Restoration Republican Style
Copyright © 2006 by Stephen W. Potts. All rights reserved.
The American Right, in their Long March to remake the national judiciary from the Supreme Court on down and thus the national agenda, has insistently promoted the principle of “originalism” — i.e., the notion that judges should think exactly like the signers of the Constitution. Conservatives imagine, of course, that the Founders believed exactly what they believe. It is dubious, however, that anyone alive today — including a Scalia, Alito, or Clarence Thomas — thinks precisely like some eighteenth-century lawyer or plantation owner, steeped at once in English political traditions and the intellectual trends of the secular Enlightenment.
One thing rises clearly out of all the documents we have inherited from the origin of our Republic: the majority of the Founders did not envision the United States as a monarchy. During the Enlightenment, traditional institutions — from inherited autocracy to the Church — were losing power as principles like individualism, democracy, and rational thought loomed over Europe. By 1776 the English throne under the Hanovers was already largely ceremonial in the face of parliamentary governance, while the Bourbon regime in France teetered on its jambes finales. Few signers of the Constitution were interested in even a symbolic king; the Revolution was revolutionary because it proposed to eliminate from the social contract not only monarchy but the very principle of power that had justified royal rule since the Roman Empire co-opted Christianity — specifically, the so-called “divine right” of kings,” the obnoxious notion that the sovereign reigned because God himself had chosen him.
Nevertheless, there were some monarchist holdouts among the Founders. Chief among them was Alexander Hamilton. Nursing a Hobbesian distaste for democracy, Hamilton argued before the Constitutional Convention on 18 June 1787 that the new nation needed a strong executive and a Senate made up of the privileged and educated, both appointed for life, along the lines of the British king and House of Lords. The wealthy should be given “a distinct, permanent share in the government” because, since they were already rich, they could not be led astray by merely pecuniary concerns and could devote their attention to civic responsibility. Jefferson begged to differ, charging that Hamilton was “not only a monarchist, but for a monarchy bottomed on corruption.”
With its checks and balances on power, the Constitution ended up reflecting Jefferson’s ideas more than Hamilton’s, which is perhaps why Jefferson became our third president while Hamilton became Secretary of the Treasury, the position that won him face time on the ten-dollar bill. Hamilton signed the Constitution anyway, but — as one historian paraphrases him — with the hope “that in some future crisis, war, for example, this ‘frail and worthless document’… might be transformed into a powerful instrument that would help the ruling elements of the country curb the… democratic forces” (Saul K. Padover, The Mind of Alexander Hamilton, NY: Harper, 1958; 17-18).
While ours has never been a perfect democracy — it began, after all, as a slave state and is now presided over by the man who came in second — it was stumbling in the right direction in the 1960s and 70s, the final decades of the Democratic hegemony. And then came the era of Ronald Wilson Reagan, the Demiurge, whose number is 666. This editorialist has long theorized that after the triple trauma of Watergate, the ignominious end of the Vietnam War, and the economic seizure of the Arab oil embargo, America lapsed into post-traumatic stress disorder and clinical depression. The election and re-election of Der Gipper was the nation’s equivalent of climbing up a clock tower and shooting at passers-by. Only a people wallowing in dysfunctional brain processes could embrace the political philosophy advanced by Old Smoke and Mirrors and by every S & M Republican since: that all government is evil except that which concentrates power in the hands of Republican leaders and their corporate cohorts. And, by the way, that it is the sole province of our military-industrial complex to police the world. And that God himself wants it that way. It is their post-Enlightenment, millenial version of divine right.
After the GOP grabbed the reins of Congress in 1994, they squandered the remaining six years of that century trying to impeach Clinton. Since George the Clueless inherited the throne, however, they have pretty much tossed Constitutional checks and balances onto the ash heap of history, devolving into a mere Rump Parliament for their king, a decerebrated Roman Senate for their inbred Caesar. They may hold only thin majorities in both houses, far less than the Democrats enjoyed for most of their sixty years in power, but they have attempted to rule as though this were a one-party state. They listen only to Bush, who listens only to God.
Furthermore, it has not been enough to bend the legislative branch to the will and whims of their Lord. Led by the ethically challenged Tom “Pay-to-Play” DeLay and Bill Frist, congressional Republicans have demanded that the nation’s courts bow to their will — a notion they actually ascribe to constitutional originalism. In short, Congress must do whatever the President wants, and the courts whatever Congress wants. They simply bounce checks and balances.
When Samuel Alito was nominated for the Supreme Court after the misfire of Ms. Miers, conservatives everywhere championed him as the final domino of ultimate domination, the last link to their Thousand Year Reich. During the debate that preceded his confirmation, the issue that arose most often was everyone’s favorite hot button — abortion — on which Alito’s record is divided, even if his personal feelings are well known. Of greater concern for civil rights is his long line of rulings, especially on the Third Circuit Court, that pit the individual American against mammoth entities like corporations and the state. As Time observed in its 14 November 2005 issue, “Alito tends to defer to established institutions in their legal battles with individuals. That tendency, as noted by University of Chicago law professor Cass Sunstein, is most evident in Alito’s dissents and extends to police departments, prison authorities, zoning boards and especially corporations…. Alito has usually given the benefit of the doubt to the powers that be.”
It should come as no surprise that the Right embraced as an ideal justice one who gave police a pass on stripsearching a ten-year-old black girl. It is noteworthy, however, that they would celebrate someone who so exalts government power, even to granting zoning boards the right to expropriate personal property. He is definitively and firmly on the side of authority. The populist rhetoric of S & M Republicans over the last quarter century is thus exposed for what it has always been: a load of elephant dung.
In the 30 January 2006 issue of the resolutely pre-Enlightenment National Review, the editors defended both King George’s secret wiretapping of phone calls and Alito’s record, in similar terms of originalism. In seconding the White House’s claim to absolute power in time of perpetual war, they quoted a Founder who wrote, “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.” Not surprisingly, these are the words of pro-monarchist Alexander Hamilton, the signer of the Constitution who believed that war was the best method for thinning the tissue of said document. Then again, Hamilton preferred an activist court that would overrule the demagogery of a republican Congress.
The good news is that as it becomes increasingly obvious — even to the myopic White House press corps — that Emperor W. has no clothes, the case for naked power doesn’t look so good. As Sidney Blumenthal recently noted, Bush perfectly embodies the worst flaws of divine right monarchy: narcissism, arbitrariness, and a stubborn belief in one’s infallibility reinforced by asskissing retainers. Even the kingmakers of Congress have begun to challenge their Lord as the Dubai port debacle pricks their native xenophobia. As for the “originalism” of the New Right-thinking Supreme Court, the results will depend on which of the squabbling Founding Fathers each justice ends up channeling.
How about Jefferson, who stated that the tree of liberty had to be watered every generation with the blood of tyrants?