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    The ‘Living’ Constitution

    September 18, 2018 by Will Morrisey

    Originally published by Constituting America, August 7, 2015. Republished with permission.

     

    Cheered on by Congress and the Supreme Court and abetted by what has become very nearly a fourth branch of government—the federal bureaucracy or administrative state—the executive branch of the United States government has for some time almost routinely overridden the separation of powers the Framers designed for the protection of American rights. In The Federalist, Publius argued that the Constitution itself amounts to a bill of rights, preventing the usurpation of powers by the executive by giving the legislative and judicial branches powerful incentives and real powers to resist such encroachment. This worked, until it didn’t, most obviously during the second administration of Franklin Roosevelt.

    Whether it is the Environmental Protection Agency ignoring Congress and issuing edicts on global warming, federal land grabs in Alaska, bureaucratic regulations on immigration, the confused and onerous burdens of the Common Core program in our schools or the Affordable Care Act in our hospitals and doctors’ offices, warrantless surveillance of American citizens by the National Security Agency, partisan misuse of the Internal Revenue Service, or the overuse of Congressional-Executive agreements and sole executive agreements in lieu of treaties, we have witnessed an executive and administrative power that no longer merely executes laws enacted by Congress but itself legislates, with or without Congressional organization, and often with no rebukes from a complaisant Supreme Court.

    Why is this happening?

    We can enter the trail at any one of the points listed, but let’s use the last one, the international ‘agreements’ that have largely taken the place of treaties since World War II. Some fourteen years ago, John C. Yoo—then as now a professor at Berkeley Law School—wrote an illuminating article in the Michigan Law Review discussing the history of treaties and Congressional-Executive agreements. [1] Yoo later joined the George W. Bush administration in the Office of the Attorney General and authored rules governing the War on Terror and authorizing the use of “enhance interrogation techniques” as one instrument of that war. He is no libertarian when it comes to Constitutional law. This makes his work all the more useful here, exempt as it is from any suspicion that it was authored by an enemy of executive power.

    Among the principal defenders of the constitutionality of such agreements, Yoo mentions Bruce Ackerman, Sterling Professor of Law and Political Science at Yale Law School and author of (among other books) The Failure of the founding Fathers, We the People: Foundations and its sequel, We the People: Transformations. Ackerman argues for a constitutional theory that combines the popular sovereignty of Senator Stephen Douglas with the Progressivism of Woodrow Wilson and such prominent recent Supreme Court Justices as William J. Brennan and Thurgood Marshall.

    As Yoo documents the matter, between 1789 and 1839 the United States entered into sixty treaties and twenty-seven non-treaty international agreements. But “as the nation entered world War II… statutory devices or even unilateral executive action came to overwhelm the treaty process; from 1939 to 1989, we enacted 702 treaties but 11,698 non-treaty agreements. Writing in 2001, Yoo observes that almost all of these international agreements concerned trade (Bretton Woods, the WTO, NAFTA, and the like), but such areas as arms control, the environment, and human rights were still firmly under treaty law. Obviously, only a decade and a half later, this is no longer the case. Non-treaty agreements are now standard practice in all areas of international dealings, not just trade.

    Ackerman applauds the trend. Reacting to the failure of the Versailles Treaty (with its concomitant League of Nations), progressives began a push to make international agreements legally equivalent to treaties. One might suppose that the Constitution would block any such effort, but not the Constitution in the hands of progressives. According to Ackerman, the 1944 election of Franklin D. Roosevelt not only gave popular endorsement to his intention to frame and participate in the new League-of-Nations substitute, the United Nations, but actually transformed the Constitution itself. The election, you see, was a revolutionary moment in which public popinion endorsed a fundamental change in Constitutional practice, entitling the executive and legislative branches to bypass the treaty-making power of the Constitution. By 1947, Ackerman claims, such “interchangeability” had “become part of the living Constitution”—the foreign-policy equivalent of the seeping domestic constitutional changes wrought by FDR’s smashing victory in the 1936 election, which centralized power in Washing and thus compromised federalism, transferring a considerable part of lawmaking power from Congress to the administrative state now ensconced in the capital city. A “New Deal,’ indeed: a ‘revolution’ effected not by war and not even by the ratification of a new constitution by the people’s representatives in a constitutional convention, but enacted by a pair of presidential elections.

    But where does this notion of the “living Constitution” come from? And what does it mean?

    The phrase predates the New Deal. It is first seen in Woodrow Wilson’s 1908 study, Constitutional Government in the United States, one of his last scholarly efforts before he left the presidency of Princeton College for the governorship of New Jersey and eventually for the White House. Wilson’s scholarship had long served the political agendum of progressivism, and Constitutional Government continued that project. Like all progressives, Wilson maintains that each epoch of human history has had its own distinctive mindset, useful for that time but largely obsolete in subsequent times. If the Declaration of Independence said that all men are created equal insofar as they possess the unalienable rights of life, liberty, and the pursuit of happiness, well, that “leaves to each generation of men the determination of what they will do with their lives, what they will prefer as the form and object of their liberty, in what they will seek their happiness.” As “history” works itself out, through the generations, “leaders” arise to guide them. “A living people needs not a master but a leader”; fortunately, “great passions, when they run through a whole population, inevitably find a great spokesman.” Whereas the Framers had so structured government as to refine and enlarge the public views—to make self-government reasonable government—Wilson is confident that passions will bring a people greatness. The leader is the most articulate spokesman for the ruling passion of his time.

    Specifically, in this new, twentieth century we must abandon the Constitutional theory of the Founders. “The makers of the Constitution constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and to allow to no single part or organ of it a dominating force; but no government can be successfully conducted upon so mechanical a theory.” Rather, we need a government in which a leader may “bring the several parts of government into effective cooperation for the accomplishment of the particular common objects—and party objects at that.” The mechanical theory of the Founders derived from the natural-science mechanics of Isaac Newton. But “in our day, whenever we discuss the structure or development of anything, whether in nature or in society, we consciously and unconsciously follow [Charles] Darwin,” not Newton. Gravitation and the image of planets in orbit have given way to a view of nature that has become historicized or progressive—evolutionary, not stable.

    Here is where the “life” of the “living” Constitution comes in. “The trouble with the [Newtonian] theory [of the Founders] is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not Newton…. Living political constitutions must be Darwinian in structure and in practice.” The Constitution “is a vehicle of life, and its spirit is always the spirit of the age”—evolving, developing, aiming at ever-superior life-forms. History—now conceived as ever-evolving toward better forms of society—becomes a series of Ackerman-ish “revolutionary moments.”

    To Wilson, this fits exactly with approval of government as primarily an executive—that is, a presidential—affair. The president represents the ruling political party, itself on the cutting edge of historical progress as demonstrated by its electoral success, its ability to capture the ruling passion of popular opinion. “He is also the political leader of the nation.” “The President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit.” In particular, he enjoys “very absolute” control over foreign policy.

    In Wilson’s constitutional—some might say ‘anti-constitutional’—theory we see the genesis of government by executive leadership. Buttressed by a professional bureaucracy staffed by men and women adept at “the science of administration”—the title of then-professor Wilson’s most important early essay—the president becomes the good shepherd of the spirit of the age, sharing our current ruling passion, leading us ever closer to the final ‘end’ of historical progress, that land of peace and prosperity that will leave all of our passions satisfied, all of our dreams fulfilled.

    If Americans today find themselves perplexed at government by executive orders and executive ‘agreements,’ it is only because they’ve not seen how such government was carefully prepared by men like Wilson and Franklin Roosevelt, and not in some secret place as a part of some dark conspiracy, but openly and in print in writings that often date back more than a century. In those writings, progressives proposed the dismantling and replacement of the Framers’ regime, under such formulas as “The New Freedom” (Wilson), the New Republic (journalist Herbert Croley), the New Deal (FDR), the New Frontier (JFK), the Great Society (LBJ, borrowing from an earlier progressive writer), the New Spirit (Jimmy Carter), and finally a movement of “Hope and Change” (Barack Obama). New and great, hopeful and ever-changing, because progressives suppose that they know those old Constitutional principles to be obsolete, and that they see further—better than the rest of us do—and so can more surely lead us into the Future.

     

    Note

    1. John C. Yoo: “Laws as Treaties: The Constitutionality of Congressional-Executive Agreements.” Michigan Law Review, Volume 99, February 2001, pp. 757-852.

    Filed Under: American Politics

    ‘Postmodern’ Happiness?

    September 15, 2018 by Will Morrisey

    Ross Abbinnett: Politics of Happiness: Connecting the Philosophical Ideas of Hegel, Nietzsche, and Derrida to the Political Ideas of Happiness. New York: Bloomsbury, 2013.

     

    Aristotle understands happiness as the exercise of the distinctively human virtues, not as a mood or a feeling. The small polis, where fellow-citizens knew one another, might be conducive to the cultivation of character. The large, modern state, with its impersonality and the mass-life that lends itself to fleeting satisfaction of their conjuring by entrepreneurs public and private, makes Abbinnett long for a less atomized, more “collective pursuit of the good life.” Yet how can such a collective pursuit succeed if conducted within the framework of the modern state? Abbinnett sensibly rejects the modern ideologies that promise happiness wrongly understood, but nonetheless stays entirely within the philosophic parameters set by those who substituted ‘History’ for natural right and the God of the Bible for its moral standard. He concludes by eschewing the grander promises of modern utopianism while remaining hopeful for some other, more modest socialist proposals.

    He begins by objecting to defining happiness in exclusively individualist terms. “The experience of happiness… is essentially related to ideas of the good society and to the forms of individual life that are appropriate to it.” He defines such ideas not as discoveries about human nature—an idea he rejects—but as the products of historical formation; indeed, the ‘individual’ itself is such a product. Availing himself of the jargon of neo-Marxist thinker Theodor Adorno, he describes the modern individual “cut off from the satisfactions of God and ethical life, and subjected to a regime in which work and desire have been synthesized into modalities of the commodity form.” That is, the Enlightenment valorization of rationality, especially of instrumental rationality, has been combined by the modern regimes with a ‘work ethic’; this strategy alienates human beings from their own natural sense of happiness in order to “maximiz[e] the efficiency of production.” Under capitalism, “The original ethos of Enlightenment philosophy, which was the emancipation of humanity from its subjection to the gods and to nature, is transformed into a regime of control in which every aspect of human particularity is expressed as a quantum of productive potential.” Our ‘happiness’ now consists of effects “controlled by the standardized aesthetics of the culture industry”—Hollywood films, music, and so on.

    Abbinnett, however, would ‘complexify’ Adorno’s analysis. The “politics of happiness” that has emerged under the thought-regime of Enlightenment and the political-economic regime of capitalism derives from “three different, opposed, but essentially related versions of what Enlightenment is, and what its moral, ethical, and political consequences have been.” These versions are stated by Hegel, with his ethics of ‘recognition’; Nietzsche, with his “critique of metaphysics”; and Derrida, “the relationship between the ‘self’ and ‘other’ that has arisen from Enlightenment ideals of transparency and calculability,” including the Hegelian Enlightenment.

    The sensible side of Abbinnett’s project may be seen in his insistence that “political ideologies are attempts to realize impossible regimes of happiness” because there remains “an essential difference between practical and philosophic politics.” Such ideologies as utilitarian liberalism, Marxism, and fascism fail to see and accept this difference, which consists in the distinction between “a reflective consideration of the questions of freedom, solidarity, and well being posed by the contestation of ideologies”—that is, the contradictions among political opinions—and “the attempt to solicit the support of the masses through representational techniques”—rhetoric, broadly defined. Abbinnett’s own commitment to a form of ‘postmodernism’ in philosophy wedded to a form of socialism in practice may be seen in his preference for ideologies capable of opening themselves “to the experience of difference as a possible source of education or desire”; for example, he prefers ‘multiculturalism’ to more strictly defined understandings of what an ethically sound ethos is.

    He begins with liberalism—not the natural-rights liberalism of Hobbes or Locke but the utilitarian liberalism of Bentham. Bentham grounds happiness in a human nature that does not itself have moral content, but simply must be accommodated because its core, pleasure and pain, is ineluctable. For Bentham, “any practical, theoretical, or moral principle that violates the capacity of human beings for the enjoyment of pleasure is, by definition, perverse and sophistic.” By his account, moral obligation arises not from duty but from a sentiment, sympathy—itself pleasurable. “The sheer immediacy of the physical sensation of pleasure… is the one true source of human happiness,” the “ultimate good for which all human beings exist.” Rejecting the moral claim of the ‘ancients,’ who integrated “enjoyment into the economy of sacrifice and deferral that is proper to the moral community of the Polis,” Bentham subordinates all political and social institutions to the pleasure of individuals. His successor, John Stuart Mill demurs to the extent that he insists that “not all pleasures are equal” (famously, in Mill’s words, “it is better to be a human being satisfied than a pig satisfied”); nonetheless, Mills also subordinates the modern state to the happiness of individuals, thus redefined and ranked. But this, Abbinnett argues (following Mill, as it happens) undermines the legitimacy of unbridled capitalism, leading at very least to welfare-state liberalism or to democratic socialism.

    Hegel moves in for the kill, rejecting utilitarian individualism for the social-political concept of ‘recognition.’ For Abbinnett, the crux of Hegel’s refutation points to the inadequacy of any notion of happiness that refers only to the individual and its physical satisfaction; human satisfaction filters through our social relations, how we understand ourselves in large measure by our exposure to the opinions of others, very much including their opinions of ourselves. For his part, Nietzsche attacks even this wider conception of happiness or satisfaction, although he shares with Hegel a disdain for “the proliferation of desires that takes place through the modern market economy,” whose ‘consumerism’ collides with the inevitable fact of death. Famously, Nietzsche analyzes human life not in terms of the dialectics of recognition but in terms of the will to power, which Hegelian ‘recognition’ merely exemplifies. Hegel’s rational, administrative state is only another example of the modern state itself, that “cold monster,” as Nietzsche calls it.

    To counter the modern dilemma, Nietzsche proposes self-overcoming, including the rejection of the terms of utilitarian pleasure seeking and of Hegelian (and Marxist) sociality. Overcoming physical appetites and aversions and also social ambitions and worries requires fearlessness, risk, living dangerously. Abbinnett contends that liberalism under Nietzsche’s influence becomes the ‘neoliberalism’ or libertarianism of Friedrich von Hayek (unjustly, he should rather have said Ayn Rand), with its esteem for entrepreneurial risk-taking and innovation, a “quasi-Nietzschean vitalism.” But this only returns us to capitalism’s “constant expansion of desire” in the individual, again subject to the ultimate limitation of death, and of the fear of death. Abbinnett implausibly attempts to tie this form of neoliberalism to Francis Fukuyama’s argument in The End of History, at the price of ignoring the Platonic dimension of Fukuyama’s argument, which grounds his thought in an understanding of human nature well beyond utilitarian pleasure and pain, and also beyond Nietzschean spiritedness, and not simply in ‘History.’ He goes on to charge Fukuyama with “conceal[ing] the modes of violence and subjection through which global-technological capitalism operates.” Abbinnett needs to do so because he rejects the idea of human nature as a ‘constant,’ whether so conceived as an existing ‘constant’ (as in natural-rights and also utilitarian thinkers) or as a future one (as in the Hegelian-Marxist ‘end of History’).

    Abbinnett charges liberalism and its capitalism (or, as he might say, capitalism and its liberalism) with a self-contradictory “demand for the constant expansion of the market” “completely uncoupled from the moral economy of collective wellbeing,” and thus with “the ethical questions that are implicit in the concept of happiness.” Can ‘postmodernism’ help?

    No, at least not in its aestheticist forms. There can be no escape from modernity into, for example, music, as Schopenhauer urges. Here Abbinnett has recourse to Marx, for whom “the ‘happiness’ produced by the ideals of heroism, romantic love, freedom, and redemption that have come to dominate the artistic imagination can be no more than an illusion imposed upon the experience of alienation,” an experience produced by capitalism. Once again, however, Abbinnett wants to complicate matters, regarding Marxian materialism insufficient and recalling the seriousness with which Hegel, Nietzsche, and Derrida treat “the aesthetic dimension of modernity.” Hegel recalls “the aesthetic unity of the Polis,” which Romanticism, for all its irrationalism, nonetheless sought to recover for the modern world. True, the “beautiful soul” of Romanticism can never suffice by itself, but it forms a necessary part of Hegel’s dialectical synthesis. The “crude utility” of bourgeois life seeks escape into “Romantic fantasies,” but both utility and aesthetic satisfaction may be found in the craft and trade guilds that give modern civil society—otherwise restless and atomistic under conditions of capitalism—the stability human beings would otherwise lack under those conditions. Abbinnett takes the point, while deploring the “conservatism” of such “corporate” structures.

    Nietzsche is no ‘conservative.’ He takes Schopenhauer’s analysis of music and removes its merely contemplative component, contending that “the choral accompaniment to the [Greek tragic] drama provokes feelings of ecstatic unity with those tragic individuals who have tested the authority of the gods.” The “transformative power of the tragic arises from a feeling of sublime unity with the primordial force of creation.” Such force never rests. Therefore, “the truth cannot be presented in a form that is free from stylistic configuration,” from the current but not lasting state of reality or ‘Being.’ ‘Being’ “has no objective existence that can be expressed independently of the mythological powers of Dionysus and Apollo,” that is, of irrational energy and rational form, both in constant flux. Modern ‘culture’ fails to cultivate; “the means of cultural dissemination”—serving the ‘many,’ the ‘masses,’ the demos—has “all but stripped the aesthetic of its relationship to the tragedy of ethical life, and transformed it into the medium of homogenous desire,” of egalitarianism. Democracy, socialism make “the highest end of humanity” nothing better than “the alleviation of all contingency in the mode of production,” the “alleviation of suffering” which simultaneously would amount to “the end of the possibility of happiness.” Without tragedy, no possibility of joy can survive. Socialism is only another power-relation, deriving from and not really overcoming “bourgeois culture.” Against this, Abbinnett recurs to “the cautious precision of Adorno’s negative dialectics,” which “remains suspicious of such solicitations of individual will and creative conflict” as theoretical invitations to fascism in practice.

    Derrida to the rescue. At least partially. Derrida questions the “Socratic hegemony,” by which he means “the claim that the fundamental concepts deployed by philosophy as such are unaffected by the languages in which they are expressed.” But according to him, language is both conventional and to some considerable degree untranslatable; he offers a new and more sophisticated form of classical conventionalism, itself a form of pre-Socratic philosophy. Even Heidegger’s attempt to recover pre-Socratic thought is “contaminated by the abstract categories through which it is presented”; it gives insufficient weight to the vagaries of language, of convention. The vast quantity of conventions, of ‘differences,’ results in “constant transformation,” whereby (for example) “fascism re-emerges as the good defender of the homeland against immigration” and “socialism becomes the reactionary voice of the white working class,” all attempts at “conjur[ing] an experience of unity from an illimitable play of difference.” It is enough to make Abbinnett turn to Marx, as he does in his central chapter.

    As is well known, Marx came to reject Hegel’s Absolute Spirit in favor of dialectical materialism. “Bourgeois ideals” have no existence independence of their economic base, that is, the means of production. Marxism persists, Abbinnett maintains, because it offers a “critique of the economics of waste”; it promises “the overthrow of the bourgeois state”; it proposes a “theory of the immanent purpose of human history” in the classless or egalitarian society; it provides a “theory of radical democracy and distributive justice” based upon that egalitarianism; and it offers “a theory of human flourishing.” But Derrida observes that Marxism, too, remains vulnerable to a “plurality of contestations” or contradictory opinions “through which the fate of Marxism is constantly redetermined.” As technology redefines our social world it also redefines Marxist categories; for example, the bourgeois-proletarian relations Marx saw no longer exist, at least not in anything resembling the modern societies of the mid-nineteenth century. Accordingly, there is always, and must always be, a ‘New’ Left, absent the ever-receding ‘end of history.’ Marx’s central ‘moral’ doctrine, the “labor theory of value,” comes into question under the very socio-economic change that Marx himself considered the energy and stuff of ‘History.’ Abbinnett nonetheless concedes to Marx that “any neo-Hegelian politics of happiness must… begin with Marx’s characterization of the bourgeois epoch as ‘everlasting agitation'” or dialectic. But it must not end there, given the violence of Marxian practice, which is “bound up with a mythology of natural happiness” or “species-being” (emphasis added), despite Marx’s historicist ambitions. “The programmatic liquidation of classes deemed to be reactionary elements of the old order makes no sense unless it is understood as an attempt to purify society of everything that could be considered acquisitive, individualistic, or bourgeois”; under such an ethic, ‘freedom’ “becomes utterly idealized and utterly destructive.” Given this grim fact, is it “possible to be a happy socialist”? Evidently not, inasmuch as “there is a tension between the ultimate satisfaction of man’s species-being under the conditions of socialized production and the power of capital constantly to transform the intellect, sensibility, and desire of human beings.” Accordingly, Abbinnett rejects Marxian “historical teleology” altogether.

    Nietzsche, then? Abbinnett rightly observes that Nietzsche would regard Marxism as a result of democracy or egalitarianism and of embourgeoisement, and assuredly not of their overcoming. To Nietzsche, Marxism would offer only another “unitary regime of calculative materialism.” Marxism offers “the constant vacillation of workers’ movements between the utopian promise of universal creativity and the Sisyphean labor of equalizing the of all in the means of subsistence.” This notwithstanding, Abbinnett tries to redeem socialism in Nietzschean terms—a characteristic move of the ‘postmodern’ Left. He attempts to reconcile socialism with Nietzsche’s will to power. This, he sees, would entail “a total transformation of what ‘socialism’ means.” This will require “the power of those who have disciplined the chaos of their own organic nature to impose order on the formlessness of ‘the herd,'” the actions of “those ‘free spirits’ who are capable of enacting their desires.” “Can this Nietzschean genealogy of socialism be mapped onto the ethical, political, and epistemic assemblage of Marxism?” Abbinnett bravely asks. Yes, he answers (against those of us who would say, ‘Not really’): Marxism offers “the possibility of a radical transvaluation of the social covenant that comes with each new generation”; Marxian Nietzscheism would jettison Marx’s teleological scientism, Marx’s proud claim to have formulated the first scientific socialism. “New categories are required to understand both the experiences of suffering and exploitation that arise from the global networks of capitalism, and the technological integration of mind, organism, body, and life into the expanded regime commodification” seen in those networks. Abbinnett makes lemonade of the bitter lemon of the pursuit of happiness: Socialism’s “pursuit of universal happiness can neither be realized nor, as an inherently ethical demand, given up.” But if so, why does this not simply reproduce the Platonic and Aristotelian insight that theory is not practice, albeit at the service of a dogmatic egalitarianism?

    Abbinnett devotes his final two chapters to disposing of two rivals to this highly attenuated Marxism, a Marxism in which the ‘neo’ overbalances the Marxism. In the first, fascism, he finds its “appeal” in an “aesthetic solicitation of suprahuman powers which exceed the commonality of human suffering,” an amoral and “destructive” culture which, in its purest form, Nazism, broke with the Christian Church and the regime of monarchy by determining “to colonize the feelings of sacred devotion that were inspired by the church” in a form of “volkish militancy” expressed by “the mass aesthetics of broadcast technologies” deployed in the service of “a politically transformative power.” On Nazism or national socialism, Abbinnett suddenly becomes much more concrete and political in his analysis, much less ‘spiritual’/philosophic than he was on neo-Marxian socialism. He can then claim, with Adorno, that “Nazism is essentially a politics of scapegoating” (emphasis added—an attack on Jews and other ‘others’—even though in practice Marxism has been no less ‘essentially’ that, with the target being socio-economic classes instead of ‘races.’ Although fascism in its Nazi form obviously derives from modern ‘race science,’ he describes it as “an ideology that promises happiness through the complete rejection of modernity, and the return to an archaic community of ‘blood and soil.'” But the Nazi community of ‘blood and soil’ would have nothing archaic about it. Aryan blood will extend throughout the soil of the earth, availing itself of modern technology as its legitimate tool of ruling those ‘inferior’ races Nazis choose not to exterminate.

    Abbinnett offers this critique of fascism because he needs to turn Nietzsche into an egalitarian channel, a move that can only be pushed behind a very heavy plow. Nietzsche, he remarks, anticipates fascism with his hierarchy of the strong over the weak and his ‘biologist’ materialism. His valorization of “overcoming” “inevitably and necessarily lends itself to the intensification of life through the spectacle of violence,” which it would indeed, if Nietzsche were the straightforward materialist Abbinnett takes him to be. But Nietzsche despises anti-Semitism, biological or other, and his materialism entails a far more refined life of the mind than anything offered by the crudities of Marxism, ‘neo’ or Karlite. This is not to endorse Nietzscheism; it is to defend it against the likes of Adorno, Derrida, and other apostles of an uncritical egalitarianism.

    Fascist pseudo-religiosity puts Abbinnett in mind of the real thing, to which he devotes his final chapter. Except he doesn’t write about the real thing, focusing instead on religion as conceived by Hegel and Nietzsche. For Hegel, he rightly observes, “revealed religion should act as an allegorical expression of spirit”—that is, the Absolute Spirit—”within the relations of civil society.” The separateness of the Holy Spirit from all created things, including man, distinguishes the Holy Spirit from Hegel’s Absolute Spirit, but the Christian teaching that God took human form, along with the indwelling of the Holy Spirit upon conversion, brings Christianity closer to Hegel’s doctrine than any other major religion. Abbinnett’s “principal concern” here “is the return of religion to the increasingly abstract, disenchanted, and antagonistic relations of modernity” after Nietzsche’s radical challenge to Hegelian rationalism. If the Enlightenment project has failed, then why would religion not return, as registered in (for example) Gilles Kepel’s The Revenge of God? Indeed, “as the world becomes increasingly abstract and technocratic, so the yearning for the experience of the sacred grows stronger.” Heaven forfend, Abbinnett in effect exclaims. “We must ask if the happiness of humanity will always depend on the power of sacrificial violence” (including the Crucifixion) “and the hope of transcendental unity with the divine” (which isn’t exactly what Christians hope for, but Hegelianized ex-Christians do). Abbinnett wants the answer to be ‘No.’

    “From the perspective of orthodox Christianity, Nietzschean materialism is nihilistic because pure will, freed from its responsibilities to a transcendent God, has no concrete relation either to other human beings or to its own essence as a created form. From a Nietzschean perspective, on the other hand, Christianity is nihilistic because of its denial of the creative forces that brought form and vitality to human civilization.” Abbinnett declines to adjudicate the matter, preferring to address the sociopolitical consequences of Nietzsche’s challenge to Christianity and to the Enlightenment. “First, we are forced to reckon with the necessary involvement of religion with the secular forces that have formed the regime of domination that is peculiar to each different culture.” Second, “the death of religion that Nietzsche envisages” will end in its resurrection, a “reversion to orthodoxy” “within the globalized relations of modernity.” Third, the return of religion presages a return to the religious wars the Enlightenment hoped to end. Abbinnett hopes to turn this return to a more narrowly moral path: a politics of compassion, of “alleviat[ing] the suffering of the Other.” The political ramification of this morality is, of course, socialism.

    For this purpose, he again appeals to Derrida, who “argues that there are two sources of the word religion, both of which are irreducible, and each of which is contaminated by the other”: religiere, derived from legere or harvest, gathering; and religare, derived from ligare, meaning to tie or bind. The ‘binding’ element consists of “blind faith in the sacred”; the ‘harvest’ element consists of a “discursive community of the book” which discloses the sacred. Abbinnett knows that fascism’s symbol, the Roman fasces, denotes binding, and that Hitler’s Mein Kampf amounts to an attempted Bible-substitute. This enables him to assert that fascism and religion bear resemblance to one another, issuing in similar calls for confessional purity and “holy war.” He ignores that Marxism operates exactly the same way; the modern tyrannies of the Right and the Left gather men together in bonds requiring self-sacrifice in violent struggle. He prefers a kinder, gentler Marxism, but one might as well prefer a kinder, gentler ‘authoritarianism’ of the Right. In this he follows Derrida, who finds “the essence of all religious faith” in “the original promise of religiere,” that the faithful “should seek the truth of God in whatever, or whomever, confronts the sacred community.” This reinvents Enlightenment religious toleration (while avoiding Enlightenment rationalism) under the rubric of ‘diversity.’

    Abbinnett concludes with an inconclusiveness that follows from his argument. While “each of us experiences our own particular moments of joy, love, and ecstasy,” “contingent and unsustainable,” a politics of happiness cannot exist because political life, for all its turbulence, requires some degree of stability and sustainability—as suggested by the quintessential political term, ‘regime.’ The radical historicism Abbinnett shares with Heidegger and Derrida prevents  him from endorsing any real political order. His socialism is exactly that: a course of social relations, fluid and ever-changing, resistant to structure and duration, a thing founded (if that is the word) on egalitarian “mutual recognition.” In this it resembles the commercial capitalism he deplores. Like it, it would require defenders in order to survive those who are not egalitarians, but that would spoil it. “We must recognize that happiness is a moral experience that can only be approached through the presence of others, both familiar and unfamiliar, to whom we must respond without the expectation of requital.” But what if those others requite us the wrong way? Christianity says, Turn the other cheek. But Christianity has God as the final requite. Abbinnett’s endless ‘History’ does not.

     

    Filed Under: Philosophers

    Immigration Reform and Executive Orders: Imperfect Together

    September 15, 2018 by Will Morrisey

    Originally published by Constituting America, July 13, 2015. Republished with permission.

     

    Properly used, executive orders form an indispensable part of any government, including our own. If Congress passes a slaw and the president signs it, the president undertakes a Constitutional obligation to execute the law. In so doing, he is likely to need to tell his administrators what to do and, at least to some extent, how and when to do it Thus the president is constitutionally obligated to enforce immigration law and is fully entitled to issue executive orders in the course of fulfilling that obligation.

    Many current problems with immigration have arisen because recent presidents have preferred to complain about U. S. immigration laws themselves, instead of enforcing them. They do indeed have a lot to complain about. But that is no excuse to refuse to enforce the laws that now exist, either passively—by simply failing to follow them—or actively—by issuing executive orders that contradict them. Last I looked, “illegal immigration” meant immigration that’s against the law, and I for one wouldn’t mind seeing a bit more respect for duly-enacted laws of the land. As Abraham Lincoln said, repeatedly—from his Lyceum Address in 1838 through his first Inaugural Address of 1861—even unjust laws are laws, and he who breaks them encourages a spirit of lawlessness that may bite the hand that feeds it.

    Part of the problem we face stems from our (now) rather hazy way of conceiving immigration law. Let’s back up for a moment and consider the strengths and the dangers of the American understanding of immigration—legal immigration. For most countries, immigration is a fairly straightforward matter. If I am Russian and you are not, I will let you into my country, or not, depending upon whether I regard your existence there to be in the best interests of the Russian nation, as defined by the government of Russia (including its state-controlled church). Thank you. To be sure, this doesn’t make immigration go away, as a practical problem. Many countries find themselves overwhelmed by refugees from war or famine; some (Russia included) find themselves vexed by ‘foreigners’ who were incorporated during an earlier period of imperial conquest. But at least in principle, the doctrine of modern nationalism settles the issue by defining immigration as a matter of national self-interest, often defined not merely in economic but in linguistic, religious, and ethnic terms.

    From the founding on, the Americans understood the matter quite differently. If all men are created equal, endowed by their Creator with certain unalienable rights to life, liberty, and property, then nationalism cannot form the core of American law. With respect to immigration, we cannot say to those who want to join us in citizenship: ‘We don’t want you because you are French, Irish, Chinese, Iranian and not American.’ Mere ethnicity can be no bar to residence or citizenship in the United States, a country founded on resolutely non-ethnic principles.

    However, America is entirely unexceptional in claiming the right to control its own borders, on the following grounds: By organizing ourselves into a political society dedicated to the proposition that all men are created equal, we have drawn geographical boundaries around a moral idea. That is, in our first century after independence we bought and conquered our way from sea to shining sea on the foundation of a moral idea—human equality of unalienable natural rights. We staked out this territorial claim under a republican regime that distinguished ourselves from other countries, which occupied different parcels of the earth and often at the service of very different principles and ruling themselves under different regimes. Our right to secure boundaries issues not from ethnic identity–by eighteenth-century standards, we were already a somewhat mongrel lot, and things have only gotten wilder since then—but from the very right to security itself, that is, from the obligation of governments (as the Declaration of Independence puts it) to secure the rights with which every human being has been endowed. We have paid to defend those universal rights in this particular place: our two civil wars (1775-781 and 1861-1865) two world wars (three, counting the wars of the Cold War, and four, counting the wars against jihadists and their sponsors).

    This willingness to enunciate and to defend natural, human rights in a practical way—within a physical territory, against enemies foreign and domestic—has contributed not only to political freedom in the world but to our own prosperity. The nation of immigrants has been the nation of willing workers and patriotic citizens; since our founding, immigrants have taken the hardest, dirtiest, and lowest-paying jobs precisely because they knew they would sooner or later be recognized in American law as what they already were by nature but were not in their native countries: rights-bearers.

    With these great advantages came a serious problem. Being geographically limited, being finite, the United States can no more permit all human beings to come here than any other country can—if any other country wanted to. This obvious fact has forced American legislators from the founding generation to now to seek limits to immigration consonant with our universal moral principles. By necessity, we must put reasonable limits on a principle unlimited by any category other than that of ‘humanity.’

    A good example of this was the American approach to Chinese immigration following the Civil War. In 1868, the United States and China signed a treaty stipulating, among other things, that “the United States of America and the Em[peror of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects respectively from one country to the other, for purpose of curiosity”—we call it ‘tourism,’ now—”of trade, or as permanent residents.” This notwithstanding, both governments understood that America and China were different countries, with different languages, customs, habits; neither would be permitted to overwhelm the other by sheer population transfer. Then as now, there were a lot of Chinese. As for the Americans, had they not overwhelmed the North American Indian tribes and nations with exactly such a demographic strategy?

    In the early 1880s, over 100,000 Chinese had emigrated to the United States—a then-substantial number of persons who had no experience in ‘working’ a political regime of republicanism. As Hillsdale College political science professor Adam Carrington has written in a recent article in the Journal of Supreme Court History [1], Justice Steven J. Field argued that border control rested in the national police power—a power inherent in any government that seeks to protect the lives and property of its citizens. Ignoring then-common claims based on ethnicity or race, Field observed that the Chinese “retained the habits and customs of their own country.” Some Chinese were welcome, but “vast hordes of people crowding in upon us” threatened “the right of self-preservation” and therefore justified invoking the police power of the United States to control the influx and thus to affirm the sovereignty of the American people over their own country in a way consonant with their own regime, their own way of life.

    Current confusions bedeviling American immigration policy follow from obscuring the foundations of the American regime itself. If the American people are sovereign on American territory, and if that sovereignty itself defers to the laws of nature and of nature’s God, then Americans will not ban any would-be immigrant on the basis of such morally irrelevant categories as race, national origin, or religious confession—at least insofar as the latter does not command acts in violation of those natural laws. If, however, the American people enact laws with which to govern admission to the territory over which they enjoy sovereignty, on such morally and politically legitimate terms, then it is the obligation of other countries to respect those laws and for elected officials to obey them until such time as they may be changed by ordinary legislative processes. To attempt to change or abolish such laws de facto by executive fiat strikes at American constitutionalism—the very legal foundation that protects the rights of persons and property, rights that make America attractive to would-be immigrants in the first place, and livable to those of us who are already here.

    One thing ought to be clear. Enacting laws for immigration must be an act of the national legislature and the president, given the supreme importance of such law. Immigration law determines not only the number but also to some extent the character of the people who will join us in citizenship. It is no matter for one branch of government alone, any more than are the laws governing the civic education of new immigrants and their children.

     

    NOTE
    1. Adam Carrington: “Police the Border: Justice Field on Immigration as a Police Power.” Journal of Supreme Court History, Volume 40, Number 1, March 2015, pp. 20-37.

    Filed Under: American Politics

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