Daniel McCarthy

Why I Am a Scalia Skeptic

The Contemplation of Justice.
The Contemplation of Justice. Gary Blakeley / Shutterstock.com

Too much of movement conservatism amounts to an inverted leftism. If the left is caricatured as pacifistic, the movement right doubles down on militarism. If the left is caricatured as socialistic, the movement right doubles down on free-market ideology, which turns out only to disguise corporatism. (Laissez-faire libertarians have as many grounds for complaint here as prudential conservatives do.) Sound policy is not merely the opposite of whatever the left happens to favor.

Quite often right-wing reactions to the left start out as common-sense responses to ideological overreach by progressives. But those common-sense responses then get abstracted and expanded into pseudo-principles or polarized attitudes. Thus, while there certainly were America-haters in the Vietnam-era antiwar movement, the idea that antiwar sentiment in general is anti-American is an ideological exaggeration, one that had tremendous political potency until a Republican president’s war in Iraq caused an overwhelming realignment of public opinion. Republicans and movement conservatives who should have known better before the Iraq War—hint: they’re often the ones who decided it was a bad idea around 2006—were nonetheless so conditioned, like Pavlov’s dogs, to respond to ideological cues about anti-American antiwar sentiment that they shut down their brains and for years supported a policy that was harmful to their country as well as their party.

What was true in foreign policy—and still is, to some extent—remains true in economics, where we’ve seen a cartoon approach to smaller government and freer markets taken up by the Tea Party and some of its champions in Congress, much to the chagrin of, say, traditionalist Distributists and anti-corporatist libertarians alike. And to the chagrin as well of temperamental conservatives who these days are reviled as RINOs and moderates. Caricatures and publicity stunts prevail, and the results are Republican and movement-conservative policies that are deeply confused: Romneycare one minute; pitched resistance to Obamacare the next. Medicare Part D and the Bush deficits one minute; battles over the debt ceiling the next. The governing idea or image in the minds of movement conservatives is one in which a Republican fights the left through whatever policies he enacts, and a Democrat advances socialism through anything he does—even if the Republican and Democrat do pretty similar things. The intensity of the movement’s commitment to this false dichotomy seems almost inversely proportional to the concrete differences between GOP and Democrats. (The Iraq War, of course, was supported by Democrats as well as Republicans.)

It would be surprising if this systematic flaw in movement-conservative thinking only applied to foreign policy and economics. Might it also apply to jurisprudence? Read More…

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Antonin Scalia = Justice Cheney

New York‘s interview with Justice Scalia is drawing snark from the left (about Scalia’s belief in the devil) and no doubt nods of assent from the talk-radio right (the justice reveals his media-diet staples to be the Washington Times, Wall Street Journal, and Bill Bennett radio show). What caught my eye, however, were Scalia’s references to his Watergate-era experiences. They put me in mind of Barton Gellman’s Cheney book, Angler, which made me aware of how Congress’s reining in of Republican presidents Nixon and Ford shaped Cheney’s view (as well as Donald Rumsfeld’s) of executive power. What Scalia says sounds familiar:

It was a terrible time, not for the Republican Party, but for the presidency. It was such a wounded and enfeebled presidency, and Congress was just eating us alive. … It was a time when people were talking about “the imperial presidency.” I knew very well that the 900-pound gorilla in Washington is not the presidency. It’s Congress. If Congress can get its act together, it can roll over the president. That’s what the framers thought. They said you have to enlist your jealousy against the legislature in a ­democracy—that will be the source of tyranny.

The Framers, of course, were writing the new Constitution under a system whose existing charter, the Articles of Confederation, had hardly any executive power whatsoever. The critics of their handiwork, the anti-federalists, were greatly concerned about the tyrannical potential of the executive the proposed, but the Framers could see—as a glance at the Articles would show—that America in the 1780s wasn’t suffering from a surplus of power in the offices of a single magistrate. Have things changed at all in the ensuing 230 years? Perhaps not if your perspective is that of the Nixon White House.

Pressed to cite a heroic moment in his career—Scalia, to his credit, isn’t eager to name one—he finally cites his refusal to recuse himself from a case involving Dick Cheney’s claims of executive privilege for his energy task force. (Scalia had gone hunting with Cheney and, as CNN reported, “Scalia and Cheney also had a private dinner with Defense Secretary Donald Rumsfeld on Maryland’s Eastern Shore in November, when the Supreme Court was considering Cheney’s appeal.”)

“Most of my opinions don’t take guts,” Scalia tells New York‘s Jennifer Senior. “They take smarts. But not courage. And I was proud of that. I did the right thing and it let me in for a lot of criticism and it was the right thing to do and I was proud of that. So that’s the only heroic thing I’ve done.”

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John Locke: Liberal, Libertarian, or License to Kill?

Matt Bruenig of the liberal think tank Demos recently enlisted John Locke’s First Treatise in making the case for “freedom from want,” which provoked a combox and Twitter rejoinder from Cato’s Jason Kuznicki. Here’s the passage Bruenig quotes:

a man can no more justly make use of another’s necessity to force him to become his vassal, by with-holding that relief God requires him to afford to the wants of his brother, than he that has more strength can seize upon a weaker, master him to his obedience, and with a dagger at his throat offer him death or slavery.

Kuznicki responded by invoking the Second Treatise as a development of Locke’s thought—which Bruenig finds problematic, noting that the First Treatise was actually composed later. (A full account of how and when the two treatises were written gets complicated.) In any case, Kuznicki need not have looked so far afield, when Locke’s elaboration of his thought is to be found just one paragraph later:

Should any one make so perverse an use of God’s blessings poured on him with a liberal hand; should any one be cruel and uncharitable to that extremity; yet all this would not prove that propriety in land, even in this case, gave any authority over the persons of men, but only that compact might; since the authority of the rich proprietor, and the subjection of the needy beggar, began not from the possession of the lord, but the consent of the poor man, who preferred being his subject to starving. And the man he thus submits to, can pretend to no more power over him, than he has consented to, upon compact.

Read on and you’ll find that Locke brings this back to a refutation of those (like Filmer) who ground political authority in God’s grant of the earth to some particular lineage. What Locke is at pains to explain here is that owning land does not mean one owns the people on the land—they may not be reduced to slaves; they also may not be reduced to feudal vassals—but rather whatever legitimate governing there is must derive from the subject’s consent at some level. Read More…

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Liberty Is a Problem When You Can’t Know Who’s the Tyrant

Gene Callahan invokes John Stuart Mill to show that liberals boycotting Barilla—for its chairman’s views about homosexuals—are behaving illiberally. Mill not only favors legally free speech, but he’s sensitive (as some legalistic libertarians are not) to the illiberal power of social conformism. Interestingly, in the passage of On Liberty that Gene cites, Mill makes a rather social-democratic economic point that perhaps cuts against Gene’s position. Look again, with new emphasis added:

In respect to all persons but those whose pecuniary circumstances make them independent of the good will of other people, opinion, on this subject, is as efficacious as law; men might as well be imprisoned, as excluded from the means of earning their bread. Those whose bread is already secured, and who desire no favours from men in power, or from bodies of men, or from the public, have nothing to fear from the open avowal of any opinions, but to be ill-thought of and ill-spoken of, and this it ought not to require a very heroic mould to enable them to bear.

Is Guido Barilla—chairman of and heir to the biggest pasta brand in the U.S. and Italy—really a victim of the tyranny of opinion, with his “bread” at risk from the stigma to which he’s subject? Unless his finances are a lot less secure than his pedigree and position would suggest, he’s more likely to be one of those “whose bread is already secured” and thus “have nothing to fear from the open avowal of any opinions, but to be ill-thought of and ill-spoken of…”

But that’s really a matter of interpretation. There’s a more fundamental point that needs to be brought out here that has nothing to do with how wealthy Mr. Barilla is or isn’t. Namely, Mill takes for granted that whether one is bravely bucking public opinion or cravenly enforcing it is a clear-cut matter. It’s not, and that’s why well-meaning people will reach different conclusions about a case like Barilla’s. Read More…

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How Whit Stillman Reads a Book

The director—most recently of “Damsels in Distress”—explains in The Atlantic’s “Media Diet” feature:

You have a lot of freedom in reading a book. I’m unable, for some reason, to read books from beginning to end. I have to go to what interests me most in the book. And if I like that, I start going backwards and forwards. And it starts to become a really complicated endeavor of just reading the parts of the books once and not sort of overlapping. I don’t know why I have to sort of re-edit the books myself. I don’t know why I can’t read a prologue and read a first chapter. I mean, if I really love a book I’ll get to them too. For some reason, I usually find them deadly dull, the prologues.

Samuel Johnson also read as Stillman does—“A book may be good for nothing; or there may be only one thing in it worth knowing; are we to read it all through?”

Certainly a great many nonfiction works might well be treated as reference books—to dip into for an idea or anecdote and read only as much as one pleases. Relatively few authors are subtle enough to require a sequential reading. Think of popular music: how many albums really reward listening from start to finish? Those that do are outstanding; with most, it’s safe to skip to the best tracks. Even reasonably good nonfiction likewise tends to involve a lot of padding: superfluous detail, scene-setting formalities, diversions from the main narrative. (It’s one reason I think many books would be better as essays, and why introductions can be so enjoyable—a good essayist writing an introduction to someone else’s work can pare it down to the essence.)

There’s some irony in that Stillman’s medium of choice for his own work is conventionally thought to be unsuitable for browsing or skimming—although YouTube may be changing that. (And really, catching bits and pieces of a film on TV is much the same—the best way to watch many a movie.) Trailers may or may not hit the mark: they can be like perfunctory author prologues to written works, and not only programmatic but too direct as well.

Whether that applies to the tasters Stillman’s films, you be the judge.

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The Constitution vs. Calhoun: Why Harry Jaffa Is Still Wrong About Willmoore Kendall

Interior of the Capitol dome. gary718 / Shutterstock.com
Interior of the Capitol dome. gary718 / Shutterstock.com

Willmoore Kendall is one of the most overlooked founding fathers of the conservative movement and also one of the most interesting. He’s overlooked in part because he never wrote a “big book”—The Conservative Affirmation is a collection of essays and reviews rather than a manifesto—and in part because he doesn’t fit into any right-wing factional stereotype. He wasn’t a libertarian. He became Catholic, but his scholarly interest in American institutions set him apart from most traditionalists. He admired Leo Strauss, and also Eric Voegelin, but he was too distinctive a thinker to be subsumed into anyone else’s school. William F. Buckley Jr., Brent Bozell Jr., Garry Wills, and George Carey were all greatly influenced by him, but in idiosyncratic ways.

(Kendall edited and helped polish the first books by his Yale students Buckley and Bozell—God and Man at Yale and McCarthy and His Enemies—and Buckley’s quip that he’d rather be governed by the first 400 names in the Boston phone book than by the faculty of Harvard reflects Kendall’s thinking at least as much as Buckley’s.)

Kendall was in truth the top Americanist of the postwar conservative movement, more concerned to relate his ideas to the Constitution and the The Federalist than to, say, a wider Anglo-American Burkean tradition (as in the case of Russell Kirk) or to a modern Machiavellian outlook (in the case of James Burnham) or to an abstract set of libertarian or other principles (in the case of Frank Meyer and many natural-rights proponents). It’s perhaps ironic that Kendall’s all-American political philosophy found the fewest adherents on the late 20th-century right, but perhaps the future will be kinder to him.

Kendall is remembered most of all today by those who misunderstand him. Harry Jaffa, who propounds an Americanism very different from Kendall’s, has over the decades portrayed Kendall as a neo-Confederate. Kendall died in 1968, but Jaffa is still alive, age 94, and still misrepresenting a dead man who can’t defend himself. In his new book, Crisis of the Strauss Divided, Jaffa refers to “that old Confederate Willmoore Kendall” and claims “that Calhoun… was Kendall’s and Wills’s hero.”

You wouldn’t know it from reading Jaffa, but in The Conservative Affirmation, Kendall had explicitly written that conservatism as he understood it can “do no business with Calhoun. … Its highest political loyalty, in fine, is to the institutions and way to life bequeathed to us by the Philadelphia Convention.” Read More…

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The New Republic In-Depth Clinton Non-Story

“Scandal at Clinton Inc.” is quite a title for a story that amounts to a Bill Clinton aide taking kickbacks from shady businessmen for providing access to the former president. It doesn’t sound as if the aide in question, Doug Band, is suspected of doing anything illegal, and while he certainly comes off as, shall we say, “ethically challenged,” Alec Macgillis’s story doesn’t do much to tie Band’s mischief to former president Clinton, who’s presented as basically a victim. The Clinton who might actually be on a presidential ticket three years from now hardly figures in the story.

Am I missing something? A few throwaway lines tease more scandalous, or at least salacious, stories that Macgillis doesn’t pursue: Ron Burkle’s private plane, frequently flown by Clinton, being known by the billionaire’s employees as “Air Fuck One,” Hillary aide (and Anthony Weiner wife) Huma Abedin getting investigated by the Senate Judiciary Committee to see if her work for Band’s international consulting firm, Teneo, conflicted with her work for the State Department. (The Christian Science Monitor has reported on the Abedin story here.) Band used his influence to get an apparently inflated price from the Post Office for a parcel of land his father owned, but that detail is almost lost in the piece amid all the banal insider gossip. Band didn’t get along with Obama’s re-election people last year—so bloody what?

The big story isn’t that billionaires and corporations were buying access to Bill Clinton, but what exactly they were getting, something Macgillis shows no interest in. Instead the focus is entirely on middleman, Doug Band. He’s not the story.

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Paranoid Styles: Conservative, Libertarian, and Liberal

I was pinch hitter for Sam Tanenhaus at Cato’s panel on The United States of Paranoia earlier this week—Tanenhaus was waylaid by trouble with Amtrak, so I joined author Jesse Walker and Cato’s own Gene Healy to theorize about conspiracy theories. Here’s the video:

Jonathan Kay’s review of the book for TAC is here. The current issue also features an appreciative take on Jesse’s tome from Bill Kauffman. U.S. of P. is one of the buzz books of the season in our circles.

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Obama, Kerry, Hagel: Why Antiwar Hopefuls Make War

Obama was the anti-Bush of 2008, a peace candidate whose antiwar supporters’ hopes were symbolized after his election by the Nobel Prize he won in 2009.

John Kerry was the anti-Bush of 2004, a man who may have accepted the military pageantry of his nominating convention but who had, after all, made his name with Vietnam Veterans Against the War and famously said in 1971, “How do you ask a man to be the last to die for a mistake?”

Chuck Hagel, meanwhile, would have been the dream candidate of the realist right, a Republican veteran who may have voted for the Iraq War but regretted it and strongly opposed the “surge.”

These alternatives to the man who took us to war in Iraq now make America’s foreign policy. And they propose to attack a Mideast country over a Baathist dictator’s weapons of mass destruction.

Yet irony aside, the foreign policy we’re getting is exactly the one you would expect from these men: not a peace policy—not noninterventionism—but a conflicted war policy. And it had to be like this: if U.S. strategy is to change, this is the ugly way it has to come about. A President Rand Paul wouldn’t have any easier a time of it than Barack Obama is having, for reasons that are worth exploring.

Since at least the Reagan era the notion that the U.S. can advance its interests with limited military actions—micro-wars—has been presidential doctrine. Cruise missiles and bombing sorties, and now drones, have displaced covert action and the use of foreign proxies as keystones of U.S. power. Not that we don’t still engage in plenty of covert operations, but the tools Washington is most comfortable with today are mechanical. During the Cold War, presidents could readily support dictators who would serve our interests; today that’s considered unhygienic. We prefer “surgical strikes.”

Such strikes do not often achieve their strategic objectives: they don’t dissuade terrorism, they’re not sufficient to effect regime change–remember the “decapitation” strikes that preceded “boots on the ground” in Iraq?—and they don’t do much to prevent humanitarian catastrophes. They do, however, have a ritual value: a president can fire missiles to show that he’s not sitting passively by as something we don’t like takes place. That his action has no decisive practical effect on the situation just can’t be helped; the alternative—doing nothing—would be equally ineffective, while also burdening the president’s conscience (not just his poll numbers) with a sense of impotence and failure.

Until the George W. Bush administration, presidents had hoped that relatively small deployments of troops could do what bombs and missiles could not. So we had a succession of minor conflicts quite different from the big ones of Vietnam and Korea: Grenada, Panama, Somalia, Haiti, the Balkans. The first Bush’s Gulf War and the second’s wars in Iraq and Afghanistan involved more men and longer deployments than the others, but were still meant to be cakewalks not quagmires. And in one sense, they were: the first Gulf War, the overthrow of the Taliban in 2001, and the toppling of Saddam Hussein in 2003 were all swiftly and rather painlessly accomplished. The trouble was what came after.

So now Obama, Kerry, and Hagel are confronted with this: the tools customarily at their disposal are either ineffective (bombing) or too expensive (boots on the ground—costly above all in moral and political terms). A return to the dictator-friendly Realpolitik of the Cold War hardly seems possible. What can an electable “peace” politician do? Read More…

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What Obama Proposes in Syria Didn’t Work for Reagan in Libya

Perhaps the best analogy for the “unbelievably small” airstrikes the Obama administration is contemplating against Syria would be Ronald Reagan’s April 1986 bombing of Libya. That campaign, too, was meant to be punitive and deterrent, and although Gaddafi himself was targeted, regime-change wasn’t an immediate goal of Reagan’s actions. Gaddafi was responsible for the bombing earlier in April of a Berlin discotheque in which two American servicemen were killed and 79 injured, and the Libyan dictator had generally been happy to sponsor terrorists of many flavors in Western Europe as retaliation for Western support of anti-regime elements in his own country.

What was the effect of Reagan’s bombing? Gaddafi struck back with the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland, killing some 270 people in all. A year later he also bombed UTA Flight 772 over the Sahara, killing 170. The attempt to punish and deter Gaddafi with “pinprick” strikes not only failed but led to revenge attacks more lethal than Gaddafi’s earlier crimes.

Reagan’s experience with Gaddafi is hardly the only case that casts doubt on the deterrent power of airstrikes. Remember Bill Clinton’s cruise-missile strikes on terrorist camps in Sudan and Afghanistan in 1998? That was punitive action in response to terrorist bombings of U.S. embassies in Kenya and Tanzania. But far from being deterred, al-Qaeda went on to bomb the U.S.S. Cole in 2000 and perpetrate the 9/11 attacks in 2001.

That’s not to say that Assad or his allies in the Shi’ite world—Iran and Hezbollah—would want to retaliate directly against the U.S. in response to an attack launched by the Obama administration. For a variety of reasons, I don’t think that’s likely. But the idea that limited bombing campaigns are any kind of deterrent to bad behavior on the part of regimes like Assad’s, Gaddafi’s, or the Taliban (which continued to host bin Laden despite Clinton’s attacks) is disproved by history. If Assad considers it in his interest to use chemical weapons, there is no evidence to suggest that American missiles will change his mind.

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