Are our laws producing “identity politics” and the divisions it fosters?
A scientist, or perhaps it was an engineer, once asked the political philosopher Harry Jaffa for a general scientific rule about politics. After reflecting upon the bizarre request, Jaffa came up with the following:
S = 2P, where “S” = solution and “P” = problem. Politics is tragic; there are no final solutions.
Perhaps, amid the profound divisions revealed by the national conversation over Confederate monuments, consensus could emerge over this: If their removal is justified, it should be carried out in the light of day.
Rice University’s John Boles was for many years (1983-2013) editor of The Journal of Southern History, which after The Journal of American History is the most-cited scholarly journal in the field of American history. In that position, he had substantial influence on, besides being substantially influenced by, the shape of the field today. Jefferson: Architect of American Liberty comes as a kind of valedictory. As in his earlier work, Boles is self-consciously guided in writing it by recent developments in academic historiography. Contemporary politics make themselves felt in his story of the Master of Monticello, too. A full one-volume account has long…
Civic minded Americans will hopefully pause on the 4th of July to reflect on the principles of the Declaration of Independence, and to the nation dedicated, however imperfectly, to the cause of liberty. In regards to the Declaration, all honor to Thomas Jefferson, as Lincoln rightly observed.
While the principles of the Declaration are considered self-evident, it is also true that men can be persuaded to wear chains, as Jefferson once noted. Thus it took the force of arms to win American independence and secure those principles. George Washington and the Continental Army, with a considerable assist from the French military, converted those ideas into reality.
Nathaniel Persily, a professor at Stanford Law School, wonders whether democracy can survive the internet. The immediate impulse for his question is the election of Donald Trump, who used social media to get around the established institutions, principally the mainstream media, that mediate between candidates and citizens. In particular, Persily fears that fake news circulating in social media empowers demagogues, of which a prime example in his mind no doubt is Donald Trump himself.
The essay is an exemplar of progressivism, because it puts its faith in institutions dominated by progressives to safeguard democracy rather than the Constitution. But to one who is not a progressive, Persily’s fears are unwarranted and his solutions are a source of concern. Begin with fake news. It is not a phenomenon of the internet. Political campaigns in the early republic were vicious because of outrageous and often false charges in the partisan press. Adams was said to be a monarchist focused on establishing a dynasty with his son; Jefferson was accused of being an atheist. He was also alleged to have sired children with one of his slaves. That last bit of dramatic information would have been labelled as fake news at the time by the self-designated great and good—the real fact checkers of any age–, but it appears to have been true.
Is the U.S. Supreme Court a court? On the one hand, the answer seems obvious. It says so right in there in the name. Plus, the justices wear those funny robes. Strong evidence, I admit. On the other hand, see every Supreme Court decision involving constitutional law over the past century and a half. I could rest my case there, but I haven’t gotten to the point yet. If the Supreme Court is a court, it is a weird one, and that often creates a great deal of confusion about how the Court does or should operate.
Generally speaking, we might think that a key characteristic of a court is that it resolves disputes in accord with some pre-established set of legal rules. It is not clear that the Supreme Court actually does that. The justices have relatively little interest in resolving disputes, and they have little concern for pre-established legal rules.
Let’s unpack that a bit.
The protestors who pressured Yale University into scrubbing the legacy of John C. Calhoun—racist, slaveholder and forthright apologist for African bondage; statesman, philosopher and critic of excessive executive power and American imperial ambitions; and, unto Saturday, namesake of a residential college at the alma mater where he was valedictorian of the class of 1804—have no palate for moral nuance, so assume they have no taste for irony either. Consequently, they are probably unaware that the identity politics they champion are Calhounian to their core.
Last week, on January 16, America marked Religious Freedom Day. The day commemorates enactment of the Virginia Statute for Religious Freedom of 1786, a precursor of the First Amendment. Written by Thomas Jefferson, the Virginia statute disestablished religion in the commonwealth—“no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever”—and prohibited civil penalties for the expression of religious belief—“all men shall be free to profess, and by argument to maintain, their opinion in matters of religion.” Jefferson saw the statute as one of his three great accomplishments; along with the Declaration of Independence and the founding of the University of Virginia, he directed that it be noted on his tombstone.
With the US House of Representatives representing the people, and the US Senate representing the states (more so prior to the adoption of the 17th Amendment, but that’s another discussion), the US Congress is a recognizable extension of the “mixed-government” rationale for legislative bicameralism.