“The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get out-of-text-free cards.”
– Supreme Court Associate Justice Elena Kagan, re: West Virginia v. Environmental Protection Agency
But the real problem with “conservative” opposition to the socialist agenda is that if we are going to define socialism in terms of Soviet-style communism and illiberal politics, we can no longer say that conservatism is the opposite of that.
-Me
At the end of the last Supreme Court session in June, Justice Stephen Breyer officially retired and swore in his replacement, Biden Administration appointee Ketanji Brown Jackson. Which means there was one thing to celebrate about this particular term of the Court: It ended.
In addition to Dobbs v. Mississippi (which liberals only refer to as ‘the Roe v. Wade reversal’ as though not naming the thing means it is not precedent) this term of the Court decided that a defendant can no longer sue the government if law enforcement didn’t read their Miranda rights. In contradiction of the idea that the Court has no standing to regulate abortion on a federal level, this Court did decide that it can stop any state from writing its own concealed-carry laws. And in Kennedy v. Bremerton School District the Court ruled that a high school football coach may pray on the football field without violating the separation of Church and State.
Personally, I think that if we have a house chaplain in Congress, then an official praying in public is not a violation of the First Amendment. It IS a violation of Matthew 6:5.
In the Dobbs case, Justice Samuel Alito decided that the Fourteenth Amendment due process standard did not apply in the case of abortion and that there had been no legal precedents or language in the original Constitution allowing it. Now, while many right-wingers have objected that the result of Roe v. Wade created a federal standard when the abortion issue should have been left to the states, Alito’s position blanks out the point that we had a Fourteenth Amendment in the first place because we already tried leaving the issue of slavery up to the states and that didn’t work out. Which brings up the relevant point that if the Reconstruction Amendments were meant to correct an institutional racism that had more precedent in American law than the standard going forward, and Alito has decided that these amendments do not apply to women because there was no previous historical standard protecting abortion rights, then there’s all kinds of things they don’t have to apply to.
When liberalism was ascendant in the judicial branch and creating “penumbras” and other standards asserting an unwritten or “living” Constitution that did not exist, rather than referring to existing standards like the Ninth or Fourteenth Amendments, conservatives- correctly- asserted that this was not interpreting the original source material as it existed but rather “legislating from the bench.” But apparently now that the Right is ascendant, that’s okay.
Now, new Justice Ketanji Brown Jackson may be a Democratic appointee, but she had said in her March confirmation hearings that “the Constitution is fixed in its meaning.” I personally think it’s better that we start from a fixed basis than assuming that the text means whatever a Justice writing the opinion wants it to mean. Of course, all the people who voted for Dobbs told their confirmation committees that Roe v. Wade was “settled law”, so take that for what you will. In any event, Jackson is only a replacement for retiring liberal-moderate Stephen Breyer, and the “conservative” majority is still 6-3, so a small infusion of new blood is not enough to reassert common sense in the Court.
But if the radicalization of the Court is clearly of a religious nature, there are contradictions in that: It has been pointed out that seven of the nine Supreme Court Justices are Catholic or baptized Catholic (all of the conservatives plus Sonia Sotomayor) but Catholic dogma asserts a pro-life position at all points, including the death penalty, and condemns gun violence. Not this court. In addition to the New York decision on concealed carry, the Supreme Court reinstated the death sentence of Boston Marathon bomber Dzhokar Tsarnaev against the decision of a federal appeals court.
The other seeming contradiction is that the Religious Right is ascendant politically at a time when organized religion in America may be at its lowest point. According to a Gallup poll in 2021, US worship attendance (church, mosque or synagogue) had fallen below 50 percent for the first time, although some of this may be due to local COVID quarantine. However according to at least one other source, less than 20 percent of Americans actually attend church. An article in a religious site attributes the difference to a “halo effect” of overreporting socially approved behaviors like church attendance while under-reporting activities like drinking. But comparison of church membership rolls to attendance figures indicated a figure of 17.7 percent. In a 2002 survey of 1,159 U.S. churches, author Thom Rainer’s research team found that only 6 percent of the churches were growing, defining growth as not only increasing in church attendance, but also increasing at a pace faster than its community”s population growth rate. One other interesting statistic from the article: Other than Hawaii, the states that are actually leading in church growth are Texas, Florida and the Deep South states of Louisiana, Arkansas and Oklahoma. One of the researchers notes: “states with very diverse cultures tend to have lower attendance numbers than the states surrounding them. ‘Most of our churches know how to address only one culture,’ he says.”
So basically what we’re seeing in government is a drive to push not faith in general but the faith culture of a specific demographic, and as that culture becomes less popular with the body of the nation, the more determined that minority group is to use government to force its position on the rest of us. Of course these are the same people who oppose any state or federal effort to tell them what to do as “socialist”, apparently failing to grasp the irony. Thus, the spirit moves me to define their nature of their movement with a proper title: religious socialism.
I have said before that I do consider National Socialism (Nazism) to be a type of socialism even though the Left would vehemently disagree. This disagreement stems from the idea that Nazis and Socialists were opposed in their goals. In many ways they were, but they were frequently in agreement that the culture was undermined by capitalism and materialism, with the Nazis going that much farther in identifying these things as inherent to Jews as people, whereas Marx simply identified them with Jewish culture that could be changed. They both saw the liberal world order as the main enemy, much as the new Right attacks the financial system and “globalism”. It is generally agreed that National Socialism is a subset of Fascism, not leftist socialism, but Fascism was developed by Benito Mussolini, formerly a Marxist, anti-war, anti-nationalist journalist who decided in the middle of World War I that becoming an Italian nationalist would be better for his political career. He took over Italy in 1922 and got a lot farther in creating a one-party state that re-ordered the entire country toward one political vision than the established Italian Left had managed to do previously. The word “fascism” was invented by Mussolini as part of his appeal to Italian nationalism, referring to the fasces that was used as a symbol of authority in ancient Rome. Meanwhile in Germany, post-war nationalists organized in groups similar to those formed by the Left, because they were the existing model. (Prior to the German Empire losing the war, nationalists didn’t need to form revolutionary action groups, because they were the establishment.) Mussolini’s takeover in Italy directly inspired the former “German Workers’ Party” to organize on the fascist model, and led to the Beer Hall Putsch in Munich, which was unsuccessful in the short term.
National Socialism is a subset of Fascism specifically geared towards the German culture, especially the prevailing “Aryan vs. Jew” myth of anti-Semitism. But the phrase “national socialism” is actually more generically descriptive of the concept than “fascism” which refers specifically to a Roman/Italian origin.
National socialism is nothing more or less than that: the application of socialist means towards nationalist ends. Specifically it is the radical collectivization of a society under one non-pluralist government towards the goal of creating a reactionary political culture.
Of course the leftist will object to this opinion, but the real contradiction is the Right’s bad-faith insistence that their new collectivism is anti-socialist and pro-liberty. Or as I put it elsewhere, if Socialism is Bad and Nazis Are The REAL Socialists, then why do “conservatives” emulate the Nazis? For example, if Democrats are the bad guys because they are the Party of the Confederacy and rebellion and segregation, then why did Trump’s fan club carry the Confederate battle flag into the Capitol on January 6, to rebel against a lawful election?
Part of this is just projecting, but another part is labeling: If Socialism is Bad, then the reactionary revolutionary seeks to position his movement as the opposite, representing God, Mom, Apple Pie and everything that’s good about America or whatever the local equivalent is. (In Mussolini’s Italy, the equivalents were the Crown and the Church, which is why the King of Italy, who could have easily stopped his coup, instead chose to endorse it in order to combat Marxism, while later Mussolini as head of government managed to negotiate a peace with the Catholic Church making the Vatican part of Rome a sovereign territory, a treaty that exists to this day.)
Frankly, I use this term “religious socialist” for precisely the same reason that the Left is offended by the idea that “National Socialism” is an accurate term or that socialism can refer to anything bad. I do not use the term in the same way as the British Fabians or the German Social Democrats who thought that the goals of 19th Century socialism could be achieved, and should be achieved, through democratic processes. I am using it in the same way that Lenin and Mao used it, because they thought that it was not enough to act through bourgeois democratic governments and one could only ally with them temporarily until absolute power was achieved. To the Nazi or Leninist, the means are more important than the ends, because the means are the ends. A Menshevik in Russia might have been okay with gradual reform of the Czarist system and the March Revolution might have transitioned to a democratic republic. The Bolshevik goal wasn’t to achieve a better living standard that could or could not be accomplished under a socialist majority. The Bolshevik goal was to destroy the aristocracy and murder all of its political opponents, including those on the Left (especially anyone on the Left, who might have had a more humane idea). Achieving better living standards was secondary at best, and if they actually did so, it merely reflects on how backward the Russian Empire was compared to Western countries that had gotten farther along in Marx’ analysis of historical development.
Not that the new Right, which asserts any opposition to its agenda as “socialism” is willing to embrace the label of fascism. Lenin, of course, defined his system as “democratic” centralism. Hitler and Nazi theorists defined their system as “Germanic democracy.” In the modern day, Hungarian leader Viktor Orban defined his approach as “illiberal democracy.” Which is not a direct contradiction. If democracy simply means giving the people what they want, and human rights are subject to a majority vote, you can understand why classical liberals like the Founding Fathers did not see democracy as synonymous with liberty and sometimes thought that democracy was opposed to it. That is why in America’s case, the Founders were at pains to create the Electoral College, the Senate and other measures to counter direct majority rule in their republic.
But what the classical liberals did not anticipate and the new authoritarians have learned all too well is that the historical success of liberal representative government obliged statists to couch their power grabs as being in some way representing “the will of the people” as opposed to the Crown or the Church. If their schemes are not in fact representing the majority, they simply have to limit the number of people who can vote on them until they get the result they want and present that as “the will of the people.” And it’s in this aim that having a counter-majoritarian system really helps.
The current Supreme Court set up could be the greatest example of this strategy in practice: You have six conservatives, four of whom were appointed by presidents who won the Electoral College without the popular vote (a result which conservatives still insist reflects a federal consensus), one of whom was directly appointed because Senate Majority Leader McConnell used an effective veto against President Obama’s last appointee to prevent them from even having a confirmation hearing (when Article I of the Constitution doesn’t say whether the Senate Majority Leader has such power, perhaps because Article I does not say anything creating an office of Senate Majority Leader), the last of whom was frantically chosen and sent through committee in the wake of Ruth Bader Ginsburg’s death even at the risk of the senators getting coronavirus, because they wanted to have a “real” conservative to override John Roberts, and the end result has in one month overturned “settled law” that had been the case for decades, and the majority can’t do anything about it because these are all lifetime appointees, because we consider some issues too important to be left to democracy.
Much of this is justified or down-played by certain apologists on the Right who are much more concerned about the pernicious influence of the Left on this country, eliding the point that the Left’s overall success in the political culture prior to Trump meant that they did not reward radicalism in the same way that the Right does now, and to the extent that there are unreasonable, anti-reality radicals on the Left, they don’t have nearly as much influence on the mainstream Democratic Party as the woke Right has on the Republican Party. The Right asserts, accurately, that identity politics is poisoning our discourse, but they blank out the fact that one of the consequences of this is that it encourages identity politics among (mostly white) conservatives who see a number of pluralities with growing voices and are starting to realize that they are no longer the political default.
Occasionally, some of these traditional conservatives realize that their side’s bigotry, authoritarianism and subsequent abuse of innocents have done more to alienate the general public than any left-wing propaganda. But you would have to have the brains of a Rod Dreher to realize that, and such thoughtfulness is not common in the “conservative” movement these days. Including Rod Dreher.
For the sake of paying lip service to civic structures that they increasingly feel able to denounce in public, Republicans need to game the system, change who qualifies as a voter and then after the fact of election, change which votes qualify as valid if enough of them go against them, as they tried to do between November 2020 and January 2021.
Which is why I have been saying that pretty soon the real white majority in this country is going to find out what it’s like to be black people. Not that some level of default “white privilege” isn’t going to accrue in other areas, but in the sense that our votes aren’t going to count. You can see with the cases of Clarence Thomas and Stephen Miller that the cult is willing to accept people who aren’t of good Nordic stock, but they still go by percentages. It may be that their policies discriminate against black people mainly because black people vote Democrat, but that kind of begs the question of why Black neighborhoods and districts don’t go Republican. In any event, even if it’s not the same motivation as racism, it may come off as a distinction without a difference.
I am a secular humanist (though I would not describe myself as a leftist). And I know a lot of leftists and secularists have bashed religion over abortion and other reasons. I’ve done it. But look: Liz Cheney is a hard-core anti-abortion Christian conservative, but she is not a religious socialist. Pope Francis is a hard-core pro-life Catholic (obviously), who unlike the new American Right, has endorsed welfare programs for the poor. But he is not a religious socialist. Neither of these two thinks that one religion, or one approach to religion, should be supreme in a government, but the main Republican Party does. If anything Catholicism has always tried to hold that God is above the state and so are human values. But then I have another theory which holds that the difference between Catholic monarchy and Protestant monarchy is the the Catholic believes the State is a lesser aspect of the Church, while the Protestant believes the Church is a lesser aspect of the State.
What is the approach which endorses neither and holds the question to be moot because Church and State are to be kept separate? Liberal representative government. And it is that model of government that religious socialism seeks to destroy.
I return to another Dreher article where he spoke somewhat approvingly of the East European return to illiberalism even as he took apart Catholic integralism.
“I don’t know if (James) Kalb is an integralist, but he’s right about the nature of the Good as the basis of a postliberal political order. The problem, though, is that we in the United States are a highly pluralistic nation, in which Catholics are a minority, and the number of Catholics willing to submit their lives to the teaching authority of the Church is very small. … If political Catholicism is in trouble in Poland, where almost everybody is Catholic, at least nominally, how on earth is it ever going to triumph in the United States, where Catholics (nominal and serious) only number about 20 percent of the population? And of that number, how many of them would be willing to surrender American liberties for a reactionary 19th century ideal establishing the Catholic Church, and making the State subordinate to it? I bet you could fit all of them into Adrian Vermeule’s backyard in Cambridge, Mass.
“In any case, the vague definition of integralism on the Josias doesn’t sound threatening. It’s when you start asking what that means in real life that it turns freaky. Normally, intellectual engagement is something to be enjoyed and engaged. There are plenty of non-Catholics who are interested to figure out a workable future under the condition of postliberalism, and would like to talk it all out. Not these cats. See, this is the thing that you must not do — ask what this would mean in real life. It makes our integralists mad. They blow up online, and sneer, act all indignant, and say that you must be one of those David French types for asking. It’s a silly act, but it tells us something important about them. If they thought that their program would be appealing to people, they would be eager to lay it out and try to win converts. [my emphasis] They seem to think that they are going to insult and sh*tpost their way to power.
“…I am sure I would prefer integralism to whatever we are likely to get if liberal democracy falls. We will likely get Caesarism of either the Left or the Right. I see no reason to believe that the Catholic Church would be part of this. But maybe I’m wrong. When Vladimir Putin took over from the ruins left by Boris Yeltsin and the catastrophe of the 1990s in Russia, he knew that he needed some kind of legitimating authority, so he began to rehabilitate the Orthodox Church in public life. It was a wise thing for him to do, strictly speaking from a political perspective. Should Continental European countries undergo a similar catastrophe, it would make sense for whatever political order emerges from the aftermath to do the same thing with Catholicism.
“The United States, however, is an historically Protestant nation. My guess is that if a right-wing Caesar emerged, he would look something like Gen. Michael Flynn: a hard nationalist authoritarian with at least a veneer of Christianity. Unlike much of Europe, we simply don’t have the “bones,” so to speak, to support Catholic integralism in this country. … How Catholic integralism comes to be in a historically Protestant country like the US is impossible to fathom. It’s an interesting thought experiment, but nothing more. We are far more likely to get a nationalist-conservative government like Hungary’s, a Christian democracy that provides something that a majority can potentially affirm. That’s what I hope for, anyway, not a scheme in which we surrender our liberties to representatives of a Christian religion that only a minority accept.”
And again, that’s the thoughtful position in the Right.
The real problem with creating a homogeneous theocracy (that leans on Catholicism or in Putin’s case, Orthodoxy) in the United States is theology. Anybody who’s studied history knows that it’s hard enough to get everybody on the same page even when there is a state religion (as in the Eastern Orthodox Roman Empire, aka the Byzantine Empire). Literal wars have been fought over issues like transubstantiation. This is what Dreher means when he says our American religious culture is really not of a Catholic nature (that is, assuming an encompassing authority). Given that is the case, the appeal to religion necessarily has to be non-denominational and focused on the subjects that hard-right Catholics and Protestants can agree on, namely banning abortion. But a Catholic would insist that there has to be some doctrinal consistency and authority, otherwise the agenda is less a religious agenda using government than a political agenda under the label of religion. As Dreher also says, this project is most likely to produce a “hard nationalist authoritarian with at least a veneer of Christianity.” But when actual church-going in America is at its lowest point, why is the veneer even necessary?
Because, frankly, it is a lot easier to seal the appeal to authority fallacy when the authority is God. God by definition is above human values and therefore above human judgment, so saying “God told us to do this” is a lot harder for most people to argue with than saying “Jefferson (or Roosevelt, or Lenin, or Putin) told us to do this.” By the same token, the Left doesn’t understand that most people are not materialists and are not motivated by Marxist economic arguments. Many people would sacrifice their lives for God or Country. I don’t know who would sacrifice their lives for a tractor.
At the same time, the lack of reliance on a specific religious tradition or dogma is a plus in political terms. The need for a non-material universe persists in people who were raised in a Christian default culture, and if they don’t participate in traditional religious services, they still want to feel like they’re on that side. Equating one’s political allegiance to religion allows the “conservative” to feel that he has the benefits of religious faith without the spiritual work.
There may be “trad” conservatives like Dreher or the integralists who seriously think that doctrinal rigor is important, but they are ultimately only instrumental to the new Right’s political process, and the political process is not concerned with consistency or doctrine, only results. So it doesn’t matter that all of the conservatives on the Supreme Court are Catholic, because their “pro-life” doctrine is just as inconsistent and expedient as their federalism. The goal is to create the American doctrine and the American religion, and that religion is basically whatever the secular authorities say it is.
To the religious socialist, cognitive dissonance doesn’t matter because when you have total control of a population, their cognition doesn’t matter, only their obedience. Of course not even experienced totalitarians like Hitler, Stalin and Mao could exercise absolute control all the time, and their systems either collapsed or had to be heavily modified. But the new Right endorses this sort of thing on the assumption that liberal, individualist civilization is spiritually and intellectually exhausted. In point of fact, the history is that liberalism developed in the first place because we tried religious absolutism, found it to be spiritually and intellectually exhausted, unfit for modern conditions, and we had to get rid of it because it sucked. Now you can’t be surprised that the gang that threw out 50 years of legal precedent last month wouldn’t be scared of overturning 246 years of Enlightenment, but this is America. We don’t understand history any better than we understand socialism, and we clearly understand religion even less.