The Liberal Founding (Reposted)

This is a repost of “The Liberal Founding,” originally posted here July 24, 2012. 

JohnMH127@gmail.com

“The spirit of liberalism suffused the Revolution, the Declaration of Independence, the Constitution and the Bill of Rights” - (Below)

Professor Charles K. Rowley:

In 1993, in his book, Post-Liberalism, [John] Gray poked around among the rubble of classical liberal philosophy to determine what, if anything was left. He concluded that none of the four constitutive elements of doctrinal liberalism — universalism, individualism, egalitarianism and meliorism (or human flourishing) — could survive the ordeal by value pluralism and that liberalism, as a political philosophy, therefore was dead. - What Is Living and What Is Dead in Classical Liberalism

To start, preliminary remarks on liberalism. The underlying propositions:

1. The liberal Enlightenment of the eighteenth century was an outgrowth of the scientific revolution of the latter half of the seventeenth century
2. In this blog the term ‘liberalism’ means Enlightenment liberalism. Liberalism is substantially different from the outlook of the left, and from Marxism, progressivism, libertarianism, and conservatism (as Historian Fritz Stern writes, “Extremists of the right and the left have long attacked liberalism as their greatest enemy.”)
3. The Declaration and Constitution, recognized by scholars as representative Enlightenment documents, embody liberal principles. As Stern’s and Ferris’s notes below suggest, the Founding was an expression of the new liberal values of the Enlightenment
4. The underlying assumptions and working principles of the United States are liberal. The present tendency to use ‘liberal’ as a derogatory epithet suggests a fundamental problem for the working of our society

Timothy Ferris, The Science of Liberty:

This book argues that the new ingredient was science. It maintains that the democratic revolution was sparked—caused is perhaps not too strong a word—by the scientific revolution. … Science arose to prominence immediately prior to the Enlightenment—as would be expected if, indeed, science was the one indisputably new ingredient in the social and intellectual ferment that produced the Enlightenment and the democratic revolutions that followed. (p. 2, p. 6)

Fritz Stern was born in Breslau, Germany in 1926, and moved with his family to the United States in 1938 in response to the rising anti-semitism of the Third Reich. As he wrote in The Failure of Illiberalism:

It may be that the accident of German birth gave me an added incentive to work in this extraordinary field. It certainly left me with strong memories. I was seven when Hitler came to power; for the next five years I lived under the two faces of Fascism. ... In school I saw the smiling face of Nazism, as fellow students reveled in their uniforms, sang their songs, and prattled their litany of love and hate. I sensed their exultation and felt their cruelty.

From Fritz Stern Op-Ed New York Times September 4, 1988 (in response to George H.W. Bush’s Ronald Reagan's derogatory use of ‘liberal’):

Liberalism—one of “America's noblest traditions,” I insisted, often defined as a state of mind—had “transformed the world . . . [I]ts greatest victory has been the American Revolution; its greatest pronouncement, the Declaration of Independence; its greatest bulwark, the Constitution of the United States and the Bill of Rights.” It had “stood for freedom against tyranny. At its best . . . a force for change and progress, seeking the institutional defense of decency.” ... In America's liberal premises the world had seen “the best promise of the West.” - This, and the following, from Five Germanys I Have Known

 
New York Times ad purchased  October 26, 1988 by Fritz Stern and C. Vann Woodward:

A Reaffirmation of Principle

We speak as American citizens who wish to reaffirm America's liberal tradition. At our country's founding, the spirit of liberalism suffused the Revolution, the Declaration of Independence, the Constitution and the Bill of Rights. These principles, thus embodied, have inspired the respect of much of the world.

We regret that the President of the United States has taken the lead in vilifying one of our oldest and noblest traditions. He made sport of “the dreaded L-word” and continues to make “liberal” and “liberalism” terms of opprobrium. We are deeply concerned about the erosion and debasement of American values and American traditions that our country has long cherished.

In the past and at its best, liberalism has sought the institutional defense of decency. Everywhere it has fought for the freedom of individuals to attain their fullest development. It has opposed tyranny in all forms, past and present. Liberal policies require constant scrutiny and sometimes revision. Liberal principles—freedom, tolerance, and the protection of the rights of every citizen—are timeless.

Extremists of the right and the left have long attacked liberalism as their greatest enemy. In our own time liberal democracies have been crushed by such extremists. Against any encouragement of this tendency in our own country, intentional or not, we feel obliged to speak out. We hope that others will do so as well.

Is social justice subjecting the arts to extraneous considerations?

Wesley Morris, in Should Art be a Battleground for Social Justice? [NYT] wrote

No event captures this anxious confusion of activism and criticism better than the time a group of artists descended upon the Whitney Museum during last year’s biennial and demanded, in a protest letter, for the destruction of a painting that morally offended them. Their issue wasn’t only with the painting but with the painter. Dana Schutz’s “Open Casket” depicted Emmett Till in a whirring rictus of earth tones. It’s a vague, unsure, respectfully deferential work, different from Schutz’s bigger, more dazzlingly audacious stuff. One problem, according to the protesters, was that Schutz, as a white woman, had no business painting this young black martyr. This was not, the letter agued, her story.

There have been arguments over whether Hermione, of the Harry Potter series, is black, accompanied by complaints that the most important black character is Kingsley Shacklebolt.

On the one hand, the politics of identity, in its cultural appropriation guise, says artist Dana Schutz has no right to depict someone of a minority race. This somehow takes away from the minority. 

On the other hand, J. K. Rowling is pressured to treat the Harry Potter series like an employment opportunity requiring diversity in hires. 

It can't be both. Write about one's own ethnicity and be accused of sinning against diversity. Write about other ethnicities and be charged with using, profiting, and stealing from members of a needy identity.

Classicist Mary Lefkowitz, pointing out that in the classroom a geology professor is not permitted to assert that the Earth is only 6000 years old, observed, "Academic freedom is the freedom to profess a discipline according to its recognized content and procedures, free from constraints and considerations extraneous to that discipline."

A holder of a political position may not impose extraneous "constraints and considerations" on works of art or on those who create them.

We've experienced works of art bent to propaganda. They do not fare well.

What will the five to four conservative Court majority do?

There’s a time bomb in the Declaration of Independence that concerns a Supreme Court which exhibits insufficient deference to political democracy. The Declaration states that our “unalienable rights” derive from “the laws of nature and of nature’s God”; that is, they are prior to any government.

On this ground the Court can, in theory, invalidate any law passed by our Congress, asserting that it violates a Higher Law. We assume that this involves the personal liberty rights enumerated in the Bill of Rights.

But note the following passage from Wikipedia, where property rights seem to exist on the same level as liberty:

“Scholars have noted that when the Fourteenth Amendment was adopted in 1868, 27 out of 37 state constitutions had Lockean Provisos which typically said: "All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring and possessing and protecting property: and pursuing and obtaining safety and happiness."”

In the Lochner era, from the early twentieth century until a few years into FDR’s New Deal, the Court repeatedly struck down such laws as the forty hour week and restriction of child labor as interfering with an employer’s right to do as he wished with his property.

Property rights were also assumed to support the right to refuse service to customers of a given race or ethnicity.

Rising public objection to the Court’s obstructionism toward humanitarian and safety provisions of New Deal legislation persuaded the Court to moderate its position. The question is whether the new five to four conservative majority may usher in a new Lochner era in which the people are unable to effectuate laws improving work, safety, economic, health, and voting conditions.

In the end, it will come down to what we are willing to put up with.

https://en.wikipedia.org/wiki/Lochner_era

On the difference between liberalism and the outlook of the left

>>Part I: 

Since “liberal” and “left” are often treated as synonymous, Historian Fritz Stern’s discussion may be useful:

Fritz Stern was born in Breslau, Germany in 1926, and moved with his family to the United States in 1938 in response to the rising anti-semitism of the Third Reich and became an American historian.

From Fritz Stern Op-Ed New York Times September 4, 1988 (in response to Ronald Reagan's derogatory use of ‘liberal’):

Liberalism—one of “America's noblest traditions,” I insisted, often defined as a state of mind—had “transformed the world . . . 

[I]ts greatest victory has been the American Revolution; its greatest pronouncement, the Declaration of Independence; its greatest bulwark, the Constitution of the United States and the Bill of Rights.” 

It had “stood for freedom against tyranny. At its best … a force for change and progress, seeking the institutional defense of decency.” ... In America's liberal premises the world had seen “the best promise of the West.” - This from Stern’s _Five Germanys I Have Known_

Stern is saying that the Founding was a liberal event. Liberalism is the _raison d’etre_ of the United States. It’s in our DNA. Enlightenment liberalism proclaimed the Rights of Man — immunities which no government can abrogate. Liberalism declared that all are created equal, which over time finally rendered slavery unthinkable, something no society prior to liberal modernity had done.

Part II:

How my own life history taught me that “liberal” and “left” are not alike:

I went to high school during the second Eisenhower administration, and to college during the first Kennedy administration. I thought of myself as liberal/left, and at that time the public understanding of these terms was not as divided as it is now.

By the time I reached middle age, I realized that the left was telling me that white was bad, male was bad, European was bad; and I began searching for a political philosophy that did not require me to hate myself.

I learned that liberalism, unlike the outlook of the left, does not care about identity. If, as the Declaration proclaimed, all are created equal, immutable characteristics that we are born with and can’t change don’t matter.

Can there be anything more unjust than considering a newborn baby guilty because of its race and gender?

There’s much more to be said about this, but if it is understood that any analysis which conflates “liberal” and “left” is necessarily intellectually incoherent, thats a good start.<<

How many divisions does the “Chief Justice” have?

The Roberts Court has delivered its opinion. Now let it enforce it. … How many divisions does the “Chief Justice” have?

“The broad consensus over the court’s authority to interpret the Constitution will crumble. If that all comes to pass, Kavanaugh’s appointment may come to be seen as a Pyrrhic victory not just for Trump but for the entire conservative movement. … The power and legitimacy of the whole institution depend upon the idea that regardless of the political maelstrom surrounding it, the court is doing just fine and always will be.”

Mark Joseph Stern:

By all indications, Brett Kavanaugh is about to be confirmed to the Supreme Court, where he will become part of a five-justice conservative bloc that will swiftly roll back decades of progressive jurisprudence. His confirmation will be a major victory for the Republican Party and its leader, Donald Trump, who will soon succeed in entrenching GOP control over the court for at least a generation.

But as soon as Kavanaugh takes the oath, he will plunge the Supreme Court into a legitimacy crisis that could weaken its power over the long term. This crisis will become particularly acute if Democrats retake Congress and the presidency but find their reforms stymied by a reactionary judiciary.

The broad consensus over the court’s authority to interpret the Constitution will crumble. If that all comes to pass, Kavanaugh’s appointment may come to be seen as a Pyrrhic victory not just for Trump but for the entire conservative movement.

The Supreme Court has always needed buy-in from the political branches to enforce its rulings. As my colleague Dahlia Lithwick wrote in 2016, the court “relies on us to believe that it’s magic. The power and legitimacy of the whole institution depend upon the idea that regardless of the political maelstrom surrounding it, the court is doing just fine and always will be.”

Remarkably, throughout most of American history, this magic trick has worked. It came closest to collapse after 2000’s Bush v. Gore, when five Republican appointees justices indefensibly elevated their preferred candidate to the presidency. At that point, liberals could have declared war on the court, challenging the central role it had assumed in American politics. …

Democratic approval of the court plummeted after the GOP blockaded Merrick Garland, Barack Obama’s final SCOTUS nominee, and instead allowed Trump to appoint the far-right Neil Gorsuch. But while plenty of progressive advocates and politicians insisted that Gorsuch was an “illegitimate” justice in a “stolen” seat, few seriously contested the validity of his votes. That’s probably because Gorsuch didn’t alter the balance of the court and wasn’t a flagrant partisan (despite some ethical lapses). During his confirmation hearing and on the bench, Gorsuch behaved more or less like a judge, not a GOP operative out to do his party’s bidding.

Kavanaugh is different in all respects. He will drag the court far to the right, eroding Roe, marriage equality, campaign finance restrictions, voting rights, affirmative action, and the separation of church and state. Democrats’ respect for the court, already diminished, will plunge to new lows each time Kavanaugh casts the fifth vote in a controversial 5–4 ruling.

But most important is Kavanaugh’s image as both a partisan pugilist and an alleged sexual abuser.

[In the waning days of WW II during a discussion of the future of Eastern Europe British Prime Minister Winston Churchill cautioned Joseph Stalin to consider the views of the Vatican. To this the Soviet leader responded “How many divisions does the Pope have?”

In treating the Court as if it is about power, America’s radical right is making a calamitous category error. The law is the attempt to resolve contention among human beings by reason rather than force.

A court’s only strength is its cognitive virtue. Its respect for evidence and reason. When a Roberts Goresuch Kavanaugh Court holds itself forth as being about political power rather than what Quinta Jurecic calls “civic virtue,” it has sealed its doom.

How many divisions does the “Chief Justice” have?]

https://slate.com/news-and-politics/2018/10/brett-kavanaugh-confirmation-constitutional-crisis.html

The Supreme Court undermined and sabotaged the 14th Amendment after the Civil War, enabling Jim Crow

The Supreme Court undermined and sabotaged the 14th Amendment after the Civil War, enabling Jim Crow; and it is now undoing the Civil Rights Act and the Affordable Care Act: "The nation’s founding document is no match for a dedicated majority of justices committed to circumventing its guarantees," writes Adam Serwer.

Why wasn’t the Fourteenth Amendment enough to prevent Jim Crow? Why was the Civil Rights Act of 1964 needed, and the additional measure of protected class? The Supreme Court undid the equal protection clause, preparing the way for Jim Crow, by ruling in 1873 (_United States v. Cruikshank_) that “the Fourteenth Amendment’s powers did not cover discrimination by individuals, only by the state.”

Adam Serwer:

"Seventy-two men were ultimately indicted for their role in the Colfax massacre [over 100 black people slaughtered], charged under the Enforcement Acts of 1870, which were passed to help the federal government suppress the Ku Klux Klan. But their convictions were overturned by the U.S. Supreme Court, which concluded that the federal government lacked the authority to charge the perpetrators. Justice Joseph Bradley, a Grant appointee, wrote that the United States had not clearly stated that the accused, in slaughtering more than 100 black men, had “committed the acts complained of with a design to deprive the injured persons of their rights on account of their race, color, or previous condition of servitude.” And it wouldn’t have mattered if they had, argued the Grant-appointed Chief Justice Morrison R. Waite, because the Fourteenth Amendment’s powers did not cover discrimination by individuals, only by the state. “The only obligation resting upon the United States is to see that the States do not deny the right,” Waite wrote. “This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.” … 

"This decision, in United States v. Cruikshank, the legal historian Lawrence Goldstone argues, provided a guide for the campaign of racist terrorism that would suppress the black vote and enshrine a white man’s government for generations. “The Colfax defendants would have had to announce their plan to violate their victims’ rights on account of the color of their skin in order to be culpable,” Goldstone wrote. “Justice Bradley had thus communicated to any Redeemer with violent intent that to avoid federal prosecution one need simply to keep one’s mouth shut before committing murder.”

Grant was enraged that “insuperable obstructions were thrown in the way of punishing these murderers … and the so-called conservative papers of the State not only justified the massacre, but denounced as federal tyranny and despotism the attempt of the United States officers to bring them to justice.”" https://www.theatlantic.com/ideas/archive/2018/09/redemption-court/566963/

the Supreme Court is not a sacred body if it is bent toward politics rather than justice.

It has been said that having a sacred document (the Constitution), Americans need a sacred body to administer it.

But the Supreme Court is not a sacred body if it is bent toward politics rather than justice.

It is now routinely said that many are holding their noses and continuing to support the person in the White House because he will appoint Republican judges at the Supreme Court and intermediate levels. Let’s think about that for a moment. The movie "A Man for All Seasons" addressed the rule of law:

"[Sir Thomas] More: And go he should, if he was the Devil himself, until he broke the law!
Roper: So now you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast– man's laws, not God's– and if you cut them down—and you're just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law for my own safety's sake."

But if the law is reduced to a sordid matter of "Republican judges" or "Democratic judges," the laws are down. We no longer have a polity of "laws, not men."

Where will you hide, "the laws all being flat? … Do you really think you could stand upright in the winds that would blow then?"

How Ronald Reagan Turned the Supreme Court Into a Partisan Timebomb

The Federalist Society is now choosing the Republican party’s Supreme Court nominees, making sure that the pool the president selects from consists of partisan activists who deliver, not even-handed justice, but minority rule by a radical right coterie.

Judicial review has come to be a tool of reactionary power which can prevent any democratically enacted law from taking effect, so that there is no longer separation of powers, but kritarchy: rule by judges. Unelected judges. Democracy dies.

All democracy is inherently liberal, all justice is liberal, all genuine intellectuality is liberal, and all science is liberal. In the past, even justices selected by Republican presidents — "William Brennan, Harry Blackmun, David Souter, Earl Warren, and John Paul Stevens" — "drifted" to the impartial center, because they were even-handed jurists, not ideologues.

The Federalist Society is engineering a radical transformation so that the Supreme Court no longer embodies high principles, but will become a squalid entourage of cynical, debased operatives dispensing supreme bigotry and avarice.

Documentation: The URL below (or listen to the podcast). Example:

"Despite President Donald Trump’s high disapproval rating, it’s almost a certainty that his U.S. Supreme Court nominee, Judge Brett Kavanaugh, will be confirmed to the high court. And it’s no surprise—former President Ronald Reagan took steps to make the court a major issue for Republican voters, something that led to the rise of the conservative Federalist Society, which has spent years sourcing and grooming potential justices. In all practical senses, the 40th president laid the groundwork for blocking Merrick Garland, and getting Brett Kavanaugh to the Supreme Court."

"[Kavanaugh] is moved around by the political winds. He’s not just a jurist off in some ivory tower, thinking dispassionately about the law."

https://slate.com/news-and-politics/2018/08/brett-kavanagh-has-ronald-reagan-to-thank-for-twisting-the-supreme-court.html

[A transcription of The Political Gabfest podcast for Wednesday, August 22, 2018, “The Eight-Count Edition”]

President in name only

Stop referring to him as “the president.”

The Founders were quite clear: any president must swear and affirm an Oath of Office to protect and defend the Constitution.

You’d think they believed that a habitual, inveterate, compulsive, vicious liar, a man utterly without shame in his constant prevarication, could not be president.

Back when lower courts, through several iterations of anti-immigration executive orders, blocked each diktat from the Oval Office, Quinta Jurecic of Lawfareblog mused that the nation’s administrators of justice, reflecting on the gravity of the Oath, felt that he who had sworn it lacked “civic virtue,” and was not entitled to normal presidential deference.

The squatter who currently, through a catastrophic quirk of the Electoral College, holds the highest office of the land in Babylonian captivity, had formal authority but was as lacking in moral authority as he was lacking in dignity, judgment, and common human decency.

How many kinds of disgusting does one have to be to so besmirch the noble office once held by Washington, Jefferson, and Lincoln, cavorting on the national stage, smirking, bullying, threatening, hurling kindergarten epithets at the press, the judiciary, at petitioners for refuge?

Each time we attach the name of a high office to a miserable creature who stiffed his contractors, defrauded citizens who sought to better themselves with a fake university, and betrayed the marriage vow with playmates and porn stars, we impute the virtue of the presidency to one who has none.