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.

Politics of Vilification

“The left is exhausted.”
-Paul Ryan, CPAC 2014

Wouldn’t you be? Delivering revolutionary change while pretending that nothing is up and there is nothing to see here is bound to drain the energy from even the most enthusiastic political operation. What the Obama progressives have been doing the past five years is a thoroughly postmodern attempt to effectuate dramatic changes to the United States government, but in the process to be seen as unaffiliated with said change. It’s basically a vindication of the Limbaugh Theorem, which asserts in the grandiose timbre of the world’s preeminent blowhard that President Obama’s chief accomplishment has been to present himself as perpetually removed from the nuts and bolts of governing, thereby exempting himself from prolonged or intense scrutiny from the national media. According to Jonathan Tobin at Commentary, the media has been more than happy to play the role of Obama Protection Society rather than serve as combative investigative journalists. Here’s Tobin:

While most journalists have been reliably liberal in their politics for decades, the culture of the profession has always valued an “agin’ the government” mentality in which all politicians are viewed with cynicism. So long as even liberal journalists regard it as their duty to ferret out stories about corruption, mismanagement and failure within the government, we can feel safe that no administration, even one that is favored by the left, will escape the scrutiny necessary to provide accountability.

But there is little doubt that this has begun to change since Obama came to office. After the media hammered both Bill Clinton and George W. Bush throughout their presidencies, Obama has had it relatively easy. Part of it is due to the special hold that this historic president has over liberals… The culture at CBS and like-minded outlets is to see any aggressive reporting about the president and his policies as evidence of wrong thinking rather than part of their obligation to ask uncomfortable questions and speak truth to power.

Is there any doubt that a vast majority of American media fall into this category? Is it any wonder that most of these Ivy-educated, Beltway-bred, coastal elitists who were so keen to speak truth to power (when power had an (R) next to it) are now willing participants in state-sanctioned ideological propaganda? Of course there are scores of principled leftists like Kevin Gosztola, William Saletan and (perhaps) David Sirota, but the bulk of progressives in media today are more likely to be animated by hostile caricatures of the right and to seek out “evidence of wrong thinking” than by actual truth. As I’ve recounted before, the left is complicit in government propaganda because exaltation of big, activist government is the only direction their ideology leads. It remains their Big Idea despite the fact that the intellectual and practical justifications for it were eviscerated by… well, the twentieth century.

Kevin Williamson of National Review perfectly captures the aimless cynicism of a progressive movement unmoored from meaningful ideas:

I do not much blame the Left for hesitating to talk about Big Ideas. The Left has been losing the Big Idea debate for a generation or more, in no small part because its last Big Idea killed 100 million people, give or take, and not in Mr. Klein’s projecting-abstractly-from-a-CBO-study way but in the concentration-camps-and-hunger-terror way. Marxism was the Left’s Big Idea for the better part of a century, and its collapse — which was moral, economic, political, and complete — left a howling void in the Left’s intellectual universe. Nothing has quite managed to fill it: In the immediate wake of the collapse of Communism, the anticapitalists sought shelter in a variety of movements, few of which grew to be of any real consequence, with the exception of the environmentalist movement. But the lenten self-mortification implied by a consistent environmentalist ethic has limited that movement’s appeal as a governing philosophy and an individual ethic both, hence its fragmentation into a motley sprawl of mini-crusades. It is easy to be anti-fracking when that does not require you to give up anything, easy to oppose the expansion of the Keystone pipeline network when you can be confident that the gas pumps in your hometown will always be full, easy for well-off Whole Foods shoppers to abominate varieties of grain that are possessed by evil spirits or cooties or whatever it is this week.

The intellectual decline of the Left has been something to see. I am reminded of a joke that P. J. O’Rourke once made about my hometown: “There’s also a whiff of highbrow in Siberia. For a hick town, Irkutsk had too many opera houses, theaters, museums, and academic institutes. This is because, for hundreds of years, the smarty-pants reformers, annoying idealists, and know-it-all do-gooders were sent here for life. It’s as though everyone who voted for George McGovern was packed off to Lubbock, Texas.” You could not make the same joke about Obama voters or Occupiers — or, especially, about Jon Stewart’s audience — because nobody expects any of them to start an opera house or an academic institute. They are busy watching an ersatz Beavis and Butt-Head for psychology majors who enjoy having their modest intellects flattered and their perceived enemies “destroyed.”

Williamson earns my Hero of the Moment award (and not for the first time) for astutely calling out Jon Stewart as “the leading voice of the half-bright Left because he is a master practitioner of the art of half-bright vitriolic denunciation,” which can just as easily be used to describe the left-at-large. Robbed of their Big Ideas (don’t get any), the left plays a politics of vilification. Without much of an intellectual or philosophical foundation to rely on, the left operates almost entirely out of pragmatic rather than principled concern. Sure, vague paeans to “equality” and “social justice” can be mistaken for principled stances, but do not be fooled; the left’s drive for egalitarianism is always premised on the notion that society is unjust and only government (with the right experts – themselves – at the helm) can eradicate the injustice. Thus the welfare state and redistribution programs that sound like principled desires for a “fair” society are really just the pragmatic means for producing the ultimate end: power.

As to the question of what progressives want with power, the ends are up for debate, but the means never are. People like myself who look askance at progressives assume (not without justification) that a not-insignificant cadre wishes to use government solely to grab power. This group knows that the left’s “coalition” of voters who are susceptible to promises of government-as-panacea must be consistently pandered to, whereas other progressives indeed wish to bring about positive change with their power but unfortunately lack the wherewithal to deliver. The disparate factions of progressivism envision different ends, yet they embrace the same means, the means of vilification.

Which brings us to Paul Ryan.

In a radio interview last week, Ryan had this to say on the culture of work in American inner cities:

We have got this tailspin of culture, in our inner cities in particular, of men not working and just generations of men not even thinking about working or learning the value and the culture of work, and so there is a real culture problem here that has to be dealt with.

As we all know, there is only one appropriate response here: RAAAAAACIST!!!!! Never mind that Ryan is stating what should be an uncontroversial and obvious truth, and never mind that nowhere does he mention race. If you are a conservative and you offer a critique of any kind (implicit, explicit, oblique) of the welfare state’s failure to curtail poverty, you are a racist as far as the left is concerned, plain and simple. Instead of engaging on this crucially important topic and trading ideas on how to address pervasive poverty in urban areas, the left vilifies any would-be reformer as heartless and racist. As Pete Wehner notes, the true motive behind this incessant vilification of their opposition is the left’s insecurity about their own record:

Liberals who have complicity in the problems plaguing America’s inner cities are attempting to make an honest conversation about poverty impossible. They are signaling that they intend to try to take out Republicans who want to address some of the root causes, the behavioral causes, of poverty.

As a posterchild for the left’s psychotic narrative that says Republicans hate the elderly, the poor, the middle class, women, the gays, minorities, puppies, ice cream and orgasms, Ryan knows how the left operate when they have someone in their crosshairs. As the primary budget scion among House conservatives, Ryan is persona non grata for progressives because he represents a sober, green eye-shade accounting of their fiscal failures, and they will do whatever they can to forestall the reckoning. This is how Ryan is cast as He Who Throws Granny Off Cliff or as factually challenged or even as equivalent to the evil British purveyors of the Irish Potato Famine. The left trashes Ryan and “fact-checks” him into oblivion because they are terrified of his policies ever seeing the light of day since a Ryan fiscal reform would mean the beginning of the end of the progressive project. If Ryan is successful in restoring a baseline of sanity to Washington-as-usual (and “baseline budgeting” is a great place to start), the left’s budget gimmicks and procedural theatrics will no longer matter once actual accounting is again the standard. They know this, so they react accordingly, with wave after wave of dishonest attack, in the same vein as they went after Romney. I’ve learned not to underestimate the capacity of the modern left to defame genuinely good and decent men like Ryan and Romney, who because of the threat they posed to the immoral and unsustainable government gravy train, had to have their characters assassinated. Nothing is more important than the ultimate agenda, and if a little shameless vilification of decent people is needed to keep the progressive train on the tracks, so be it. And yet there was Paul Ryan at CPAC, proudly proclaiming that the left is exhausted because they are out of ideas. The left hasn’t really had any ideas since the official failure of their Big Idea almost twenty-five years ago. They are resigned to playing identity politics and pandering for votes until such time as free-thinking citizens wise up and hand them a decisive defeat, or else until they run out of other people’s money.