."

"E.g.:  the North is trying to subdue the South; the South is trying not to be subdued by the North.  Victory for the Confederacy means the survival of the Confederacy.  Victory for the Union means the non-survival of the Confederacy.  The German Wars are slightly more complex, but through most of both wars, it was the Germans who made peace proposals, their enemies who rejected them."

"The combination of features E and C suggests the possibility that predation is the best metaphor with which to explain the Modern Wars.  At least, if we did not find E and C, we could exclude predation.  We do see E and C; so we must still consider predation."

But how is it possible to see the North in the Civil War as the predator, and the South as the prey?  Wasn't it the Confederates who fired the first shots on April 12, 1861, when they shelled Fort Sumter in the harbor of Charleston, South Carolina?

No, Yarvin responds, the North provoked the South into attacking Fort Sumter, and so what we see here is camouflaged predation.  Abraham Lincoln wanted war with the Confederacy in the spring of 1861, but he wanted to cleverly provoke the Confederates into firing the first shots, so that they would appear to be the aggressors, and the North would appear to be fighting in self-defense.

In support of this conclusion, Yarvin quotes a long passage from George Lunt's book The Origin of the Late War (Boston, 1865).  Lunt tells the story of how John Campbell of Alabama, a Justice of the U.S. Supreme Court, mediated negotiations between three commissioners representing the Confederacy and Union officials over terms that would avoid war.  Campbell said that in meetings with Secretary of State William Seward, Seward promised that the garrison of soldiers at Fort Sumter would be evacuated.  Campbell was shocked, therefore, when a fleet of Union ships appeared off the Charleston harbor on April 12.  The Confederates in Charleston sent a message to Montgomery, Alabama, asking for orders from Jefferson Davis.  The order was to demand the surrender of the fort, and then if the demand was refused, they should start bombardment.  When the commander at the fort--Major Robert Anderson--refused to surrender, the Confederates launched the attack.

Lunt suggests that Union leaders dispatched the ships to Charleston in order to provoke the Confederates into firing on the fort, so that they would appear to be the aggressors, and the Union would appear to be acting in self-defense.  Lunt observes: "It was generally thought at the North that the attack on Fort Sumter was a desperate, if not a treacherous deed; but it was considered at the South as the repulse of a threatened assault upon Charleston, involving an ostensible breach of faith by a responsible officer and agent of the administration."

Yarvin says that he began reading Lunt's book when he noticed that Carlyle mentioned him in a footnote.  Yarvin says: "Origin of the Late War is simply a wonderful book; it has both judgment and immediacy, detail and passion.  I recommend it highly.  If you only read one primary source on the War of Secession, this should probably be the one."

Yarvin says that this book supports "the conclusion that Lincoln, despite his speeches at the time, wanted a war and was happy to get one."  "The approach is one of camouflaged predation.  Perhaps it can be summarized as: 'kick the dog until he bites, then shoot him.'  Press your target, using blows that hurt but do not draw blood, until he finally snaps and bites back.  Then it's time for the Glock.  The resulting execution appears to the casual observer, who misses the kicks or can be persuaded not to see them, as a simple case of justified self-defense--putting down a biting dog."

Remarably, Yarvin draws this bold conclusion only from his reading of Lunt's book.  He does not refer his readers to any other historical sources.  And his story of what led to the firing on Fort Sumter is a highly simplified narrative of what in fact was a very complex story.  In his history of the Civil War, James McPherson says that Abraham Lincoln's decision about Fort Sumter is "one of the most thoroughly studied questions in American history" (Battle Cry of Freedom, 267).  

It is surprising, therefore, that Yarvin does not convey to his readers the complexity of that scholarly debate over that historical question.  Either Yarvin is ignorant of that scholarship.  Or he knows about it, but he doesn't want his readers to ponder it, for fear that this would weaken his case for the "camouflaged predation" of the North.

Fort Sumter was on an island four miles from downtown Charleston at the entrance to the bay.  At the fort, Major Robert Anderson commanded a garrison of Union soldiers.  Having seceded from the Union, the Carolinians assumed that they would soon take all of the United States property in Charleston, including the fort.  They had hundreds of militiamen in Charleston ready to forcibly take the fort if it was not voluntarily surrendered.  The fate of Fort Sumter was a big news story across the country.  Everyone knew that if the Confederates attacked the fort, that would launch the war.

On March 5, Lincoln was told by Anderson that the garrison at Fort Sumter was running out of supplies, and that within six weeks, Anderson's men would begin starving to death.  So Lincoln had six weeks to decide between three possible courses of action.  He could send ships with supplies and reinforcements that would shoot their way into the bay, but then he would be accused of starting the war, and this would divide the North and unite the South, while pushing the Upper South (including Virginia) into joining the secession.  Another possibility was that he could withdraw the garrison and surrender the fort.  This would keep the peace and probably keep the Upper South in the Union.  But this would divide the North, weaken the Republican Party, and be seen by foreign powers (such as Great Britain) as recognition of the Confederacy's independence, so that foreign governments would give diplomatic recognition to the Confederacy.  A third alternative was to stall for time, hoping that within six weeks some peaceful way could be found to keep the fort in Union hands.

Lincoln received conflicting advice from people inside and outside his administration.  Secretary of State Seward advised him to surrender Sumter, because this could keep the Upper South in the Union and strengthen the unionists in the Confederate states, who were working to bring the South back into the Union.  Seward was an ambitious rival of Lincoln's who was conniving to take the leadership of the administration away from Lincoln.  Without Lincoln's knowledge, Seward told the Confederate commissioners that Fort Sumter would be surrendered, and he leaked this news to the press.  Notice that Yarvin says nothing about this--that Seward was acting on his own without Lincoln's approval, and therefore Lincoln had never promised the Confederates that Fort Sumter would be surrendered.

On April 4, Lincoln gave the orders for a plan that no one had suggested to him.  He had come up with his own solution to the crisis--a fourth possibility--that some historians have identified as a stroke of genius.  Lincoln drafted a letter for the Secretary of War Simon Cameron to send to Major Anderson, which you can find in the Collected Works of Abraham Lincoln, vol. 4, 321-22, available online.  He told Anderson that an expedition to relieve his garrison was on its way, and that it should arrive by the 11th or the 12th: "the expedition will go forward; and, finding your flag flying, will attempt to provision you, and, in case the effort is resisted, will endeavor also to reinforce you."  Notice what this means: the garrison will be provisioned, but it will not be reinforced militarily unless the Confederates attack the fort to prevent the provisioning.

Lincoln also drafted a letter to Robert Chew signed by Cameron that was sent on April 6.  Chew was a clerk in the State Department.  This letter is in the Collected Works, vol. 4, 323-24, also available online. Chew was instructed to meet Governor Francis Pickens in Charleston and deliver to him the following message: "I am directed by the President of the United States to notify you to expect an attempt will be made to supply Fort-Sumpter with provisions only; and that, if such attempt be not resisted, no effort to throw in men, arms, or ammunition, will be made, without further notice, or in case of attack upon the Fort."  

So the Governor knew that the provisioning of the fort would be purely peaceful, unless the Confederates attacked the fort and forced the Union soldiers to fight back.  The Governor passed this message to Jefferson Davis in Montgomery and asked for instructions.  Davis called a cabinet meeting for April 9, which endorsed an order to General Pierre Beauregard, commander of the Confederate military in Charleston, instructing him to attack the fort before the relief ships arrived, if possible.  After Anderson refused Beauregard's order to surrender, Beauregard ordered the attack to begin at 4:30 a.m. on April 12.  After thirty-three hours of bombardment, during which the Union relief ships did not intervene, Anderson was forced to surrender the fort on April 14.  On April 15, Lincoln called 75,000 militiamen into national service.  The war had begun.

Notice that Yarvin says nothing about any of this.  He does not mention the letters to Anderson and Chew.  Why?  Presumably, because this would weaken his argument that Lincoln wanted to start a war by forcing the Confederates to shoot first.

From the beginning of the Civil War to the present, people have debated Lincoln's motives for his attempt to resupply Fort Sumter.  People have taken three positions.  The first is that Lincoln wanted war, and he manipulated the circumstances to force the Confederacy into firing the first shot, so that the Union would appear to be fighting in self-defense.  This is what the southerners and their apologists have said.  This is Yarvin's position.  But Yarvin is careful to remain silent about the two alternative positions that have been adopted by most historians.

One alternative is to say that Lincoln wanted to preserve the peace, but he feared that surrendering the fort would demoralize the Union and strengthen the Confederacy, particularly by persuading Great Britain to recognize the Confederacy.  So Lincoln devised his resupply plan so that the Confederates would be free to decide between peace and war.

Another only slightly different alternative is to say that Lincoln hoped the Confederates would choose peace, but he expected that they probably would choose war.  To me, this seems the most plausible explanation.

By refusing to lay out all the relevant evidence and reasoning in the historical debate over this question, Yarvin shows again that he has no interest in serious intellectual debate, because he is only a propagandist for his reactionary authoritarianism.

Yarvin defends the Confederacy because it came close to his model of the best regime as based on black slavery and authoritarian despotism.  But still he criticizes the Confederacy for not going far enough towards this authoritarian best regime.  He says that the Confederates were conservative, but not truly reactionary.  They should have been reactionaries in restoring something like Stuart monarchy and embracing Robert Filmer's argument for patriarchal order.

We should not be surprised when Yarvin tells us that he likes to "flirt" with "Confederate racist fascism."

Curtis Yarvin's Weak Arguments Against the Declaration of Independence and For Slavery

 In my previous post on Curtis Yarvin, I have said that his arguments are remarkably weak.  His favorite form of argumentation is begging the question:  he finds a writer who agrees with him, he paraphrases or quotes from that writer, and then he concludes: ah, you see, I must be right because this writer agrees with me!  I have seen the same kind of sophistical rhetoric in the work of other critics of liberalism, such as Patrick Deneen and Rod Dreher.

In doing this, Yarvin violates his own standards for fairly debating controversial questions.  For example, in his writing about the debate over the American Revolution, he observes: "If you think of Patriot v. Loyalist as a lawsuit and yourself as a juror, not only had you never heard a single word from the defense, you hadn't even really heard a proper proposition."  His readers might assume, then, that Yarvin is going to vigorously present both sides of the case, and then show how weighing the opposing arguments against one another reveals the superiority of the Loyalist position.  But instead of doing that, he carefully selects only spokesmen for the Loyalists, and he is silent about what the Patriot might say in response.

From the beginning of his essay on the American Revolution, Yarvin is vehement in his Loyalist advocacy: 

"At present you believe that, in the American Revolution, good triumphed over evil.  This is the aforementioned aggregate.  We're going to just scoop that right out with the #6 brain spoon.  As we operate, we'll replace it with the actual story of the American Rebellion--in which evil triumphed over good."

"Yup.  We're really going to do this.  You're on the table.  It's the real thing.  In the terms of the time, at present you are a Patriot and (pejoratively) a Whig.  After this initial subprocedure you will be a Loyalist and (pejoratively) a Tory.  Obviously, a challenging surgical outcome.  But hey, it's the 21st century.  If not now, when?"

HUTCHINSON'S STRICTURES 

Yarvin then calls his "first witness"--Thomas Hutchinson, a leading Loyalist.  He allows Hutchinson to speak through his 1776 pamphlet Strictures upon the Declaration of the Congress at Philadelphia--a Loyalist attack on the Declaration of Independence.  He calls other witnesses, but they are all Loyalists.  He does this even though he says that "there is no such thing as a neutral primary source," which leads us to expect that he will introduce primary sources on both sides of the debate, but he never does.

Even in his exposition of Hutchinson's Strictures, Yarvin does not tell his readers that a dozen or more scholars studying the Declaration of Independence have critically responded to Hutchinson's pamphlet.  For example, Hans Eicholz has done this in his book Harmonizing Sentiments: The Declaration of Independence and the Jeffersonian Idea of Self-Government (New York: Peter Lang, 2001), which includes a reprint of Hutchinson's whole pamphlet.

Hutchinson concentrates mostly on the longest section of the Declaration--the list of 19 grievances against the King.  Yarvin quotes Hutchinson's comment on the first grievance:

"The first in order, He has refused his assent to laws the most wholesome and necessary for the public good; is of so general a nature, that it is not possible to conjecture to what laws or to what Colonies it refers.  I remember no laws which any Colony has been restrained from passing, so as to cause any complaint of grievance, except those for issuing a fraudulent paper currency, and make it a legal tender; but this is a restraint which for many years past has been laid on Assemblies by an act of Parliament, since which such laws cannot have been offered to the King for his allowance.  I therefore believe this to be a general charge, without any particulars to support it; fit enough to be placed at the head of a list of imaginary grievances."

Yarvin does not investigate the history of this first grievance.  But what Hutchinson says is enough for Yarvin to take it as an illustration of a general point: "these Congress people are so whack-a-doodle-doo, half the time your Lordship can't even tell what they're talking about."

 Eicholz indicates that Hutchinson was probably right in identifying the King's prohibition of laws for paper money as one case contributing to the first grievance.  Some of the Patriots--such a John Adams--might have agreed that paper money was not a good idea, but there was a more general point here: while the revolutionaries agreed that the King had the constitutional power to suspend acts of colonial assemblies, they complained that the King was not impartial in exercising that power--he would suspend colonial laws in favor of British interests, but he would not veto acts of Parliament to defend American interests.  In his Summary View of the Rights of British America, Thomas Jefferson remarked: "It is now therefore the great office of his majesty to resume the exercise of his negative power, and to prevent the passage of laws by any one legislature of the empire which might bear injuriously on the rights and interests of another."

There were also complaints about the King's prohibiting colonial laws to prohibit the importation of slaves, which favored British interests in the revenue to the Crown from the slave trade.  In Jefferson's original draft of the Declaration of Independence, he included this as a separate charge against the King.  This was stricken by Congress, presumably as a concession to those Americans who benefited from the slave trade.

Yarvin does not say anything about Hutchinson's remark on the 11th grievance:

"He has kept among us, in times of peace, standing armies, without the consent of our legislatures."

"This is too nugatory to deserve any remark.  He has kept no armies among them without the consent of the Supreme Legislature.  It is begging the question, to suppose that this authority was not sufficient without the aid of their own Legislatures."

Well, yes, but isn't Hutchinson also begging the question here by assuming the point under dispute--that the British Parliament has supreme power to rule over the colonists without their consent?  Like the Tories of the Stuart monarchy, American Tories like Hutchinson assert that the people must submit to the absolute rule of the Sovereign, the only difference is that Parliament has taken the place of the King.

EQUALITY AND SLAVERY

 Another sign of Hutchinson's Tory ideology is that he passes over the Declaration's affirmation of human equality of rights as too ridiculous to deserve any comment, although he does make a snarky remark about the hypocrisy of Americans owning slaves.  

Yarvin agrees in scorning the idea of natural human equality of rights, and for that reason he cheers for the Confederacy as fighting for the good cause of natural slavery.  He agrees with Alexander Stephens in his "Cornerstone Speech" of March 21, 1861, which he delivered when he was Vice-President of the Confederacy.  He criticized Jefferson for his mistaken assumption of the equality of races.  And he declared: "Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner-stone rests, upon the great truth that the negro is not equal to the white man; that slavery--subordination to the superior race--is his natural and normal condition.  This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.  This truth has been slow in the process of its development, like all other truths in the various departments of science."  To assume that the negro is equal in every respect to the white man, and thus entitled to equal privileges and rights with the white man, Stephens insisted, is "attempting to make things equal which the Creator had made unequal."

Yarvin says that since he has seen the evidence that there are racial differences in average IQ scores, he cannot believe in "human neurological uniformity," and therefore he must agree with Stephens.  He also says that this shows that Aristotle was right in claiming that slavery was natural--that "slavery is a natural human relationship."

Yarvin also praises Thomas Carlyle--his favorite author--for his defense of slavery and his insistence that negroes will never work in place like Haiti and Jamaica if they are not compelled to work by the "beneficient whip" of their masters.

Like Carlyle, Yarvin admits that some masters mistreat their slaves in abusive ways.  But he claims that this rarely happens, because most slave masters are benevolent in their treatment of their slaves.  He dismisses the depiction of the brutality of slavery in Harriot Beecher Stowe's Uncle Tom's Cabin as "propaganda."

On all of these points, Yarvin displays his question-begging rhetoric in refusing to acknowledge or reply to any criticisms of his claims.

First, Yarvin assumes that the principle of equality of rights must depend on seeing human beings as equal or identical in all respects--particularly, "neurological uniformity."  But he is silent about the fact that all the liberal proponents of natural equal rights--from John Locke to Thomas Jefferson to Abraham Lincoln to Charles Murray--affirm natural human differences as being compatible with equality of rights.  As I have written in previous posts, the natural differences among human beings give no one the natural right to rule over others without their consent; and the natural equality of opportunity in pursuing one's happiness does not produce an equality of outcomes in life.  The natural differences between individuals, between the sexes, and between races give no one the right to despotic dominance over others.

Second, Yarvin praises Carlyle for his defense of slavery in his pamphlet Occasional Discourse on the Nigger Question. (Please excuse the N-word.)  But Yarvin is silent about the fact that Carlyle's friend John Stuart Mill wrote a pamphlet replying to Carlyle--The Negro Question.  Mill challenged Carlyle on every point.  By what authority does the master rule over the slave?  The answer, Mill suggested, must be: the law of force.

A similar point could be made about Yarvin's references to Aristotle endorsing slavery as natural.  Yarvin does not tell his readers that Aristotle distinguishes natural slavery from conventional slavery.  Natural slaves are those very few people who as adults are unable to care for themselves--perhaps those with severe mental disabilities.  Conventional slaves are those held down by force against their will--as with those who become slaves by being captured in war.  Obviously, the institution of slavery as actually practiced can only be conventional, not natural.  Yarvin is silent about all of this.

He is also silent about the factual evidence for the brutality of slavery that Stowe presented to show that her novel was not just "propaganda."  She published a book--A Key to Uncle Tom's Cabin: Original Facts and Documents--in which she provided extensive documentation to confirm her claim that the fictional story of her novel was an accurate depiction of what American slavery was like.  Now, maybe Yarvin would want to say that her evidence is not persuasive, but he would have to argue for that, which he has not done, because he never wants the burden of responding to possible criticisms of what he says.

The Congress Has the Constitutional Power to Overturn the Supreme Court's Overturning of Roe v. Wade

While the Supreme Court has recognized many constitutional rights that are not specifically enumerated in the Constitution, Justice Samuel Alito observes in his draft opinion overturning Roe v. Wade, the abortion right is unlike these other rights in that it raises a "critical moral question":  How can a mother have a right to abortion if this means killing what some people call "potential life," and others call an "unborn human being"?  (See pp. 32-33.)  If this means killing innocent human life, why isn't that murder?  Or should we say that this is not murder because terminating potential human life is not the same as killing a human person?

Alito says that in his role as a judge interpreting the Constitution, he cannot answer this moral question, because he must restrict himself to legal questions.  But, in fact, he cannot interpret the constitutional legality of the abortion right without answering this moral question.  If he were to answer the question by saying that abortion is murder, because the unborn life in a mother is a human person, then he would have to conclude that since the Constitution explicitly protects the right to life of all persons, then abortion must be unconstitutional, and state governments may not legalize abortion.  But since Alito decides that state legislatures must be free to resolve this issue for themselves, and so they can choose to legalize abortion, that must mean that Alito has decided that abortion is not murder, because the unborn life in a mother is not a human person.

Alito says: "we thus return the power to weigh those arguments to the people and their elected representatives" (34-35).  By my count, Alito uses this language of returning authority "to the people and their elected representatives" seven times (31, 35, 40, 41, 61, 65, 67).  

In referring to the people's "elected representatives," he is clearly referring to state legislators.  But why shouldn't the nationally elected representatives in the U.S. Congress decide this issue?  And why shouldn't the Congress have the power to enact legislation to overturn Alito's overturning of Roe v. Wade by declaring that the original meaning of the 14th Amendment secures a constitutional right to abortion for all women in the United States, and therefore any state law denying this right to abortion is unconstitutional?

Now, of course, the Congress could also decide to enact legislation to support Alito's decision that the 14th Amendment does not secure a right to abortion, and so state legislatures are free to either protect or deny that right.  But in either case, the Congress would be the ultimate interpreter of the 14th Amendment.

That this is the case is made clear by Section 5 of the 14th Amendment: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."  (Remarkably, this language appears for the first time in the Constitution in the three post-Civil War Amendments--13, 14, and 15.  Later, it appeared in the 19th, 23rd, 24th, and 26th amendments.)

This is a clear statement of constitutional text that empowers Congress to interpret the 14th Amendment and to decide whether the original meaning of that amendment secures the right to abortion as a constitutional right, as one of those unenumerated natural rights that are "retained by the people" (9th Amendment).

Section 5 of the 14th Amendment is a constitutional text that supports what Jack Balkin calls "living originalism."  On the one hand, if Congress asserts a constitutional right to abortion, this will have no legitimacy if the Congress cannot persuade the American people that this assertion is grounded in the original meaning of the text and principles in sections 1-4 of the 14th Amendment.  On the other hand, the Congress's interpretation of the original meaning of that text and principles is not bound by the original intent and original expected application of those who wrote and ratified the 14th Amendment in 1868.

The "living Constitution" and "originalism" are two sides of the same coin.

The Original Meaning of the 14th Amendment Supports a Constitutional Right to Abortion

The leak of a draft opinion written by Justice Samuel Alito of the Supreme Court indicates that a majority of the justices are preparing to strike down Roe v. Wade (1973) and thus deny that there is a constitutional right to abortion.  

The possibility of doing this raises three questions.  The first is a moral question:  Is it morally wrong for a mother to abort her pregnancy, because this is murder?  The second is a constitutional question:  Does the Constitution secure a mother's right to abort her pregnancy?  The third is a political question:  What are the political consequences of striking down Roe v. Wade?  In a previous post, I have answered the first and third questions.  

THE MORAL QUESTION

I have argued that the moral question can be understood in the light of the evolutionary psychology of moral judgments about the parental care of children.  The more a zygote, an embryo, a fetus, or a newborn resembles a human person, the stronger the moral claim it makes on our evolved moral feelings of care for children.  This combines reason and emotion: we must reason about the natural process of human embryology and child birth and the natural moral emotions that might be evoked by that process.  Since zygotes or embryos do not look like human persons to us, we do not feel the same moral revulsion against aborting them that we feel against killing a newborn child.  That explains why for thousands of years, abortions early in pregnancy were not punished as murder.  Even today, among the most fervent pro-life people, who profess to believe that human life begins at conception, most of them do not want women who abort early in pregnancy to be punished as pre-meditated murderers.

Notice that even in Alito's opinion, he does not say that abortion is murder, because if he had, he would have had to say that abortion is unconstitutional because it would violate the constitutional right to life of unborn persons.  Instead, he leaves this to the state governments to decide.

THE POLITICAL QUESTION

Previously, I have answered the political question by predicting that if the Supreme Court were to overturn Roe v. Wade, that would become a huge political blunder by the Republican Party, because it would outrage the majority of American voters who want to preserve the constitutional right to abortion, which then would become a political weapon for the Democrat Party to defeat the Republicans in the mid-term elections and beyond.

My prediction is now being confirmed.  Why don't we see Republican leaders celebrating the overturning of Roe?  Why aren't they saying:  You see, our Republican-appointed justices are doing exactly what we promised they would do?  No, instead, Mitch McConnell and Fox News are saying the leaking of Alito's draft opinion is a trick by some Democrat who wants to provoke public anger against Republicans!

What this shows is that Republican leaders have pretended to want to overturn Roe in order to win the votes of the minority of Americans who want that, but they have hoped this would never happen, because of the backlash it would provoke from the majority of Americans who want Roe upheld.

Gallup polls have consistently reported large majorities in favor of preserving the constitutional right of mothers to choose abortion.  In 2021, 58% of Americans opposed overturning Roe; and only 32% supported overturning it.  In 2007, it was 66% in favor and 25% opposed.  That's why McConnell and Fox News are so worried.

If the Supreme Court does finally issue Alito's majority opinion overturning Roe in June, then the Congress has the constitutional power to overturn this decision.  In Section 5 of the 14th Amendment, it is said that "the Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."  This allows the Congress to pass legislation declaring that the original meaning of the 14th Amendment recognizes a constitutional right to abortion.  If Republicans prevented the passage of such legislation, the Democrats could use this against Republican candidates in the mid-term elections.

THE CONSTITUTIONAL QUESTION

I have not yet written a post on the constitutionality of the right to abortion.  But I have written one arguing that the original meaning of the 14th Amendment supports the Obergefell decision that there is a constitutional right to same-sex marriage.  I can make a similar argument for the Roe decision.

I should emphasize, however, that I agree with Alito that the Court's reasoning for its conclusion in Roe was sloppy and unpersuasive in trying to ground the right to abortion in the Due Process Clause of the 14th Amendment.  But incorrect reasoning can often support correct conclusions.  And that's what happened in Roe.  It is possible to develop some correct reasoning about the original meaning of the Equal Protection Clause and the Privileges or Immunities Clause that supports a constitutional right to abortion.  

Here my thinking has been much influenced by Jack Balkin (2005, 2007, 2011), a professor at Yale Law School who expounds what he calls "living originalism" in the interpretation of the Constitution.  He argues that the traditional opposition between the "living Constitution" approach and "originalism" is a false dichotomy because they are actually two sides of the same coin.  Asserting a constitutional right has no legitimacy if it is not grounded in the original text and principles of the Constitution.  But the original meaning of the constitutional text goes beyond the original intent and original expected application of those who wrote and ratified the text.

Like Balkin, I would ground the constitutional right to abortion in the original meaning of the text and principles of the 14th Amendment rather than the original intent and original expected application of those who drafted and adopted the 14th Amendment.  The 14th Amendment does not specifically say that there is "a constitutional right to abortion."  And there is no evidence that the framers of the 14th Amendment intended or expected that this Amendment would be interpreted as supporting a constitutional right to abortion.  But then neither did they intend or expect that the 14th Amendment would be interpreted as supporting a constitutional right to interracial marriage, as happened in Loving v. Virginia (1967).  And yet most of us would agree that the Loving decision was correct, because we can see that there is a good argument for saying that state laws prohibiting interracial marriage violate the original meaning of the 14th Amendment's text and principles.

The text of the Constitution includes both enumerated powers and rights and unenumerated powers and rights.  Some of the enumerated powers and rights are so clearly specified that there can be no debate about their original meaning.  For example, the specification that the President must be at least 35 years old is so clear that there is little controversy about it.  But some of those enumerated powers and rights are stated as general concepts that are more difficult to interpret.  For example, the original meaning of the right to the "the freedom of speech" in the First Amendment is open to some debate as to what exactly is included in "freedom of speech."

The unenumerated powers and rights are stated as abstract principles that are even more difficult to interpret.  That the Constitution protects rights that are not specifically enumerated in the Constitution is made clear in the 9th Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."  The language of "retained by the people" suggest natural rights that people have prior to government.  I have written about this in my post on how the Lockean political philosophy of the Declaration of Independence is implicit in the Constitution, particularly in the 9th and 14th amendments.  

This was made clear by Representative John Bingham in 1866 when he first proposed the 14th Amendment, and he said that this amendment would give the federal government the power "to protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State."  Notice that Bingham did not specify exactly what those "inborn rights" were.  Similarly, Senator Jacob Howard in 1866 said that the privileges and immunities protected by the 14th Amendment "cannot be fully defined in their entire extent and precise nature."

The original meaning of the text of the 14th Amendment is expressed in abstract principles of justice--such as "the privileges or immunities of citizens of the United States," "life, liberty, or property," and "the equal protection of the laws."  Throughout the history of the United States, Americans have participated in a continuing discussion--including ordinary citizens, elected representatives, presidents, and judges--about how to interpret the original meaning of this text and how to apply it to the changing circumstances of the times.

The original meaning of the constitutional text goes beyond the original intent and original expected application of those who framed and adopted the text.  For example, those who framed and adopted the language of "equal protection" in the 14th Amendment assumed that this would not disturb the common law coverture rules, under which married women gave up their common law rights under the principle that their legal identity was merged into their husband's.  In his 1873 concurrence in Bradwell v. Illinois, which upheld a general prohibition on women becoming members of the Illinois Bar, Justice Bradley explained: "it is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule.  The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.  This is the law of the Creator.  And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases."  But now we can see that the common law rules of coverture were mistaken in assuming that men adequately represented women's interests.  And we can see that a legal prohibition on women becoming lawyers violates the original meaning of "equal protection of the laws" in the 14th Amendment, even though this was not the original intent and original expected application of the amendment.

When the 14th Amendment was ratified in 1868, most states had laws that criminalized abortions throughout the pregnancy.  There is no evidence that anyone at the time expected that the 14th Amendment would make these laws unconstitutional.  In his dissenting opinion in Roe v. Wade, Justice Rehnquist argued that this proved that the 14th Amendment was not originally intended to establish a right to abortion.  But this conflates original intent and original meaning.

Just as today we can see that laws prohibiting interracial marriage violate the original meaning of the 14th Amendment, we can also see that laws criminalizing abortion violate the original meaning of "privileges and immunities" and "equal protection."  Laws that criminalize abortion force women against their will to submit their bodies to the strains and risks of pregnancy and childbirth, and they require women against their will to become mothers with all the responsibilities that come with motherhood.  Criminalization of abortion thus denies women the liberty to choose whether or not they want to endure a pregnancy and become mothers.

Critics of the right to abortion argue that this right denies the rights of the unborn.  But we must consider whether the unborn have constitutional rights that take precedence over the rights of the mother.  There can be no right to abortion if the unborn are constitutional persons with their own rights.

Actually, none of the justices in Roe v. Wade and none of the justices in any of the abortion cases since Roe has ever claimed that the unborn are constitutional persons.  It's hard to find any text in the Constitution that would support this.  The Fifth Amendment says that "no person . . . shall be compelled in any criminal case to be a witness against himself."  How could a zygote or a fetus be compelled to testify against itself?

Section 1 of the 14th Amendment says: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."  Does this mean that unborn "persons" are not eligible to be citizens?  Or, more likely, does it assume that all persons are born somewhere, and those born in the United States and those born elsewhere but subsequently naturalized are citizens?

Even if the unborn are not persons, they have the potential to become persons--that is, individual human beings--and consequently the state can take some interest in protecting potential human life.  The abortion cases have allowed for this by allowing state governments to regulate and even prohibit abortions once the unborn potential for human life has become evident, particularly after the point of viability.  This allows for a balance between the mother's freedom of choice early in the pregnancy and the value of potential human life later in the pregnancy.

But this recognizes that while the mother is a person with all the constitutional rights of persons, the unborn is not a person, although we might rightly give some value to the unborn as potential persons.

REFERENCES

Balkin, Jack, ed. 2005. What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision. New York: New York University Press.

________.  2007. "Abortion and Original Meaning." Constitutional Commentary 24:291-352.

________.  2011.  Living Originalism. Cambridge: Harvard University Press.

Curtis Yarvin's Neoreactionary Authoritarianism: The Case for Feudal Autocracy and Against Anglo-American Democracy

 

                                                 Curtis Yarvin Interviewed by Tucker Carlson

I had never heard of Curtis Yarvin until I saw that the Claremont Institute was publishing some of his writing.  Once I began looking at his work, I knew that something strange was happening at the Claremont Institute.  

Yarvin ridicules the Declaration of Independence, scorns the American Revolution as "thuggery, treason, and hypocrisy," and takes the side of the Loyalists in their defense of King George III's monarchic rule over America.  He also praises the Confederacy for fighting a war of secession to defend slavery, which he regards as "a natural human relationship."  The only mistake the Confederates made, Yarvin believes, is that they did not see themselves as reactionary Cavaliers trying to restore the Stuart monarchy.  

I think I know what Harry Jaffa would have said about this.  Is this what the Claremont Institute now stands for?

For many years, Yarvin was known as "Mencius Moldbug," writing for his blog "Unqualified Reservations."  Although he no longer writes for that blog, it is still available online, and it is still the best place to go for his extensive writing.  I will be writing a series of posts on Yarvin with references to that blog indicated by the dates of the posts.

Although his writing is often hard to understand, I find that Yarvin is the most intellectually stimulating of all the far-right commentators that I have studied, even though I am not persuaded by what he says.

What I mean by "intellectually stimulating" is that Yarvin is one of the few--maybe the only one--of the Anglo-American Far Right thinkers today willing to be truly reactionary by rooting far-right thinking in the Tory ideology of divine-right monarchy and Robert Filmer's Patriarcha in opposition to the Whig Lockean ideology of natural rights to equal liberty and government by the consent of the governed.

I see three general theories in Yarvin's work.  First, there's a theory of Anglo-American political history over the past 400 years.  Second, there's a theory of American political history from 1933 to the present.  Third, there's a theory of what a neoreactionary political future might look like.

According to the first theory, Anglo-American political history has moved consistently for four centuries away from the healthy order of archaic feudal autocracy to the unhealthy disorder of modern liberal democracy--moving from the extreme far right to the extreme far left.  This historical movement has been driven by a struggle between moderns of the left and archaics of the right, manifested in a series of wars in which the modern left has always defeated the archaic right: the English Civil War (1642-1649), the Glorious Revolution of 1688, the American Revolution (1774-1782), the American Civil War (1860-1865), the First German War (1914-1918), and the Second German War (1939-1945) (see Yarvin's post for 3/5/09.)

According to the second theory, since the election of Franklin Roosevelt in 1933, the United States has been ruled by an "Orwellian mind-control state" that Yarvin calls the "Cathedral."  The purpose of the Cathedral is to "manufacture consent."  In a democracy, the ultimate source of legitimacy is the consent of the people expressed as public opinion.  But public opinion does not come from people thinking for themselves.  The people have to be told what to think, and that's the job of the Cathedral.  Unlike other mind-control states like Nazi Germany, the Soviet Union, and Communist China, the Cathedral operates as a self-organizing and synchronized system without any central coordinating executive authority--there is no Goebbels or Gestapo to run things--which makes it harder to identify and attack it.

The most powerful people in the Cathedral are the professors in the most highly ranked universities--Harvard, Yale, Columbia, Stanford, and so on.  The people in the "Brain Trust" who advised FDR came from these universities.  These professors are the ones who create all the new ideas about politics, economics, culture, and religion; and they pass these new ideas on to journalists at the most prestigious newspapers (such as the New York Times and the Washington Post).  These new ideas are then passed on to government bureaucrats, politicians, and public educators.  Over time--perhaps a generation--these new ideas seep down into the minds of the voters who then vote for those politicians who agree with these new ideas.  This then becomes public policy.  All of these new ideas are ever more extreme in their leftward movement.  And thus over time, public opinion and public policy move from right-wing thinking to ever more left-wing thinking (1/8/09).

As an example of how this works, Yarvin points to the remarkable change in public opinion in California from 1963 to 2008.  In 1963, a nearly two-thirds majority of California voters passed a referendum called Proposition 14, which amended the state constitution to add the following:

"Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease, or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses."

If you don't want to live with persons of color, the government cannot compel you to.

But then, 45 years later, in 2008, the voters of California by a nearly two-thirds margin voted for Barack Obama for president.  What explains this remarkable change in public opinion in California about race relations?  Yarvin's answer is that the left-wing idea of abolishing racial segregation and discrimination originated in the university and then was passed through the Cathedral until it become part of public opinion.  One way to see this, Yarvin suggests, is to notice that the public opinion of California in 2008 was very similar to the public opinion of Stanford in 1963.  That's how the Cathedral moves public opinion in a democracy to the left.

But moving ever leftward means moving away from archaic order to modern disorder, which means that eventually all modern democratic states will have to decay and dissolve.  Then what?  Well, Yarvin assumes, the world will have to move to the right--to the sort of authoritarian governance that can enforce order.  How could that happen?

Yarvin's answer is his third theory--a theory of how a new feudal authoritarian governance could emerge in the future.  This will not be a simple return to the feudal monarchy of the past.  This will be something new.  But it will resemble the feudal monarchy in some ways.

Yarvin speculates that the most likely possibility is the emergence of hundreds or even thousands of sovereign joint-stock corporations, which each one claiming ownership of a small patch of land--a city or a small region of territory--each sovereign and independent (11/13/08).

The corporation would be owned and controlled by its shareholders, who would select a chief executive officer with monarchic power to make all decisions final, although perhaps consulting with a board of directors.

This joint-stock corporation would want to maximize corporate efficiency and profitability.  The residents of the territory would sign customer service contracts specifying the services the corporation would provide, primarily security.  If they become unsatisfied, the residents can leave and look for a more attractive sovereign corporation somewhere else.

This proposal might explain why the high-tech multibillionaire Peter Thiel has been a close friend and supporter of Yarvin.  Would Thiel like to become CEO of one of these sovereign corporations?

I want to write some more posts on Yarvin.  And I will concentrate on what I see as the two biggest problems with his arguments.  The first problem is confirmation bias.  Yarvin supports his theories of history by going to "primary sources"--material written by people who lived during the historical period Yarvin is studying--and then drawing out conclusions from these sources.  His selection and reading of these sources is biased, however, in that he tends to pick sources that he agrees with, and largely ignores sources that he disagrees with.  If it is true, as he admits, that no primary source about a historically contested issue can be neutral, then he needs to bring opposing sources into debate and then show how one side of the debate really is stronger than the other.  He almost never does that.

The second problem with Yarvin's rhetorical style of arguing is that he does not survey the relevant empirical evidence for deciding the historical disputes that he enters.  So if he wants to prove that modern liberal democracy inevitably leads to disorder, while archaic autocratic authoritarianism leads to order, he needs to present the empirical evidence for that, which he rarely does.

I expect to concentrate on the debates over the Declaration of Independence, slavery, the American Civil War, and the disputes over divine right monarchy in 17th century England.

The Liberal Nation Versus Illiberal Nationalism in the Russo-Ukraine War

In the struggle of the Ukrainians to defeat the Russian invasion of their country, we can see the conflict between two kinds of patriotism: the patriotism of a liberal nation versus the patriotism of illiberal nationalism.  To see this, we need to understand that the idea of a nation is distinguishable from the ideology of nationalism, because a people can feel a patriotic attachment to their nation without the xenophobic feelings of nationalism.  Liberal democracy supports a patriotic sense of national identity but denies the illiberalism of xenophobic nationalism.  The nationalist critics of liberalism are wrong when they say that liberalism must dissolve any sense of national patriotism.

As I have indicated in a previous post, Ukraine is a far more liberal country than Russia, at least as measured by the Human Freedom Index, although Ukraine has far to go in moving towards the liberalism of countries like Estonia.  As Putin has clearly stated, the purpose of his invasion is to prevent Ukraine from moving towards the liberalism of the "Atlantic" world and to advance the illiberal vision of a Russian Eurasian Empire opposed to the liberalism of the West.

The courage of the Ukrainian people in risking their lives in defense of their liberal nation shows how liberalism can sustain national patriotism.  But this Ukrainian liberal patriotism shows none of the xenophobia of malignant nationalism.  This Ukrainian patriotism is not based on a national identity defined by race, religion, ethnicity, or language. One of many signs of that is that while Zelensky belongs to the small Jewish minority in Ukraine, he was elected president with over 70% of the vote.  Ukraine must be one of the few countries in the world--other than Israel--where that could happen.  And even as they fight this war against the Russian invaders, the Ukrainians have not shown any hatred of ethnic Russian, Russian-speaking, or Russian Orthodox citizens.

In thinking about how liberalism can be compatible with the human desire for national identity, one needs to raise a fundamental question: what does the existence of nations say about human beings?  My thinking about this question has been stimulated by Steven Grosby, in his book Nationalism: A Very Short Introduction (Oxford, 2005), although my answer differs slightly from his.

First, we must ask what we mean by "nation."  The Oxford English Dictionary defines "nation" as "a people or group of peoples," or "a large aggregate of communities united by factors such as common descent, language, culture, history, or occupation of the same territory, so as to form a distinct people."  Notice the ambiguity in that a nation shows the unity of "a people" and the multiplicity of a "group of peoples."  

Grosby conveys this ambiguity in saying that a nation exhibits "only a relative cultural uniformity" that is not absolute, because every nation will territorially encompass a number of different localities, regions, cultural traditions, languages, religions, and legal systems.  Sometimes that will lead to separatist movements like that of Quebec in Canada, Scotland in Great Britain, or Catalonia in Spain.  Consequently, every nation must try to manage the conflicts that arise from this diversity.

Grosby's brief definition of nation is "a territorial community of nativity."  More elaborately, he explains:

"A nation requires a relatively extensive, bounded territory or an image of such a territory, the existence of which usually involves the following: a self-designating name, a centre (with institutions), a history that both asserts and is expressive of a temporal continuity, and a relatively uniform culture that is often based on a common language, religion, and law.  Still, it is more faithful to the historical evidence to realize that each of these characteristics is rarely found to be absolute or complete; rather, they are processes in the development of interests, practices, and institutions, all of which are beset with ambiguities and tensions" (20).

The word nation is derived from the Latin word natus for "birth," which Grosby conveys by speaking of "nativity."  Membership in a nation arises from being born into it.  But then there are different ways to be born into a nation.  According to the "ethnic" criterion of birth, one joins a nation by being born to parents who are recognized as members of that nation.  According to the "civic" criterion of birth, one joins a nation by being born in the territory of that nation.  According to the "naturalization" criterion of birth, the laws of immigration and citizenship can set procedures by which immigrants become "naturalized" citizens--that is, they are treated as if they were natural-born citizens. 

What this shows is that membership in a nation is a social reality that human beings create and maintain through the language of collective recognition or acceptance: someone belongs to our nation when we agree to designate them as such.  This means that the standards for membership in a nation are always changing as we change the institutional facts of citizenship.  This is an example of what John Locke called "mixed modes" and what John Searle has called "institutional facts."  (I have written about this previously.)

Our standards for membership in our nation will depend upon what we believe to be the best standards for promoting the well-being of our nation, and there will be debate over this.  Liberals like Locke will argue for general laws of naturalization that make it easy for foreigners to immigrate to our nation.  (I have written about Locke's open borders immigration policy as cultural group selection.)  But illiberal nationalists like Trump, Le Pen, and Viktor Orban will argue that the well-being of the nation requires strict barriers to immigration.

This debate over open borders versus border walls depends ultimately on what we think the existence of nations says about human nature.  For example, if you agree with someone like Frank Salter that people need to live in nations to satisfy their natural desire for ethnic identity, then you will probably agree with him that every nation should practice ethnic nepotism that favors its ethnic group over others.  

But I have argued against this by claiming that while there is evidence for evolved instinctive tribalism or coalitional affiliation by which we distinguish between in-group and out-group, the cues for identifying who belongs to which group are set by social experience that is not instinctive but learned.  Consequently, we can decide that the well-being of our nation requires a broad sense of national identity that does not depend on ethnicity, race, religion, or other narrowly exclusive forms of identity.

According to the ideology of nationalism, the existence of nations shows us that human beings naturally desire to live in a national community that is uniform and fixed in its biological and cultural identity as defined by race, ethnicity, religion, or language, which defines those who belong to "us" against those who belong to "them"--or the "people" against the "enemies of the people."  There are the true Americans and those who are not.  There are the true French and those who are not.

This ideology of nationalism makes two mistakes.  First, no national community is absolutely uniform and fixed biologically or culturally.  Even the most seemingly homogeneous country will have some cultural diversity that will create potential conflicts that have to be managed.  So, for example, Putin is forced to recognize this problem in that while he often appeals to Russian nationalism based on a shared Russian ethnicity and religion, he also has to admit that Russia is a multiethnic and multireligious society, and so Russian national identity must somehow recognize that diversity.

A liberal nation will manage those multicultural conflicts by looking for compromises and promoting civility.  One way a liberal regime does that is by distinguishing state and society and saying that while the state will coercively enforce those criminal and civil laws necessary to secure individual liberty, but without enforcing a tight moral community based on some conception of the best way of life, people will be free in civil society to form such moral communities organized around families, churches, schools, neighborhoods, and other voluntary associations.  One example of this is how the Amish immigrated to North America so that they would be free to establish and maintain their tightly organized moral communities without being persecuted.  I have spoken about this in my responses to the communitarian critique of liberalism coming from people like Patrick Deneen and Rod Dreher.

The second mistake made by the ideology of nationalism is the assumption that human beings cannot extend their sense of affiliation beyond their own nation.  In fact, human beings engage in all kinds of activities, occupations, and organizations that bind them into global networks of cooperation and affiliative attachments.  The monotheistic religions, global charities, international commercial trade, scientific research, human rights organizations, and all of those millions of global networks of cooperation show how we extend our social concern beyond our nations to all of humanity.

We see that displayed now when people around the world wave the Ukrainian flag, sing the Ukrainian national anthem, and come to the aid of Ukraine in its war against Russia, because they see that the victory of this liberal nation in defending its liberal social order from conquest by an illiberal power will serve the interests of many nations by showing the resoluteness of liberal patriotism in defense of national liberty.

The Macron/Le Pen Debate: Le Pen's Continuing Silence About Counter-Revolutionary Catholicism

 

                                  

Here is the full debate between Emmanuel Macron and Marine Le Pen from two days ago.  It's long--almost three hours--followed by commentary.  The presidential election is coming up on Sunday.

As I have indicated in my two previous posts, I have been trying to understand the intellectual grounds of the French far right conservatives.  On the one hand, some of the French conservatives--particularly, those writing for the journal L'Incorrect--say that they are in the French intellectual tradition of Joseph de Maistre and Charles Maurras, who embraced an illiberal counter-revolutionary Catholic theocracy as the foundation of French national identity.  On the other hand, the French conservatives contradict this when they endorse the idea that the French state must always be secular, which suggests that they are actually very liberal conservatives, and thus not counter-revolutionaries at all.  I see no way to resolve this incoherence in their thinking.

I was reminded of that in watching the debate.  Le Pen stressed economic issues--particularly, the popular complaints about inflation and the other concerns about economic security and preserving France's welfare state.

She did speak about the importance of preserving French national identity against the threat of Islamic immigration, which is where we might see evidence of her far right illiberalism.  She reaffirmed her promise that she would ban Muslim women from wearing Muslim veils in public.  Macron criticized that proposal as unconstitutional and warned that it could provoke a "civil war."  Notably, writing in L'Incorrect, Alexander de Galzain saw this as most important moment in the debate.

Le Pen also affirmed her proposal for having a national referendum to change the French Constitution, including an amendment to prohibit the settlement of a "number of foreigners so large that it would change the composition and identity of the French people," which is a rewording of the far right "Great Replacement" theory.

But notice that she never suggests that the "identity of the French people" should be tied to French Catholic Christianity, and thus she never challenges the secularism of French public life.

Jacques de Guillebon, editor of L'Incorrect, would say that this shows how the French conservatives do not understand the "metaphysics of power"--the idea that political power depends on supernatural authority, which in France means restoring Catholic theocracy.  Thus, far from being too reactionary, the French far right is not reactionary enough.

Le Pen could show herself to be a true illiberal reactionary by embracing Putin and supporting his invasion of Ukraine, which he has justified as a reclaiming of the Russian Orthodox Christian civilization as the alternative to a decadent liberal West.  She has in fact been a supporter of Putin in the past.  But she has tried to reverse her position in recent weeks by declaring her support for Ukraine.  Her leaning towards Putin has become her biggest weakness in the election.  In the debate, Macron criticized her Russian connections, particularly in taking a loan for her party from a Russian bank linked to Putin's circle of oligarchs.  She appeared vulnerable at that moment.

That illustrates how the Russian invasion of Ukraine has become a huge liability for the European far right, which has long seen Putin as their ideological ally.   

Remarkably, in the last few days, in her last campaign swing before the voting, Le Pen has said the French people have a clear choice: "Macron or France?"  So defining the national identity of France is easy for Le Pen: she is France!

I should say, however, that the French liberal voters don't have a good choice in this election: Macron is only a little less authoritarian than Le Pen.

Macron, Le Pen, and Zemmour: Does the French Far Right Need Catholic Integralism?

 As expected, Emmanuel Macron and Marine Le Pen will face each other in the presidential runoff April 24.  In a field of 12 candidates, Macron received 27.4% of the votes cast yesterday, and Le Pen received 24.3%.  Eric Zemmour, the other far right candidate, received only 7%.  He has immediately pledged his support for Le Pen in the runoff.

Zemmour's defeat was predicted by Jacques de Guillebon in his April 6th editorial for L'Incorrect.  He predicted an 8% vote for Zemmour.  Guillebon scorns Zemmour for his decision to run for president, which took far right votes away from Le Pen.  Even Marion Marechal betrayed Le Pen (Marechal's aunt) by campaigning for Zemmour.  Guillebon still hopes that Le Pen can win, but he gives off a tone of pessimism.

The reason for his pessimism is suggested by his editorial, which has the title De Profundis Droitibus (To the Depths of the Right).  He points out that in some public opinion surveys, 45% of the French identify themselves as right-wing.  But somehow the French right has failed to fully mobilize those voters to win power.  Why?

Guillebon says "this identity right has completely forgotten its people."  The right has offered the French people "to rid them of scum and Islamists, a healthy idea but oh so incomplete."  He laments that the French right is "far from the time of Thomism and organic Maurrasism."  "In truth, this right will not have been too reactionary, it will not have been reactionary enough."

He concludes with a remark that I quoted in my post yesterday: "In truth, if we knew anything about our history, we would know that one never seeks temporal power without having taken spiritual power: without Saint Remi, no Clovis. We demand a right of the soul."

As I said yesterday, Guillebon is intimating here that the French far right could be far more successful than it has been so far if it embraced the French Catholic Integralism of Maurras.  Neither Le Pen nor Zemmour has done this.

Both Le Pen and Zemmour have warned about the threat to French cultural identity coming from the increasing number of foreign people immigrating to France, with Muslim immigrants being the greatest threat.  Le Pen has proposed to ban Muslim women from wearing head scarves and to fine them if they do.  She has said there is "a choice of civilization," in which "the legitimate preponderance of French language and culture" should be protected and full "sovereignty reestablished in all domains."  She has also argued for changing the French Constitution to ban any policies that lead to "the installation on national territory of a number of foreigners so large that it would change the composition and identity of the French people."  But notice that she does not define the "identity of the French people" as rooted in Catholic Christianity, which is what the Catholic Integralists want.

French Catholic Integralism would require the repeal of "The Law of December 9, 1905, on the Separation of the Churches and the State."  This law was enacted during the Third Republic to establish state secularism and the freedom of religious exercise in civil society.  After repealing this law, Catholicism could be established as the state religion of France, as it was before the Revolution of 1789.

Is this what Guillebon wants the French far right to do?  If so, then it's striking, as I have said in my post yesterday, that none of the writers in Guillebon's magazine clearly endorses this.  As I suggested, the reason for this is probably that they know that there are not enough "counter-revolutionary Catholics" in France to support this.

We thus see that even those people on the French far right turn out to be liberal conservatives who reject the illiberal conservatism of Maistre and Maurras.