Legal Conservatives Now Want to Move Beyond Originalism

[Aurelius]

The one saving grace about Vermeule is he's completely incapable of message discipline. People like Ahmari and Hammer have spent years trying to mainstream "common good constitutionalism" and try to emphasize that their vision doesn't necessarily require subverting republican institutions and culture. Then Vermeule just went right out with that Atlantic article and told everyone that subjects must learn to obey their betters.

[I spent the winter writing songs about getting better]

The central tenet of the classical legal tradition is that the purpose of the law is to promote the common good of a political community — not, as small-L liberals argue, to protect individual rights and liberties. As Vermeule defines it, the “common good” describes the supposedly objective set of political conditions that promote “the happiness and flourishing of the community” — namely “justice, peace, and abundance,” which Vermeule updates for the 21st-century context as “health, safety, and economic security.”

Uh, this actually sounds like wokeness and stuff conservatives love to deride. Could easily be used to justify things like mask mandates (even outside of Covid using Scarlet's reasoning that they would still be justifiable as well as banning crowded non-socially distanced gatherings during flu season), banning hate speech in spite of the First Amendment, etc. Oh and I really doubt that the NRA and Second Amendment-hardliners are going to like this philosophy either.

[Aurelius]

The central tenet of the classical legal tradition is that the purpose of the law is to promote the common good of a political community — not, as small-L liberals argue, to protect individual rights and liberties. As Vermeule defines it, the “common good” describes the supposedly objective set of political conditions that promote “the happiness and flourishing of the community” — namely “justice, peace, and abundance,” which Vermeule updates for the 21st-century context as “health, safety, and economic security.”

Uh, this actually sounds like wokeness and stuff conservatives love to deride. Could easily be used to justify things like mask mandates (even outside of Covid using Scarlet's reasoning that they would still be justifiable as well as banning crowded non-socially distanced gatherings during flu season), banning hate speech in spite of the First Amendment, etc. Oh and I really doubt that the NRA and Second Amendment-hardliners are going to like this philosophy either.

We don't like it. We hate Vermeule. I'd rather have a garden variety liberal on the court than him or one of his proteges.

[Donerail]

The central tenet of the classical legal tradition is that the purpose of the law is to promote the common good of a political community — not, as small-L liberals argue, to protect individual rights and liberties. As Vermeule defines it, the “common good” describes the supposedly objective set of political conditions that promote “the happiness and flourishing of the community” — namely “justice, peace, and abundance,” which Vermeule updates for the 21st-century context as “health, safety, and economic security.”

Uh, this actually sounds like wokeness and stuff conservatives love to deride. Could easily be used to justify things like mask mandates (even outside of Covid using Scarlet's reasoning that they would still be justifiable as well as banning crowded non-socially distanced gatherings during flu season), banning hate speech in spite of the First Amendment, etc. Oh and I really doubt that the NRA and Second Amendment-hardliners are going to like this philosophy either.

Yes, vaccines are a traditional example of something this could be used to justify. Banning hate speech [blasphemy] is part of the appeal here though.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

The central tenet of the classical legal tradition is that the purpose of the law is to promote the common good of a political community — not, as small-L liberals argue, to protect individual rights and liberties. As Vermeule defines it, the “common good” describes the supposedly objective set of political conditions that promote “the happiness and flourishing of the community” — namely “justice, peace, and abundance,” which Vermeule updates for the 21st-century context as “health, safety, and economic security.”

Uh, this actually sounds like wokeness and stuff conservatives love to deride. Could easily be used to justify things like mask mandates (even outside of Covid using Scarlet's reasoning that they would still be justifiable as well as banning crowded non-socially distanced gatherings during flu season), banning hate speech in spite of the First Amendment, etc. Oh and I really doubt that the NRA and Second Amendment-hardliners are going to like this philosophy either.

Yes, vaccines are a traditional example of something this could be used to justify. Banning hate speech [blasphemy] is part of the appeal here though.

I'm not even necessarily sure Vermeule himself would object to the vaccines example, because he's extremely pro-administrative-state (unless he has the crankish tradcat moral objections, which is always possible). A bigger problem with this is that "health" and "safety" are manifestly not synonyms, even "updated" ones, of "justice" and "peace".

[Vosem]

The central tenet of the classical legal tradition is that the purpose of the law is to promote the common good of a political community — not, as small-L liberals argue, to protect individual rights and liberties. As Vermeule defines it, the “common good” describes the supposedly objective set of political conditions that promote “the happiness and flourishing of the community” — namely “justice, peace, and abundance,” which Vermeule updates for the 21st-century context as “health, safety, and economic security.”

Uh, this actually sounds like wokeness and stuff conservatives love to deride. Could easily be used to justify things like mask mandates (even outside of Covid using Scarlet's reasoning that they would still be justifiable as well as banning crowded non-socially distanced gatherings during flu season), banning hate speech in spite of the First Amendment, etc. Oh and I really doubt that the NRA and Second Amendment-hardliners are going to like this philosophy either.

You are noticing the same patterns that I am! I posted here a few months ago (and on AAD I think as early as 2018-19) that Vermeule and the general fringey 'populist' tendency in the GOP would have a much more natural home in the current Democratic Party, and given general trends in the GOP thought they are very likely to be Democrats in several decades' time:

So unless I'm completely misunderstanding something, you are saying that the Democratic Party is going to become a secular hawkish pro-establishment party that also has paleoconservative types in it for some reason?

Yes, actually (or at least 'paleoconservative' in the sense of people like Josh Hawley or J.D. Vance who believe in large state projects for transforming popular culture, and often convert to high-church branches of Christianity; I don't think this applies to your run-of-the-mill socially conservative isolationists). I think the main divide will be between something like 'all public institutions are untrustworthy and we should reduce their influence in everyday life' and 'we should not do that', with the former comprising a clear majority of society but the latter having the advantage of most educated or cultured people on its side.

Because the swing towards what would have been called 'social liberalism' in the 2000s is so powerful I'm not sure either party will be particularly marked by social conservatism, so you'll see social conservatives who are distrustful of the government (stereotypically poorer people in low-church denominations, or 'nondenominational', but also people resisting government interference in things like religious educational institutions) supporting the former but those who believe in a socially-conservative reformation of the whole society spearheaded by the federal government (like...uh...Josh Hawley, but probably not very many non-elite people) joining the latter party.

[Alcibiades]

The central tenet of the classical legal tradition is that the purpose of the law is to promote the common good of a political community — not, as small-L liberals argue, to protect individual rights and liberties. As Vermeule defines it, the “common good” describes the supposedly objective set of political conditions that promote “the happiness and flourishing of the community” — namely “justice, peace, and abundance,” which Vermeule updates for the 21st-century context as “health, safety, and economic security.”

Uh, this actually sounds like wokeness and stuff conservatives love to deride. Could easily be used to justify things like mask mandates (even outside of Covid using Scarlet's reasoning that they would still be justifiable as well as banning crowded non-socially distanced gatherings during flu season), banning hate speech in spite of the First Amendment, etc. Oh and I really doubt that the NRA and Second Amendment-hardliners are going to like this philosophy either.

You are noticing the same patterns that I am! I posted here a few months ago (and on AAD I think as early as 2018-19) that Vermeule and the general fringey 'populist' tendency in the GOP would have a much more natural home in the current Democratic Party, and given general trends in the GOP thought they are very likely to be Democrats in several decades' time:

So unless I'm completely misunderstanding something, you are saying that the Democratic Party is going to become a secular hawkish pro-establishment party that also has paleoconservative types in it for some reason?

Yes, actually (or at least 'paleoconservative' in the sense of people like Josh Hawley or J.D. Vance who believe in large state projects for transforming popular culture, and often convert to high-church branches of Christianity; I don't think this applies to your run-of-the-mill socially conservative isolationists). I think the main divide will be between something like 'all public institutions are untrustworthy and we should reduce their influence in everyday life' and 'we should not do that', with the former comprising a clear majority of society but the latter having the advantage of most educated or cultured people on its side.

Because the swing towards what would have been called 'social liberalism' in the 2000s is so powerful I'm not sure either party will be particularly marked by social conservatism, so you'll see social conservatives who are distrustful of the government (stereotypically poorer people in low-church denominations, or 'nondenominational', but also people resisting government interference in things like religious educational institutions) supporting the former but those who believe in a socially-conservative reformation of the whole society spearheaded by the federal government (like...uh...Josh Hawley, but probably not very many non-elite people) joining the latter party.

Any evidence for this ludicrous claim? Like any at all? Or are you just desperately trying to avoid grappling with the fact that your preferred party attracts a lot of fascists?

[Vosem]

Any evidence for this ludicrous claim? Like any at all? Or are you just desperately trying to avoid grappling with the fact that your preferred party attracts a lot of fascists?

This is a prediction about the future, but let me explain my reasoning. Confidence in American institutions has been declining since the Watergate scandal, and the GOP has built a base centered on those Americans who feel most alienated from institutions -- initially, the religious right, but increasingly a majority of non-educated people in the country. There is absolutely no indication that the decline in trust -- which accelerated during the Trump Administration and the COVID crisis -- is going to stop anytime soon; if anything given a projected peak in higher-education enrollment in the US in 2026 we're likely to see it expand to more educated people (unless such a peak is pushed off, or higher education manages to radically reinvent themselves). People in the US have very low confidence in government to solve problems, to the point that -- per referendums -- well more than half of Americans are willing to cut spending, and cut/refrain from raising taxes on the wealthy, as a balm to the country's problems. The likeliest future President under age 75, per current polling, is a man best known for winning wide popularity by daring to basically not fight COVID.

If these trends continue, then ideological people who wish to use the power of the state to do anything -- like Vermeule -- will need to band together in a single force; in practice every actual thing a Republican Administration does (consider Trump's judicial appointments tending to disempower bureaucrats, or the more successful state government in the 2010s funneling money to barely-accountable charter schools with diverse religious/ideological backgrounds) takes us further from a place where the government is even theoretically able to carry out the sort of reforms Vermeule would want.

(An interesting tell here is that Vermeule/Ahmari/Vance many 'populists' have converted to Catholicism or Eastern Orthodoxy, which are quite high-church, but the only growing denomination in the US is 'non-denominational', or the practice of having lots of tiny churches and congregations all competing with one another for adherents on what is basically the open market. This is extremely non-hierarchical and very different from the vision that Vermeule has; there is religious conservatism and there is religious conservatism, and these are not at all on the same pages.)

As the Democrats probably move right in response to their Senate disadvantage and cast a wider net, it seems extremely natural that they would attract people like this; the Democratic Party is already full of people who want to enforce a universal morality!

(Also note that at the very extreme end, this is already happening: consider the most prominent American neo-Nazi denouncing 'libertarian ideology' and voting for Joe Biden. Something very similar goes for David Duke. I don't think this is a horseshoe theory thing -- ultimately, everyone who doesn't want the government to shrink will probably have to be in the same party. My guess is that this sort of thing will gradually trickle from literal neo-Nazis to, eventually, higher-class populists like Vermeule; it's been observed many times that sociologically these people sure seem much more like Democratic than Republican voters.)

[politicallefty]

As the Democrats probably move right in response to their Senate disadvantage and cast a wider net, it seems extremely natural that they would attract people like this; the Democratic Party is already full of people who want to enforce a universal morality!

I'm not sure where you're getting that from. Even if the Democratic Party was moving to the middle now (and there is no evidence of that), there is certainly no evidence their judicial nominees would follow. I think most Presidents think the other side isn't looking when they nominate judges below the Supreme Court (something that has largely been the case). Both sides have and will continue to push nominees as far to their side as possible (apart from compromise nominees).

It's also funny that you mention universal morality on the part of the Democratic Party when your side basically requires every nominee to be pre-approved by the Federalist Society.

[Torie]

I don't know that this sort of thinking has really found it's way into the mainstream of legal conservative thought. That being said, many figures on the right have become more critical of Originalism as of late. George Will recently criticized it and advocated for the view that certain "natural rights" are inherently protected by the Constitution without being listed, and in a similar vein many libertarian conservatives have embraced the 9th Amendment as a magical rights making machine that protects everything they like, but not stuff they don't like view. I think this is sort of the social conservative response. Still, I don't know that we will see anyone with views this extreme in high judicial office any time soon. I hope originalism remains dominant among conservatives, but I do think the consensus is starting to break down, and there has been evidence of this for some time.

The problem with originalism as the strict constructionist subspecies of choice is that you really can't establish any one "original intent" of any legislative text since dozens or hundreds of people each had their own reasons for voting on it. How the meaning of the text would have been understood by the original audience after it was passed into law makes more sense as a question to ask, but I tend to look at that as a subspecies of textualism rather than of originalism.

Yes, you try to divine what otherwise ambiguous text means by looking for extrinsic evidence of intent. With statutes, these days one looks to legislative history. Congress has set piece colloquies regarding meaning that go into the legislative record. And given the ambiguity of words, we use defined words a lot which then in essence become terms of art.

I find most of these discussions of originalism verus textualism versus a living Constitution versus an in loco parentis Constitution that this common good Conservatism guy is hawking typically sterile and more obfuscating than illuminating in general. That said, I am prudential enough to very much hew to the notion that the Constitution should not be so interpreted as to become a suicide pact.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Any evidence for this ludicrous claim? Like any at all? Or are you just desperately trying to avoid grappling with the fact that your preferred party attracts a lot of fascists?

This is a prediction about the future, but let me explain my reasoning. Confidence in American institutions has been declining since the Watergate scandal, and the GOP has built a base centered on those Americans who feel most alienated from institutions -- initially, the religious right, but increasingly a majority of non-educated people in the country. There is absolutely no indication that the decline in trust -- which accelerated during the Trump Administration and the COVID crisis -- is going to stop anytime soon; if anything given a projected peak in higher-education enrollment in the US in 2026 we're likely to see it expand to more educated people (unless such a peak is pushed off, or higher education manages to radically reinvent themselves). People in the US have very low confidence in government to solve problems, to the point that -- per referendums -- well more than half of Americans are willing to cut spending, and cut/refrain from raising taxes on the wealthy, as a balm to the country's problems. The likeliest future President under age 75, per current polling, is a man best known for winning wide popularity by daring to basically not fight COVID.

If these trends continue, then ideological people who wish to use the power of the state to do anything -- like Vermeule -- will need to band together in a single force; in practice every actual thing a Republican Administration does (consider Trump's judicial appointments tending to disempower bureaucrats, or the more successful state government in the 2010s funneling money to barely-accountable charter schools with diverse religious/ideological backgrounds) takes us further from a place where the government is even theoretically able to carry out the sort of reforms Vermeule would want.

(An interesting tell here is that Vermeule/Ahmari/Vance many 'populists' have converted to Catholicism or Eastern Orthodoxy, which are quite high-church, but the only growing denomination in the US is 'non-denominational', or the practice of having lots of tiny churches and congregations all competing with one another for adherents on what is basically the open market. This is extremely non-hierarchical and very different from the vision that Vermeule has; there is religious conservatism and there is religious conservatism, and these are not at all on the same pages.)

As the Democrats probably move right in response to their Senate disadvantage and cast a wider net, it seems extremely natural that they would attract people like this; the Democratic Party is already full of people who want to enforce a universal morality!

(Also note that at the very extreme end, this is already happening: consider the most prominent American neo-Nazi denouncing 'libertarian ideology' and voting for Joe Biden. Something very similar goes for David Duke. I don't think this is a horseshoe theory thing -- ultimately, everyone who doesn't want the government to shrink will probably have to be in the same party. My guess is that this sort of thing will gradually trickle from literal neo-Nazis to, eventually, higher-class populists like Vermeule; it's been observed many times that sociologically these people sure seem much more like Democratic than Republican voters.)

There's a reversal of means and ends here (that is, admittedly, common to American political attitudes; the most "respectable" version is probably the habit of treating specific trade policies as moral imperatives in and of themselves rather than recognizing that free trade, protectionism, longer or shorter supply chains, etc. etc. etc. favor or disfavor particular sectors of, and thus particular visions for, society). It does actually matter what one wants the state to be empowered to do, not just how much of it. A grand pro-state coalition would collapse the instant it tried to actually legislate anything, with the possible exception of the much stronger greenhouse gas regulations that are going to be no-brainers real soon to everyone who doesn't think the Tenth Amendment is a suicide pact.

[Vosem]

As the Democrats probably move right in response to their Senate disadvantage and cast a wider net, it seems extremely natural that they would attract people like this; the Democratic Party is already full of people who want to enforce a universal morality!

I'm not sure where you're getting that from. Even if the Democratic Party was moving to the middle now (and there is no evidence of that), there is certainly no evidence their judicial nominees would follow. I think most Presidents think the other side isn't looking when they nominate judges below the Supreme Court (something that has largely been the case). Both sides have and will continue to push nominees as far to their side as possible (apart from compromise nominees).

It's also funny that you mention universal morality on the part of the Democratic Party when your side basically requires every nominee to be pre-approved by the Federalist Society.

I don't think this would require any shift on the part of judges or judicial nominees, actually. The Republican Party's coalition has changed a lot since 1982 but the Federalist Society has in fact remained remarkably the same in its vision for the American legal system.

'Universal morality' here just means 'set of moral rules which apply to everybody'. The current Democratic zeitgeist seems a lot more into this than Trumpism, even though I can hear the retort coming that the religious right is also very interested in universal morality and this would be correct.

There's a reversal of means and ends here (that is, admittedly, common to American political attitudes; the most "respectable" version is probably the habit of treating specific trade policies as moral imperatives in and of themselves rather than recognizing that free trade, protectionism, longer or shorter supply chains, etc. etc. etc. favor or disfavor particular sectors of, and thus particular visions for, society). It does actually matter what one wants the state to be empowered to do, not just how much of it. A grand pro-state coalition would collapse the instant it tried to actually legislate anything, with the possible exception of the much stronger greenhouse gas regulations that are going to be no-brainers real soon to everyone who doesn't think the Tenth Amendment is a suicide pact.

I think there is actually rather a lot that a unified pro-state coalition could agree on, because I think there are a lot of actions for which the best argument against is 'state action is inherently bad and will tend to hurt us'. Environmental regulations are a good example of this; our modern version of the Republican Party explicitly wants to remove rule-making power from the EPA, on the grounds that it is undemocratic for an agency like this to have the power to make rules and that having lots of rules is bad for the economy. A pro-state coalition would be very unlikely to reach such a conclusion, and 'greenhouse gas regulations' is a good example of something they would be able to agree on.

In the COVID pandemic, after the first few months, there was a real divide between people who thought the government should not have been doing anything to fight the pandemic which might inconvenience the population or cost them any money, and people who felt that at least some measures, like mask and vaccine mandates if not lockdowns, were reasonable. I think this is an extremely natural split for modern American society, and that liberals and 'populists' -- including near-Nazis and certain sorts of educated high-church religious conservatives -- are both on the same half of this divide.

Also, I think the party divide has been about which issues are relevant before; in reading about the 1960s I am struck by the extent to which the divide between the Democrats (who included civil rights activists and segregationists) and Republicans (who included people concerned about the spread of communism in Southeast Asia, and some people concerned with spending being too high) was about whether race was the most important issue of the day or whether something else was. I think believing a particular issue is important, even if it's a supremely divisive one -- like race relations in the Jim Crow era -- is actually a substantial cultural commonality. 'Who even cares' is a much more foreign and alienating answer than 'you are wrong', and perhaps even a more foreign and alienating answer than 'you are evil'.

[politicallefty]

I find most of these discussions of originalism verus textualism versus a living Constitution versus an in loco parentis Constitution that this common good Conservatism guy is hawking typically sterile and more obfuscating than illuminating in general. That said, I am prudential enough to very much hew to the notion that the Constitution should not be so interpreted as to become a suicide pact.

I think what you say is reasonable. I consider myself to be a pretty strong textualist, but that doesn't always give you the complete picture or answer. The outer bounds of any right under the Constitution should absolutely not be a suicide pact. While the rights under the First Amendment are vast, they should never be construed to place oneself above the law. On the other hand, when you consider the Fourth Amendment, there is no textualist or originalist basis for the Exclusionary Rule. Rights under the Constitution must have meaning more than just being words on paper. In the context of the Fourth Amendment, the protections afforded to the people would be rendered meaningless without the Exclusionary Rule.

I don't think this would require any shift on the part of judges or judicial nominees, actually. The Republican Party's coalition has changed a lot since 1982 but the Federalist Society has in fact remained remarkably the same in its vision for the American legal system.

'Universal morality' here just means 'set of moral rules which apply to everybody'. The current Democratic zeitgeist seems a lot more into this than Trumpism, even though I can hear the retort coming that the religious right is also very interested in universal morality and this would be correct.

I just don't see any evidence as to what you are suggesting. There is far more diversity of thought on the left than the right in terms of judicial philosophy. It is true that the judges on the left are now closer to RBG rather than Thurgood Marshall or Arthur Goldberg, but that shift happened decades ago. Justice Sotomayor is probably the only Justice remaining that resembles the old left of the Warren Court. The right-wing really isn't much changed since the rise of the Federalist Society. When you look at the 5th Circuit, do you really see much daylight between Edith Jones and Andy Oldham?

[FEMA Camp Administrator]

Any evidence for this ludicrous claim? Like any at all? Or are you just desperately trying to avoid grappling with the fact that your preferred party attracts a lot of fascists?

This is a prediction about the future, but let me explain my reasoning. Confidence in American institutions has been declining since the Watergate scandal, and the GOP has built a base centered on those Americans who feel most alienated from institutions -- initially, the religious right, but increasingly a majority of non-educated people in the country. There is absolutely no indication that the decline in trust -- which accelerated during the Trump Administration and the COVID crisis -- is going to stop anytime soon; if anything given a projected peak in higher-education enrollment in the US in 2026 we're likely to see it expand to more educated people (unless such a peak is pushed off, or higher education manages to radically reinvent themselves). People in the US have very low confidence in government to solve problems, to the point that -- per referendums -- well more than half of Americans are willing to cut spending, and cut/refrain from raising taxes on the wealthy, as a balm to the country's problems. The likeliest future President under age 75, per current polling, is a man best known for winning wide popularity by daring to basically not fight COVID.

If these trends continue, then ideological people who wish to use the power of the state to do anything -- like Vermeule -- will need to band together in a single force; in practice every actual thing a Republican Administration does (consider Trump's judicial appointments tending to disempower bureaucrats, or the more successful state government in the 2010s funneling money to barely-accountable charter schools with diverse religious/ideological backgrounds) takes us further from a place where the government is even theoretically able to carry out the sort of reforms Vermeule would want.

(An interesting tell here is that Vermeule/Ahmari/Vance many 'populists' have converted to Catholicism or Eastern Orthodoxy, which are quite high-church, but the only growing denomination in the US is 'non-denominational', or the practice of having lots of tiny churches and congregations all competing with one another for adherents on what is basically the open market. This is extremely non-hierarchical and very different from the vision that Vermeule has; there is religious conservatism and there is religious conservatism, and these are not at all on the same pages.)

As the Democrats probably move right in response to their Senate disadvantage and cast a wider net, it seems extremely natural that they would attract people like this; the Democratic Party is already full of people who want to enforce a universal morality!

(Also note that at the very extreme end, this is already happening: consider the most prominent American neo-Nazi denouncing 'libertarian ideology' and voting for Joe Biden. Something very similar goes for David Duke. I don't think this is a horseshoe theory thing -- ultimately, everyone who doesn't want the government to shrink will probably have to be in the same party. My guess is that this sort of thing will gradually trickle from literal neo-Nazis to, eventually, higher-class populists like Vermeule; it's been observed many times that sociologically these people sure seem much more like Democratic than Republican voters.)

There's a reversal of means and ends here (that is, admittedly, common to American political attitudes; the most "respectable" version is probably the habit of treating specific trade policies as moral imperatives in and of themselves rather than recognizing that free trade, protectionism, longer or shorter supply chains, etc. etc. etc. favor or disfavor particular sectors of, and thus particular visions for, society). It does actually matter what one wants the state to be empowered to do, not just how much of it. A grand pro-state coalition would collapse the instant it tried to actually legislate anything, with the possible exception of the much stronger greenhouse gas regulations that are going to be no-brainers real soon to everyone who doesn't think the Tenth Amendment is a suicide pact.

 

[Southern Senator North Carolina Yankee]

I think a big mistake being made here is the assumption that it is impossible for their to be more than one "pro-state" political party at a time. We are used to such because that is the dynamic of the last several decades, but there have been times when their was a consensus about the role of government in society and it was merely a case of whose team one to determine who benefitted from the largess.

Our partisan press, extreme cultural divisions and deep tribalistic animosity between the two parties would seem to push in that direction as does the recent Republican hypocrisy when it comes to railing against state power only to expand it once in office. A new spoils system if you will.

[politicallefty]

I think a big mistake being made here is the assumption that it is impossible for their to be more than one "pro-state" political party at a time. We are used to such because that is the dynamic of the last several decades, but there have been times when their was a consensus about the role of government in society and it was merely a case of whose team one to determine who benefitted from the largess.

That depends on what the meaning of "pro-state" is. While the left is traditionally "pro-state" in the economic sphere, that doesn't mean the right hasn't had the mantle of "pro-state" in other aspects (the security state and the "Moral Majority" come to mind). That doesn't mean there isn't a bleed-over on some of those issues, but I do think the point is fairly clear.

In terms of the role of government, there most certainly has been a major shift in recent years. I think your point there is rather cynical though. When there was a general consensus, we agreed on the problems, but we differed as to the best way to solve those problems. The difference now is that the two sides do not debate solutions to problems, but rather what the problems are or whether or not they exist (healthcare seems to be a major one there). There should be no false equivalencies though.

[(no subject)]

the pure xenophobia that is the natural-born clause was was bitingly pointed our in testamony by a young American Chinese girl to Congress a couple of years ago. She pointed out that she's lived in the USA since she was three weeks old - but because she was born in China, she can never be President.

[Vosem]

I think a big mistake being made here is the assumption that it is impossible for their to be more than one "pro-state" political party at a time. We are used to such because that is the dynamic of the last several decades, but there have been times when their was a consensus about the role of government in society and it was merely a case of whose team one to determine who benefitted from the largess.

Our partisan press, extreme cultural divisions and deep tribalistic animosity between the two parties would seem to push in that direction as does the recent Republican hypocrisy when it comes to railing against state power only to expand it once in office. A new spoils system if you will.

I agree that there is no reason that there cannot be more than one 'pro-state' party at a time, but there are very strong reasons to think anti-state sentiment is currently strengthening (consider sinking confidence in every sort of institution, and ever more explicit fiscal conservatism on the right; even on the left, the largest recent grassroots movement was anti-police in nature and thought societal problems could be fixed by rolling back municipal governance). I would listen to an argument that suggested both parties would become 'anti-state' over time, but I think there are enough entrenched state interests, and 'pro-state' ideologies among elites, that one party is very likely to remain 'pro-state' in a broad sense.

I actually agree with you about the spoils system! But I don't think that would lead to actual growth of the governing apparatus. As people lose confidence in technocrats it makes sense that we'll see more and more positions gradually filled by partisan appointees, but I think the general loss of institutional memory, and frequent-ish reversals of priority that this would cause, would end up making the state do less.

(All of this relies on the presumption -- which I think you don't share -- that anti-state sentiment is in fact rising, particularly but not solely on the right. I think that when you consider the span of the last few decades, it seems difficult to deny that this is the general pattern and that its causes are not still around; I would be inclined to go further and say that this is the general consequence of the democratic process being held under conditions of mass affluence. But if you don't agree with this -- and I think you've been disagreeing for the past decade or so -- then it's going to be pretty difficult for us to come to a conclusion here.)

I think a big mistake being made here is the assumption that it is impossible for their to be more than one "pro-state" political party at a time. We are used to such because that is the dynamic of the last several decades, but there have been times when their was a consensus about the role of government in society and it was merely a case of whose team one to determine who benefitted from the largess.

That depends on what the meaning of "pro-state" is. While the left is traditionally "pro-state" in the economic sphere, that doesn't mean the right hasn't had the mantle of "pro-state" in other aspects (the security state and the "Moral Majority" come to mind). That doesn't mean there isn't a bleed-over on some of those issues, but I do think the point is fairly clear.

In terms of the role of government, there most certainly has been a major shift in recent years. I think your point there is rather cynical though. When there was a general consensus, we agreed on the problems, but we differed as to the best way to solve those problems. The difference now is that the two sides do not debate solutions to problems, but rather what the problems are or whether or not they exist (healthcare seems to be a major one there). There should be no false equivalencies though.

Has there? It seems like there was a huge shift to anti-state ideologies associated with the financial crisis (although it lasted broadly from 2007-2014), and since then we've been in a strange holding period as politics has become more focused on personalities (and usually very geriatric personalities, for that matter). Since COVID it seems like a majority of the population has de facto embraced a position like 'the government does not have a role to play in fighting pandemics' -- or at least politicians associated with this message have won landslides -- which would've been an unimaginable take in polite discourse 20 years ago. But this hasn't really translated to national results like the Tea Party wave, since politics remains focused on 'Trumpy' issues.

I just don't see any evidence as to what you are suggesting. There is far more diversity of thought on the left than the right in terms of judicial philosophy. It is true that the judges on the left are now closer to RBG rather than Thurgood Marshall or Arthur Goldberg, but that shift happened decades ago. Justice Sotomayor is probably the only Justice remaining that resembles the old left of the Warren Court. The right-wing really isn't much changed since the rise of the Federalist Society. When you look at the 5th Circuit, do you really see much daylight between Edith Jones and Andy Oldham?

I think the difference between Gorsuch and Kavanaugh is about as large as the difference between the left and right broadly; this is kind of obvious if you read their opinions or public statements, but can also be demonstrated statistically.

[Skill and Chance]

Any evidence for this ludicrous claim? Like any at all? Or are you just desperately trying to avoid grappling with the fact that your preferred party attracts a lot of fascists?

This is a prediction about the future, but let me explain my reasoning. Confidence in American institutions has been declining since the Watergate scandal, and the GOP has built a base centered on those Americans who feel most alienated from institutions -- initially, the religious right, but increasingly a majority of non-educated people in the country. There is absolutely no indication that the decline in trust -- which accelerated during the Trump Administration and the COVID crisis -- is going to stop anytime soon; if anything given a projected peak in higher-education enrollment in the US in 2026 we're likely to see it expand to more educated people (unless such a peak is pushed off, or higher education manages to radically reinvent themselves). People in the US have very low confidence in government to solve problems, to the point that -- per referendums -- well more than half of Americans are willing to cut spending, and cut/refrain from raising taxes on the wealthy, as a balm to the country's problems. The likeliest future President under age 75, per current polling, is a man best known for winning wide popularity by daring to basically not fight COVID.

If these trends continue, then ideological people who wish to use the power of the state to do anything -- like Vermeule -- will need to band together in a single force; in practice every actual thing a Republican Administration does (consider Trump's judicial appointments tending to disempower bureaucrats, or the more successful state government in the 2010s funneling money to barely-accountable charter schools with diverse religious/ideological backgrounds) takes us further from a place where the government is even theoretically able to carry out the sort of reforms Vermeule would want.

(An interesting tell here is that Vermeule/Ahmari/Vance many 'populists' have converted to Catholicism or Eastern Orthodoxy, which are quite high-church, but the only growing denomination in the US is 'non-denominational', or the practice of having lots of tiny churches and congregations all competing with one another for adherents on what is basically the open market. This is extremely non-hierarchical and very different from the vision that Vermeule has; there is religious conservatism and there is religious conservatism, and these are not at all on the same pages.)

As the Democrats probably move right in response to their Senate disadvantage and cast a wider net, it seems extremely natural that they would attract people like this; the Democratic Party is already full of people who want to enforce a universal morality!

(Also note that at the very extreme end, this is already happening: consider the most prominent American neo-Nazi denouncing 'libertarian ideology' and voting for Joe Biden. Something very similar goes for David Duke. I don't think this is a horseshoe theory thing -- ultimately, everyone who doesn't want the government to shrink will probably have to be in the same party. My guess is that this sort of thing will gradually trickle from literal neo-Nazis to, eventually, higher-class populists like Vermeule; it's been observed many times that sociologically these people sure seem much more like Democratic than Republican voters.)

There's a reversal of means and ends here (that is, admittedly, common to American political attitudes; the most "respectable" version is probably the habit of treating specific trade policies as moral imperatives in and of themselves rather than recognizing that free trade, protectionism, longer or shorter supply chains, etc. etc. etc. favor or disfavor particular sectors of, and thus particular visions for, society). It does actually matter what one wants the state to be empowered to do, not just how much of it. A grand pro-state coalition would collapse the instant it tried to actually legislate anything, with the possible exception of the much stronger greenhouse gas regulations that are going to be no-brainers real soon to everyone who doesn't think the Tenth Amendment is a suicide pact.

I agree here.  Republicans now being completely dependent on Florida to win the presidency or the house mean a grand coalition on climate change within the decade. 

[Vosem]

My guess for the immediate future (like, the 2020s) is that we will find increasing popular recognition of the reality of climate change and decreasing popular support for doing anything about it to be perfectly compatible.

(I think the general line 'we should not do anything about climate change because the free market can handle it more effectively' is already a pretty common one; this is the fundamental ideological vision behind Elon-Musk-ism, and particularly in 2022 you saw at least one campaign -- that of Jim Lamon in Arizona -- running on a platform of being a renewable energy tycoon and finding that the Freedom Caucus is very amenable to this. DeSantis himself, who's made support for conservation one of the cornerstones of his bipartisan appeal, as much as that exists, also often strikes a kind of similar note -- but has also bragged about the speed with which roads are built in Florida).

[Okay, maybe Mike Johnson is a competent parliamentarian.]

My guess for the immediate future (like, the 2020s) is that we will find increasing popular recognition of the reality of climate change and decreasing popular support for doing anything about it to be perfectly compatible.

(I think the general line 'we should not do anything about climate change because the free market can handle it more effectively' is already a pretty common one; this is the fundamental ideological vision behind Elon-Musk-ism, and particularly in 2022 you saw at least one campaign -- that of Jim Lamon in Arizona -- running on a platform of being a renewable energy tycoon and finding that the Freedom Caucus is very amenable to this. DeSantis himself, who's made support for conservation one of the cornerstones of his bipartisan appeal, as much as that exists, also often strikes a kind of similar note -- but has also bragged about the speed with which roads are built in Florida).

I'd be willing to concede that, especially if the IRA is as successful at reducing emissions as people are currently predicting, there will likely be more widespread support (both popular and elite) for "carrot" as opposed to "stick" approaches going forward. But I think preferring rewards for doing things right to punishment for doing things wrong is a broader and deeper feature of human psychology than really supports your point. Preferring reward to punishment might cause people to adopt anti-state views--indeed, it is almost by definition the MAIN thing that causes it among people who aren't interested in arcane ideologies--but it is too basic to result from them.

[politicallefty]

Has there? It seems like there was a huge shift to anti-state ideologies associated with the financial crisis (although it lasted broadly from 2007-2014), and since then we've been in a strange holding period as politics has become more focused on personalities (and usually very geriatric personalities, for that matter). Since COVID it seems like a majority of the population has de facto embraced a position like 'the government does not have a role to play in fighting pandemics' -- or at least politicians associated with this message have won landslides -- which would've been an unimaginable take in polite discourse 20 years ago. But this hasn't really translated to national results like the Tea Party wave, since politics remains focused on 'Trumpy' issues.

I do think there has been a significant paradigm shift. I think there are enduring paradigms that generally exist until toppled. Both parties acknowledge and act accordingly under them. From 1932-1980, we had the New Deal paradigm. (The last gasp of conservativism at the federal level for decades was the the Republican Congress elected in 1946, which was subsequently obliterated in 1948.) Even Republicans such as Eisenhower and Nixon were forced to play the game on that side of the field. Look at Nixon's healthcare proposal compared to what even some Democrats put out decades later. On the other side, Reagan massively changed the political landscape. Clinton came to power with strong majorities in both Houses of Congress that were subsequently obliterated in 1994, a reinforcement of the Reagan Revolution. The remainder of the Clinton Presidency was largely fought on the other side (welfare reform being the most striking example), a reversal of the New Deal paradigm.

The Reagan Revolution is basically dead now though. Unlike other paradigm shifts, I think it went out with a whimper rather than a bang. I think Bush's "compassionate conservativism" partially eroded it from within. The current paradigm shift was finalized by the pandemic. The Democratic Party is no longer playing on the Reagan paradigm field. BBB was very close to passing and it would have been the biggest legislative package since the Great Society. The anti-statist Reagan paradigm is over.

I think the difference between Gorsuch and Kavanaugh is about as large as the difference between the left and right broadly; this is kind of obvious if you read their opinions or public statements, but can also be demonstrated statistically.

There is nothing obvious about that. That's like saying Justice Brennan was a centrist because Douglas was to his left.

[Vosem]

Has there? It seems like there was a huge shift to anti-state ideologies associated with the financial crisis (although it lasted broadly from 2007-2014), and since then we've been in a strange holding period as politics has become more focused on personalities (and usually very geriatric personalities, for that matter). Since COVID it seems like a majority of the population has de facto embraced a position like 'the government does not have a role to play in fighting pandemics' -- or at least politicians associated with this message have won landslides -- which would've been an unimaginable take in polite discourse 20 years ago. But this hasn't really translated to national results like the Tea Party wave, since politics remains focused on 'Trumpy' issues.

I do think there has been a significant paradigm shift. I think there are enduring paradigms that generally exist until toppled. Both parties acknowledge and act accordingly under them. From 1932-1980, we had the New Deal paradigm. (The last gasp of conservativism at the federal level for decades was the the Republican Congress elected in 1946, which was subsequently obliterated in 1948.) Even Republicans such as Eisenhower and Nixon were forced to play the game on that side of the field. Look at Nixon's healthcare proposal compared to what even some Democrats put out decades later. On the other side, Reagan massively changed the political landscape. Clinton came to power with strong majorities in both Houses of Congress that were subsequently obliterated in 1994, a reinforcement of the Reagan Revolution. The remainder of the Clinton Presidency was largely fought on the other side (welfare reform being the most striking example), a reversal of the New Deal paradigm.

The Reagan Revolution is basically dead now though. Unlike other paradigm shifts, I think it went out with a whimper rather than a bang. I think Bush's "compassionate conservativism" partially eroded it from within. The current paradigm shift was finalized by the pandemic. The Democratic Party is no longer playing on the Reagan paradigm field. BBB was very close to passing and it would have been the biggest legislative package since the Great Society. The anti-statist Reagan paradigm is over.

I don't think the anti-statist paradigm is over; I think the long-term effect of COVID has been to strengthen it. The Court as currently composed is likely to bring down a decision similar to Gundy which would massively strengthen a non-delegation doctrine; Trump was the first President in a long time to fight growing regulation semi-successfully (in spite of his own disinterest in doing so, purely as a result of intellectual shifts on the right), and the most successful up-and-coming politicians (of whom DeSantis is the most obvious) are those who made their names fighting actions taken against COVID; "the government's role in protecting public health is broadly illegitimate" is a hugely radical position that would never have occurred to Reagan or GWB, and even 10 years ago was quite fringe.

BBB could've passed; more generally, the polls which forecast a Democratic landslide in 2020 were indeed forecasting a new paradigm. But that just didn't actually happen, and inasmuch as the paradigm feels different, it is in that anti-statist forces keep getting more extreme really quickly.

(I think there was a real paradigm shift between 2009-2010; after this you had politicians explicitly campaigning on cutting their own districts' subsidies, unheard of in earlier years, and you saw an enormous decline in the success of "good government" appeals on the right as a large plurality, or even a majority, started seeing this as not necessarily desirable. This is actually a pretty different paradigm from Reaganism in many ways -- it's tough to fight for school prayer when you think schools should have less say in what children think, or to fight for mandatory seat-belts when you think that the government should not ban things for being dangerous.)

(And I think this paradigm bleeds over onto the left, too: while it is true that the institutional Democratic Party has gotten more pro-spending over the past 15 years -- though this feels substantially like a reaction to a more right-wing court system which is ever less likely to let large reforms happen, NFIB being probably the last case of its type -- most of the grassroots movements seem to be about things like curtailing police powers, weakening drug laws, or weakening social stigma -- itself a form of meta-governance -- against particular minorities, and to source some of its fundamental opinions from the libertarian right.)

I think the difference between Gorsuch and Kavanaugh is about as large as the difference between the left and right broadly; this is kind of obvious if you read their opinions or public statements, but can also be demonstrated statistically.

There is nothing obvious about that. That's like saying Justice Brennan was a centrist because Douglas was to his left.

My understanding is that it is indeed true, at least statistically, that by the 1970s Douglas was so far "to the left", or so deep in his own original philosophy, that the difference between him and the other left-wing members was as large or larger than the difference between the left and the right. Martin-Quinn scores suggest that before Rehnquist joined the Court, the difference between Douglas and the next-most-left-wing Justice -- Brennan -- was indeed larger than the difference between Brennan and the rightmost Justice, Burger: in fact substantially so.

My guess for the immediate future (like, the 2020s) is that we will find increasing popular recognition of the reality of climate change and decreasing popular support for doing anything about it to be perfectly compatible.

(I think the general line 'we should not do anything about climate change because the free market can handle it more effectively' is already a pretty common one; this is the fundamental ideological vision behind Elon-Musk-ism, and particularly in 2022 you saw at least one campaign -- that of Jim Lamon in Arizona -- running on a platform of being a renewable energy tycoon and finding that the Freedom Caucus is very amenable to this. DeSantis himself, who's made support for conservation one of the cornerstones of his bipartisan appeal, as much as that exists, also often strikes a kind of similar note -- but has also bragged about the speed with which roads are built in Florida).

I'd be willing to concede that, especially if the IRA is as successful at reducing emissions as people are currently predicting, there will likely be more widespread support (both popular and elite) for "carrot" as opposed to "stick" approaches going forward. But I think preferring rewards for doing things right to punishment for doing things wrong is a broader and deeper feature of human psychology than really supports your point. Preferring reward to punishment might cause people to adopt anti-state views--indeed, it is almost by definition the MAIN thing that causes it among people who aren't interested in arcane ideologies--but it is too basic to result from them.

I am discussing a much more extreme position, where you say something like "capitalism has already been successful at fighting undesirable effects from climate change, and so government action is not necessary, and in any case using the government to make people behave a certain way is inherently undesirable". (One can point to things like widespread adoption of renewable energy sources and greatly lowered emissions in the First World as successes here, and argue that it hasn't gone further because of regulation; for nuclear power, at least, such a position isn't really controversial. How much progress in other renewables since the start of the 21st century has been government-driven is kind of controversial, though I know that the argument that this is mostly because of government-incentivized research exists.)

This isn't about carrots and sticks, and is more about "government action is bad" as a terminal value which is compatible with any particular facts about how the world works (much as, for example, killing everyone would solve the climate crisis but nobody suggests this because of a universal belief that killing people is bad).

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I suppose I genuinely have a hard time wrapping my head around "government action is bad" (or "government action is good," for that matter; I'm sure you've at least heard of those tiresome "socialism is when roads" left-liberals who reflexively vote for e.g. higher taxes regardless of what's being taxed or why) as terminal values. Both seem self-evidently insane, not least because, in any actionable definition of "government" or "the state" that doesn't rely on hyperideologized word salad, a sufficiently low level of government action yields a power vacuum that results in some other entity becoming the government/state. (This is what has happened in the backstory of Snow Crash, which I keep recommending you read; the book doesn't even present the resulting archipelago of I-can't-believe-it's-not-a-states as in all ways a bad thing.) I tend to think self-evidently insane terminal values will eventually implode or otherwise commit ideological suicide, as indeed has arguably happened to "government action is good" due to, well, the twentieth century.

[Vosem]

I suppose I genuinely have a hard time wrapping my head around "government action is bad" (or "government action is good," for that matter; I'm sure you've at least heard of those tiresome "socialism is when roads" left-liberals who reflexively vote for e.g. higher taxes regardless of what's being taxed or why) as terminal values. Both seem self-evidently insane, not least because, in any actionable definition of "government" or "the state" that doesn't rely on hyperideologized word salad, a sufficiently low level of government action yields a power vacuum that results in some other entity becoming the government/state. (This is what has happened in the backstory of Snow Crash, which I keep recommending you read; the book doesn't even present the resulting archipelago of I-can't-believe-it's-not-a-states as in all ways a bad thing.) I tend to think self-evidently insane terminal values will eventually implode or otherwise commit ideological suicide, as indeed has arguably happened to "government action is good" due to, well, the twentieth century.

I have read Snow Crash, and have brought it up in conversation with you, though, as I said then, I read it many years ago and it left relatively little impression; the Neal Stephenson books I’ve returned to have been Seveneves and Termination Shock (itself about a speculative private solution to climate change). I pretty much entirely agree with your point here; I could quote most of this paragraph word-for-word in “reasons I am not an anarchist”. Much as the optimal level of various crimes is probably not zero, because of the cost involved in driving levels so low, the optimal level of government activity is not zero.

But my post was meant to be descriptive about a tendency in American politics (one I have lots of sympathy for, to be sure), and I think “government activity is inherently bad, a solution which causes it to rise is an inherently bad solution” is a very common perspective throughout the American right and one which has had a non-zero influence on the modern American far-left; I also tend to think the reasons for the rise of this perspective aren’t going away. It’s interesting to consider how a perspective like this might interact with widespread belief in climate change (the late-2010s resurgence in nuclear power advocacy seems like partially a response to justifiably increased distrust of the Russian government, but also substantially like a way to answer “how can we fight climate change by repealing regulations”), because — absent some kind of termination shock in which global climate or demographics change suddenly (extremely morbid pun intended) — we’re probably going to be living with both attitudes for the foreseeable future.

(And as for ideological suicide, yeah, “the state has no role to play in public health” seems like a fairly scary idea to take to its logical conclusion; if there’s one thing all of the possible COVID origin stories had in common, it’s that all of them implied that similar crises should become more frequent over time. The optimal level of government there indeed probably isn’t zero, and I say that as someone comfortable with letting lots of straightforwardly dangerous phenomena (drugs, guns, etc.) go uncombatted. I’d really like to see responsible idealism, but that obviously isn’t what we’re seeing from the American right today — including the non-Trumpy American right for that matter — much less several decades from now. That said no one has ever let “but think how disastrous your ideas would be if misapplied horrendously” stop them from advocating for a better world.)