By Jonah Goldberg
Saturday, February 11, 2017
One of my favorite scenes of any comedy — and it’s very
un-PC — is in Tropic Thunder when
Robert Downey Jr. (in blackface!) explains to Ben Stiller that you “never go
full retard.” The conversation is about film roles. Well, if you haven’t seen
it, watch it.
Now, I don’t like the term “retard” — and I really don’t
like it in political debates. We aim for something loftier here.
Still, the scene came to mind because there should be a
similar rule in legal circles: “Never Go Full Ninth Circuit.” Personally, I
think it sounds better in Latin: Nolite
umquam ire plenus nona circuit (and if any of you Latin pedants send me an
e-mail correcting my translation, I will come to your house and scatter your
Dungeons and Dragons figurines off the kitchen table).
The other day I noted on Special Report that Antonin Scalia had a rubber stamp on his desk
with one of his favorite phrases: “Stupid but Constitutional.” I hope that one
day, a Supreme Court justice will have a stamp on his desk that says, Numquam Plenus Nona Circuit.
Anyway, I understand that the case against the Ninth
Circuit can be exaggerated. Yes, the West Coast’s federal appellate court has
the highest rate of cases that have been oveturned by the Supreme Court, but
the vast majority of its cases don’t get appealed to the Supreme Court. Hence
the qualifier “Full Ninth Circuit.”
Going Full Ninth Circuit is when you claim that that the Pledge of Allegiance
is unconstitutional. That’s a Simple Jack
move, not a Rain Man or even a Forrest Gump move.
It’s not that any single one of their findings in the
travel-ban case violates the principle of Nolite
umquam ire plenus nona circuit, it’s the totality of the thing. For
starters, here is what the relevant statute says:
Whenever the President finds that
the entry of any aliens or of any class of aliens into the United States would
be detrimental to the interests of the United States, he may by proclamation,
and for such period as he shall deem necessary, suspend the entry of all aliens
or any class of aliens as immigrants or nonimmigrants, or impose on the entry
of aliens any restrictions he may deem to be appropriate.
As Ben Wittes notes:
Remarkably, in the entire opinion,
the panel did not bother even to cite this statute, which forms the principal
statutory basis for the executive order (see Sections 3(c), 5(c), and 5(d) of
the order). That’s a pretty big omission over 29 pages, including several pages
devoted to determining the government’s likelihood of success on the merits of
the case.
This is like the pope changing a major part of Church
doctrine without referencing the Bible or a film critic writing a book about
mob movies without mentioning The
Godfather.
Then there’s the claim that states have standing to
challenge this executive order because they have state schools where students
or faculty may be affected, thus depriving them of the ability to provide an
enriching educational experience. How does this new standard work? Universities
would be affected by a draft or a war, can they challenge those policies
because it would affect their students? The president, I gather, can order a
naval blockade around the United States. That might interrupt some U-Dub
student’s planned semester at sea. Shall the commander-in-chief call to make
sure he’s not interfering with anyone’s plan to take a few easy courses by day
and smoke a lot of hash by night?
The fancy lawyer guys I’ve talked to think the most
egregious thing in the ruling is that the judges are concerned about the
“potential due process rights” of illegal
aliens. This calls to mind Socrates’ famous query: “Huh?”
The executive order is only aimed at people trying to enter the country. If you are an illegal
immigrant already here, it has no bearing on you. If you are an illegal
immigrant trying to enter or re-enter the United States — illegally! — what are
these due-process rights you’re talking about?
But I think the craziest part of the ruling is the idea
that a president’s campaign statements have legal weight and could violate the
Establishment Clause of the Constitution. This is battier than Bruce Wayne’s
home office. Every cliché-spewing poli-sci major and pundit for the last 17,000
years (give or take) has noted that politicians say one thing when campaigning
and another thing when in office. Even Mario Cuomo — that savant at casting
banal observations as seemingly brilliant insights — said that we campaign in
poetry and govern in prose (Donald Trump changed that to we campaign in
limericks and govern in tweets).
Whatever you think of Trump’s original call for a Muslim
ban (I think it was ludicrous) the whole point is that Trump did the right thing. He talked to his advisors
and they said, “You can’t do that.” So he said, “Okay, what can we do?” And
they came up with this executive order. It was shoddily done and on the merits
isn’t nearly as vital to American national security as he claims. But that’s my
point. He did something vastly less ambitious because the demands of governing
required it. The judges responded, in effect, “We don’t care. We’re still going
to punish you for it.”
David French is exactly right when he says this ruling is
a Pandora’s Box. Where does this retromingent line of legal reasoning end?
Barack Obama insisted he would fundamentally transform America and suggested
he’d make the oceans recede. Could some judge reviewing an EPA regulation have
said, “But the president said . . . ” about that? This is taking the rigorous
rules of Twitter logic and putting them into law.
I firmly believe the Trump White House screwed the pooch
on this thing from the get-go. By doing so, the president set in motion events
that have made things even worse. The Ninth Circuit loves to preen under normal
circumstances. The judges took a sloppily rolled out — but ultimately legal —
executive order and used it to set potential precedents that, if left standing,
will have calamitous repercussions.
If one thinks of the courts as a political institution
with collective interests, the smartest thing the Ninth Circuit could have done
is say something along the lines of “this is stupid but constitutional.” If
they really think Trump is the monster the “resistance” Left thinks he is,
they’ll need more, not less, credibility in the days to come. But, much like
the mainstream media, they’ve decided that crying wolf from Day One is the
preferable way to go. And that’s why they went Plenus nona circuit.
Nationalism, Again
For those who haven’t been reading National Review this week, what the Hell is wrong with you?
But if you have a good excuse — e.g., the hooker
handcuffed you to a towel rack in a motel, you had heart-transplant surgery, a
bear ate your face, etc. — you missed a lengthy and civil badinage about the
question of nationalism and its role in American life. I’m already running long
so a lengthy recap is not in the cards. But, in brief: Rich Lowry and Ramesh
Ponnuru penned an eloquent defense of nationalism qua nationalism in a cover story for the magazine. I modestly dissented,
arguing that in America, nationalism is different from patriotism. I’m going to
pick up where we left off below on the assumption you’re pretty much up to
speed. If it’s not your cup of tea, that’s fine. I’ll see you next week (when I
pretend to be the cable guy).
As Rich Lowry is my boss — or at least one of them (the
perils of wearing many hats) — let me start off by saying that not only is he a
powerful man, but a handsome one, too.
I should also say that I love these debates at NR, and it
speaks well of him and the magazine that Rich encourages them.
And now that I’ve blown enough sunshine up his nethers to
earn a solar tax credit from the Obama administration, let’s get on with it.
In their cover story Rich and Ramesh wrote:
Indeed, the vast majority of
expressions of American patriotism — the flag, the national anthem, statues,
shrines and coinage honoring national heroes, military parades, ceremonies for
those fallen in the nation’s wars — are replicated in every other country of the
world. This is all the stuff of nationalism, both abroad and here at home.
To which I responded, in part:
This is at the same time both
entirely right and fundamentally misleading. It leaves out what the flag
represents. It glides over the fact that the national anthem sanctifies the
“land of the free.” Our shrines are to patriots who upheld very specific
American ideals. Our statues of soldiers commemorate heroes who died for
something very different from what other warriors have fought and died for
millennia. Every one of them — immigrants included — took an oath to defend not
just some soil but our Constitution and by extension the ideals of the
Founding. Walk around any European hamlet or capital and you will find statues
of men who fell in battle to protect their tribe from another tribe. That
doesn’t necessarily diminish the nobility of their deaths or the glory of their
valor, but it is quite simply a very different thing they were fighting for.
Rich responds to this by writing like an angel on a cloud
(okay, now I’m really done with the up-sucking):
t is a charming characteristic of
American nationalism to believe it isn’t and can’t possibly be nationalism —
that is for other countries, not us. So Jonah seems to imply that other
countries can’t have true patriotism because they don’t have the Declaration
and our founding ideals. Their heroes honored with statues — I guess that means
you, William of Orange, and you, Admiral Nelson, and you, Tadeusz Kosciuszko —
were combatants in grubby wars of tribe versus tribe, as Jonah puts it. This is
the equivalent of the New Yorker
“View of the World from 9th Avenue” for world history, with the ideals and
struggles for independence and self-government of others reduced to utter
inconsequence.
Like a mail-order Ikea entertainment center, this is
going to require some unpacking before we can even get started.
When Rich says, “Jonah seems to imply that other
countries can’t have true patriotism because they don’t have the Declaration
and our founding ideals . . . ” you should translate that as, “Rich seems to be
inferring.” I have no problem conceding that patriotism exists in other
countries. Americans didn’t invent the word, after all.
Let’s stipulate that patriotism means “love of country.”
People all over the world love their countries. Even people who live under
oppressive dictators and hate their governments will say that they love their
country. Indeed, many of the greatest patriots swim against the nationalist
tides in their homelands.
Love is a quadrupedal, five-toed mammal with a prehensile
trunk formed of the nose and upper lip. Oh wait, sorry that’s an elephant. Love
is like a movie about randy underwear models locked up in a prison run by a
buxom bisexual warden. No wait that’s not it either.
I guess the point is that love, much like pornography and
elephants, is hard to define, but most of us know it when we see it. But I
think we can all agree that love is contextual. Love requires an object, and
the nature of that object defines the nature of our love. I love my wife, my
daughter, my dogs, and eating cold fried chicken over the kitchen sink — but I
love all of these things in very distinct ways.
Let me try it a different way. I have always believed
that American conservatism is inseparable from American patriotism. I said
“inseparable from” not “identical to.”
Since everyone’s quoting Samuel Huntington these days,
I’ll do it too. Huntington observed that conservatism is a “positional
ideology.” By that he meant that there are many conservatisms because
conservatives in different societies seek to conserve different things. A
conservative in France in, say, 1788 seeks to conserve that rich bouillabaisse of altar and throne. A
conservative in England seeks to conserve the monarchy, among other things.
“Men are driven to conservatism by the shock of events,”
Huntington wrote, “by the horrible feeling that a society or institution which
they have approved or taken for granted and with which they have been
intimately connected may suddenly cease to exist.” This is why I share Yuval
Levin’s contention that, at its core, conservatism is gratitude.
To my mind, conservatism is
gratitude. Conservatives tend to begin from gratitude for what is good and what
works in our society and then strive to build on it, while liberals tend to
begin from outrage at what is bad and broken and seek to uproot it.
This is why I had no problem saying that Barack Obama’s
talk of “fundamentally transforming” America was literally unpatriotic. If
patriotism is love, then wanting to fundamentally transform what you love isn’t
really love. In speeches I used to tell married men, “Go home tonight and tell
your wives, ‘Honey, you know I love you. I just want to fundamentally transform
you.’ See how that works out for ya.” Love requires loving something as it is,
not for what it might be at your hands.
Patriotism is also a positional orientation (I’m a little
reluctant to call it an ideology). A patriot in England, never mind Russia or
Botswana, loves different things than a patriot in the United States. It’s
something of a paradox: All patriotisms are equal in that they are all
subjective, but not all patriotisms are equal when measured against certain
ideals.
And that makes all the difference in the world. Lowry asserts
that I think other countries can’t have patriotism because they don’t love the
Founding and our principles of liberty. Not at all; rather, I think American
patriotism is different because
America — the object of our love — is different. As Hayek noted, America is the
one place where you can be a lover of liberty and a conservative because in America conservatives seek to defend
the liberal principles of the
Founding.
This creates another paradox. The American colonists
considered themselves English subjects and inheritors of an English tradition.
But they were, quite obviously, not English nationalists. Indeed, they rebelled
against the crown precisely because the inherent logic of nationalism — obey
the crown, do as you’re told, abide by tradition — was in their eyes a
violation of more important English principles that stretched back to the Magna
Carta and beyond. The Founders took the arguments of Locke, Burke et al and
followed them to their logical and glorious conclusion that ended up leaving the
monarchy in the dustbin of (American) history.
In the nations of the Old World, nationalism is a tribal
passion or sentiment that relies (in theory) on mystic and ancient myths of a
shared ancestral past. Most of the foundational writers on nationalism, like
Johann Herder, argued that nation and volk
were literally like an ancient family. There’s no room to go into it here in
any detail (though I do at great length in my forthcoming book), but the idea
that the nation is a family is a very pernicious one, conceptually ceding all
manner of authorities to the state that it does not and must not have.
In America there is nationalist sentiment, to be sure,
but the “doctrines” of nationalism find no easy purchase here. Werner Sombart’s
famous question, “Why is there no socialism in America?” has elicited many
answers, but the most agreed-upon one is that America has no feudal past.
America represented a sharp break with the ancient notion that polities —
nations, empires, city-states, tribes, etc. — were no different than families
with an unimpeachable pater familias
at the helm. We celebrated and enshrined very different notions in our national
DNA, which is why Alexis de Tocqueville could observe that the American was the
Englishman left alone. What makes America exceptional, what makes American
patriotism and conservatism different, is that the object of our love and
gratitude is different. If Rich wants to define nationalism as love of country
and nothing more, that’s his right. But he would be wrong.
So when Rich tries to insinuate that I don’t think
William of Orange was a patriot, he’s wrong. But his patriotism was
fundamentally, philosophically, and morally different than American patriotism.
And, by the way, it most certainly was tribal, if one is allowed some leeway
when using the term. As he knows, England — and Europe — was cleaved in a
vicious “Cold War” (historian J. P. Kenyon’s phrase) between protestants and
Catholics. The Earl of Essex told the Privy Council in 1679: “The apprehension
of popery makes me imagine that I see my children frying in Smithfield.” To
this day you can still find Irishmen who’ll say, “I don’t care if I swing by a
rope, down with King Billy and Up with the Pope!”
If you don’t want to call that tribalism, fine. But I think
my point stands just fine. In America, we said goodbye to all that, and that’s
made all the difference in the world.
Et Tu, Abe?
Rich is a greater student of Abraham Lincoln than I’ll
ever be (“Lowry, you magnificent bastard, I read your book!”). But I’ll risk
his wrath by reminding him that Lincoln understood the exceptional nature of
America as much as anyone. He was dismayed by the nationalist passions that
trampled upon the patriot’s commitment to law and liberty. As he said in his
Lyceum address:
• “I mean the increasing disregard for law which pervades
the country; the growing disposition to substitute the wild and furious
passions, in lieu of the sober judgment of Courts; and the worse than savage
mobs, for the executive ministers of justice.”
• “Thus, then, by the operation of this mobocractic
spirit, which all must admit, is now abroad in the land, the strongest bulwark
of any Government, and particularly of those constituted like ours, may
effectually be broken down and destroyed — I mean the attachment of the People.
Whenever this effect shall be produced among us; whenever the vicious portion
of population shall be permitted to gather in bands of hundreds and thousands,
and burn churches, ravage and rob provision-stores, throw printing presses into
rivers, shoot editors, and hang and burn obnoxious persons at pleasure, and
with impunity; depend on it, this Government cannot last.”
• “As the patriots of seventy-six did to the support of
the Declaration of Independence, so to the support of the Constitution and
Laws, let every American pledge his life, his property, and his sacred honor; —
let every man remember that to violate the law, is to trample on the blood of
his father, and to tear the character of his own, and his children’s liberty.”
Lincoln recognized that the lust of nationalism was
unhealthy and destructive unless it be channeled into the proper orientation of
American patriotism.
I should say that I agree entirely with Rich when he
writes, echoing Huntington, “When you lose our nation and common culture,
you’re going to lose our creed, as well.” Which is why I said that in a normal
time our differences would be largely academic. My purely academic disagreement
here is that talking about the burning need for more “nationalism” is not the
best way to spark a recommitment to our nation and culture.
The Whitewash
And that brings me to our final disagreement. Rich is
understandably perturbed by my closing paragraph:
In a normal time, I would still
have the above disagreements (and a few others I left out) with Rich and
Ramesh, but they would be entirely academic. But this is not a normal time, and
the decision to slap a coat of paint over the term nationalism becomes
difficult not to interpret as a whitewash. If the intent is to educate the
president about what nationalism, rightly understood is, I wish them luck, but
I won’t get my hopes up.
Rich fairly notes that his nationalism-rightly-understood
project predates the current moment and his own tenure in the captain’s chair
at NR. That is all fair. And if I had the chance to do it over I would rephrase
that penultimate sentence to read: “But this is not a normal time, and the
decision to slap a coat of paint over the term nationalism makes it somewhat
more difficult to defend it against the
accusation that it is a whitewash.”
Politics is about moments. We put “under God” in the
Pledge in order to kick dirt on the shoes of Communists. Trent Lott said many
times that America would have been better off if Strom Thurmond had been
president and no one noticed or cared. And then they did. Choosing to rush to
the defense of nationalism — no matter how rationally or defensibly — at a
moment when mobocratic nationalism-improperly-understood is on the rise opens
you up to the charge of being on the other side of the question. As I suggested
in my initial response, I think that’s unfair and misguided. But it should also
be expected.
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