Freedom Under Law

Last night the Senate failed to advance an extension of the Patriot Act’s Section 215. Rand Paul objected to Mitch McConnell’s efforts at passing any short-term extensions and suddenly it looks like the legal authority for the Patriot Act’s phone metadata collection program may actually expire June 1st.

“There comes a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer. That time is now, and I will not let the Patriot Act, the most unpatriotic of acts, go unchallenged.”

So said Rand Paul at the outset of his 11 hour pseudo filibuster on Wednesday, and it’s hard not to be moved by the language. If there is a quality I admire most about the Senator from Kentucky it is his maniacal obsession with restoring checks and balances to our government. In order to have any success at reining in executive power the public must first agree with the premise on which the reform rests. If you’ve paid attention to Paul in the Senate you know the thread that runs through his speeches and through his marathon performances on the Senate floor is the separation of powers. Drones and NSA spying were not background concerns per se, but neither were they the true focus of the filibusters. At root is a fundamental objection with the flagrant expansion of executive power under every administration since World War II, but especially since 9/11.

Why are separation of powers so important? To hear Paul tell it, the sanctity of divvied powers was best championed by French philosopher Montesquieu, who warned that tyranny would ensue whenever the executive moved to legislate. Likewise, separating the judicial branch from both executive and legislative was imperative for the security of habeus corpus and other natural liberties. Embedded in small government philosophy is a staunch suspicion of planning and expertise, a wariness born during The Enlightenment and which reflected the conflict between the regal old guards and the new class of individual-minded bourgeoisie. For eons the word of the state was the final word on society; decrees from on high carried down to the masses for them to follow. However, the individual conscience rights that began taking shape in the Middle Ages became more widely disseminated during the Renaissance and Enlightenment. With the expansion of knowledge and individual agency the feudal system gradually gave rise to market economies fueled by spontaneous order. The consequent loss of power and influence for the aristocracy was a product of capitalism providing the vehicle for political participation by ordinary folk. Schumpeter’s insight that “the princess was always able to wear silk stockings, but it took capitalism to put them within reach of the shop girl” put the lie to the Marxist conceit that free enterprise would destroy the middle class. Voluntary exchange under a legal framework that respects the individual and cherishes his right to profit from his own labor is what created the middle class.

As the Western world moved methodically toward social appreciation for the citizen’s sovereignty over the state, the question of democracy became crucial: how to organize a free society of, by and for the people when for so long power and authority were hereditary and monarchical? Fortunately the British and ultimately the Americans did not need to hunt for a guiding principle. We already got one and it’s embedded in Magna Carta. The great charter signed at Runnymede marks its 800th anniversary this year and yet remains relevant as ever. Habeus corpus, jury trials, property rights and a common law that precedes and preempts man-made law; these natural rights discovered by our English forebears provided the blueprint for the individual based free society. They also declared for the first time in history real restrictions on the power of the state or king, which would prove a launching point for our founders as they set to establishing a government that would pit ambition against ambition as a means of separating and counterbalancing the powers of the state. The best encapsulation of this radical vision for upending centuries of authoritarian rule is inscribed on the monument commemorating Magna Carta: “freedom under law.”

Freedom under law is what the entire debate over NSA and executive power overreach is all about. National security state defenders will often say there’s no evidence of abuse currently and besides, don’t you want to be safe? But that is not the point. The point of a freedom secured by law is that the law is the law, and it is supreme. John Adams said we strove to institute a “government of laws, not men.” When executive authority runs afoul of the law it is supposed to be a big deal. When successive administrations of different parties expand executive power to the degree that natural rights are abused, it is supposed to be a huge deal. But in the name of fighting terror and keeping the country safe the Bush and Obama administrations have treated the 4th amendment like so much garbage.

In attempting to take Rand Paul to task Andrew McCarthy of National Review runs the gamut of talking points before insisting that “the depiction of national-security agents who are trying to protect American lives as seventies-style rogues tearing the Constitution to bits is a smear.” But Paul is not doing that; instead he is arguing that the Patriot Act and its especially problematic provisions open the door for abuse at any time. It may not be now, or in the next administration or the next but the point of freedom under law is that we eliminate this risk altogether by forcing fallible men and women to swear oaths to uphold and defend the Constitution. The founders were explicit about making the law supreme and they further divided power to guard against the transient passions and fears that inevitably come to challenge man and his commitment to law. As challenging and daunting as it is, the jihadist threat of modern times is exactly the kind of passionate, fearful moment in time the founders knew would inevitably materialize. If they knew that only two hundred some odd years later American political discourse would include such penetrating insights as Chris Christie’s you can’t enjoy your civil rights from a coffin, they would have folded up shop and abandoned the revolutionary project full stop.

The Patriot Act is what happens when laws are passed out of fear instead of sober deliberation. Freedom under law was always meant to keep that from happening, like the abstract, intangible version of standing athwart history yelling stop. The founders knew too well the propensity of man to govern arbitrarily; thus the principle aim of the new republic was to build a system that takes arbitrary and consolidated power out of the equation and lifts the Constitution up as the final arbiter on what government can do.

VE Day

Seventy years ago today an avowedly leftist nationalist project surrendered to Allied forces in Europe, bringing to end the horrors of the Second World War in Europe.

“Fundamentally, these new means of political struggle can be traced back to the Marxists,” said one Adolph Hitler to Hermann Raushning in 1935. “I only needed to adopt and further develop them, and I essentially had what we needed. I just had to continue, with greater resolve, where the Social Democrats had failed ten times over because they insisted on trying to achieve their revolution within the framework of democracy. National Socialism is what Marxism could have been if it had freed itself from its absurd, artificial connection with the democratic system.”

If the greatest trick the Devil ever pulled was convincing the world that he didn’t exist, then I submit that the second greatest trick is the idea that 20th century fascism derived from right wing political or philosophical precepts. What makes the lie especially galling is that elite opinion even in the “decadent” West – the object of contempt for all collectivist ideologies of the time – expressed great affinity for the planned economies which announced themselves as the solution to the perceived failures of democratic capitalism.

The roots of British and American collectivism are found in Germany. Ironically, one can make the argument that much of the foundations for individualism, common law, and parliamentary democracy also trace back to Germany, albeit of a much earlier vintage (c. 8th or 9th century Saxon tribalism), but with respect to post-industrial modernity, Germany is the fount from which bad politics sprout. During the late-nineteenth century American elites considered it a rite of passage to spend time in Prussia observing and absorbing the wonders of the world’s first welfare state, designed and presided over by Bismarck. Though he looked askance at the Marxist socialists in his midst, Bismarck was nevertheless guided by the same general ethos that exalted the state as the ultimate engine for equality and happiness. Not only was the idea of the individual’s natural subordination to the general will already deeply embedded across the continent (and to a lesser degree in the broader Anglosphere), so too was the idea of the organic state as the ultimate arbiter of History as a proper noun. Despite being a largely dull and unoriginal philosopher who culled his ideas from Plato, Hegel was a brilliant polemicist who knew how to advance an agenda for his masters. Such was his task when he was commissioned by the Prussian state to proselytize on behalf of the mystical, metaphysical state. Hegel preached (and Marx greatly expanded on) that the state existed foremost to interpret the hidden, internal logic of History. That wars were always just for the victors since History’s logic willed it. That states rise and fall according only to a fixed arc of pre-determined events. Ah, but how to obtain this mysterious logic that explains all of History? Hegel and Marx have the answer and it’s one that understandably pleases anyone predisposed to power and control. To know the Arc of History, you see, is to trust in an enlightened clerisy who cloister in academia or administrative agencies waiting for the truth to reveal itself and relay to the masses like Moses with tablets the wisdom and reason behind the mystical forces driving the universe.

Call me cynical, but that sounds suspiciously like a religion.

Because all variants of leftism are essentially faith exercises in collective delusion designed to keep the truth hidden, it should not be news that the left lies about where fascism falls on the left-right spectrum. The lie that JFK was killed by rightwing ragers instead of by a loony Castro-inspired commie is small potatoes compared to the seventy year myth that Hitler and Mussolini carried the banner for the political right. Hitler didn’t just lead a revolutionary party called the “National Socialists,” he outright bragged that he was “a socialist, and a very different kind of socialist from your rich friend, Count Reventlow.” Mussolini left the Communist Party not out of disillusionment with the philosophy but because he saw in Italian Fascism and its alliance with the Nazis a more efficient and assured path to power.* At least Mussolini resisted the Jewish pogroms until the Nazis forced his hand well into the 1940s, making Benito the tallest midget in the room when it comes to dictators, I suppose. Leftists love to diagnose fascism as what happens when the state doesn’t control the means of production, the implication being that if you don’t go the Full Marx then you’re clearly just a wrecker and closet laissez-faire enthusiast. But while both Nazi Germany and Fascist Italy each allowed private business nominal ownership of its plant and equipment, this was merely a facade, for both Berlin and Rome were centers of top-down central planning where private enterprise was deemed merely a cog in the collective wheel. A company’s profits in Germany or Italy were not its own because those fruits belonged to “the people,” meaning the government.

Because the Nazis and Fascists did not subscribe as fully to the tenets of revolutionary socialism as Lenin, their socialist movements did not mirror Bolshevism’s zeal to burn down everything that came before as the way towards the classless society. Instead, Germany and Italy accepted the existence of the bourgeoisie but resolved to bring them under their strict yoke. But Hitler, Mussolini and Stalin were all lockstep in their agreement that bourgeois Anglo-Saxon capitalism’s characteristic exploitation was a thing of the past and, moreover, that the very concept of individualism was a quaint and outmoded relic of the “decadent” West. Why the consensus? World War I was so devastating to Europe and its collective conscience that naturally the prevailing wisdom about what caused it – an exuberant and toxic wave of “nationalism” brought about again by that decadent capitalist system – was entirely wrong and blamed it all on insufficient planning. Because science and Darwin were thick in the air, elites were giddy to deploy all kinds of newfangled approaches to social engineering and economics. Leveraging the prior hundred years of elite discomfort with the very idea of capitalism, collectivists of all stripes – progressives, socialists, pragmatists, communists – used the chaos of the first World War to ascend to intellectual fame by promising the masses that the unjust inequities of bourgeois capitalism could finally and forever be eradicated by implementing the scientific, empirical, pragmatic programs of the central planners.

The idea that Hitler or Mussolini stood against this tide is ridiculous. The social prize for being a rogue individualist in Nazi Germany or Fascist Italy was nonexistent. Cultures that send their children to indoctrination camps and jail dissenters for insufficient deference to der Furher or Il Duce are not havens of capitalist opportunity that venerate the rugged entrepreneur in the popular imagination. No, these are cultures of conformity, of rigorous military ritual made mandatory in the social sphere. They stood on opposite sides of the Bolsheviks the same way a football team’s offense and defense can be said to play for different teams.

Seventy years on and still scores of useful idiots in the West have been raised to believe that the evil Nazis and Fascists were examples of what happens when rightwing extremism reaches its logical terminus. Communism, which could never be made to look rightwing no matter the effort, is offered by Western elites as the wary example of going too far to the left. And yet, throughout the Cold War and even today, it’s clear that the Left never really bought the idea that communism was anything to apologize for. It just never got implemented properly was the standard refrain up until the fall of the Berlin Wall, the event that drove the final nail into Marxist/Leninism as a plausible system and sent the more enthusiastic communists largely underground (or into the waiting arms of the environmental left).

Today, paeans to communism are far less common, though one need not look too hard to find some moron at The Nation or Salon extolling the virtues of the Venezuelan model. Still, sometimes reality is so real that even the liars can’t change it. So there are scant few brave leftists today willing to go to bat for Bolshevism (Jacobins on the other hand?), but in practice that has meant a quiet doubling down on their conviction that fascism is of the right. It’s a neat and tidy construct that History and English professors can cope with if discussion surrounding WWII concerns the leftwing communists against the rightwing fascists, with noble and unaffiliated America and Great Britain riding to the rescue. It is a lot harder to explain how the socialist Nazis and socialist fascists came to fight such a bloody campaign against the socialist Russians. The American Civil War saw brother fight against brother while the Eastern front pitted socialist against socialist, but the latter is not something commonly taught in America.

George Orwell wrote in Politics and the English Language that “one ought to recognise that the present political chaos is connected with the decay of language, and that one can probably bring about some improvement by starting at the verbal end. If you simplify your English, you are freed from the worst follies of orthodoxy. You cannot speak any of the necessary dialects, and when you make a stupid remark its stupidity will be obvious, even to yourself. Political language — and with variations this is true of all political parties, from Conservatives to Anarchists — is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.” In their campaign to make the word fascism meaningless, intellectuals and elites have spent seven decades turning it into a catch-all for “thing I don’t like.” Partly motivated by a desire to impugn their opponents and partly out of self-preservation, the “fascist!” epithet is deployed against conservatives to a staggering degree.

The political right is and has always been full of problems and inconsistencies, but nothing really comes close to approaching the rank dishonesty and intentional deception that defines the left and which goes into making two of the 20th century’s most toxic manifestations of collectivism/socialism conventionally accepted as intellectual products of the right. If misrepresenting the political lineage of past totalitarian regimes is done to paint modern adherents to a certain politics as hopelessly wedded to a patrimony of extremism is what it means to “stand on the right side of History,” then who wants to be right? And why do sanctimonious lectures about being on the right side sound so familiar?

Happy VE Day.


The Scotland Referendum

If prudence and reason prevail, Scotland will vote “no” on Thursday in its referendum on independence from the United Kingdom. The “yes” vote has the momentum and has been surging in the polls, causing the Better Together campaign to dispatch the leaders of the three main British parties (Labour, Conservative, Liberal Democrats) north last week to make the case for preserving the proud union that dates to 1707. The last-ditch efforts at staving off an irreversible separation seem to have stopped the bleeding and the smart money has returned to the bet that Scots will decide in the end to remain a part of Great Britain.

The most intriguing aspect of this independence debate is the degree to which Scottish National Party leader Alex Salmond is telling the truth to his enthusiastic would-be William Wallaces. The Westminster political class have moved quickly from elitist nonchalance to panicked desperation as the polls have shifted and the prospect of Scotland leaving the UK has become a potential reality. As a result, the Bank of England has warned that Scotland would not be allowed to remain with the British pound, that divorce proceedings over assets such as North Sea oil will not be easy or appealing to Scots, and that basic legal and commercial contract disputes will drive the bureaucracies of London and Edinburgh to (more) drink. UK Defense voices have suggested that Scottish and English national security would suffer were the union to dissolve. All of these warnings are met with cheery brush offs and cocky dismissals by Alex Salmond, a tactic Daniel Hannan believes is working to the SNP’s advantage:

The SNP has grasped that elections are generally won by the more optimistic side – a truth its leaders apparently learned during a session with an American political consultant, who handed out bags of pennies, and made them put one on the table every time they said something negative. Alex Salmond has, since that session, been relentlessly upbeat, both about the prospects of a “Yes” vote and about the prospects of an independent Scotland. Any problems – currency, disinvestment, EU membership, funding shortfalls – are swallowed up in a supernova of cheeriness.

Salmond has taken all the warnings of dire economic, security and logistical consequences and essentially said “so what?” He has successfully leveraged the quite socialist Scottish youth, which is more aptly described as a belligerent anti-English (and anti-American for that matter) mob, and cultivated an environment where anything coming out of England is received by Scottish nationalists as just “more Tory lies.” The “yes” voters don’t believe anything the English say because Salmond has stoked the sentiment from the beginning.

But it is on the basic question of independence that Salmond has told the real lie. The SNP’s platform is to break away from the UK in order to join the EU. Which would be like California seceding from the United States to become a satellite state of China. If Scotland joined the EU as an independent nation (a big “if” if ever there was one: Spain, for one, would be mightily opposed to Scottish membership lest it lend encouragement to the Basque separatists of Catalonia), it would have to adopt the euro. The euro sucks, and everybody knows it. It especially sucks if you’re a smaller nation with socialist passion and are intent on maintaining your giant welfare state while having no say on your currency or monetary policy. Membership in the EU further weds you to the European Court of Human Rights as well as primacy of Brussels law over your own. Border sovereignty and foreign policy are immediately forfeit to the larger plans of the mandarins at the European Commission. Whatever discontents currently exist in Scotland concerning the House of Commons in Westminster, joining the EU would quickly cause the people to yearn for those bygone days once they’re forced into complying with the maze of law and regulation emanating from Brussels.

The principle of self-determination is not to be downplayed, however. If Scotland votes for independence, the vote should be respected and the Scots should be praised for believing in themselves and their ability for self-government. But leaving the UK to join the EU is not a vote for self-government, but a vote for being absorbed into a plainly anti-democratic political union on a stagnant continent where you will have less say over local affairs going forward, not more.

For a whole host of reasons, I hope Scotland stays. The union that has lasted for over three hundred years has been one of the most successful and prosperous political integrations in history. Anyone who has seen Braveheart knows that these peoples haven’t always seen eye to eye, but the marriage into Great Britain has allowed some of humanity’s great achievements to flow from the British Isles, as once they were united, we had the Scottish Enlightenment and historic names such as Adam Smith and David Hume introduced to the world. Scottish soldiers proudly fought and died for English, Welsh, and Northern Irish brethren in the 20th century. A great bit of nostalgia for the union jack and the Kingdom as a whole persists today. Deep down, a large majority of Britons really aren’t in favor of seeing Scotland leave.

And yet.

Another part of me hopes it will happen. And I’m just some Yank with no skin in the game. There are many sentimental “no” voters in England who agree with me and are frankly fed up with Scotland and its dead-weight welfare statism which, under the SNP, has morphed into a more virulent form of activist socialism and militant anti-nuclear crusading. Much of Scotland’s younger generations believe they are more kin to Scandinavia than to the English. They find it beyond the pale that Great Britain’s Trident nuclear submarine docks in Scottish waters. They curse that they haven’t been granted “devo max,” a near-total devolution of powers from Westminster back to Edinburgh in the event of the union staying together. Never mind that the Scottish parliament and “home rule,” two things they had to give up in 1707 to join the UK, have been incrementally restored and are poised for even more devolution now that the English are essentially grovelling for Scotland to stay.

But many English wonder why they should beg Scotland to stay. England subsidizes Scotland’s welfare state, of which more than 50% of the population is on some form of government benefit. Scotland is represented in the House of Commons (59 MPs) while the rest of the UK is not represented in the Scottish Parliament. There is only one Tory MP from Scotland, meaning that if the “yes” vote wins, English Labour will be in a sudden bind politically, as they currently reap a good deal of Labour votes and money from Scotland. There’s also Margaret Thatcher’s timeless truth about socialists and other people’s money. It might be a fun and enlightening experiment (if painful for the Scots) to see a newly independent Scotland have its socialist dreams shattered within a couple years. No lesson learned like a lesson lived.

I wish the best for Scotland, and in that vein I hope they vote “no” in two days. But if they do vote “yes” I will not be entirely chagrined to witness the inevitable comeuppance for Alex Salmond and the SNP, and especially for his army of militant millennial supporters who make America’s progressives look almost like free market libertarians by comparison. I also wish the best for the United Kingdom and hope for a “no” vote all the same. Yes, the cynical political calculations of a “yes” vote would mean a neutered Labour Party in England as well as a forced economic correction in Scotland once they were hit in the face by reality. But Great Britain is bigger than short term ephemeral politics; it is our ancestor, our patrimony, our sacred lineage. The British and American peoples share a genetic coding for how to do statehood: the citizen above the state, not the other way around.

Scotland may be flirting with rebellion, adolescent contempt for the hand that feeds, and nationalistic confusion about the practical meaning of independence all at the same time, but that still should not be enough for those of us who value their vital contributions to human freedom to abandon them now. There will be no shortage of scoffing and vitriol and also plain indifference among the English if this divorce does happen, but at the end of the day there are definitely many more English (and Welsh and Northern Irish) who want Scotland to stay than to see it go.

Let’s just hope the same is still true in Scotland.

Better Together.