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 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.

Could the Confederacy Have Won the Civil War by Arming Their Slaves in 1862?

The primary reason why the Union defeated the Confederacy in the Civil War is that the Union had far more soldiers and sailors than did the Confederacy.  The Union enhanced this advantage beginning in the summer of 1862 with the first deployment of black soldiers.  By the end of the war, 180,000 black soldiers and 18,000 black sailors had fought for the Union; and most of them had been enslaved at the start of the war.

The Union's numerical advantage could have been lessened if the Confederacy had armed its slaves early in the war.  David Brion Davis--one of the leading historians of slavery and abolition--once suggested that if the Confederacy had armed large numbers of its slaves as early as the spring of 1862, that might have won the war for the South (Davis 2006, 11).  Actually, in the last year of the war, there was a public debate in the Confederacy over the possibility of arming the slaves.  And in March of 1865, the Confederate Congress passed a law authorizing the military enrollment of slaves to fight for the South.  But by then it was too late to make any difference in the war, because Lee surrendered to Grant on April 9.

The Confederacy was a grand experiment in government.  Conceived in the liberty of white men to enslave others and dedicated to the proposition that all men are not created equal, it became the largest and most powerful republic of white men based on slavery in the world at that time.  (This explains why some of the leading thinkers on the American Far Right today--like Curtis Yarvin--admire the Confederacy.)  The Civil War was a test of whether that nation or any nation so conceived and so dedicated could long endure.  It did not.

Could the Confederacy have endured if it had armed its slaves early in the war?  Or would this have denied the theory of slavery on which the Confederacy was founded?  Could the slaves have been armed without being emancipated?  Would armed slaves have fought to preserve their own enslavement?  If they had, would this have proven that they were natural slaves who consented to their enslavement?  Or did most Confederate leaders in March of 1865 accept the emancipation of slaves as the necessary condition for arming them?  Did they therefore accept that a slaveholders' republic like the Confederate States of America could not long endure?

The critical turning point for the Confederacy in this debate came at the beginning of July of 1863.  On July 3, Jefferson Davis received the news of the defeat at the battle of Gettysburg, with 28,000 Confederate men killed or wounded, one third of Lee's Army of Northern Virginia.  On July 4, Davis learned of General Pemberton's surrender to Grant at Vicksburg and the loss of a whole army of 30,000 men.  A few days later, Davis received a letter from Robert E. Lee asking for reinforcements.  Lee observed: "Conscious that the enemy has been much shattered in the recent battle, I am aware that he can easily be reinforced, while no addition can be made to our numbers."

Now, for the first time, some Confederate officials began to discuss the enlistment of black men.  In August, a legislative committee in the Alabama state legislature debated a series of emergency measures that included the compulsory impressment of slaves for military service as "pioneers, sappers, and miners, cooks, nurses, teamsters, or as soldiers" (McCurry 2010, 323).  One newspaper editor at the Montgomery Weekly Mail worried that that negroes are "racial inferiors," but "the proposition to make them soldiers" would be a "practical equalization of the races."

In this early debate, there was no discussion of the possibility of emancipation.  But over the next year and a half, three possibilities emerged.  (1)  Arm the slaves and keep them enslaved.  (2)  Arm the slaves and emancipate only the black soldiers, and perhaps also their families.  (3)  Arm the slaves and emancipate all the slaves.

The third option was the most radical.  It was proposed on January 2, 1864, in a remarkable memorandum written by Major General Patrick Cleburne.  He was an officer of the Army of Tennessee, and he sent the memo to other officers.  "Every soldier in our army already knows and feels our numerical inferiority to the enemy," he insisted.  "If this state continues much longer, we must be subjugated."  Moreover, "slavery, from being one of our chief sources of strength at the commencement of the war has now become, in a military point of view, one of our chief sources of weakness," because Confederate slaves were being recruited by the Union armies, and the slaves were an "omnipresent spy system" for the Union soldiers.  Thus, the Confederates had to wage war with the Union army in front and "an insurrection in the rear" (Cleburne 1880; McCurry 2010, 325-331).

Under these circumstances, the only way for the Confederacy to have any chance to avoid defeat, Cleburne argued, was to recruit the slaves into the Confederate army.  But to motivate the slaves to fight for the Confederacy, he insisted, they would have to be promised a general emancipation.  To preserve its independence, the Confederacy would have to give up slavery.  "For many years, ever since the agitation of the subject of slavery commenced, the negro has been dreaming of freedom.  It has become the paradise of his hopes.  To attain it, he will attempt dangers and difficulties not exceeded by the bravest soldier in the field."  The Confederacy would have to satisfy that dream of freedom "by emancipating the whole race upon reasonable terms" (Cleburne 1880). 

Jefferson Davis ordered the suppression of Cleburne's document, because it was "injurious to the public service that such a subject should be mooted."  Cleburne was ordered to destroy all of his personal copies.  Sometime in the 1880s, a copy of his memo was discovered and published.

In November of 1864, after the fall of Atlanta in September, the Confederacy's situation had become so desperate that even President Davis proposed to the Confederate Congress that slaves be armed.  But unlike Cleburne, Davis said nothing about general emancipation.  

Davis's proposal sparked a passionate debate.  Many Southerners thought that arming slaves would betray the proslavery national identity of the Confederacy.  General Howell Cobb of Georgia complained:  "If slaves will make good soldiers, our whole theory of slavery is wrong" (McCurry 2010, 352).  

But by the winter of 1864, the Confederate armies had become so decimated by casualties and desertion--Davis said that two-thirds of the army had deserted (Weitz 2005)--some Southerners argued that arming slaves might be a necessary evil.  Some thought that the slaves would fight for the Confederacy--and for the preservation of slavery--without any promise of freedom for themselves.  Others thought the slaves would fight only if the armed slaves were promised freedom for themselves and their families.  Almost no one took Cleburne's position that arming slaves would require a general emancipation of all slaves.

On March 8, 1865, the Confederate Congress passed a law (by a narrow vote) authorizing President Davis to arm slaves.  On March 13, Davis signed the law that permitted him "to accept from the owners of slaves the services of such number of able-bodied negro men as he may deem expedient . . . to perform military service in whatever capacity he may direct" (McCurry 2010, 350).  Notice that this preserved the power of the slaveholder over his slave, and nothing was said about emancipation.

On March 17, Abraham Lincoln responded to this development in an impromptu speech at the White House to the 140th Indiana Regiment:

". . . I have in my lifetime heard many arguments why the negroes ought to be slaves; but if they fight for those who would keep them in slavery it will be a better argument than any I have yet heard. (Laughter and applause.)  He who will fight for that ought to be a slave. (Applause.)  They have concluded at last to take one out of four of the slaves, and put them in the army; and that one of the four who will fight to keep the other in slavery ought to be a slave himself unless he is killed in a fight. (Applause.)  While I have often said that all men ought to be free, yet I would allow those colored persons to be slaves who want to be; and next to them those white persons who argue in favor of making other people slaves. (Applause.)  I am in favor of giving an opportunity to such white men to try it on for themselves. (Applause.) . . ." (1989, 2:690-91).

Lincoln seemed to suggest here that any slaves who would fight for their own enslavement ought to be enslaved, because they have shown themselves to be natural slaves.  But there is also a mocking tone to his comments (with laughter from the audience) that indicates he doesn't believe this--that surely slaves will never fight to enslave themselves, and the Confederates are foolish if they believe this.

Apparently, however, President Davis was unwilling to try the experiment of arming slaves to fight to keep themselves in slavery.  On March 23, he signed and released a general order, as a piece of enabling legislation, that "No slave will be accepted as a recruit unless with his own consent and with the approbation of his master by a written instrument conferring, as far as he may, the rights of a freedman" (McCurry 2010, 350-51).  This is a stunning concession by the President of a slaveholding republic:  to win the slave's "consent" to fight for the Confederacy, Davis must recognize his "rights of a freedman."

General Lee wanted to go further than that--more towards Cleburne's proposal.  He said that they could not "expect slaves to fight for prospective freedom when they can secure it at once by going to the enemy," so "the best means of securing the efficiency and fidelity of this auxiliary force would be to accompany the measure with a well-digested plan of gradual and general emancipation" (McCurry 2010, 342).

There is a long history from antiquity to modern times of arming slaves, but one historian surveying that history has concluded that "the arming of slaves both enabled and encouraged" slaves to claim their natural rights--"rights to freedom, rights in property, rights as citizens, and rights to recognition" (Brown 2006, 342).  In their effort to arm their slaves, the Confederates seemed to reach the same conclusion.

This confirms the argument I have often made on this blog about the evolutionary history of slavery:  that from the first appearance of slavery in archaic chiefdoms and states (such as in Mesopotamia), we can see that slavery violated the natural desire for freedom that had become part of evolved human nature in the foraging state of nature, and therefore slaves have always tended to run from slavery to freedom.  In doing that, they express the Lockean liberal principle of self-ownership.

REFERENCES

Brown, Christopher Leslie. 2006. "The Arming of Slaves in Comparative Perspective."  In Christopher Leslie Brown and Philip D. Morgan, eds., Arming Slaves: From Classical Times to the Modern Age, 330-353.  New Haven, CN: Yale University Press.

Cleburne, Major General Patrick R. et al. to Commanding General, the Corps, Division, Brigade, and Regimental Commanders of the Army of Tennessee, January 2, 1864.  1880.  In United States War Department, The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies. Series 1, vol. 52, pt. 2, 586-592.  Washington, DC, 1880-1901.

Davis, David Brion.  2006.  "Introduction." In Brown and Morgan, 1-13.

Lincoln, Abraham.  1989.  Writings.  2 vols.  Ed. Don Fehrenbacher.  New York: Library of America.

McCurry, Stephanie.  2010.  Confederate Reckoning: Power and Politics in the Civil War South.  Cambridge, MA:  Harvard University Press.

 

Donald Trump--The Red Caesar--Abolishes the Individual Right to Due Process of Law

Jerce Reyes Barrios was born in Venezuela in 1989.  In February and March of 2024, he marched in two demonstrations in Venezuela to protest the authoritarian rule of Nicolas Maduro.  At the second demonstration, he was detained and taken to a secret building where he was tortured.

Shortly after he was released, he fled the country, hoping to receive asylum in the United States.  In Mexico, he registered online with the U.S. Customs and Border Protection (CBP) to request asylum in the U.S.  He presented himself to CBP officials on the day of his appointment.  He was taken into custody and detained at Otay Mesa Detention Facility in San Diego, California, in September of 2024.  His immigration attorney--Linette Tobin--filed a request for asylum.  His final individual hearing was set for April 17, 2025 before an immigration judge--Judge Robinson--at the Otay Mesa Immigration Court.

Barrios was initially placed in maximum security at Otay Mesa because he was accused of being a Tren de Aragua gang member.  This accusation was based on two claims.  The first was that he has a tattoo on his arm of a crown sitting on top a soccer ball with a rosary and the word "Dios."  Department of Homeland Security (DHS) officials say this tattoo is proof of gang membership.

The second claim is that when DHS reviewed Barrios' social media posts, they found a photo of him making a hand gesture that is proof of gang membership.

His lawyer responded to these charges by explaining that Barrios was a professional soccer player in Venezuela, and that he chose this tattoo because it resembles the logo for his favorite soccer team Real Madrid--a crown on top of a soccer ball.

She also explained that the hand gesture in his social media posts means "I Love You" in sign language.

His lawyer also submitted a police clearance from Venezuela showing that Barrios has no criminal record, letters about his steady employment as a soccer player and soccer coach, a declaration from the tattoo artist who rendered the tattoo, various online images of the Real Madrid logo, and an explanation of the "I Love You" hand gesture.  Barrios was then transferred out of maximum security.  

Barrios was waiting for his final hearing on April 17.  But on March 10 or 11, he was transferred from Otay Mesa to Texas without any notice to him or his family.  Then, on March 15, 2025, he was deported by plane to El Salvador.  His lawyer and his family have had no contact with him, and they know nothing about where he might be.

                                               Venezuelans Deported to El Salvador

All of this information comes from a sworn declaration of Barrios' lawyer that was filed in federal court on March 18.

The Fifth Amendment to the U.S. Constitution says: "No person shall . . . be deprived of life, liberty, or property, without due process of law."  Mr. Barrios was going to have his due process at his hearing before Judge Robinson on April 17.  

At that hearing, his lawyer would have presented her evidence that he was not a member of the Tren de Aragua gang and that he was not a criminal terrorist.  She would also have presented evidence that he had fled Venezuela to escape from torture and persecution by Maduro's authoritarian government, and therefore that he deserved asylum in the U.S. under the conditions set down in the U.S. Asylum Law (8 U.S. Code, Section 1158).  DHS officials could have presented their evidence and arguments as to why he should be deported.  Judge Robinson would then have decided the case after weighing the evidence and arguments presented to him.  That's due process of law.  

And that's one of the fundamental natural rights that is expressly declared in the Constitution as necessary for securing individual liberty.  If you can be deprived of your life, liberty, or property without due process of law, you are not a free human being.

Under the authoritarian dictatorship of Maduro in Venezuela, Mr. Barrios did not have that right.  He fled to the United States because he thought that America was dedicated to securing such rights, and that in America, he could be a free man.  He was wrong.  

He did not foresee that Donald Trump would become the Red Caesar, ruling as one man over an autocratic government, and that he would issue an executive decree on March 15, 2025, suspending the constitutional right to due process of law.

On that date--only six days ago--Trump signed his "Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua".   In this executive order, Trump authorized the immediate deportation of any Venezuelan immigrants who were not naturalized or lawful permanent residents of the United States if any DHS officials identified them as members of Tren de Aragua (TdA), a Venezuelan gang that Trump had earlier identified as a Foreign Terrorist Organization.  As legal authority to do this, Trump appealed to his constitutional authority as president with authority to conduct the nation's foreign policy in time of war and to his legal authority under the Alien Enemies Act of 1798.

The Alien Enemies Act was originally one of the four laws enacted in 1798 by the Federalist Party in Congress that were known as the Alien and Sedition Acts.  These laws raised the residency requirements for citizenship from 5 to 14 years, and authorized the president to arrest, imprison, and deport "aliens" during time of war.  The Sedition Act made it a crime for American citizens to "print, utter, or publish . . . any false, scandalous, and malicious writing" about the government.  These laws were enacted by the Federalists against the opposition party--the Democratic-Republicans.  It was assumed that new citizens would typically support the Democratic-Republican Party, and so the Federalists wanted to reduce the number of new citizens.  In particular, the Federalists were afraid of Frenchmen in the United States because the Democratic-Republicans were thought to be supporters of the French Revolution at a time when the U.S. was in a quasi-war with France, and it was widely thought that the U.S. and France would soon be openly at war.  The Federalists also wanted to use the Sedition Act to punish editors of Democratic-Republican newspapers.

The intense controversy over these laws was one reason why the election of 1800 became one of the most dangerous elections in American history, which came close to provoking a civil war.  Thomas Jefferson and the Democratic-Republicans won the election, which marked the beginning of the decline of the Federalist Party.  (As I have said previously, it's good to be reminded of this election as showing that partisan polarization going to the edge of civil war is nothing new in American history.)

As a consequence of Jefferson's victory, three of the four Alien and Sedition Acts were repealed.  But the Alien Enemies Act was preserved, and it remains a statutory law today.  Here is section 21 of that law:

Whenever there is a declared war between the United States and any foreign nation or government or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.  The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.

Originally, in the law of 1798, the law applied to "males of the age of fourteen years and upward."  In 1918, the word "males" was dropped.  Otherwise, the language of this law is the same today as it was in 1798.

Notice that this law is restricted to circumstances in which the U.S. is in a "declared war" with a foreign nation or government, or in which there has been some "invasion or predatory incursion" by a foreign nation or government.  A "declared war" requires a declaration of war from Congress, which is an enumerated power of Congress.  But an attack by a foreign nation or government might create an emergency even without a congressional declaration of war.

Notice what the law does not say.  It does not say that the President in the specified circumstances may suspend the right to due process of law.  Therefore, before the immigrants subject to this law can be detained or deported, they must have the right to a hearing before a judge where they can present evidence that they are not "alien enemies" of the United States.  That's what would have happened if Mr. Barrios had been permitted his hearing on April 17.

But if you interpret this law as implying the suspension of due process--because it is assumed that "all natives, citizens, denizens, or subjects of the hostile nation or government" who have not become naturalized citizens of the U.S. are "alien enemies" of the United States--then this law is unconstitutional because it violates the Fifth Amendment right to due process held by "all persons."

In all of American history, the Alien Enemies Act has been invoked only three times--in the War of 1812, World War I, and World War II.  In World War I and II, it was the law that authorized detentions and expulsions of German, Austro-Hungarian, Japanese, and Italian immigrants.

In his executive order of March 15, Trump declares that the TdA gang is "conducting irregular warfare and undertaking hostile actions against the United States," and that they are acting under the control of Nicolas Maduro's government in Venezuela.  Trump claims that this has created "a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States."

Trump then proclaims "that all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies."  He orders that "pursuant to the Alien Enemies Act, the Attorney General and the Secretary of Homeland Security shall, consistent with applicable law, apprehend, restrain, secure, and remove every Alien Enemy described in section 1 of this proclamation."

This presidential proclamation is clearly illegal and unconstitutional.  It is illegal because it does not satisfy the conditions prescribed by the Alien Enemies Act: Venezuela is not at war with the U.S., and the TdA gang is not an agent of the Venezuelan government carrying out an invasion of the U.S.

It is unconstitutional because it denies the constitutional right of Venezuelan immigrants to due process of law by denying their right to have a hearing before a judge to determine whether they really are "alien enemies" of the U.S.

In his proclamation, Trump claims that TdA is an agent of the Venezuelan government.  But there is little evidence for this.  Trump does not even mention the fact that Venezuelan security forces have exchanged gunfire with TdA gang members.

Trump says that the gang had expanded in the Venezuelan region of Aragua when Tareck El Aissami was governor of that region, and then in 2017 Maduro appointed him as vice president.  But Trump says nothing about the fact that Aissami is no longer in the Maduro administration, which is prosecuting him on charges of corruption.

Within a few hours of Trump's proclamation on March 15, about 238 Venezuelan immigrants (including Mr. Barrios) were flown out of Texas to El Salvador, where the U.S. had made a deal to pay El Salvador $6 million dollars to imprison up to 300 Venezuelans deported from the U.S. for one year.  El Salvador's prisons are notorious for their brutality.

On the night of March 15th, Judge James E. Boasberg of the Federal District Court in Washington issued an order blocking the deportation of these Venezuelans.  When he was told that the planes were already in the air, he ordered that they must be told to turn around and return to the U.S.  DHS officials refused to obey his order.  Trump has said that this judge needs to be impeached, and that no judge has the right to obstruct a president's orders in cases like this.

Trump and his DHS officials have asserted that all of these Venezuelan deportees are clearly foreign terrorist members of the TdA gang.  But when the DHS officials are asked to present evidence of this to Judge Boasberg, what they say is laughable.  For example, Robert Cerna, an Acting Field Office Director of Enforcement and Removal Operations for ICE submitted a sworn affidavit, which includes this passage:

While it is true that many of the TdA members removed under the AEA do not have criminal records in the United States, that is because they have only been in the United States for a short period of time.  The lack of a criminal record does not indicate they pose a limited threat.  In fact, based upon their association with TdA, the lack of specific information about each individual actually highlights the risk they pose.  It demonstrates that they are terrorists with regard to whom we lack a complete profile (sec. 9).

Notice what he is saying here: the lack of any specific evidence that someone is a terrorist demonstrates that he is a terrorist!

In the meantime, Mr. Barrios is languishing in a secret prison in El Salvador where he will be tortured and perhaps killed.

This one case of the deportation of Venezuelans by order of Trump clearly illustrates how the Red Caesar Plan works.  Trump will appeal to both statutory law and constitutional law to justify his autocratic power as the Red Caesar.  In this case, he interprets the Alien Enemies Act as giving him absolute power to deport immigrants that he identifies as "alien enemies."  And he interprets the Constitution--particularly, Article II as interpreted by the Unified Executive Theory--as giving him absolute power: "I have an Article II, where I have the right to do whatever I want as president."

When a federal judge rules that Trump's orders are illegal and unconstitutional because his interpretations of statutory law and constitutional law are mistaken, Trump will ignore the judge's ruling and claim that a President has the power to interpret the laws and the Constitution in any way he wants.  And if the Supreme Court rules against him, he will say what Andrew Jackson reputedly said in response to a Supreme Court ruling he didn't like: you have made your ruling, now enforce it.  

The joke, of course, is that federal courts cannot enforce their orders without help from the officers in the executive branch--such as U.S. Marshalls enforcing contempt of court rulings.  But a Red Caesar like Trump will order the executive officers not to enforce these court orders.

Notice how Trump as the Red Caesar has the absolute sovereignty that comes from combining the executive, legislative, and judicial powers in his hands.  Trump makes laws by signing executive decrees.  Trump executes those laws that he has made by ordering executive officials to carry them out according to his directions.  Trump judges the laws by interpreting them for himself and deciding how they apply to particular cases, and refusing to obey judicial orders that go against his will.

Here we see the foundational principle for the Red Caesar Plan: autocratic nihilism.  There is no law constraining the will of Caesar because the law is nothing more than the product of Caesar's will.  This overturns one of the fundamental principles of countervailance (the separation of powers with checks and balances)--that no man is permitted to be the judge in his own case.

Trump's sovereign will is the law.  As the source of the law, he himself cannot act unlawfully.  Whatever he does, he wills to do; and if he wills to do it, it is for that reason lawful.

This conforms to Curtis Yarvin's argument for a Filmerian monarchy exercising political sovereignty that is unlimited and undivided.  Yarvin and Michael Anton devised the Red Caesar Plan as the best way for Trump to claim absolute sovereignty.

That's the dark future we face as we enter into the postconstitutional order of Red Caesarism.

As I have said in my recent posts, we need to understand the grandiose narcissism of Trump's chimpanzee politics and how his despotic dominance can be challenged by the resistance to dominance coming from those few people with an ambition to rule and those many people who don't want to rule but who don't want to be exploited by the dominant rulers.

The particular case here--Trump's deportation of Mr. Barrios to an El Salvadorean prison where he will be tortured and killed by prison guards paid by the U.S. government--raises a stark question for the American people: Do they want to be ruled by a Red Caesar who has the power to take life, liberty, and property without due process of law?

This question points to deeper questions about Trump's nihilism.  Are the intellectual promoters of Trump's Red Caesarism--at the Claremont Institute and elsewhere--right in their nihilistic claim that there is no moral law constraining the will of Caesar, because all law is the arbitrary creation of his will?  Or is it possible that rights such as the right to due process are not just legal or constitutional rights but natural rights rooted in the moral law of nature in the state of nature?

Originally, the Claremont Institute was grounded in Harry Jaffa's teaching that America was dedicated to the principles of the Declaration of Independence and particularly to the Lockean understanding that the rights to life, liberty, and the pursuit of happiness are natural rights, that governments are established to secure those natural rights, and that any government that is destructive of those rights can be altered or abolished, and the people can institute new government that is more likely to secure those natural rights.

To Trump's claim that "I have the right to do whatever I want as president," Jaffa would have answered: No, you don't, because you have no right to violate the natural rights invoked by the Declaration of Independence and secured by the Constitution--natural rights such as every person's right not to be deprived of life, liberty, or property without due process of law.  But now the Claremont Institute has rejected Jaffa's teaching so that they can promote the nihilism of Red Caesarism.

ADDENDUM--SEPTEMBER 3, 2025

On September 2, the U. S. Court of Appeals for the Fifth Circuit ruled against Trump by declaring that the Alien Enemies Act does not give him the power to deport Venezuelan immigrants because there has been no military "invasion" of the U. S. by Venezuela.

This was a 2-1 decision.  The two judges in the majority were Leslie Southwick (appointed by George W. Bush) and Irma Carrillo Ramirez (appointed by Biden).  The dissenter was Andrew S. Oldham (appointed by Trump).

Tariffs in Trump's Administrative State, Ship Money in Charles I's Monarchic Tyranny, and the Need for Countervailance

 

A New Civil Liberties Alliance Video on Its First Lawsuit Challenging the Legality of Trump's Tariffs

In recent weeks, I have been studying the debate over the constitutionality of Trump's tariffs and comparing this with the debates in the seventeenth century over the legality of King Charles I's claims to absolute monarchic power.  I have drawn three conclusions from this.  

First, while Trump's supporters have said that he will "smash the deep state and the administrative state" (Charlie Kirk's words), Trump's tariffs show that far from smashing the administrative state, he wants to take it over and use it as an instrument for his personal dictatorial power.  

Second, Charles I's attempt to raise taxes through "ship money" without Parliamentary authority was essentially the same dictatorial move as Trump's tariffs--taxation without representation.  

Third, Trump and Charles exhibit the same chimpanzee political psychology of autocrats striving for despotic dominance, and the cultural history of politics shows that the only effective way to secure our individual freedom from such domination is countervailance--a system of divided and balanced powers that check one another--that can be enforced by an independent judiciary that adheres to constitutional or natural law.

TARIFFS IN TRUMP'S ADMINISTRATIVE STATE

The New Civil Liberties Alliance (NCLA) has filed two lawsuits challenging the constitutionality of Trump's tariffs.  In Simplified et al. v. Donald J. Trump et al. (filed April 3, 2025), NCLA argues for a small company named "Simplified" that sells premium planners, organizational tools, and home management products.  Simplified imports its products from China, and paying large sums in tariffs will threaten the economic viability of the company.  (The full filing for Simplified can be found here.)  In FIREDISC, Inc, et al. v. Donald J. Trump et al. (filed July 21, 2025), NCLA argues for some companies in Texas whose business depends on imports from China and other countries.  (The full filing for FIREDISC can be found here.)

In both cases, NCLA makes the same four arguments for why Trump's imposing tariffs through executive orders is unconstitutional.

First, in his Tariff Executive Orders, Trump invokes the International Emergency Powers Act of 1977 ("IEEPA") as the statutory authorization for these orders.  But IEEPA does not give the President the power to impose tariffs.  Indeed, IEEPA does not even mention tariffs.  And in the 50 years since the enactment of IEEPA, no president (prior to Trump) has used IEEPA as authorization for the president to enact tariffs.

IEEPA allows the president to authorize asset freezes, trade embargoes, and similar economic sanctions to counter external emergencies created by dangerous foreign actors such as terrorist organizations and hostile countries such as Iran and Russia.  But this says nothing about enacting economic policies for tariffs.

The Constitution clearly vests the power to enact tariffs exclusively in Congress.  The very first enumerated power of Congress in Article I, Section 8, is the "Power To lay and collect Taxes, Duties, Imposts and Excises."  The Congress also has the power "to regulate Commerce with foreign Nations."  The Constitution never says the President has such powers.  The obvious reason for this is that under the principle of "no taxation without representation"--one of the primary principles for the American Revolution--the constitutional framers were careful to put the taxing power in the hands of the Congress as popular representatives of the people, and this includes tariffs since they are taxes on the people.

The Congress has enacted carefully crafted trade statutes that allow the president to authorize tariffs.  The NCLA's filing explains: "These statutes typically authorize tariffs only on industries or countries that meet specified criteria, and only under specified conditions, after following specified procedures.  Such statutes require advance investigations, detailed factual findings, and a close fit between the statutory authority and the tariff's scope."  These statutes are all located in the "Customs Duties" Title of the United States Code (U.S. Code Title 19).  The IEEPA is located in the "War and National Defense" section of the Code (U.S. Code Title 50).

In his first term, Trump went through the elaborate procedures required by the trade statutes to impose tariffs.  Performing the required procedures for the China tariff took more than 10 months.  The steel and aluminum tariffs took 11 months.  The washer and solar cell tariffs took more than 8 months.  Obviously, Trump in the first months of his second term decided that he did not want to be constrained by such laborious procedures for enacting new tariffs.  That's why he invoked the IEEPA to allow him to impose tariffs by simply signing executive orders, even though the IEEPA says nothing about tariffs.

The second argument against allowing the President to enact tariffs through the IEEPA is that even if judges mistakenly decided that the IEEPA allows tariffs in some cases, it still would not allow them in this case.  The IEEPA limits presidents to actions that are "necessary" to address the specific emergency at hand.  Trump declared that the country faced emergencies because of illegal opioids entering the U.S. and because of trade deficits.  But Trump has not demonstrated that tariffs are "necessary" to solve these two problems.  Amazingly, Trump is threatening to impose a tariff of 50% on Brazil even though the value of U.S. exports to Brazil exceeds the value of U.S. imports from Brazil.

The third argument is that if judges were to mistakenly decide that the IEEPA allows the President to impose tariffs, this would make the IEEPA an unconstitutional law, because the courts have said that the Congress cannot delegate its powers to tax and to regulate commerce with foreign nations to the President if there is no "intelligible principle" constraining the President's authority.  And, indeed, there is no such "intelligible principle" in the IEEPA.

The fourth argument is that the Administrative Procedure Act requires a reviewing court to "hold unlawful and set aside agency action" that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," "contrary to constitutional right, power, privilege, or immunity," or "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right."  Since Trump's tariffs are unconstitutional, the administrators in U.S. Customs and Border Protection who are enforcing these tariffs are violating the Administrative Procedure Act.

These arguments manifest the mission of the New Civil Liberties Alliance as a nonprofit public interest law firm founded in 2017 by Columbia Law School professor Philip Hamburger "to protect constitutional freedoms from violations by the unconstitutional Administrative State."  Most of the financial support for the NCLA comes from groups affiliated with Charles Koch and Leonard Leo, which is to say it is part of the network of conservative legal groups that includes the Federalist Society.  One of the primary aims of these groups is to appeal to an "originalist" or "textualist" interpretation of the Constitution that would strike down the Administrative State as unconstitutional.  One of Hamburger's books is entitled Is Administrative Law Unlawful?  His answer to that question is Yes.

Originally, in his first campaign for the presidency, Trump said that he would follow the advice of the conservative legal movement.  "We're going to have great judges, conservative, all picked by the Federalist Society."  And, indeed, during his first term, most of his federal judge appointees were selected from lists provided by Leonard Leo and the Federalist Society--including his three Supreme Court appointees: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

But then Trump became angry when federal judges that he had appointed rejected his arguments for overturning the presidential election of 2020.  Even his Supreme Court appointees refused to intervene in his favor.  

More recently, however, his Supreme Court appointees have supported him.  Most importantly, last year, in United States v. Donald Trump, Trump's appointees violated the original meaning of the Constitution and actually amended the Constitution in ruling that the President has immunity from criminal prosecution for any of his "official acts" as president, which include criminally conspiring to overturn a presidential election!  In her dissenting opinion, Sotomayor rightly observed that this decision makes the President "a King above the law."

And yet, in recent months, Trump's federal judges have turned against him on the issue of presidential tariffs.  In May, a three-judge panel (the U.S. Court of International Trade) ruled that the IEEPA does not give the President the authority to impose tariffs.  In response, Trump exploded with posts on his social media platform denouncing Leonard Leo and the Federalist Society.  He sneered that Leo was a "sleazebag" and "bad person" who "probably hates America."  He complained: "I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations."

Trump's mistake was not realizing that as long as the Federalist Society judges remain faithful to the original meaning of the Constitution, they will overturn Trump's Administrative State as unconstitutional.  We can see that now not only in the courts striking down Trump's Tariff Executive Orders as unconstitutional but also in the courts ruling against ICE's denial of the constitutional right to due process of law in the Fourth Amendment.

It remains to be seen, however, whether Trump's Supreme Court Justices will uphold these lower court decisions against Trump's Administrative State.  If they follow the example they set in United States v. Donald Trump, Trump's SCOTUS judges could ignore the original meaning of the Constitution and the laws in order to give Trump's Administrative State unlimited power to violate constitutional rights.  But if they were to do that, they would blatantly display the hypocrisy of their professions of originalist jurisprudence.

SHIP MONEY IN CHARLES I'S MONARCHIC TYRANNY

Trump's claim to exercise arbitrary absolute power through the Administrative State is remarkably similar to Charles I's claim to have the prerogative powers of a king above the law.  Consider, for example, the "Ship-Money Case" of 1637.

In 1629, Charles had dissolved Parliament, and he refused to call Parliament back into session for the next 11 years, so that he had personal rule over England without Parliament checking his power.  But since by the common law, only Parliament could approve taxes, Charles struggled to find ways to finance his government.  

In 1637, the King's legal advisers found a source of money in the ancient duty of every coastal county to provide and pay for a ship for the Royal Navy.  The King decided to extend this duty to all counties, even those that were not on the coast, and to collect the money through individual assessments.  He wanted to raise enough money to finance not only the navy but also the army and the government.  He did this even though England was not at war, and there was no immediate prospect of war, in 1637.  If he could do this, he would never need to recall Parliament.

This would work only if the King could persuade his judges that ship money was not a tax and that the King could levy it whenever he announced that the Navy faced a national emergency.  Notice the similarity with Trump's claims that a tariff is not a tax and that his arbitrary declaration of a national emergency under IEEPA cannot be questioned.

A test case in the courts over the legality of the ship money arose when John Hampden refused to pay his ship money levy in November of 1637.  The case was brought before 12 justices who were under pressure from the King to rule in his favor.

Hampden's lawyer argued that while the King had the right to declare war, only Parliament could decide whether to raise taxes to finance the war, and the ship money was clearly a tax.  Moreover, he argued, England was not at war, and so there was no national emergency that could justify raising taxes.

Over several days, each of the twelve judges in turn read his decision.  Seven of the twelve ruled for the King.  As they explained, "The King may dispense with any laws in case of necessity."  They also declared: "The law knows no such King-yoking policy.  The law is of itself an old and trusty servant of the King's; it is his instrument . . . it is common and most true that Rex is Lex . . . The King can do no wrong" (Robertson, Tyrannicide Brief, 48-49).

Although this might have seemed to be a clear victory for the King, that five of the twelve judges dissented sent a message to the public that they were probably right.  Many people refused to pay their ship money assessments.  And by 1640, only about one third of the assessments had been paid.  Civil disobedience was sweeping across England.  This was one reason why Charles was finally forced to call Parliament back into session in 1640.

Similarly, we can expect that the popular judgment that Trump's tariffs are illegal and unconstitutional will promote civil disobedience.  Previously, I have written about smuggling as the natural right to evade Trump's tariffs.

And even if the majority of the Supreme Court Justices uphold Trump's tariffs (or his use of ICE to deny the right to due process of law), we can expect that at least three of the Justices will write persuasive dissents that can sway public opinion against the majority.

COUNTERVAILANCE AND FREEDOM FROM DOMINATION

Just as Charles I claimed that as King he was above the law and could do no wrong, Trump claims "As President I can do whatever I want."

I have written about the evolutionary history of this desire for despotic dominance over others, of how many human beings naturally show deference to such dominance, but also how the natural desire to be free from domination moves many human beings to resist despotic rule.  The tendency to defer to Trump's grandiose narcissism of dominance is manifest among those MAGA intellectuals like Curtis Yarvin and Michael Anton who look forward to Trump's rule as a monarchic or Caesaristic autocrat.

If America escapes this, it will be because the American system of countervailing powers--the separation and balance of powers--has constrained Trump's Administrative State.  Even if the Congress fails to provide that constraint--because the Republicans controlling Congress are subservient to Trump--we can hope that the courts will enforce constitutional limits on Trump's claims to absolute power.  We can also hope that independent centers of power in civil society--in groups like the New Civil Liberties Alliance--will succeed in persuading the courts to secure constitutional liberty.  Finally, we can foresee that nonviolent resistance (like smuggling and protecting immigrants from ICE) and mass protests (like the "No Kings" protests) will show popular resistance to despotic dominance.

Can Trump Use His Military Forces to Murder Americans with Impunity?

As I have indicated in my recent posts, one of the primary charges against Charles I at his trial was that he was guilty of murdering his own people in the Civil War that he started, and since murder was a capital crime, he could be rightly executed.  "Whoso sheddeth man's blood, by man shall his blood be shed" (Gen. 9:6) is both a law of God and a law of nature.  And like any law of nature, it is an impartial rule: anyone who commits murder shall be punished, which includes the king.  The impartiality of law must therefore deny the maxim of the English common law that "the king can do no wrong," so that the king is above the law.

If President Trump begins murdering Americans, will he be able to claim, as Charles I did, that he is immune to criminal prosecution for murder?  He could use military forces or paramilitary forces (like ICE officers) to do this.

On January 23, 2016, in a campaign speech at Dordt College in Iowa, Trump bragged about the loyalty of his voters, and he explained: "I could stand in the middle of 5th Avenue and shoot somebody, and I wouldn't lose any voters, ok?  It's like incredible."  Of course, Trump's defenders have said that he was just joking.  But in 2019, Trump's lawyers argued in a federal court that since Trump had total immunity from criminal prosecution for anything he did while President, this would include murder.

Now, until recently, it was generally understood that the presidency as established by the Constitution does not have the immunity from criminal prosecution that had been claimed by the British king.  In Federalist Number 69, Alexander Hamilton explained how the President is "liable to prosecution and punishment in the ordinary course of law," and how this distinguishes the President from the King of Great Britain, who is "sacred and inviolable" and thus above the law in not being subject to legal punishment.

In the North Carolina Ratifying Convention, James Iredell compared the British King and the American President.  The King "has great powers and prerogatives; and it is a constitutional maxim, that he can do no wrong."  By contrast, the President can be punished for his bad behavior.  He can be impeached.  And "if he commits any crime, his is punishable by the laws of his country, and in capital cases may be deprived of his life."  So the President could be tried for the capital crime of murder and executed if convicted.  As far as I know, no one in any of the ratification conventions disagreed with Iredell about this.

But last year, in the case of Trump v. United States, the U.S. Supreme Court overturned the original meaning of the Constitution and effectively amended the Constitution (in a 6 to 3 decision) to declare that the President has absolute immunity from criminal prosecution for actions within his "core constitutional powers"--that is, powers that belong exclusively to the President.

In her dissenting opinion, Justice Sotomayor warned: "in every use of official power, the President is now a king above the law."  She explained:

The Court effectively creates a law-free zone around the President. . . . The President of the United States is the most powerful person in the country, and possibly the world.  When he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution.  Orders the Navy's Seal Team 6 to assassinate a political rival?  Immune.  Organizes a military coup to hold onto power?  Immune.  Takes a bribe in exchange for a pardon?  Immune.  Immune, immune, immune.

Although Chief Justice Roberts ridiculed Sotomayor for "fear mongering on the basis of extreme hypotheticals," we now see Trump setting into motion the very criminal actions--perhaps including murder--that Sotomayor warned about.

Recently, The New Republic has published a secret memo from the Department of Homeland Security about a secret meeting between Philip Hegseth (brother of Pete Hegseth), Liaison Officer to Department of Defense, and all the senior people at the DoD.  A few weeks ago, Trump ordered National Guardsmen and a contingent of Marines to deploy in Los Angeles to help ICE officers facing resistance from people protesting the kidnapping of people identified as illegal immigrants.  Now, at this meeting, the participants talked about orders from Trump that "our joint work in L.A." should be expanded across the country "for years to come." According to one part of the memo, "SECDEF Hegseth wants this meeting to be a message to the uniform side of DoD emphasizing the urgency of the homeland mission."

Notice what this means: the military forces of the United States ("the uniform side of DoD") will be deployed for the "homeland mission" of targeting those Americans who resist the enforcement of Trump's domestic policies.  Can't we expect that this will mean military attacks on Americans peacefully protesting Trump's policies, which will include killing some of those Americans?

Presumably, under the majority's decision in Trump v. U.S., Trump ordering his soldiers to kill Americans will come under the President's "absolute immunity" because his power as Commander in Chief belongs to his "core powers."

Is this "fear mongering on the basis of extreme hypotheticals"?  Or is this fear justified by what we know about Trump's grandiose narcissism, his belief that he is God's Chosen One to save America from it's enemies, and the belief of Trump's intellectuals like Curtis Yarvin that something like the absolute monarchy of the Stuart kings would be best for America?

Donald Trump Is the Red Caesar--The Claremont Institute's Straussian Plan for America

                                                                           Michael Anton

We can explain what Trump has been doing in the first two months of his second term if we recognize that he is executing a plan devised by some Straussian intellectuals associated with the Claremont Institute:  he is becoming the Red Caesar.

In this post, I will explain how this plan developed out of the thinking of Michael Anton.  And then, in my next post, I will show how Trump's invocation of the Alien Enemies Act for the quick deportation of some Venezuelan immigrants illustrates how he can become America's Red Caesar. 

THE RED CAESAR PLAN

As far as I know, the plan began in 2020 with the publication of Michael Anton's book The Stakes: America at the Point of No Return.  Actually, a podcast conversation between Anton and Curtis Yarvin in 2021 suggests that the idea of a Red Caesar might have originated with Yarvin.  I have written about Yarvin as an advocate for the neoreactionary authoritarianism of a Filmerian monarchy as superior to America's Lockean liberalism.

I have written previously about Anton as one of the leading Trump intellectuals associated with the Claremont Institute.  In the first Trump administration, Anton was the Deputy Assistant to the President for Strategic Communications on the National Security Council (2017-2018).  In Trump's second administration, Anton is now Director of Policy Planning at the U.S. State Department.

The Stakes was about the high stakes in the election of 2020--making it the most important election in over a hundred years.  Anton concluded the book by warning that while his "fondest political dream is for a restoration of the American constitutional order," the conflict between Blue America and Red America could lead to the total collapse of the constitutional order.  Then what?

He considers various possibilities.  One of them is Caesarism.  "Caesarism is a particular form of one-man rule: halfway, as it were, between monarchy and tyranny.  It is monarchical in that a single person rules.  It is tyrannical in that there is no appeal; Caesar's word replaces constitutionalism and even, in the final analysis, law" (341).  Caesarism, therefore, can be defined as "authoritarian one-man rule partially legitimized by necessity," where that necessity is the breakdown of the republican, constitutional order caused by the people becoming so corrupt that they lack the republican virtues required for liberty (342).

Anton explained that Caesarism has five kinds of benefits, which he saw in the history of ancient Rome's Caesars.  First, the benefits of Caesarism to Caesar are obvious--it satisfies his ambition for absolute power.

But there are also at least four benefits for a nation.  Caesarism can hold together a large nation and prevent it from breaking up.  In the case of the Roman Empire, it might have been broken up by factional conflict if Julius Caesar and is successors had not taken command.

Caesarism can also provide stability by preserving most of the formal institutions of the nation.

Caesarism can also calm factional conflict by subordinating all the factions to the rule of Caesar.

And it can preserve and even enhance the cultural and economic achievements of a great civilization, as was the case for Roman civilization under the Caesars.

Of course, Anton admitted, the great cost of Caesarism is the loss of liberty.  And yet when Caesarism comes, it's because liberty has already been lost (342-43).

But then we wonder how Caesarism is established.  As is characteristic of the Claremont Straussians, Anton's answer drew ideas from the ancient and modern political philosophers--principally, Machiavelli.  According to Machiavelli, a "principality" (one-man rule) is caused either by "the people" (the common people or the multitude) or by "the great" (the upper class).  The great ones are those few people who want to rule.  The people are the multitude of people who don't want to rule, but who don't want to be exploited by the rule of the great ones.  If the great ones can't resist the people, they will choose one of themselves to become the prince, who will suppress the people.  If the people can't resist the great ones, the people will choose one of the great to become the prince, who will defend the people against the great ones.

Anton concedes that this Machiavellian analysis fails to apply to the American situation today in one respect.  "In the present, divided America there is not one multitude but two: one blue, the other red.  Yet there's only one ruling class, to which the blue multitude is allied" (344).  

As I have indicated in my posts on Anton, this points to a problem for the "populist" rhetoric of Trump and the Claremont Straussians.  They depict a simple clash between The People and The Ruling Class.  But in fact, they can't claim to be on the side of The People if The People is divided into two groups--blue America and red America.  They have to argue that blue America is not the real America.  But in order to win the popular vote at the national level, they must appeal to both Americas.  Consequently, as I have indicated, Trump won the popular vote (by a slim margin) in 2024 only because he appealed to a multiethnic, multiracial, and multireligious coalition through a liberal rhetoric of pluralism.

In 2020, Anton foresaw, if only dimly, how Trump could come back to power in 2025 as the Red Caesar.  Anton considered the possibility of a Blue Caesar, but he thought that since the blue coalition had the upper hand in 2020, it was unlikely to see the need for Caesarism.  On the other hand, since red Americans were constantly under attack, they were more likely to turn to a Caesar to defend them.

If they were to do this, then Anton saw two formal mechanisms for a Caesar to come to power--"by military coup and by winning office legally and then refusing to give it up when his term ends, or maneuvering things in such a way that he's begged to stay" (345).  He thought that a military coup in America would be unlikely because the circumstances that made military coups frequent in ancient Rome did not hold for America.  Roman generals enjoyed great wealth and prestige from their conquests.  They could hold command for long periods.  They won the personal loyalty of their soldiers by distributing to them the spoils of war.  The people were accustomed to military rule.  Beginning in the early days of the Republic, there was even a procedure for appointing a military dictator for a limited term.  A few years before his death, Julius Caesar had himself appointed dictator perpetuo.  Nothing like this holds true for American generals.

So, the second route to Caesarism--being elected to office legally and then refusing to leave the office--is more likely.  But what about the constitutional amendment that limits a President to two terms?  Anton suggested: 

The instant you hear someone float the idea of repealing, or even "reforming," the Twenty-Second Amendment, you'll know that Caesarism has moved from theoretical possibility to someone's plan.  Lawful repeal through actual constitutional means would be hard--the Constitution is difficult to amend by design--but Caesars don't tend to respect constitutional principle.  The objection, which I half expect to hear offered seriously, that "the courts would never allow that!" is therefore irrelevant.  The mere possibility of Caesarism presupposes a degeneration of politics well below levels at which laws and courts are obeyed.  Caesar's contemptuous reply to the courts would echo Andrew Jackson's: you've made your ruling, now let's see you enforce it (345-46).

Remarkably, Trump has often suggested that he should run for a third term; and Steve Bannon has said that, of course, Trump will run again in 2028. 

So there it is--the Trump as Red Caesar Plan.  And yet anyone who has read Anton's book could object that he did not actually endorse such a plan.  After all, he remarked:  "Given all these and other obstacles, prospects for red Caesarism seem fanciful, the stuff of cheap political thrillers and big-budget summer blockbusters.  At any rate, I see and have seen no evidence whatsoever of anyone mounting any such effort anywhere" (350).

But remember that Anton is a Straussian, and Straussians are known for their claim that philosophers, fearing persecution for their unpopular ideas that shock the common people, must write esoterically, so that they hide their secret teaching from their common readers, while surreptitiously conveying their true teaching to their philosophic readers.  So, of course, Anton should say openly that he's not recommending or planning for a Red Caesar to seize one-man rule over America.  At the same time, however, by elaborating the many benefits of Caesarism, while arguing that the corruption of American politics has made Caesarism necessary, that's enough to insinuate to his Claremont Straussian readers that he really is endorsing Red Caesarism.

Sure enough, the Claremont Straussians got the secret message.  In his review of Anton's book in First Things, Nathan Pinkoski wrote: "What is Anton's ultimate intention?  In good Straussian fashion, what he teaches is not what he says, at least not outright.  With great moderation, he explicitly teaches us how to act prudently within the framework of the republican constitution; with great daring, he implicitly teaches us how to act prudently when the republican constitution is gone.  But the ultimate intention of The Stakes is to teach prudence and fortitude.  It is to prepare us for life in postconstitutional America" (Pinkowski 2020).

Charles Haywood writes frequently for the Claremont Institute.  He is also a self-proclaimed "warlord" who has founded a secretive network of far-right male fraternal lodges.  In his review of Anton's book for his blog, he writes that when Anton concludes that the Red Caesar is unlikely, "this seems like an error (or more likely disingenuous)."  He is excited by the prospect of a Red Caesar: "Me, I like, if not love, the idea of Red Caesar, the creation of an Augustan system. . . . Caesarism, and its time-legitimated successor, monarchy, is a natural, realism-based system, under which a civilization can flourish. (Maybe Elon Musk can be king and lead us to Mars.)"  Remarkably, then, Haywood saw in 2020 that Musk's project for colonizing Mars could become part of the Red Caesar Plan.  I have written about how Trump's Second Inaugural promoted America's "Manifest Destiny" to follow Musk in colonizing Mars.

Some Claremont Straussians--like Casey Wheatland--have claimed that Anton got his idea for the American Red Caesar from Leo Strauss himself, when Strauss pointed to Caesarism as the likely alternative to a failed republic in his "Restatement on Xenophon's Hiero" (Wheatland 2023).

What explains the support for Trump as the Red Caesar among so many of the Claremont Institute scholars of political philosophy?  As I have said previously, I believe Ross Douthat might have the best explanation: it's their "enthusiasm for a politics of crisis."  The Claremont Institute story of the American regime is a story of three regime crises.  First, there was the crisis of the American Revolution and the Constitutional Founding.  Second, there was the "crisis of the house divided" that led to the Civil War and Lincoln's triumphant "new birth of freedom" that was a re-founding of the regime.  Third, there was the crisis of corruption during the Progressive Era in which the Founding was overturned in favor of the Administrative State.  Now, we need a new transformative crisis in which Trump as the Red Caesar overturns the Administrative State and establishes the new American regime of one-man rule.

A crisis is turbulent, chaotic, violent, and risky.  It might turn out to be a disaster.  But we must take the risk to avoid the triumph of the evil ones who want to destroy America.  That was the message of Michael Anton's "Flight 93 Election" essay.

A crisis is alluring to politically ambitious people who see it as creating an opportunity for them to exercise some political influence in the halls of power during a transformative period of history.  Kesler told the Washington Post: "Trump was such an amateur that he didn't have contacts even with the establishment conservative think tanks in Washington, like Heritage and AEI.  That was an opportunity for us to have a little more influence as an outsider."  And, indeed, people like Anton have found positions in Trump's White House.  

Thomas Klingenstein is the chair of the Claremont Institute's board and its main funder.  Appearing on Steven Bannon's "War Room" show, Klingenstein said the Claremont Institute has been widely "recognized as the intellectual basis for Trump," making this "a great time for us. . . . Our budget is going way up.  The Washington Post is going to write a hit piece on us, and we take great pride in that. . . . It tells you that they think we're important, and we're not just a group of political philosophers."

That explains it all.  We're important, and we're not just a group of political philosophers.

The Trump supporters at the Claremont Institute think they can be important if they provide "the intellectual basis for Trump" that allows him to lead the country through a crisis in such a way that he can found a new American regime of Red Caesarism.  

In my next post, I will illustrate how Trump is doing that by looking at his invocation of the Alien Enemies Act.

REFERENCES

Anton, Michael. 2020. The Stakes: America at the Point of No Return. Washington, DC: Regnery Publishing.

Haywood, Charles. 2020. "The Stakes: America at the Point of No Return."  September 8. The Worthy House, theworthyhouse.com 

Pinkoski, Nathan. 2020. "Postconstitutional America." First Things. November.

Wheatland, Casey. 2023. "Founding Fathers and Red Caesar." The American Mind.  October 20.