[Editor’s note: see also rounds 1-4 of Takimag’s increasingly acrimonious debate on originalism, interpretation, and whether the Constitution actually means anything at all. Austin Bramwell, “Original Sins”; Kevin R. C. Gutzman, “The Genuine Article”; Bramwell, “Best of Intentions”; Gutzman, “They Really Meant It”]

There isn’t much to say in response to Kevin Gutzman’s latest.  He’s had two chances already but still hasn’t addressed my core contentions, namely (to repeat myself)

First, to my argument that the Fourteenth Amendment gives Congress virtually unlimited powers, Gutzman replies:

I do not waste my time scouting out all of the idiosyncratic justifications for unlimited power, from Caligula to the present. They have contributed nothing to civilization.

In other words, Gutzman refuses even to consider whether the Constitution might not be the libertarian document that he takes it to be. The Constitution simply must limit the powers of the Federal government! Yet somehow, I know not how, Gutzman tirelessly flays his opponents for allegedly subordinating the Constitution to their desired policy outcomes. Ye gad, if there’s anyone in this world who can’t separate his ideology from his interpretation of the Constitution, it’s Kevin Gutzman. Not only, by his own admission, does he reject any reading of the Constitution that doesn’t support his libertarianism, but he writes that I don’t care about “limitations on government authority,” even though I argued only that the Constitution doesn’t impose those limitations, and even though I pledged allegiance to the cause of limited government in both my posts. Gutzman evidently can’t even imagine how anyone could read the Constitution except as support for his ideology. Gutzman is more Brennanist that William Brennan himself.

Anyway, I confess that I don’t find Gutzman’s excuse for not addressing my arguments very credible. Nobody is asking Gutzman to do any “scouting”—all my arguments are sketched out in my posts for him to read. As for wasting Gutzman’s time, he has plenty of it to abuse me at length for having graduated from law school. Could he not have devoted just of bit of the time he has spent attacking me to responding to my actual arguments? Either Gutzman has a rather unscholarly set of priorities or he’s just being disingenuous.

Second, Gutzman continues to insist that his approach to the Constitution follows from the principle of self-government. I noted before that Lysander Spooner has decisively refuted this view. Gutzman now proudly reminds us that knows all about Lysander Spooner already. I’m glad—but will Gutzman do his readers the favor of explaining why he disagrees with Spooner? By no means! Instead, he proclaims, “I have little to say about constitutions to someone [i.e., me] who [doesn’t care] about the consent of the governed.” In other words, Gutzman won’t address any arguments coming from me, even when they’re not even mine, and even when they were devised by a thinker (Spooner) whom Gutzman admires. The name Bramwell has so defiled the sacred purity of Gutzman’s libertarianism as to render him speechless with pious indignation. Perhaps when I’m not around to blaspheme, Gutzman will regain his tongue and explain how he proposes to reconcile his belief in written constitutions with his faith in self-government. I only regret that I won’t be there to witness his performance. I suspect it would be quite entertaining.

Lastly, I have argued that Gutzman’s method of interpreting the Constitution—which favors subjective expectations over the actual text—is flawed. I offered, oh, six or seven objections to intentionalism, each one of which may be taken as fatal. Gutzman’s response is, frankly, puerile: He addresses one objection—namely, that it’s unclear whose intentions we should consult—announces that he’s not going to bother with the others (yet refers his readers to no authority on the subject whatsoever), and then exults at having vindicated intentionalism. I’m sorry, but that just won’t do. 

For one thing, Gutzman doesn’t even successfully answer the “whose intentions?” objection.In his view, the only intentions to be consulted are those of the people’s representatives at the state conventions that ratified the Constitution. This argument is presumably based on the actual text of the Constitution, which specifies in Article VII how the Constitution was to be adopted. If it’s the text that controls whose intentions count, however, then why in all other circumstances must intentions control the text? Gutzman’s appeal to the text to define the role of intention is incoherent. Moreover, as I noted already, the Preamble states that the Constitution was adopted by “We the People.” That bit of text suggests we should consult not just the intentions of the people’s representatives at the state ratification conventions but the intentions of the people themselves—namely, all individuals around at the time of ratification, if not all individuals who have ever been governed by the Constitution. 

Even if Gutzman can successfully define the class of relevant intentions, he still has to run a gauntlet of five or six more objections to intentionalism. Indeed, the “whose intentions?” objection is probably the easiest one to dispose of. Somehow I don’t think Gutzman is up to solving the problem of, say, generality or aggregation. No other intentionalist, to my knowledge, ever has.

The rest of Gutzman’s reply is peppered with the same sort of shameless misrepresentations that, sadly, one comes to expect of his writings. I did not say, for example, that “the Fourteenth Amendment has no meaning”; I actually said that “the meaning of the Fourteenth Amendment is clear.” I did not say that arguments for unlimited power are “worth inventing”; I said, “I am not a devotee of unlimited government.” I did not offer “Brennan-Tribe-Douglas-like excuses for rejecting originalism”; I explained that only by rejecting Gutzman’s intentionalism can one “save originalism” and “fix permanently the proper interpretation of the Constitution.” Gutzman has made no effort to understand my arguments.  Instead, he has flatly denied, again and again, that I ever wrote what I wrote—even though it’s all there in the record for any reader to consult.

Gutzman doesn’t want to argue with me. Very well. I regret having wasted his time, and mine.

Addendum 1: Gutzman disagrees with my reading of McCulloch. His reading (which he supports not with citations to Marshall’s opinion but to secondary authorities) is a common one, though one I believe to be mistaken. I am happy to discuss the subject further sometime, preferably with an interlocutor willing to argue in good faith. In the meantime, the proper reading of McColluch is only incidental to my argument that Congress’s powers under the Fourteenth Amendment are virtually unlimited.

Addendum 2: Gutzman now admits that the Supreme Court has not always been guided by the slogan, “evolving standards of decency.” He is unimpressed that I would point this out, since it is so obvious. If it is so obvious, however, then he should have qualified his earlier claims about Supreme Court decision-making. Even now, he says that Supreme Court justices have in many cases “been guided only by their whims.” Only by their whims? One has to point out the obvious, when arguing with a fanatic. Otherwise, he’ll continue to state positions that are laughably overblown.

I’m sorry, but Kevin Gutzman is still totally wrong about the Constitution. His response to my article sends up a flurry of errors and misconceptions but leaves my critique of his work not only undisturbed but unaddressed. I am glad to set him straight point by point.

1. “[P]roducts of law school miseducation like Bramwell,” are “subjected to reading in ‘constitutional law,’ the body of case law purporting to implement the U.S. Constitution,” which results in “indoctrination” in the “bipartisan consensus that the Federal Government is really an unbounded national government.” I’ll leave aside whether teaching an actual body of law amounts to “indoctrination.”  Contrary to Gutzman, the interpretations I offered of the Constitution are not only inconsistent but positively at loggerheads with contemporary constitutional law. If anything, they should have elicited a big fat “WTF?” from anyone who actually knows any con law. For one thing, I argue that Congress’s enforcement powers under the Fourteenth Amendment are virtually unlimited, despite that the Supreme Court has held that they are virtually non-existent.  See City of Boerne v. Flores (1997).  (I probably have the most extreme view of the original meaning of the Enforcement Clause of the Fourteenth Amendment of anyone in the United States.)

For another, I may be the only person ever to argue that the Thirteenth and Fourteenth Amendments ratified post facto John Marshall’s decision in McCulloch v. Maryland. Yes, dear Takimag reader: you were subjected to an argument so bizarre and outlandish that it has appeared only once before in print, and that was in an article by me for Critical Review. Nevertheless, Gutzman warns that I am regurgitating the same nonsense I learned in law school.  Fine, I’ll make him a bet: I will bet him $1,000 that in the span of, say, one year, Gutzman can’t find a single law school graduate in the United States who was taught in class my ultra-expansive theory of Congress’s powers under the Fourteenth Amendment and my theory of Enforcement Clauses / Necessary and Proper Clause interraction.  If Gutzman wants to take me up on this bet, he should let me know and we can work out the terms.

2. Supreme Court justices have “felt free to impose their own ever-evolving views of the ‘evolving standards of decency’ in a maturing society.” For the record, the phrase “evolving standards of decency” shows up in only one line of cases, namely, those interpreting the Eighth Amendment prohibition on cruel and unusual punishment. It appears, according to Westlaw, in a total of 59 Supreme Court opinions. How about the phrase “enumerated powers,” so beloved of libertarians, and which no more appears in the actual Constitution than “evolving standards of decency”? It shows up in 116 cases, including more than 60 since the New Deal revolution. That doesn’t prove that the Supreme Court has interpreted the Constitution as a libertarian document. It does show (however crudely) that constitutional law no more embodies pure Brennanism than it does libertarianism. Indignation at Supreme Court opinions is certainly called for at times.  But that doesn’t excuse exaggerating what those times are. “Evolving standards of decency” is not the touchstone of all Supreme Court decision-making.

3. Gutzman’s approach to the Constitution follows from the principle of “government by consent of the governed.” No, it does not. Lysander Spooner decisively refuted 140 years ago the idea that the people ever consented to the Constitution. First, nobody ever performed an act to manifest his consent. Only a few dozen drafters ended up actually signing the Constitution, and that was only to submit an official version to the states. Nobody else in America was so much as asked whether he even agreed with it. Instead, the Constitution was adopted in accordance with its own self-executing ratification provisions—which is another way of saying that, if you didn’t like it, then tough. Although members of State ratification conventions did formally ratify the Constitution, they acted not in their individual capacities but only as representatives. (And of course, many of those representatives voted against the Constitution.) As for everyone else, though some did have the privilege of voting for their representatives, exercising a right to vote is by no means equivalent to approving an election’s outcome, much less consenting to what one’s representatives do in office. Finally, of course, women, non-whites and the unpropertied were excluded from the franchise altogether. Rather than say that the people consented to the Constitution in 1789, it would be more accurate to say that a handful of men foisted it on everyone else. 

Even if the people did somehow consent to the Constitution in 1789, later generations have never had the chance to do so. They are subjected to the Constitution as arbitrarily as citizens of other nations are subjected to hereditary monarchy. These days, probably only a minority of Americans would consent to the Constitution as written. Only a tiny fraction, needless to say, would consent to the Constitution as interpreted by Gutzman. Yet Gutzman appeals to consent of the governed! Verily, if it’s the consent of the governed that Gutzman wants, the last thing he should be championing is the United States Constitution. 

Anyway, who cares whether the people consent to their government? The people could consent to a viciously unjust government or one inimical to their well-being. Far more important than whether the people are governed by consent is whether they are governed well. Any other position must assume a nihilistic denial of any such thing as a public good. By appealing to the principle of self-government as it were self-evidently laudable, Gutzman has unwittingly revealed that he has no compelling justification for following the Constitution.

4. McCulloch v. Maryland “held ... that the Necessary and Proper Clause gave the Congress very wide legislative powers.” This misstates the holding of McCulloch.  Read Marshall’s opinion carefully:  Marshall didn’t think the Necessary and Proper Clause was needed to establish that Congress could create a bank. Rather, he argued that Congress had this power by implication under the Tax and Spending Clause. The Necessary and Proper Clause merely underscores that Congress has powers implied from its specifically enumerated powers. The Necessary and Proper Clause, for Marshall, does no additional work.

5. Bramwell “cit[es] McCulloch v. Maryland on behalf of the idea that the Constitution created a Congress with virtually unlimited powers.” No, I do not. I cite no case for this proposition but rather the actual text of the Constitution—specifically, the Enforcement Clause of the Fourteenth Amendment. McCulloch is only relevant insofar as it provides evidence of the original public meaning of this Enforcement Clause. In addition, I argue that, whether or not McCulloch was correctly decided, by 1865 it had been ratified as correct. I don’t see how I could have been more clear on this point. I wrote, “For better or worse, the dispute of the original meaning of [the Necessary and Proper Clause] is now largely irrelevant,” for “the actual Constitution incorporates [McCulloch‘s understanding of Congress’s implied powers].” 

In response, Gutzman treats me to a lengthy history lesson on how Marshall got it all wrong back in 1819. Whether Marshall did so or not, however, is irrelevant to my argument.  Just for the fun of it, I’ll even concede Gutzman’s attack on John Marshall and take it further: McCulloch is the worst decision in the history of the Supreme Court. Nevertheless, McCulloch, by operation by subsequent Amendments, still represents the correct interpretation today of Congress’s implied powers and the Necessary and Proper Clause.

6. The distinction between the meaning of a provision and the intentions of those who wrote and ratified it “is a common distinction among lawyers who want to concede unlimited authority to some instrumentality, agency or branch of government.” No, it is not. The disctinction was introduced by originalists in order to save originalism and thereby help to defend the view that the Constitution limits the powers of the Federal government. For example, Antonin Scalia:

It is the law that governs, not the intent of the lawgiver. ... Men may intend what they will, but it is only the laws that they enact which bind us.

Robert Bork:

[W]hat the ratifiers understood themselves to be enacting must be taken to be what the public at that time would have understood those words to mean. It is important to be clear about this. The search is not for subjective intention.

Contemporary libertarian originalists such as Gary Lawson and Randy Barnett likewise endorse the disctinction. To be sure, Gutzman, as I have noticed, is rather promiscuous in leveling the charge of lack of fidelity to the Constitution, so perhaps he would denounce Scalia, Bork, Lawson, and Barnett as all big government Constitution-haters. Nevertheless, the direction in which Lawson and Barnett and, to a large extent, Scalia hope to lead constitutional law is towards limiting the powers of the Federal government. I happen to disagree with them that original meaning saves the cause of limited government. Still, it has undeniably become the favored constitutional theory among libertarians today. Gutzman overlooks this history, or simply doesn’t know it.

7. “A provision’s meaning,” say the advocates of the distinction between meaning and intention, “changes from to time as the society ... becomes more enlightened.” Wrong. Libertarian judges and scholars have favored meaning over intention precisely because they hope to fix permanently the proper interpretation of the Constitution. Thus, Scalia writes in the very same essay in which he denounces original intent: “If the Courts are free to write the Constitution anew, they will, by God, write it the way the majority wants ... This is, of course, the end of the Bill of Rights, whose meaning will be commited to the very body it was meant to protect against: the majority.” Randy Barnett, another critic of intentionalism, argues that the Constitution can only have legitimacy if its meaning is “locked in.” The distinction was invented, in short, to bind judges to an unmalleable Constitution.

8. Thomas Jefferson wrote that the federal Constitution should be enforced “according to the true sense in which it was adopted by the States, that in which it was advocated by its friends.” Indeed, Jefferson wrote this, but it by no means implies that we should interpretation the Constitution according to anyone’s original intent.  Obeying Jefferson’s injunction, let us see how the Constitution’s “friends” actually thought the Constitution should be interpreted. 

Start with Alexander Hamilton:

The Secretary of State [i.e., Thomas Jefferson] will not deny, that, whatever may have been the intention of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction. [A]rguments drawn from extrinsic circumstances, regarding the intention of the [constitutional] convention, must be rejected.

In other words, says Hamilton, pointing to an area of common agreement with Jefferson, one must not consult the particular expectations of the men who wrote the Constitution. I realize Gutzman probably thinks Hamilton is an evil statist. Still, as the author of many of the Federalist Papers, he surely ranks as a “friend” of the Constitution. Or, if Gutzman won’t take Hamilton, here is James Madison, as his remarks are recorded in the Annals of Congress:

When the members of the floor, who were members of the General Convention ... were called on in a former debate for the sense of that body for the Constitutional question [at issue], it was a matter of some surprise [for Madison]. ... [A]fter all [in Madison’s view] whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution.

Or Madison again:

As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Insitutions, & as a source parhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses.

In other words, the two greatest of the Framers—Hamilton and Madison—did not believe that, in interpreting the Constitution, one should look into the intention of those who wrote it. On the contrary, they specifically admonished us not to do so. Gutzman is thus trapped in a contradiction: he says we should follow the original intent of the Framers, but the original intent of the framers was that their various intents should be ignored! This point was made back in 1985 by H. Jefferson Powell. Perhaps Powell is just another evil law professor out to traduce the Constitution. Nevertheless, it is suprising that Gutzman did not anticipate this well-known objection.

9. “A provision’s meaning” should be equated “with the intention of its enactors.” Frankly, I can’t tell what exactly Gutzman thinks the relationship between a provision’s meaning and the intentions of those who wrote it really is. “The equation,” as Gutzman puts it “of a provision’s meaning with the intentions of its enactors” is harmless if all that “equation” implies is that one must look no further than the text of a provision to ascertain the intentions of those who enacted it. Plainly, however, Gutzman wants intentions to do independent work. He argues, for example, that John Marshall’s interpretation of Congress’s implied powers is mistaken because many states would never have ratified the Constitution had their representatives expected that Congress’s powers would be so liberally construed. In short, Gutzman thinks subjective expectations can determine the meaning of the Constitution’s actual words. 

For reasons Madison, Hamilton and possibly even Jefferson anticipated, Gutzman’s appeal to subjective expectations is unpersuasive. The problems with intentionalism are several:

For these reasons, few originalists today defend original intent. Yet Gutzman still wants to cast incense at Madison’s shrine to divine the proper interpretation of the Constitution. His professed methodology is deeply flawed.

10. Contra Bramwell’s characterization, Gutzman in fact denies that “nobody who actually reads the Constitution could possibly conclude” that the Constitution creates an expansive Federal government. I am grateful to be corrected on this point, but I am also flabbergasted by Gutzman’s apparent concession that the Constitution’s meaning isn’t clear. If the Constitution isn’t reasonably clear, after all, then there can little hope for fixing its proper interpretation—except, perhaps, by consulting not the Constitution but historians such as Gutzman. If Gutzman wants to defend originalism, he should have bit the bullet and argued, as I suggested, that nobody who reads the Constitution fairly could interpret it as granting extensive powers to the Federal government. In characterizing his views as I did, I was actually trying to help him out.

11. Bramwell believes that “judges should feel free to ‘interpret’ the Constitution in any way they like.” Nothing in my article suggested I hold any such view. I argued only that, contrary to many libertarian originalists, the Constitution gives Congress vast powers traditionally reserved to the States. Gutzman in response blasts away at lawless judges. But I didn’t even address how judges should interpret the Constitution. Gutzman is inveighing against someone, clearly. That someone just isn’t me.

Now, I should say that I regret causing potential misunderstanding by asking, rhetorically of the Fourteenth Amendment’s rights provisions, “what does that mean?” In fact, I think it is quite clear how a reasonably observer in 1868 would have understood “privileges or immunities” and “equal protection of the laws”: he would have understood them to refer to fundamental individual rights. 
At the same time, though the meaning of the Fourteenth Amendment is clear, its application is not. The Fourteenth Amendment’s rights provisions are notoriously “open textured;” that is, they are wholly unspecific as to what exactly those “privileges or immunities” and “equal protection” rights are. When the Fourteenth’s Amendment open-ended rights provisions are combined with its McCulloch-inspired Enforcement Clause, the results are explosive—provided, that is, that one takes the original meaning of the Constitution seriously. Whereas previously, the people retained their rights against the Federal government, under the Fourteenth Amendment they give Congress unlimited authority to protect those rights however Congress deems fit. The Fourteenth Amendment turned the constitutional design of the Founding generation upside down.

12. In expounding his views on the Constitution, Bramwell “joins a slew of Straussians, neocons, liberals and other devotees of unlimited government.” I have no idea what Gutzman means by “Straussians” and “neocons.” Evidently, I am supposed to be frightened of these bogeymen. I confess, however, that I am not deeply immersed enough in the literature unmasking the untrammeled malevolence of neocons and Straussians to tell whether I should be frightened or not. Tell me what a “Straussian” or “neocon” argument is, and I will say whether I agree with it. Until then, Gutzman’s name calling doesn’t affect the truth of my arguments.

In any case, I am not a devotee of unlimited government. Gutzman apparently missed the point of my article, which was to prove that the Constitution is not the friend of limited government that many libertarians suppose. As I concluded the article, “I wish Gutzman were right that the Constitution vindicated limited government.” But Gutzman is not right. Libertarian constitutional scholars succomb to selection bias: they remember only the battles they have unfairly lost (such as over the scope of the Commerce Clause) but not the battles they have unfairly won (such as over the scope of Congress’s Fourteenth Amendment enforcement powers). If libertarians ever want to come up with an ideologically congenial constitutional theory, they’ll need to stop thumping their originalist bibles.

I’m sorry, but Kevin Gutzman is totally wrong about the Constitution. In his books and many online articles, Gutzman argues that the Constitution grants the Federal government a handful of limited powers, but leaves the states free to govern as they like. Hence, almost the entire apparatus of the Federal government is unconstitutional. What’s more, says Gutzman, with no little vehemence, nobody who actually reads the Constitution could possibly conclude otherwise.

Wrong. It is Gutzman who hasn’t read the Constitution. Or, to be precise, like the various liberal and conservative scholars he excoriates, Gutzman skips over the parts of the Constitution that he doesn’t like. The Constitution as written contains barely any restrictions on the power of the Federal government to intrude upon the states. Gutzman just prefers not to notice.

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Even if Gutzman were right about the Constitution, his theory of constitutional interpretation would still utterly inadequate. Gutzman makes sport of contemporary scholars who derive their understanding of the Constitution not from the text from but the premise that Brown v. Board of Education was correctly decided.  But Gutzman too bases his constitutional theory on his ideological commitments. Suppose Gutzman were right about the original meaning of the Constitution in every detail. That still wouldn’t answer the question: why should we follow the Constitution anyway? Quite a lot of people find Gutzman’s Constitution abhorrent. They may fairly ask, why, if the Constitution (in their eyes) is so flawed, they should bother to restore its authority.

It won’t do to say we should follow the Constitution just because it’s the Constitution. Indeed, the more damning Gutzman’s critique of contemporary constitutional law, the more ridiculous the Constitution appears. Gutzman argues that the Constitution has never been followed. The Framers designed no mechanisms of constitutional defense; they bequeathed to posterity no more than a “parchment” barrier. It is one thing to champion a Constitution that might someday be followed, quite another to champion a Constitution that has no no chance ever in any circumstances of being followed. Gutzman has, if anything, built a strong case that the Constitution is a vain document that should simply be discarded.

To convince anyone otherwise, Gutzman has to offer some normative defense of the Constitution as written.  He has to say something such as: “Self-government depends on following the Constitution as actually ratified by the people” or “The Constitution as enacted embodies the paramount value of liberty.” As soon as Gutzman articulates his theory as to why we should follow the Constitution, however, it becomes clear that he too picks his values first and his Constitutional theory second. In that respect, he’s no better than a Brown v. Board-privileging liberal.  But his wine, too, is made of grapes.

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In any case, when it’s convenient for him, Gutzman doesn’t even argue that we should follow the Constitution.  He interprets the Fourteenth Amendment, for example, not in light of its meaning but in light of the alleged intentions of those who wrote and ratified it.  But the intentions behind an enactment are irrelevant to its meaning.  Take a recipe for almond torte.  The person who wrote it may have intended that the recipe produce macaroons. But that doesn’t change the meaning of the actual recipe. Likewise, the intentions of those who ratified the Fourteenth Amendment—even if they can be discerned, and even if by some miracle they do not conflict—do not determine the meaning of the Fourteenth Amendment. When it comes to the Fourteenth Amendment, Gutzman suddenly loses his interest in what the Constitution actually says.

As for what the Constitution does say—regardless of whether it should be followed or not—Gutzman labors to prove that constitutional law today has drifted quite far from what the Framers envisioned.  I couldn’t agree more.  The trouble is, the meaning of the Constitution for the Framers is of little more than antiquarian interest. The Constitution has been amended 27 times since the adoption of the Bill of Rights. It doesn’t matter what a particular provision meant in 1789.  The Constitution of 1789 is not the Constitution we have today.

Take the Necessary and Proper Clause. Gutzman fulminates against Chief Justice John Marshall for refusing in McCulloch v. Maryland  to interpret the Necessary and Proper Clause as limiting the implied powers of Congress.  For better or worse, the dispute over the original meaning of that clause is now largely irrelevant. Eight times since McCulloch, the people have seen fit to define the scope of a new Congressional power. Each time, they have used language right out of Marshall’s famous opinion: “The Congress shall have the power to enforce this article by appropriate legislation.” Compare Marshall: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional” [emphasis added]. These eight new “enforcement clauses,” beginning with that of the Thirteenth Amendment, were understood to echo Marshall’s words. Gutzman doesn’t like McCulloch’s understanding of Congress’s implied powers, but the actual Constitution incorporates it.

Next take Gutzman’s prized concept of limited and enumerated powers. It’s true that the Constitution used to define Congress’s powers narrowly. That all changed, however, with the Fourteenth Amendment. The Fourteenth Amendment reads, in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Now, what does that all mean?  Nobody knows!  These words are almost totally opaque.  Clearly the states are prohibited from doing… something.  From doing things that are … well, things that are fundamentally bad.  That’s about as close to the meaning of the Fourteenth Amendment as one can reasonably hope to get.

In its the very opacity, the Fourteenth Amendment sweeps aside the system of limited and enumerated powers created by the Founders.  For the Fourteenth Amendment also gives Congress the power to enforce its provisions by “appropriate legislation.” In other words, Congress gets to stop the states from doing anything that’s fundamentally bad. What’s fundamentally bad? Well, that can only be for Congress to decide, since it’s the only branch of government expressly empowered to enforce the Amendment. Thus, Congress might prohibit the States from discriminating on the basis of race. It might also prevent the States from denying access to free health care, or refusing to advance the progress of minority groups by affirmative action. So long as Congress deems a policy to be a fundamental right, it can force the States to uphold it.

In the words of Justice Miller, author of the widely loathed majority opinion in the Slaughter-House Cases (1873), the Fourteenth Amendment, read literally, would

transfer the security and protection of all the civil rights which we have mentioned [i.e., all fundamental rights] from the States to the Federal government. . . .  [The literal Fourteenth Amendment] would constitute this court a perpetual censor upon the legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights ...

Recoiling from the revolutionary consequences of the Fourteenth Amendment, Miller strove, heroically but ultimately unsuccessfully, to strangle the Fourteenth Amendment in its cradle. Gutzman reviles the “incorporation doctrine” whereby provisions of the Bill of Rights are enforced against the States. He should count himself lucky. In its original meaning, the Fourteenth Amendment enforces all fundamental rights against the states, whether embodied in the Bill of Rights or not. The Amendment gives Congress and the Federal government virtually unfettered power to rule over the States.

I wish it weren’t so. I wish Gutzman were right that the Constitution vindicated limited government. But it doesn’t. If we want to actually acquire limited government, a good first step is to be honest about this.

I have a simple argument against white racism—not mine, actually, but H.L. Mencken’s. Suppose the Anglo-Americans really were wiped off their ice field. Well, then, nothing would actually be lost that is worth preserving in the first place. Mencken gives the reasons in his book Prejudices, which I excerpt here and adulterate with my own commentary.

Mencken wrote this before the Anglo-Americans started taking credit for having liberated the whole world from tyranny once (from fascism), twice (from communism), a hundred times over. Who but an Anglo-American could have written, say, George Bush’s Second Inaugural Address? The Anglo-American’s vainglory leads even today to the most absurd and appalling follies. So upsetting does he find the idea that his is not obviously the best way of life that he has embraced a foreign policy literally devoted to making other ways impossible. It is absolutely no surprise that the party of the Anglo-Americans—the GOP—is also the party that most ardently supports a foreign policy in all dimensions daft.

Today, of course, the exotic exception is the eminent scientist, artist or scholar—not to mention merely the eminent lawyer or businessman—who actually is an Anglo.  Anglo-Americans still might be a bare plurality in Congress, but even that, as Mencken wrote, is illusory. They contribute almost nothing today to this nation’s accomplishments.

Here Mencken at first seems less clairvoyant. We no longer have Prohibition or a KKK (except as a joke), and, for the most part, the Anglo-American parts of the country do seem like the more civilized places to live. Or do they? Take a look at the civilization that the Anglo-Americans have actually built and ask yourself honestly if it even deserves that lofty title. The Anglo-Americans have made perhaps the single ugliest “civilization” in human history. This is nation of connector roads, theme restaurants, strip malls, and houses built on top of and sometimes in back of three-car garages. Merely to look at an Anglo-American, with his obesity and utter lack of sartorial propriety, is enough to turn one into misanthrope. All this before we even get to the Anglo-American’s music and the arts…  I’ve heard that the white racist movement is dominated by frat boys with a fondness for 1980s heavy metal. And these are the people that we want to preserve!?!
As for Fundamentalism of the Scofield bible variety, I dispute that it even exists any more, even among Anglo-Americans.  On the contrary, what the Anglo-Americans have now is far worse. Fundamentalism at least implies some kind of deep immersion in scripture—in the King James translation no less. Today, Anglo-American religion is dominated by light-and-magic mega-churches preaching a vacuous gospel of self-help.  The mainline protestant alternatives offer nothing but the most smug self-congratulation and wretched sentimentality.  In either case, Anglo-American ignorance in religious matters has become almost total.

Mencken goes on to adduce the evidence:  The American empire was “built up primarily by swindling and butchering unarmed savages, and after that by robbing weak and friendless nations.”  In the revolutionary war of 1812, “the Americans had enormous and obvious advantages, in terrain, in allies and in men; nevertheless, they fought, in the main, very badly, and from the first shot to the last a majority of them stood in favor of making peace on almost any terms.” The Mexican and Spanish wars are “too obscenely ungallant to be discussed at all.” As for the Great War, “the entire country went wild with fear of any enemy who, without the aid of divine intervention obviously could not strike it a blow at all.”

The Anglo-Saxon is no less astoundingly susceptible today to fears and alarms than Mencken observed in the 1920s. Anglo-Americans found nothing more entertaining during the Cold War than an irrational fear of Communism. When that ended, it took them no time at all to replace it with the “war on terror.”  Why, after 9/11, the Anglo-Saxon’s congenital paranoia inspired him to invade a country that had not even attacked his.  One starts to wonder whether the world might just be better off without Albion.

Mencken, a Nietzschean, might have added that every ethno-nationalism is born of ressentiment. It takes a grievance to make a people. Now that America has become a multicultural society, white racists have discovered their inner victim. But in truth the most pitiful thing in the world is an aggrieved Anglo-American.  By all means—let’s do close the borders. We certainly don’t want to give the Anglo-Americans any more reason to complain.

Has Franz Rosenzweig’s time come? Beats me. Let’s start with: who the hell was Franz Rosenzweig? Like many, I would never have heard of him had it not been for sometime Takimag contributor David P. Goldman, who for the past decade has been putting events in world-historic perspective under the pseudonym “Spengler” at the Asia Times Online. (Goldman recently revealed some interesting autobiography here.)  With impressive, almost demoralizing confidence, Spenger/Goldman asserts a number scandalous theses, all of which he claims to have learned or derived from the early 20th century philosopher and theologian Rosenzweig:

1. Anti-semitism exists because the gentiles naturally envy the Jews’ exemption from the rule that all tribes eventually die out.

2.   Christianity prevailed because its message of universal salvation assuaged the gentiles’ fear of tribal extinction.

3.   Christianity needs the Jews, because they stand as a living proof of divine favor; without that proof, Christianity could not offer the gentiles any hope of immortality.

4. When Christianity recedes, the gentiles’ Jew-hatred returns, often with calamitous results (e.g., the holocaust).

5. Europe is literally dying—that is, failing to go through the trouble of reproducing—because both ethnocentricism and Christianity have been discredited, which leaves Eurpeans nothing but to accept the ultimate fate of all gentile tribes (i.e., extinction).

6. Islam is a cover for pure racism and barbarism, against which Judaism and Christianity are necessarily at war.

The Spenglerian theses are on one level wonderfully explanatory. Europaean population decline, American pre-eminence, Muslim fanaticism, the “new” Anti-Semitism, even the current economic depression all fit into Goldman’s theories. As his pseudonym suggests, Goldman accounts for pretty much every past development as well, from the triumph of Christianity to the rise of nationalism. The whole performance can be quite diverting.

At the same, it’s hard not to suspect that Goldman is peddling moonshine. I herd my wife and kids to church on Sundays, sit through the sermon and find an excuse to skip coffee hour all because .... I am rebelling against the “incurable necrosis” of the Anglo-Saxons? 

So far in my introspections I haven’t uncovered evidence of that. Nor do I know many Christians of whom it can plausibly be said that deep in their souls they are seeking some simulacrum of Jewish survival. Further, while individuals fear death in a fairly straightforward way, only in a metaphorical sense does fear of death grip whole peoples.

Goldman’s willingness to consider tribal loyalty as a factor in history is refreshing, but fear of tribal extinction is an unlikely candidate as the hidden spring of all human action. As for population decline, birthrates aren’t just declining in post-Christian Europe. What reason do the Koreans have for accepting tribal extinction as their fate? Finally, Spengler ignores the more straightforward explanations of Muslim fanaticism, such as that they don’t like seeing their lands occupied by Westerners. (In fairness, Goldman has recently urged a sensible policy of leaving the Muslims alone.)

Back to Rosenzweig.  As noted, Goldman does not claim originality, but says that most of his ideas come from Rosenzweig, to whom Spengler pays frequent, almost fulsome tribute. Just how profound was this man Rosenzweig?  I picked up a copy of his magnum opus, The Star of Redemption, to find out (or, to be precise, the William Hallo translation that Goldman recommends).

It is immediately apparent that Rosenzweig does not practice what in some English-speaking philosophy departments is churlishly called “real” philosophy. Briefly, there are two contrasting styles of doing philosophy. One—called “analytic” and generally carried out in English—values precision, clarity, and valid argument. The other—called “continental” and generally carried out in French or German—values charisma and oracular utterance.  Not surprisingly, continental philosophy thrives mostly in English departments, while analytic philosophy self-consciously subordinates itself to the physical sciences and mathematics. The distinction doesn’t fit all cases—Nietzsche, a continental, could be quite rigorous, while Wittgenstein, an analytic, was notoriously obscure—but still holds up fairly well.  If you seek understanding, you read the analytics; if it’s prophecy you’re looking for, you read the continentals.

Rosenzweig’s style is continental. Consider the following passage:

Or this one, which goes so far as to introduce mathematical symbols:

Und so weiter. Can we now derive proofs about divine freedom using the symbol “A=”? Writing of this kind has its defenders, who take pains to extract something from it that is both intelligible and reasonably compelling.  Myself, I plead philistine indifference.

I consider only the political implications of Star, of which, surprisingly enough, I find very few. The Spenglerian theses in particular seem more like a creative gloss or “misprision” of Rosenzweig than an accurate restatement of his views.  For all Spengler’s obeisance to Rosenzweig, I suspect that Goldman came up with his stuff on his own.

To be sure, one can certainly find the passages that inspired Spengler. The Jews, writes Rosenzweig, are the “eternal people” or simply “the people,” as opposed to other peoples, who are only “the peoples of the earth.” Jews are a pure “blood community,” while other peoples “sink their roots into the night of earth,” that is, they identify with a specific piece of land, from which they must ultimately be expelled.  The gentile peoples, unlike the “eternal people,” believe that “death [that is, tribal death, as opposed to individual death], even although it be at a very distant juncture, must come eventually.” Gentiles have suffered “inner conflict ever since Christianity with its super-national power came upon them.” The Christian church counterattacked “the pagan idea [surviving] in the form of memory,” but eventually Christian unity was “sundered at every point” by “pagan figures come back to life,” including in the form of “nations” and “states.” The gentiles’ various secular states, which “emerged as rebels” against the Church, created a “sham” sense of eternity.  To reestablish a unified Christianity, the church needs the Jews as an actual and not merely “idealized” promise of immortality. Jew-hatred for the Christian is then really self-hatred.

Isolating these passages—scattered across the last 150 pages—in this way gives a very misleading picture of Star. Unlike Spengler, Rosenzweig does not seem particularly interested in the rise and fall of peoples. Rosenzweig apparently wrote Star on postcards while serving in the German army in WWI. It shows, for the book consists of several hundred more-or-less independent meditations, each coming under a separate rubric (“Love,” “China,” “Miracle,” Shame, “Commandment and Freedom” “The Oecumene,” “The Grammar of Eros”) and each just a few hundred words each.  Rosenzweig finally arranged his meditations in three parts of three books each, so that the whole book resembles the overlapping triangles of the eponymous Star of David. About a dozen of Rosenzweig’s meditations could be turned into gripping underground-style pamphlet proving that all history consists of the rise and fall of tribes striving to match the survival of the Jews. That is essentially what Spengler has done in his columns.

But the pamphlet wouldn’t be Rosenzweig. Of the hundreds of meditations in Star, few have anything to do with geopolitics.  The range of topics is encyclopedic.  Here a history of how miracle reports were turned from a proof to an embarrassment for religion; here is a critique of the modernist Protestant theologian Friedrich Schleiermacher; here an analogy between art and revelation; here is a defense of Goethe’s claim to be the only Christian of his age. At the same time, the point of Star isn’t hard to discern: The world can’t be adequately comprehended à la Hegel in a single philosophical system; on the contrary, one needs revelation; specifically, Jews need Judaism and the gentiles need Christianity. Rather like Pascal’s Pensees or Wittgenstein’s Philosophical Investigations, the argument of Star emerges from the fragments.

In short, Rosenzweig wants to vindicate orthodox Jewish and Catholic religions against German idealistic philosophy. While Spengler broadly equates “paganism” with tribalism, but Rosenzweig’s understanding of “paganism” is even broader. In Star, Rosenzweig is apt to call “pagan” anything that threatens Christainity unity, including not just tribes and nations (Spengler’s hobbyhorses) but states, artists, and individualists. Spengler takes the meditations on the “peoples of the world” as more or less literal interpretations of history, but they are probably best understood as illustrations of how religion, says Rosenzweig, captures some things that Hegel can’t.  

Spengler’s discussion of Rosenzweig’s distinction between “Petrine,” “Pauline” and “Johannine” Christianity similarly misses the point. Spengler takes these as literal references to Catholicism (the church of Peter), Protestantism (the church of Paul), and Orthodoxy (the church of John).  As Rosenzweig uses these terms, however, they have only rough temporal and geographic correspondences. They can refer to Catholic, Protestant and Orthodox or South, North and East, but also to works, faith and hope or Christianity conquering the world, struggling against disunity, and finally achieving redemption. The Petrine/Pauline/Johannine distinction doesn’t explain history but rather illustrates moments in the Christian life. As the title of the book might suggest, Rosenzweig is talking more about redemption than actual events. 

In the end, even to the casual reader it is clear that Rosenzweig was not, as Spengler contends, the major thinker of the 20th century. In Star, he wrote an apology for religion directed almost exclusively at the philosophical school that (somewhat regrettably) he took to be dominant—Hegelianism. Rosenzweig certainly makes interesting reading, and Star is full of arresting passages, but one can just as certainly get by without him.

On Wednesday, Taki’s Magazine ran a series of articles from “National Disgrace Online,” a satirical counterpart to National Review Online. An amusing conceit—but the critique underlying the satire falls short. 

Take the mock letter to President Obama by “Jonah Goldberg.” The letter—which is consistent with Paul Gottfried’s theories of mainstream movement perfidy—ridicules NR for things that either are not ridiculous or that do not characterize the institution.

First, faux-Goldberg says that NR has proclaimed Martin Luther King a “conservative thinker” and a “conservative Christian theologian.” The NRO article cited as evidence, however, expressly notes King’s unconservative championing the welfare state and even alludes (gratuitously) to King’s adultery and plagiarism. The article does not claim that King was a conservative but rather attempts to argue, narrowly, for some conservative aspects of King’s thought. One may disagree with the article’s interpretation of MLK, or even dispute that the aspects of King’s thought that the author takes as “conservative”—e.g., invocation of the Western the natural law tradition—are so. The “conservative” defense of King is any case benign. Once a figure ascends into the pantheon, all movements from time to time will try to claim aspects of his legacy as their own.  NR has no more betrayed conservatism by discovering reasons to praise Martin Luther King than liberals have betrayed liberalism by discovering reasons to praise Barry Goldwater or Ronald Reagan.

Second, faux-Goldberg offers to sacrifice any principle for the sake of NR‘s favored foreign policy. NR is indeed deeply committed to an aggressive foreign policy, which doubtless accounts for its softness on, say, George W. Bush. To belabor the obvious, however, that does not make NRniks sell-outs. They really do believe simultaneously in, say, abolishing affirmative action and occupying Iraq. There is no contradiction between these policies; one may support one or the other, both, or neither. That NR may adopt a foolish position in one area does not invalidate its positions in other areas. Every man, and every magazine, has a right to have its beliefs judged one at a time.

Third, faux-Goldberg says NR welcomes indiscriminate violence in the service of democratic revolution—njust as it allegedly defends the fire-bombing of Tokyo and Dresden and admires Leon Trotsky.  But NR does not officially defend Allied atocities in WWII. Ramesh Ponnuru, for instance, has expressed his sympathy with the moral objections to Allied fire-bombings. To be sure, NRO published one egregious defense of Trotsky back in 2003. But, amusing as it is to link NR and Trotsky, there is simply no evidence that Trotsky—a communist—retains any hold over the imagination of the NRniks. When Trotsky’s name comes up at NRO, it is usually only as a punchline. The notorious Stephen Swartz piece is best viewed as a deliberate taunt directed at NR‘s critics.  In the context of the time—when debate over America’s war of choice in Iraq was in high season—the taunt was juvenile. Alas, I suspect NRniks are still yucking it up over how their critics, six years later, are still obsessing over NR‘s alleged Trotskyism.

As for violent revolution itself, there will always be some people (perhaps all of us at some point) who delight in destruction and the aesthetics of violence. Doubtless they include some who yearn for more American wars. Nonetheless, I fear that the truth is far more boring than that NR has adopted an evil and nihilistic ideology.  After 9/11, NR‘s editors, like so many other Americans, understandably wanted revenge on “them” or “the enemy.” Alas, the enemy wasn’t easily identified.  Lacking an obvious target for their wrath, they falsely attributed the 9/11 attacks to an entire civilization, and went on to conclude that the civilization as a whole must be punished (or “reformed”). Since then, NR been frantically trying to shore up its credibility. Dreams of global democratic revolution were in any case not the cause of their foreign policy views, and certainly did not stem from a close study of The Closing of the American Mind. Ordinary cognitive deficiencies and biases explain a lot more about NR‘s behavior than some hermetic ideology.

Neither Podhoretz, Hanson nor their comrades cite any evidence for the claim that the poverty-causes-terrorism theory is widely influential.  Nor could they find much if they looked. When I googled “poverty terrorism,” nine out of top ten hits expressly deny that poverty causes terrorism.  The one that doesn’t is a BBC report on self-serving “world leaders” demanding more assistance from rich Western countries.  If anything is an academic or intellectual commonplace, it is to observe that the 9/11 attackers (to say nothing of bin Laden himself) came from affluent families.  The claim that poverty causes terrorism comes up, if at all, only for ridicule.  

Why then have Bush supporters carried on as if by denying that poverty causes terrorism they have decisively refuted their opponents?  Podhoretz, Hanson, et al. are not stupid. Nor would I say they are dishonest. “The opponent has always to be explained,” wrote Walter Lippmann, “and the last explanation that we ever look for is that he sees a different set of facts.” What facts do Bush’s supporters see that make them fret over the poverty-causes-terrorism bugaboo? 

I think the answer is this: In the Israeli-Palestinian conflict, the theme of Palestinian suffering is omnipresent. Some say that if you address the Palestinian’s grievances, you will remove their inducements to terrorism; others that the Palestinians need to solve their own problems and accept Israel’s right to exist.  In the meantime, say the latter, Israel has the right to do what it takes to defend itself. 

Remember that Bush’s defenders see all Muslim terrorism as essentially the same.  Whatever the differences among Hamas, Hezbollah, al Qaeda or the myriad other Muslim terrorist organizations, they all share the same nihilistic hatred for freedom and civilization.  Thus, when somebody argues that Israel can reduce the threat of terrorism by relieving the desperation of the Palestinians, Bush’s defenders do not just hear an argument about the Israeli-Palestinian conflict.  Rather, they hear a claim about the nature of all Muslim terrorism—including that aimed at Americans.  Hence, they experience themselves as having refuted a core assumption of Bush’s opponents when they deny that poverty causes terrorism,

On its own terms, this view of “standard academic and intellectual discourse” makes perfect sense. Bush’s defenders have generally not acknowledged those scholars—such as Robert Pape—who see the each suicide terrorist movement as motivated by a distinct dispute over the control of land.  Instead, they assume that all terrorism has the same cause, namely, a malevolent ideology.  As the congruence of all Muslim terrorism seems obvious to them, they assume it is equally obvious to their opponents. They conclude that all that have to do to win the debate is to identify the correct global cause of terrorism.  Their peculiar framework, in short, blinds them to the reality that the claim that poverty causes terrorism just isn’t very influential.

Comic libertarianism assures us that the future is bright.  Accelerating technological advancement is making more wealth available to more people than ever before.  The capitalist system—even in impure form— has unleashed the human capacity for innovation. Goods traverse the globe at miraculous speeds. Whatever the problems we face today, the doomsayers will be proven wrong yet again. We will more prosperous forty years hence than we can even imagine today.

Comic libertarianism has a rich tradition. Julian Simon and George Gilder are recent comic libertarians. Steve Moore 2000 book, It’s Getting Better All the Time—restated comic libertarianism in unalloyed form. Comic libterarianism may be in retreat today but it will surely come back.

The converse is tragic libertarianism. Tragic libertarians look fondly at the past (typically, the allegedly laissez-faire system of the 19th century) and disgustedly at the present. Dismissing recent gains in wealth as illusory, they thunder against our current system’s entrenched bureaucracies, rent-seeking special interests, the spendthrift politicians and counter-productive regulations. Fundamentally, they view the capitalist system as a delicate instrument (Murray Rothbard and Ludwig von Mises theorized about the “evenly rotating economy”) now being wrecked. We will be no wealthier in forty years, say the tragic libertarians, than we are now. We may even be further on the road to serfdom.

Tragic libertarianism also has a rich tradition. In her vast novel Atlas Shrugged, Ayn Rand worked out the assumptions of tragic libertarianism in fictional form. Murray Rothbard and von Mises were likewise tragic libertarians. With the financial crisis and the economic depression, tragic libertarians are now gloating.

Most libertarians have both tragic and comic moods. In times of prosperity, they exalt the capitalist system that has created so much wealth for so many. In dire times (such as today), they tell us that the chickens are coming home to roost. It is certainly possible, of course, that capitalism worked up to a certain point but that government interference is finally strangling it. In this view, the comic mood may have been appropriate in the past, while the tragic mood is appropriate today.

Surprisingly, however, very few libertarians have asked if and when the dirgiste system will actually fail. The greatest libertarians have tried, such as as Hayek did in Road to Serfdom and Schumpeter in his astonishing Capitalism, Socialism and Democracy.  For the most part, however, when the times change, libertarians don’t have an answer to the question: why now? Instead, they react to circumstances as the mood dictates.

President Bush recently had perhaps his last sit-down as president with friendly movement conservative journalists (see accounts here and here) Nothing said then or in reaction since will change anyone’s mind about the man (my own included).  Nonetheless, the session is remarkable, for a number of reasons.

First, Bush admits that he called the meeting in order to start building a case for his legacy. Announcing that he is already thinking about his memoirs, Bush states: “It is impossible to have an objective history of this administration written at this point in time. I do think it is worthwhile for me, however, to visit with people, to begin to get a proper perspective laid out.”  In other words, the President of the United States is spending his time coaxing journalists and intellectuals to write favorably about him in the future. The very purpose of the meeting was self-aggrandizement. 
 
A cynic would say it was ever thus. What president has not sought the favor of wordsmiths? At least past presidents sought to conceal their ambition.  Clinton was ridiculed for so transparently questing for a legacy. Bush now openly confesses the same ambition and his grossest admirers find nothing irregular in it. It has become not only permissible but the duty of a president to defend his “legacy”. 

Second, the session confirms the obvious: namely, that Bush relies on surrogates in the conservative movement to amplify his message.  To critics who accuse them of shilling for Bush and the Republican Party, mainstream movement conservatives retort that they have opposed Bush often and fiercely.  It’s true: movement conservatives helped defeat such Bush desiderata as the Harriet Meiers appointment and passage of the McCain-Kennedy amnesty bill. Yet Bush still entrusts the defense of his legacy to movement conservatives. Why?  It is a matter of priorities: Both Bush and the orthodox conservative movement have staked their reputations on the invasion and occupation of Iraq. The Iraq war has become (or was) the Dreyfus case of our time, warping every other debate. 

Third, Bush himself does not seem to have a rationale for his own most costly policy, namely, the occupation of Iraq. Acknowledging the difficulties of convincing Americans to support the occupation, Bush states that the “real challenge was to connect Iraq with our security. The most effective way to do so was to remind them that al-Qaeda had said, ‘This is the front line in the War on Terror.’” In other words, as Bush tells those gathered, he has a favorite talking point for shoring up support for the occupation. That the talking point does not make very much sense does not seem to matter. (Is it not in the nature of a real “front line” that it does not need to be pointed out demonstratively?)  Bush likes the talking point because it seems to make sense of the occupation, even though the way in which it actually does so is far from clear. 

Meanwhile, the justification for the occupation that Bush adheres to in his own mind is, to put it plainly, preposterous. He states: “Success in Iraq . . . serves as an example to people wondering whether democracy can work.” And: “You can marginalize [the enemy] by affecting potential recruits with a more hopeful society.” In short, a successful occupation will undermine the popularity of al-Qaeda’s ideology.  We are occupying an entire country just to try to prove a point. It is said that war is unpredictable and a blunt instrument of policy. Yet Bush thinks the best way to manipulate public opinion in the Muslim world (a dubious goal in the first place) is to invade and occupy a foreign country. Perhaps no other military venture in history has had so peculiar a logic behind it.

Finally, Bush’s celebrated idealism—a president, he says, should “never substitute pragmatism for an idealistic vision”—really is unprecedented. The standard critique of idealists is that they are heedless of the actual consequences of their actions.  As Weber put it, “If an action of good intent leads to bad results, then, in the actor’s eyes, not he but the world, or the stupidity of other men, or God’s will who made them thus, is responsible for the evil.” Hence, idealists to this day accept no blame for the horrors of revolutionary socialism, for their intention were always noble. Likewise, Bush will never accept blame for the bloodbath caused by the invasion if Iraq. On the contrary! Weber observed that the idealist invariably becomes a “chiliastic prophet”—that is, when confronted with the evil consequences of his actions, he rationalizes them by saying that eventually all evils will be vanquished. Thus, Bush apologist Jay Nordlinger quotes with approbation the defender of the occupation who says, “It’s more true that we’ve had five years of learning in Iraq than that we’ve had five years of failure.” Five years of biblical-scale horrors—justified because we are doing the Lord’s work of replacing tyranny with liberty.

Yet Bush takes the idealist’s mentality even further. His second inaugural address, he says, was one of the “big moments” of his presidency. Though it had been “a tough four years, I didn’t shy away from what I did during those four years. I didn’t try to sugarcoat [sic] my decisions. I defended them.” He proudly relates how he rejected a Republican leader’s advice that he pull out of Iraq. “I understand that success in Iraq is necessary for the long-term security of America, and therefore I will make decisions based upon victory in Iraq, not victory in the polls.” In sum, says Bush, “I’m comfortable that I have made principled decisions for eight years.”

Bush’s admirers credit him with political courage on par with Lincoln’s. Lincoln, of course, hated the “terrible war” that he felt his duty to wage. “Fondly do we hope,” Lincoln intoned, “fervently do we pray, that this mighty scourge of war may speedily pass away.” Does Bush similarly hate the evils that his policies have caused? It may seem strange that any man should dare to ask the question. Yet according to Bush, the purest test of a leader is the ability to remain an idealist in the face of every calamity.  Without the evils that his policies have caused, therefore, Bush could never have made the principled stands that he himself regards as the “big moments” of his presidency. Bush’s idealism, in short, means that he’s not just indifferent to the evil consequences of his actions but positively welcomes them as proofs of his commitment to idealism. In Bush’s mind, the our very failures in Iraq have shown how he has gloriously withstood the test of leadership. For all that other presidents have also claimed the mantle of righteousness, an idealism as fanatical as Bush’s has never been seen before.

Let us hope that it is never seen again.

In honor of the 2008-09 North American ski season, I give you the following rant.

As of March 18, 2008, Taos Ski Valley in New Mexico, Alta and Deer Valley in Utah, and Mad River Glen in Vermont were the last skiers-only resorts in North America. The next day, Taos Ski Valley opened up its slopes to snowboarders. Now only three resorts free of snowboards remain. 

The fall of Taos—as alarming to North American skiers as the fall of the Bastille to the ancien regime—typifies everything obnoxious in American life today: the sacrificing of the will of the majority to the complaints of the obstreperous few, the cloaking of every cause in the phony garb of victimhood, the wanton destruction of the traditions that make life worthwhile, the relentless homogenization of the cultural landscape in the name of “diversity.”  Even non-skiers may take it as a warning.

To review, skiers get down the mountain on two planks facing downhill.  Snowboarders get down on a single board facing sideways. The difference means nothing to snowboarders but everything to skiers.

First, while skis make a euphonious swishhhh, snowboards pollute the atmosphere with a cacophonous crrrrunch!

Second, snowboarders make wider turns than skiers, thereby leaving less room on the slope for others.

Third, while skiers face downhill, snowboarders make half their turns blind, forcing everyone on the slope to get of their way to avoid getting hit.  A trial lawyer in Colorado once told me that he makes all of his money litigating injuries from snowboard-skier collisions. 

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Fourth, while skiers rest standing up, snowboarders plop their bottoms on the ground every time they need to catch their breath.  Clusters of snowboarders now obstruct almost every slope in North America.  Indeed, snowboarders have cultivated whole ethos of loafing.  A pack of them can be found menacing passers-by at the base of almost every resort in America.

The foregoing harms are ultimately forgivable What makes snowboards truly intolerable is that they destroy great snow conditions.  While skiers carve turns, snowboarders (even the best of them) plow.  Groomed trails turn to ice under the snowboards’ punishment.  Worse, fresh powder disappears the instant the first snowboarder slides his way down the mountain.

Fresh powder!  One day of powder skiing—nay, one run of powder skiing—makes up for years of inflated lift ticket prices and disappointing weather.  In the past, almost all North American resorts had powder days. No longer. With grooming, high speed lifts and slope-side development to lure more and more skiers onto the slopes, new snow these days gets packed down or skied out within minutes.

Until recently, only three resorts in North America still gave you a fighting chance of finding untracked snow: Alta, Mad River Glen, and Taos.  Each limits the number of skiers on the mountain at any one time.  Alta—William F. Buckley Jr.‘s favorite American resort—gets so much snowfall that to prevent avalanches it has to fire canons for days before opening its terrain.  As soon as they stop firing, almost every skier can hike or traverse to an untracked run. 

The only way to get to the top of Mad River Glen in Vermont is via a 1948 diesel-powered single chair lift.  Riding it is the skiing equivalent of driving a Model T.  Meanwhile, Mad River barely grooms its trails and keeps them only about as wide as a closet. While novices go to Killington or Stowe, experienced skiers can thread through the woods at Mad River and find untracked runs for days after a snowfall. 

Then there’s Taos. Owned by the Blake family since 1955, Taos operates under an agreement with the United States Forest Service that caps the number of ticket-holders who can ski each day. Until recently, the agreement dampened Taos’s enthusiasm for development. To this day, you can’t get to the top of the mountain with a lift; instead, you have to hike. My wife and I once took four hours hiking to the top with reluctant friends of ours from Nebraska. It was one of the best days skiing of our lives, even if our Nebraskans might not agree. Above the ski lifts, Taos features some of the finest drops to be found anywhere in the world.

In sum, up until March, skiers in North America had three resorts where they could find great conditions.  (Deer Valley, which also bans snowboards, grooms its trails relentlessly and has therefore never really counted as a great ski resort).  Snowboarders, meanwhile, had already overrun almost 500 North American resorts, where their very presence now makes great skiing impossible. 

You would think that they would be content to leave Taos alone.  But you would be wrong. Instead, snowboarders did what all aggrieved groups do these days:  They formed a pressure group! “Free Taos” they called it, by which they really meant that snowboarders were unfree because not allowed at Taos.  They accused Taos of perpetrating a grave injustice against snowboarders—all of whom, like skiers, hail from the whitest, most privileged backgrounds imaginable.  Open your minds!  Equal rights!  Sign the petition!  Down with elitism! Winter sports diversity!  No slogan was too rebarbative for the Free Taos movement.  I once read a sports columnist liken, with a straight face, Taos’s policy of banning snowboarders to the African slave trade.

We cannot know what went on in the board meeting where the corporation decided to turn against its most loyal customers.  Some speculate that the younger scions of the Blake family want to turn Taos into an insipid profit center like Vail in Colorado. Given Forest Service restrictions, however, it is unclear how Taos can ever make much money.  All it had to offer was great skiing and eccentric local tradition. It is far from clear that Taos will make more money abandoning its market niche and instead offering what one can find at every other resort in America already. The Taos that generations of skiers loved is now gone—sacrificed, like everything else that is charming and worth preserving in America, to the demands of the impudent few.

Even if you care nothing for skiing, be forewarned: Eventually, the vandals will overrun even the most beloved and stalwart institutions. 

Mathematically, your vote only makes a difference if an election is either tied or decided by one vote.  If the winning margin turns out to be any greater, the results would have been the same had you not voted at all or voted for the other candidate.  The odds of even the pettiest local race being decided by one vote are vanishingly small.  In a presidential election, they are infinitesimal.  No matter how grave the importance of a particular election, you can depend upon it that your vote will not affect the outcome. 

Now, some argue that it makes sense to vote even despite the slim probability that your vote will make a difference.  Suppose, as seems about right (depending on what state you live in), your vote has only one chance in a billion of deciding a presidential election.  Nevertheless, candidate A’s policies will make everyone in the world on average $1 (or 1 happiness unit) better off.  Multiply that by the world’s 5 billion people, and candidate A will make the world $5 billion better off.  Under these assumptions, your vote has an expected value of $5 (or $5 billion multiplied by one over a billion).  If you can add $5 of wealth to the world at little cost to you, you should do it.  Therefore, perhaps you should vote after all.

The foregoing line of reasoning, however, is misleading.  It makes a number of assumptions that do not hold up. 

First, it assumes that with sufficient information you can predict with reasonable certainty which candidate will do the most good (or the least harm).  But politicians often defy expectations.  Everyone thought Ronald Reagan was a Cold War hawk, for example, but in his second term he negotiated arms reductions with the Soviets and an end to the Cold War.  If you wanted a more hawkish Cold War policy, Mondale may in retrospect have been the better choice.

In other cases, politicians’ policies change in respond to unforeseen events.  In 2000, George Bush not only promised a “humble” foreign policy but chose advisors—Cheney, Rice and Powell—known at the time for their prudence and moderation.  9/11, as everyone knows, changed all that. If you wanted a more “conservative” approach to foreign policy after 9/11 (“conservative” here being used in its ordinary, lexical sense), Al Gore was in retrospect the better choice. 

Further, even if you can predict what policies a candidate will adopt, you still can’t predict the course of events. Suppose candidate A has better policies on 99 out of 100 issues. Candidate B, by contrast, is right on only a single issue—but that issue ends up dwarfing all others in importance. Given the uncertainty of future events, deciding which candidate will outperform the other is largely a matter of arbitrary guesswork.

Second, gathering the information necessary to cast a vote wisely takes far too much time and effort to justify. A voter hoping to make the right choice needs accurate information about (inter alia) the candidates’ platforms, temperaments, advisors, management styles and political effectiveness. Almost nobody, not even the most informed, actually collects all this information.Voters have good reason to be ignorant of political affairs.  The cost of becoming sufficiently informed to vote wisely is enormous. Given the many better ways to spend one’s time, voters should probably not bother to follow politics at all and neglect to vote altogether.

Third, evaluating political information correctly requires superhuman mental ability.  Suppose, for example, you have all of the information out there about a particular candidate’s tax policies. To tell whether those policies are sound, you now need to figure out what the actual consequences of those policies are likely to be. But even economists who study tax policy for a living cannot agree on the effects of competing policies.  Indeed, in every election, some scholars will line up behind one candidate and other scholars behind the other. Nobody on earth has enough cognitive resources to competently evaluate the full range of competing policies offered by any two candidates.

Finally, voters as a whole only decide landslide elections. Close elections, by contrast, invariably get litigated. In other words, if an election were ever close enough for an individual vote to affect the outcome, the election would not be decided by voters but by judges. In contested elections, the courts get to select the remedies they believe will achieve the best outcome. One doesn’t have to be cynic to realize that, in close elections, it almost doesn’t matter how individuals have actually voted. The government will count the votes in the way that the judges deem fit. In the end, the odds of an individual’s vote actually deciding an election the real world are not merely infinitesimal.  They are literally zero.

So there you have it:  Your vote has an expected payoff of exactly zero. Even if your vote does have a non-zero expected payoff, the costs involved in casting a vote intelligently almost certainly outweigh the benefits. Therefore, your vote will not do the world any good—or any harm for that matter. Vote if you feel like it. But treat it the same way as a decision to go fishing. Nobody thinks that you do the world a favor by going fishing for an hour. Nor do you do the world a favor by going out and voting.

The TV show Gossip Girl, now in its second season, chronicles the
“scandalous lives of Manhattan’s elite”—“elite” meaning private school kids and their families.  Replete with iphone-toting teenagers, haute couture and on-location filming, the show pretends to at least a surface verisimilitude. When it comes to underlying sociological realities, however, it offers nothing but the most fatuous distortions.

For example:

• In Gossip Girl, the obligatory fish-out-of-water character lives in a capacious Williamsburg loft with sliding industrial doors and exposed brick.  From this, we’re supposed to infer that his family not only has less money but that they’re more authentic and less status-driven that the denizens of the Upper East Side. In reality, many New Yorkers would cut out their own eyeballs to get a big Williamsburg loft. Here are some of the prices. Further, as status symbol, a Williamsburg loft arguably trumps a Park Avenue co-op. Williamsburg is where the cool white people live; only sell-outs live on the Upper East Side.

• In Gossip Girl, kids get into elite colleges by not-so-deftly signaling their membership in the good old boys network. One applicant even says to an interviewer, “Why should I get into Dartmouth? Because I’m a [impressive family name].” In reality, name-dropping in an interview is probably the one thing (other than telling a racist joke) an applicant could do to ensure that he doesn’t get admitted. Further, as colleges like to trumpet the “diversity” of their student body, an Hindu or an Eskimo has a better chance into college than a preppy with an ancient pedigree. Finally, colleges compete for do-gooders with exceptional brains. The world of Gossip Girl, where slackers and nincompoops get in through family connections, simply doesn’t exist.

• In Gossip Girl, rich kids all have names like Waldorf, Archibald, Bass and van der Woodsen. (In keeping with media’s loathing of the Texas Bass family, the villain is named “Chuck Bass.”) In reality, however, the families of the old Protestant Establishment make up only a minority of New York’s wealthy elite. They haven’t entirely disappeared; they still host their debutantes balls, the Forbes family still keeps the Social Register afloat, and a handful of institutions (mostly hidden from public view) are still controlled by WASPs. Some WASPs even have substantial fortunes. (Those fortunes, however, are rarely very old; no Knickerbocker family like “van der Woodsen” can afford New York’s social whirl.) But WASPs as a whole just don’t have the numbers, much less the will, to dominate New York society. As Louis Auchincloss gently puts it, they have “lost their monopoly.”

Instead, perhaps a plurality of the rich private school kids in Manhattan—even at historically Protestant schools—are Jewish. The Jewish Daily Forward goes so far as to report that Trinity and Dalton, two of the top private schools in New York, are “largely Jewish.” An entire media industry follows the lavish bar mitzvahs of Manhattan private school kids. The closest real-world model for the high school in Gossip Girl, The Dalton School, has historically been the most recherché school for Jewish New Yorkers. (Most WASPs prefer to send their children to the old single-sex grammar schools.) Tellingly, the media now treat Dalton as the most posh school in Manhattan.

In Gossip Girl, however, Jewish kids don’t even exist, much less predominate. Everything about Gossip Girl is modern, from the drugs to the iphones, except for the sociological background, which the writers may as well have lifted out of the Gilded Age.

• It almost goes without saying that Gossip Girls gets nothing right about WASPs. WASPs don’t flaunt their wealth; on the contrary, they cultivate their shabbiness, the better to signal to the world that they don’t need money (which they probably don’t have anyway) in order to rank socially.  To demonstrate your WASP bona fides, you drive a 1980s Buick station wagon, not a Rolls Royce.

In fairness, in mischaracterizing America’s upper class, Gossip Girl is merely following pop culture convention. Virtually every Hollywood movie and TV show, from Scent of a Woman to Family Guy, assumes that a WASP episcopacy that collapsed two generations ago still controls this country’s wealth and power. (Indeed, it is hard to think of any pop culture product that doesn’t associate wealth with WASP privilege.) I’m told even told that “chic lit” novels routinely assume that all Upper East Side socialites hail from patrician WASP families and despise anyone who doesn’t. The authors of these novels then do book signings on the Upper East Side in front of audiences that know full well that the novels bear no resemblance to the world they actually live in. 

In the end, Gossip Girl is an example of market failure. The public probably really would like to know how the rich live. WASPs, however, unlike others wealthy groups, have not formed a pressure group to punish studios that portray them unfavorably. (WASPs instead prefer to express themselves politically through benign environmental causes, with perhaps a little feminism mixed in.) Consequently, pop culture purveyors have zero tolerance for unflattering depictions of other groups, but give writers absolute license to defame WASPs.

Don’t pity the WASPs, who surely deserve their fate; pity instead the audiences who have to suffer though one hackneyed treatment of the upper class after another. Great fame and fortune awaits anyone who somehow manages to overcome this market failure. When he does, I might actually tune in and watch.

So it is with candidates and political parties. If a politician changes his marketing strategy, you don’t change your view of his underlying policies. How he goes about selling his policies to the public is a matter of indifference. Of course, you might have opinions as to what marketing strategies would be most effective.  You might even have a worldly contempt for certain if not all political brands. But in no case do you do let mere advertising cloud your judgment. 

Now, do opinion-mongers actually follow this rule? Not at all, as the Sarah Palin phenomenon proves. By unexpectedly selecting Sarah Palin as his running mate, John McCain instantly overhauled Republicans’ marketing strategy. Suddenly, the Republicans became the party of youth, reform and working class patriotism, and resourcefulness. Their underlying policies, however, remained unchanged. 

Now, it is perfectly rational to judge Republicans’ new marketing efforts qua marketing efforts.  And, of course, it is perfectly rational to assess whether Palin would actually do a good job as President. Yet many commentators offered new opinions not just of how the Palin pick affects Republican prospects, or how the nation will fare if McCain failed to finish his term as President, but also new opinions of Republicans’ policies:

• Andrew Sullivan: Republicans have embraced theonomy once and for all.

• Allan Wolfe: Republicans have subordinated their social conservatism to their libertarianism.

• Our own Helen Rittelmeyer: Republicans are favoring rural conservatism over cosmopolitan conservatism.

• For hilarity’s sake, self-help guru Deepak Chopra: Republicans have allied with the forces of evil (or what is technically known to psychologists like Deepak Chopra, M.D., as “the Shadow”). http://www.huffingtonpost.com/deepak-chopra/obama-and-the-palin-effec_b_123943.html.

• A perhaps too-obvious target named Cintra Wilson: Republicans plan to enslave the female sex.

Meanwhile, other commentators took umbrage at Republicans’ new marketing or positively identified with it. That is, they told us not just whether the marketing would be effective but also whether it conforms to their personal tastes:

• Pat Buchanan loves her for being “one of us.”

• Camille Paglia lauds her for “redefining the persona for female authority and leadership.” (To be sure, fitting celebrities into sexual archetypes is what Paglia actually does for a living.)

• Rush Limbaugh exclaims: “Babies, Guns, Jesus: Hot Damn!”

• But Clark Stooksbury makes no secret of his loathing for populist appeals..

One could go on. Even if they don’t express it, you can almost always tell how pundits feel about Palin—and they almost always feel quite strongly. (Should I confess that Sarah Palin thrilled me too—and still does, even after her disappointing Gibson interview—for she seemed to personally embody everything that is still right about this country?  Yes, for I am a sucker too.) Even the most sophisticated pundits take the parties’ marketing campaigns very personally. How they choose to sell their policies to the public goes to the heart of how political observers understand themselves and their loyalties.

Which brings me to my final point: Contrary to what I argued earlier, rational consumers do care about marketing campaigns. When we buy a product, we buy not just a thing but a statement about who we are. One man drinks scotch, another drinks bourbon. Each choice has something to do with the liquor but more to do with what the liquor says about the drinker. The scotch drinker may have aristocratic pretensions; the bourbon drinker may wish to establish his American toughness. Brands make it possible to express our personalities. 

So it is, once again, with candidates and political parties. Very few people—pundits included—follow politics because they actually care about the good of the country or the world. Rather,  they consume their political views like they do consumer products—that is to say, as expressions of who they are and the people with whom they identify. 

In a multicultural America, the two parties have only two possible marketing strategies. One is an appeal to the white majority, which the Republicans have perfected, and the other is an appeal to all those who feels alienated from the white majority, which the Democrats have adopted more or less by accident. Republican policies no more advance the interests of the white working class than Democratic policies actually help poor minorities or rich cosmopolitan whites. Everyone who hates these marketing strategies should relax. For better or worse, pending further demographic shifts, “regular Americans vs. effete elites” is the way every election will continue to be framed.