Tribute to Justice Antonin Scalia: David Brooks, “Movement Conservatism,” and the Death of American Religious Humanism
David Shasha
David Brooks, “Movement Conservatism,” and the Death of American Religious Humanism
When reading David Brooks it is essential to note what he does not say even more than what he actually says.
This of course is the way of all PILPUL: to construct arguments which conveniently suit your dogmas rather than honestly investigate the matter at hand.
A case in point is Brooks’ February 9th column “I Miss Barack Obama”:
http://www.nytimes.com/2016/02/09/opinion/i-miss-barack-obama.html?_r=0
A post in Salon by Heather Cox Richardson addresses the problem brilliantly:
In order to process what Brooks is saying in his column we need to look back at the changes in his Republican Party, what Ms. Cox calls “Movement Conservatism,” since the 1960s:
The Movement Conservative narrative drew on classic themes. It told of poor but hardworking individuals—outsiders– threatened by a grasping government. In their hands, the popular legislation that actually protected Americans oppressed them. They explained that an active government needed tax dollars, and tax dollars came from the little guy. In a racist and sexist twist that drew on America’s long history, Movement Conservatives harped on the idea that those tax dollars would go to minorities and women. This story gave us Nixon’s Southern Strategy promising that he would not press integration; Reagan’s lazy Welfare Queen who stole tax dollars; the Willie Horton ad dishonestly linking a convicted black rapist to Democratic presidential nominee Michael Dukakis; and Mitt Romney’s allegation that the nation was made up of makers and takers.
This is a very precise snapshot of how we got to Donald Trump and Ted Cruz; the figures that Brooks decries in the column. He does not seem to see how his own party’s ideology laid the groundwork for the mess that he is now disavowing.
So when Brooks attacked Bernie Sanders and his “Danish Dream” in his February 11th column, it was once again necessary to look more closely not at what he said, but what he did not say.
And here is how he opens the discussion:
American capitalism has always been distinct from continental European capitalism. We’ve had more entrepreneurial creativity but less security. Our system has favored higher living standards for consumers while theirs has favored stability for employees and producers.
For the past several decades, the United States has had a bipartisan consensus that we should stick to our style of capitalism and our style of welfare state. There has always been a broad consensus that a continent-size nation like ours had to be diverse and decentralized, with a vibrant charitable sector and a great variety of spending patterns and lifestyles.
American values have always been biased toward individualism, achievement and flexibility — nurturing disruptive dynamos like Bell Labs, Walmart, Whole Foods, Google and Apple — and less toward dirigisme, order and economic equality.
It is important to note that this discussion of American Capitalism does not choose to mention some of the most essential Conservative themes that Brooks usually presents in his writing: The Rule of Law, the importance of religion, and the centrality of moral character in human beings.
First we have the Rule of Law; a matter that Senator Sanders has been addressing with some regularity in his speeches. The current economic system is rigged; control of the system is in the hands of a small number of players in the Corporate World, the political system, and Wall Street. This tidy arrangement speaks to the larger history of American Capitalism and the need for government regulation and oversight; the very things which “Movement Conservatism” since the benighted Age of Reagan has been working to eliminate.
It would be worthwhile to mention here the divisive figure of the late Supreme Court Justice Antonin Scalia, appointed with great political fanfare by Reagan in 1986, who helped to create a radical new concept in American juridical tradition called “Originalism,” which sought to eliminate legal interpretation.
Seeking to apply a phantom “Original Intent” of the authors of the Constitution, the jurist is required to magically enter the mind(s) of the Framers, divine their “intent,” and rule strictly according to their fiat.
In other words, an 18th century reality and value system was to be atavistically imposed on contemporary Law.
As we have come to understand it, this innovation was designed in PILPUL fashion to impose a Conservative political system, a la Reagan, onto a progressive legal framework. The legal innovation sought to vigorously dismantle the New Deal and Great Society legacies in a very activist manner. It has tried to turn the clock back on centuries of political, legal, and scientific progress and re-institute a vision of America rooted in racism, prejudice, and ignorance.
Famously, Scalia led a very aggressive legal charge to establish a particular reading of the Second Amendment which ignores the semantic field of the text and its actual historical meaning; preferring instead to enforce a rigid dogma of Gun Rights that has little to do with the Constitutional text and its “intent.” It is unclear whether Scalia and his NRA allies understand what the term “Well-Regulated Militia” literally means and how it applies to contemporary American life.
Glen Newey provides a truly brilliant analysis of Scalia in a blog published shortly after the judge’s passing in The London Review of Books that is a textbook example of precisely how PILPUL works:
In the 2008 case of DC v. Heller, Scalia applied originalism to offer a wide reading of assault-rifle owners’ Second Amendment rights. He decided the amendment’s prefatory clause about militias was irrelevant to the operative clause’s meaning as understood by the Founders, which turned out to include protecting the personal use of firearms such as semi-automatic rifles whose invention lay well in the future. Boldly eschewing engagement with what the Founders had actually written, Scalia decided that they were talking about weapons in ‘common use’, not that this phrase figures in the amendment (semi-automatic rifles comprise around 2 per cent of privately owned firearms). Presumably the revered Founders had guns like muskets in mind, but where as often they don’t say anything explicit, originalism comes into its own: they say whatever the medium who tongues their thoughts say they said.
Indeed, this is as good a description of Scalia’s authoritarian “Da’as Torah” that I have ever seen.
It is therefore little wonder that the disciples of Scalia in the current Republican Party have announced that President Obama must not nominate his successor as the Constitution explicitly requires:
The ongoing Republican obstructionism is a perfect encapsulation of the hypocrisy and lawlessness that the Scalia legacy embodies.
Scalia’s vaunted “Originalism,” a central tenet of “Movement Conservatism,” attacks the Rule of Law as it refuses gradualist development under the rubric of legal hermeneutics, creating the paradox of juridical-political revolution under the illusory guise of an absolutist historical fundamentalism. It is a militant movement that puts ideology over rationality.
It is similar to the pattern we see in contemporary Religious Fundamentalism which also wishes to hearken back to a bygone age and insist that “interpretation,” the contemporary application of new ideas and values to living canonical documents, is completely circumscribed and forbidden.
It is this mythical legal argument that has been successful in restoring long-discredited notions of racial exceptionalism and moral infallibility in American culture; preventing us from breaking free of the sins of history and reforming our institutions in a way that de-mythologizes the past with its spurious concepts like “Rugged Individualism” and Unfettered Capitalism.
Rule of Law is about Living Law and not the dead letter of history. The Law must adapt to changing circumstances in science and technology and constantly be vigilant to reform the mistakes and errors of the past such as Slavery and the suppression of Labor Rights; both rooted in racism and class supremacy, reflecting outmoded and prejudiced understandings of the human condition in the context of our evolving Democracy.
Brooks’ blather about American “Rugged Individualism” is thus just so much atavistic and mythical hot air. Over time we have seen that free markets often tend to produce systemic inequality and monopolistic practices. The history of the American economy tends to show that the financial system goes through boom and bust periods which force government to intervene to clean up the mess and restore some semblance of order.
It is not that American entrepreneurship should be blithely dismissed. But it is far more complex an organism than Brooks would allow us to think. He ignores the history of the American Labor movement and the ways in which unions and organized strikes have sought to empower those who do not own the means of production.
Preaching for Labor Rights does not make a person a Communist, as many Conservatives would like us to believe.
In this complex process the Rule of Law is vital for the health of the system. An unfettered and unregulated economic system, promoted by “Movement Conservatives,” ignores the matter of fairness; something that is critical to the maintenance of a stable Working Class that can share in the profits made by financial elites.
But this system has now completely broken down under the weight of the inequities presented so eloquently by Sanders. It is not an attempt to become “Denmark,” as Brooks duplicitously states, but a desperate plea for the Capitalist system to be placed under the proper legal controls in order to allow all the participants in the system to reap the appropriate rewards for their efforts.
To take one example from Brooks’ list of American Corporate heroes, there is the egregious case of Walmart, which continues to underpay many of its employees, thus necessitating those workers to file for government assistance:
According to this article, published in that Marxist rag Forbes magazine, Walmart’s employees cost American taxpayers $6.2 billion in 2013 alone!
There is no “Rugged Individualism” here; only the savvy manipulation of government by Walmart in order to bypass the ethical responsibilities of the corporation and game the system in a way that maximizes profits for ownership while soaking the taxpayer.
Rule of Law is something that has become problematic in two ways: There is the actual violation of the law and the ability to survive litigation by either paying fines or by using high-priced lawyers to potentially win cases, but there is the even bigger problem of using political contributions to “buy” legislation, as in the case of the Koch Brothers and the influential group ALEC:
http://www.theguardian.com/commentisfree/cifamerica/2011/apr/08/koch-brothers-lobbying
http://www.alecexposed.org/wiki/ALEC_Exposed
So the 1% can either work within the legal system and try and beat it that way, or it can work to remake the law in its own greedy and debased image.
More than this, Brooks never engages the issue of Corporate Malfeasance when it comes to destroying the Environment and forcing government to deal with the often catastrophic results of Climate Change, another way of cheating the system. While specific instances of Corporate Malfeasance are punished when they are obvious, such as the various oil spills that have taken place in recent years, the wider context of Global Warming and natural disaster are not.
But even more important than lack of adherence to the Rule of Law in the American Capitalist system is the destruction of the foundational religious values of this country; what can best be called “Religious Humanism.”
Brooks is always spouting off on religion and character, but in reality his view of religion lacks any of the basic ethical principles of the Bible.
We have seen this previously in his vociferous praise for the materialistic values of the Brooklyn Orthodox Jewish community:
http://www.nytimes.com/2013/03/08/opinion/brooks-the-orthodox-surge.html
I have commented on the article:
https://groups.google.com/forum/#!msg/davidshasha/mWz5T-eL9zo/SLC373oo0dwJ
Brooks does not seem to remember the relevant passages on society and economics from the Hebrew Bible which appear in the Book of Leviticus.
Here are some representative texts:
When you reap the harvest of your land, you shall not reap to the very edges of your field, or gather the gleanings of your harvest.
You shall not strip your vineyard bare, or gather the fallen grapes of your vineyard; you shall leave them for the poor and the alien: I am the Lord your God.
You shall not steal; you shall not deal falsely; and you shall not lie to one another.
And you shall not swear falsely by my name, profaning the name of your God: I am the Lord.
You shall not defraud your neighbor; you shall not steal; and you shall not keep for yourself the wages of a laborer until morning.
You shall not revile the deaf or put a stumbling block before the blind; you shall fear your God: I am the Lord.
You shall not render an unjust judgment; you shall not be partial to the poor or defer to the great: with justice you shall judge your neighbor.
You shall not go around as a slanderer among your people, and you shall not profit by the blood of your neighbor: I am the Lord.
You shall not hate in your heart anyone of your kin; you shall reprove your neighbor, or you will incur guilt yourself.
You shall not take vengeance or bear a grudge against any of your people, but you shall love your neighbor as yourself: I am the Lord. (19:9-18)
While there is a good deal of whining from Republicans about applying Biblical principles to our society, we do not often hear them cite the words of the Holiness Code from Leviticus; largely because these principles are in conflict with the sort of cut-throat Capitalism that reactionaries like Brooks and his Conservative allies favor.
Moving from the Jewish tradition to the Christian, we have the famous text of God’s judgment from the Gospel of Matthew:
“When the Son of Man comes in his glory, and all the angels with him, then he will sit on the throne of his glory. All the nations will be gathered before him, and he will separate people one from another as a shepherd separates the sheep from the goats, and he will put the sheep at his right hand and the goats at the left.
Then the king will say to those at his right hand, ‘Come, you that are blessed by my Father, inherit the kingdom prepared for you from the foundation of the world; for I was hungry and you gave me food, I was thirsty and you gave me something to drink, I was a stranger and you welcomed me, I was naked and you gave me clothing, I was sick and you took care of me, I was in prison and you visited me.’
Then the righteous will answer him, ‘Lord, when was it that we saw you hungry and gave you food, or thirsty and gave you something to drink? And when was it that we saw you a stranger and welcomed you, or naked and gave you clothing? And when was it that we saw you sick or in prison and visited you?’
And the king will answer them, ‘Truly I tell you, just as you did it to one of the least of these who are members of my family, you did it to me.’ Then he will say to those at his left hand, ‘You that are accursed, depart from me into the eternal fire prepared for the devil and his angels; for I was hungry and you gave me no food, I was thirsty and you gave me nothing to drink, I was a stranger and you did not welcome me, naked and you did not give me clothing, sick and in prison and you did not visit me.’
Then they also will answer, ‘Lord, when was it that we saw you hungry or thirsty or a stranger or naked or sick or in prison, and did not take care of you?’
Then he will answer them, ‘Truly I tell you, just as you did not do it to one of the least of these, you did not do it to me.’
And these will go away into eternal punishment, but the righteous into eternal life.” (25:31-46)
This text echoes the pronouncements of the “Beatitudes” in Matthew 5 where Jesus elevates the poor and excoriates those, like Brooks, who persecute them.
American Religious Humanism is a sacred construct which emanates from the “Scriptures” of our civic tradition; a repository of ideas and values that simultaneously promote freedom and social responsibility. We are to seek the welfare of our neighbors through the mechanisms of Law which allow for free and direct access to government and the justice system; privileges that today only exist for the wealthy elites who can afford it.
Brooks speaks of a mythical “Rugged Individualism” that never really existed, while at the same time he remains silent on the issue of personal responsibility and moral character that have been so central to American civic life.
Bernie Sanders has been raising many of these critical issues in his presidential campaign and in the debates, but what we have been seeing from the establishment is a refusal to engage the most basic principles of American Democracy.
Indeed, the word “Democracy” never once appears in the Brooks column: he rants about taxation without ever mentioning that the system remains weighted towards the interests of the 1% who are able to game the system in order to skip paying their fair share of the public burden.
We now have a healthcare system that is one of the most economically inefficient in the developed world. Our healthcare costs continue to skyrocket, and in spite of the modest gains made by Obamacare the system remains under the control of greedy Corporations, Insurance companies, and medical practitioners who care less for patients and more for their financial bottom line. The public welfare does not seem to be an issue for them.
In the end Brooks is deeply committed to the 1% and acts as its cheerleader and advocate. He belittles any attempt to restore equity and the Rule of Law to the American economic system in the face of deep discontent and fear among many citizens. He is quite content to serve the interests of the rich and powerful, even when that advocacy spits in the face of the most hallowed moral traditions of America.
Is it possible to have an economic system, as Brooks strongly insists, that is divorced from and inimical to our most basic moral values which are rooted in the venerable tradition of Religious Humanism?
Is Rule of Law an elastic concept that can be manipulated at will to suit an atavistic political ideology which denies the dynamics of historical change?
Religious Humanism is not some empty slogan that can be worn as a lapel pin. One cannot, as Brooks routinely does, speak of the importance of character when at the very same time denying the most basic moral values that have informed the American tradition and which have supported progressive change in a way that has made us a more free and egalitarian nation.
We must truly treat our neighbors with respect and compassion, as the Bible teaches.
We must not forget that the Law protects the poor as it protects the rich. The rich must not be permitted to control the justice system and treat those with fewer material resources without the proper dignity and respect that is the very foundation of our Biblical heritage.
David Brooks continues to pretend that he is committed to moral integrity as he mouths off about character and ethics, yet when it comes to standing up for American Religious Humanism he stands proudly with the 1% which seeks to destroy the image of God in our society and replace it with the idol of Mammon.
David Shasha
Killing Unarmed Animals: Scalia’s Legacy
By: Glen Newey
The US Supreme Court justice Antonin Scalia is dead, and not before time. The co-author of some of the dodgiest court opinions since Judge Taney’s in Dred Scott v. Sandford, Scalia was duly hymned on Saturday night’s debate in South Carolina by the self-avowed psychopaths – Ted Cruz has vowed to make the Middle East ‘glow’ with US bombs; Donald Trump’s problem with waterboarding is that the torture doesn’t go far enough – slugging it out for the Republican presidential nomination. Scalia’s judicial opinions reveal a mind whose fixation with the jurisprudential genetic fallacy known as ‘originalism’ betrayed his embrace of legal ancestor worship in a peculiarly pure form. It seems fittingly bizarre that he died on a quail hunting trip (his Supreme Court crony Clarence Thomas noted that Scalia ‘loves killing unarmed animals’).
‘De mortuis nil nisi veritas’ is a useful rule of thumb for commentary when the mighty die, and Scalia was certainly one of those in his own mind. He unflinchingly opposed marriage equality. He was still at it last year, dissenting from the court’s decision to make same-sex marriage legal throughout the States on the ground that liberalising marriage law ‘robs the people of… the freedom to govern themselves’, posing a ‘threat to American democracy’ because ‘today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court’ – a role that he seemed content with when he was one of those in the majority.
Scalia repeatedly blocked federal action on climate change. There he found his jurisdiction ample enough to define the air. In a dissent in Massachusetts v. EPA in 2007, Scalia opposed the plaintiff’s claim that CO2 is a pollutant causing global warming. Scalia found that air, as mentioned in the 1963 Clean Air Act, includes only ‘air near the surface of the earth’, not ‘the upper reaches of the atmosphere’, where ‘the build-up of CO2 and other greenhouse gases… is alleged to be causing global climate change.’
Scalia helped deliver the 2000 presidential election to George W. Bush by guillotining the Florida recount. Here, again, Scalia seems not to have been cowed by thoughts of limits on the court’s powers. More striking was his ad hoc invocation of the Fourteenth Amendment to argue that the recount should be stalled because Florida counties’ different methods of counting ballots would violate the equal protection clause – something that applied only to the recount, and not to the state’s elections generally. Dubya duly walked down Pennsylvania Avenue the following month.
In the 2008 case of DC v. Heller, Scalia applied originalism to offer a wide reading of assault-rifle owners’ Second Amendment rights. He decided the amendment’s prefatory clause about militias was irrelevant to the operative clause’s meaning as understood by the Founders, which turned out to include protecting the personal use of firearms such as semi-automatic rifles whose invention lay well in the future. Boldly eschewing engagement with what the Founders had actually written, Scalia decided that they were talking about weapons in ‘common use’, not that this phrase figures in the amendment (semi-automatic rifles comprise around 2 per cent of privately owned firearms). Presumably the revered Founders had guns like muskets in mind, but where as often they don’t say anything explicit, originalism comes into its own: they say whatever the medium who tongues their thoughts say they said.
Scalia’s most pernicious opinion may prove to be Citizens United v. Federal Election Commission from 2010. That declared that the First Amendment extends to corporations. Under the Citizens United decision, bungs from SuperPacs, the consortia formed to buy elections for private corporate interests, are protected ‘speech’. Last month Hank Greenberg, the former head of AIG, gave $10 million to the SuperPac supporting Jeb Bush. Greenberg crashed his firm with junk securities and then bleated that the $180 billion federal bailout was paltry (his AIG shares were ‘virtually worthless’, he complained in 2008, ‘about 100 million dollars’). So, thanks to Scalia, public money paid out by George W. Bush’s administration is now bankrolling his brother’s faltering White House bid.
Citizens United came to court when the lobbying group of that name appealed against a ban on airing Hillary: The Movie (an attack on Clinton) during the 2008 election campaign; its specific target was clause §203 of the ‘McCain-Feingold’ Act of 2002 which prohibited ‘electioneering communications’ in the sixty days before a general election. Earlier, in an indication of how it really valued free speech, Citizens United had tried to use §203 to gag the broadcast of a trailer for Michael Moore’s documentary Fahrenheit 9/11 during the 2004 election cycle. When it later decided to push for the Supreme Court to rule §203 unconstitutional, Citizens United found Scalia compliant. His legal case – that 18th-century Englishmen didn’t dislike corporations as much as some people think – was uninhibited by the Founders’ failure to say anything at all about corporations in the Constitution.
At the start of Saturday’s GOP brawl, soon after Scalia’s death became public, the candidates stood in righteous silence for a moment (presumably a whole minute would have been beyond Trump). And rightly: a friend of guns, pollution and big money buying elections, Scalia did the job for which Reagan installed him.
From the LRB blog, February 15, 2016