1. The genuinely realistic postmodern conservatism, from one view, is somewhere in between the Porcher and Libertarian EXTREMES. That true but precarious position, as Ralph has shown us so eloquently, eludes theoretical articulation. For most practial purposes, as I tried to add, it points in the direction of compromise.
2. So we postmodern conservatives are somewhat concerned about the excessive libertarianism of the TEA PARTY candidates in the various Republican primaries. If I could have voted in the Republican primary in Kentucky, for example, I would have voted for “the other guy.” That is, I wouldn’t have voted for the theoretical [libertarian] opthamologist Dr. Rand Paul.
3. Dr. Paul suggested, both imprudently and falsely, that THE CIVIL RIGHTS ACT OF 1964 is unconstitutional. That libertarian stand discredited the presidential candidacy of Goldwater [who later on revealed to us how libertarian he really was] by making it too easy to dismiss him as an extremist who preferred abstract liberty to the decency of racial equality and justice.
4. In general, tutored by TV’s Professor Beck, we’re hearing that true conservatives should regard the New Deal etc. as unconstitutional too. It’s become fashionable to harp on the Progressive narrative from Woodrow Wilson to Lyndon Johnson as the key to what has derailed our country. The implication is that our Court abdicated its responsibility by not declaring the regulatory administrative state unconstitutional.
5. Maybe we should remember, to begin with, that THE CIVIL RIGHTS ACT OF 1964 was a legislative accomplishment. And its intention was to extend the colorblind spirit of the original Constitution to areas that could reasonably be regulated by government. It was the one time our national government interpreted the Constitution correctly with respect to race. It was the mean between the segregation that preceded it and the affirmative action that succeeded it. It was better than BROWN in both its intention and its outcome. Of course an error was made insofar as its constitutionality was thought to flow from the Commerce Clause instead of the broad powers granted Congress by the Fourteenth Amendment in pursuit of the destruction of the racist regimes of the states. But that misplaced justification, remember, was thought to be necessary in response to what almost everyone now regards as erroneous Court decisions.
5. More generally, it’s a libertarian error to believe that we can look to the Court to protect us from the excesses of the regulatory state. And the truth is that it’s a matter of prudence to know what those excesses are. No candidate is going to get elected campaigning against the constitutionality of SOCIAL SECURITY and MEDICARE. The real debate is over how to make them demographically sustainable, and even on that score it’ll be really hard to tell the truth.
6. The “Progressive erosion of our freedom” narrative oddly seems to jump these days from LBJ to Obama. None of the presidents in between those two very liberal Democrats fit the Progressive mold, and their successes and failures have to be viewed according to a different model. And when I think about the Sixties, I can’t help but remember that devotion to Civil Rights was one thing really good about LBJ, and someone might say that he played a significant part in creating a country that elected an African American president.
7. The general presumption of liberty doctrine found in LAWRENCE and loved by libertarians such as Randy Barnett is very flawed, insofar as it is a guide for judicial review. The Court (as the first Justice Harlan said in the neglected moderate dissent in LOCHNER) usually should give the benefit of the doubt to the law, as is appropriate in a democracy where principles have to be compromised prudently in the face of complicated and often unprecedented situations. Remember that Randy is both pro-LOCHNER and pro-ROE. In my view he’s 0 for 2.
May 23rd, 2010 | 11:29 am
Thought provoking post. I am a conservative who’s caught the libertarian fever, but I am cringing at the Rand Paul incident.
It’s not pretty when theory and reality collide.
Few would argue that a government telling people they must accommodate all equally in their establishments.
The problem enters in when they ban smoking or other legal activities “for the public good.”
Government-sponsored social engineering appears to be very addictive.
“The urge to save humanity is almost always a false front for the urge to rule.”
– H. L. Mencken
May 23rd, 2010 | 1:00 pm
[...] This post was mentioned on Twitter by James Poulos, Mikhail I. Mikhail I said: Neither Porcher nor Libertarian: The genuinely realistic postmodern conservatism, from one view, is somewhere in b… http://bit.ly/aNPKLf [...]
May 23rd, 2010 | 4:20 pm
[...] its responsibility by not declaring the regulatory administrative state unconstitutional. Neither Porcher Nor Libertarian at Postmodern [...]
May 23rd, 2010 | 4:21 pm
I love this blog!
Professor Beck’s America:
http://dailybayonet.com/?p=4142
May 23rd, 2010 | 6:42 pm
I would benefit from a brief summary of the “Porcher extreme” as understood by Professor Lawler (or others who know the landscape here). It is only through this blog that I came to know the term “Porcher” and have struggled to determine the appropriate definition.
May 24th, 2010 | 9:43 am
‘I would benefit from a brief summary of the “Porcher extreme” as understood by Professor Lawler (or others who know the landscape here). It is only through this blog that I came to know the term “Porcher” and have struggled to determine the appropriate definition.’
An undue degree of nostalgia for an imaginary past from which all the flaws have been airbrushed away; a unreasoned aversion to all recent innovation and change.
In brief, it is tradition turned into traditionalism; what had been a natural way of life, once it starts to fade away, is transformed into a rigid ideology of doing things the old way. (The optimates in Rome are a great example of this.)
May 24th, 2010 | 11:23 am
Porcher is my silly name for the people who blog at FRONT PORCH REPUBLIC. Their characteristic vice is too much concern for preserving or restoring the “material conditions” of virtue. That leads to selective nostalgia that forgets it’s selective and too much hostility to modern technology. Libertarians, of course, have too little concern and talk turn everything, including virtue, into a preference picked off some menu of choice.
May 24th, 2010 | 11:30 am
Peter,
How is it that the government controls itself (to use Madison’s phrase)? I think it is clear that Publius/Madison sees separation of powers as the most important institutionally based limit on government. I wonder, though, if the 17th Amendment and the rise of the imperial presidency (loaded phrase, but I’ll go with it) have so altered Madison’s constitutional order that there is no effective control on the government. This may be why some libertarians (Barnett) turn to the courts.
One solution, offered by libertarian Richard Epstein, is to require a super-majority to pass new legislation but require only a simple majority for the repeal of old legislation. This has great appeal to me.
May 24th, 2010 | 8:20 pm
“Maybe we should remember, to begin with, that THE CIVIL RIGHTS ACT OF 1964 was a legislative accomplishment. And its intention was to extend the colorblind spirit of the original Constitution to areas that could reasonably be regulated by government”
Lest we forget, cynical segregationists added “sex” as a protected category to the CRA as an attempted poison pill, to make the bill far too radical to pass.
Those segregationist jackasses calculated wrong, so the CRA has also empowered feminism and destroyed most possibilities for a pro-family social policy that helps a married man support his wife and kids.
I also suspect the racial/ethnic protections of the CRA & its follow-ups helped destroy white ethnic neighborhoods. Whether those subcultures should have been sacrificed to wipe out racism should be debatable. What if the CRA itself was exploited cynically to wipe out troublesome centers of ethnic power?
If provisions of the CRA are responsible for part of our plight, and conservatives never revisit those provisions, they are doomed to failure (and deserve to be). They’ll constantly exploit animosity against “political correctness,” but never go after one of its root causes.
I generally look down on libertarians, but on this point I find Rand Paul’s original position to have merit.
May 25th, 2010 | 2:37 am
Regarding “the theoretical [libertarian] opthamologist Dr. Rand Paul” I think I remember Aristotle in De Anima making a distinction between the act of seeing and of knowledge of sight itself. The good doctor seems to be blind to political reality as it is found in the USA, and perhaps he is blind to what is justice simply. Is this a problem of libertarianism or opthamology translated as politics?
Besides, what is this deal with so many MDs, aka physicians, wanting to be politicians? One need not be a Foucault to think that this trend does not bode well for human liberty.
May 25th, 2010 | 8:54 am
John, Very inSIGHTful comments. Jon, How are you going to talk the majority into giving up majority rule? Especially with the extrarordinary majorities required for the constitutional amendment. Kevin, even if everything you said is right (which it isn’t), that wouldn’t make the CRA unconstitutional. One good thing about legislation is that it’s easier to “revisit” than a Court decision. But even Dr. RP isn’t going to campaign on the (allegedly) great damage it did to ethnic neighborhoods and the family.
I’m afraid your nostalgia is too selective to be marketable these days.
May 25th, 2010 | 10:33 am
“I also suspect the racial/ethnic protections of the CRA & its follow-ups helped destroy white ethnic neighborhoods.”
Yeah, Kevin, once you let them negroids in the neighborhood, the whole thing goes right downhill, don’t it?
May 25th, 2010 | 6:35 pm
“But even Dr. RP isn’t going to campaign on the (allegedly) great damage it did to ethnic neighborhoods and the family.
I’m afraid your nostalgia is too selective to be marketable these days.”
If the marketplace of ideas is excessively rigged by subtle government-mandated ideological preferences, marketability won’t change anything anyway.
Recent conservative history is full of marketable failures.
May 25th, 2010 | 6:50 pm
“Yeah, Kevin, once you let them negroids in the neighborhood, the whole thing goes right downhill, don’t it?”
Casual accusations of racism are so tiresome.
I’m just perplexed that I can’t do things as simple as advertise on Craigslist “Seeking Irish Catholic roommate” or “Selling house near beautiful Episcopal Church.” The pharasaism is such that I may only express a “preference” for a roommate’s sex. (Some of this is CRA 1968 not 1964, I know…)
Depriving cultural subgroups of geographic and economic power results in the exaltation of others. It seems wise to reconsider whether such strange excesses of anti-discrimination law are partially at fault, especially when we’re looking to expand them with ENDA (click my name to indulge my latest hobby horse a little longer).
May 26th, 2010 | 2:12 am
I agree completely with number 4&5 they represent good constitutional law as well as sharp political philosophy. The moderate point that was created by the civil rights act whose authority comes from the 14th amendment as well as section one and two of the constitution, did however, create a slipperly slope. Which I believed is similar to rehnquists dissent I’m Wallace v jaffree (1985). In both cases it may have been better for government to remain extremely limited, but they would have grown even without their proper recongnition.
May 26th, 2010 | 4:56 am
“Of course an error was made insofar as its constitutionality was thought to flow from the Commerce Clause instead of the broad powers granted Congress by the Fourteenth Amendment in pursuit of the destruction of the racist regimes of the states.”
Peter, your support of the CRA, as if that legislative action was the only one available to address the issue, seems rather instinctive, e.g. protective of the existing order and less concerned with the precedent.
As a paleo I am always concerned with the co-mingling of gummint and ‘good intentions.’ It just never seems to come out well, especially when dealing with private property, freedom of association, taxation, regulations, and all the wonderful things the CRA does, in the name of ‘fairness,’ of course.
I truly despise racists, but I fear a gummint that seeks to alter behavior.
May 26th, 2010 | 8:16 am
Bob, But the probelm we got stuck with is governments that altered behavior through compulsory segregration. It’s beyond me, Ben, what Wallace v. Jaffree has to with race, with the primary intention of the 14th A.
May 26th, 2010 | 9:07 am
It is simply, that government endorsement, quickly turns into government accommodation. Affirmative action is the slippery slope of CRA, just as Rehnquist’s dissent in Wallace v Jaffree is the slippery slope away from the “high wall of separation.” Under the 14th amendment their movement is constitutional but in the long run tends to cause increased government interference instead of real benefit.
May 26th, 2010 | 3:00 pm
Peter, I understand, but I’m talking about the unhappy results of federal intrusiveness and heavy handedness in defeating Southern segregation.
Obviously, there’s no problem with the feds correcting state violations of the Constitution or federal law (i.e. following the appropriate court action). What I’m talking about is the feds forcing compliance to those CRA regs that violate the sacrosanct principles of ‘private property,’ contract, the freedom of association, etc.
An intrusive central gummint that seeks to expand its powers, for whatever reason (and it will always be for the “good”), is a threat to the freedom of all Americans.
May 27th, 2010 | 9:02 am
[...] Lawler, writing at Postmodern Conservative, has a great piece on the recent Rand Paul affair. If you recall, after Paul’s Kentucky primary victory, the son of [...]
May 27th, 2010 | 12:23 pm
The other problem here is this: the best con law regards the commerce-clause issue as something of a muddle. Christopher Wolfe’s books show you that clause itself, even if interpreted in a rigorously originalist manner, cannot require a strict adherence to classic dual federalism. Originalists generally are agreed that the Lopez and Morrisson cases showed there must be some outer limits to the commerce power, but as to how far in that outer limit goes, well, that’s pretty tricky stuff. Hopefully far in enough to eventually overturn the precedent in Wickard and to overturn the mandate in Obamacare, but a number of legal gray areas loom in those debates.
I’d say more, but I’m busy moving.
May 27th, 2010 | 12:28 pm
Dr. Scott is in the process of packing up his office and will be unavailable for further comments until after June 2nd.–Frau Scott
May 27th, 2010 | 1:38 pm
In principle overturning the Obamacare mandate seems like affirming an outer limit. But it wouldn’t be prudent, and the mandate might even be defended constitutionally as an unavoidable piece in a complicated scheme that couldn’t work any other way. Activism here might push Congress in the direction of the public option as the only const. alternative. Anyone with any sense knows that the Court over a few New Deal years lurched from one extreme to the other. Overturning WICKARD in the right way would be a fairly insignificant (practically) but a noble gesture (symbolically) and a defense of at least the possibility of Porcher self-sufficiency in a free country.
May 27th, 2010 | 3:15 pm
A noble gesture indeed and as you rightly point out completely insignificant practically — hence why they will never do it. The culture, so to speak, or the snowball effect that is taking place, is not going to be stopped by the Supreme Court and probably not going to come from congress either. Honestly, only complete catastrophe as Deneen asserts will be the real mode of transition. Of course I argued a similar point on the “Brave New World Hypothesize” and my conclusion was that it might indeed unleash the possibility of “Porcher self-sufficiency” or complete annihilation. Either way, “the revolution” won’t come easy.
May 29th, 2010 | 2:39 pm
Thisahere pikchuresk porcher done thinks that Dr. Paul’s attempt to plumb the limits acceptable rhetoric is part and parcel of the Tick and Flea Collar School of Modern American Politics. In other words, he attempted entomology instead of simply hewing to the choice of tick collar brands. We just need to put a fresh flea and tick collar on the dog sos them pesky fleas will go someplace differnt fer awhile. It aint like the fleas will go away surely but we can always keep a good strong Code Orange on em.
Lawler, if we can somehow find a sound craft that will get the Libertarians to sit down with the Porchers and adjust their finer sensibilities to the craft of self-governance, we might have something. The POMOCONS are of course always welcome, as long as their flathead six has a governor installed to limit speed.
May 29th, 2010 | 11:48 pm
Noble gestures may be all that is left, but noble gestures pointing toward preserving what is best and criticizing all that is perverse. The noble gesture–dressed up in the proper garb of ordinary Americans of the early 21st century–is good because it does not seek complete annihilation as the basis of self sufficiency. This is the problem with porcherism, it gets too caught up in the need to destroy what is rotten that it ends up wanting to destroy what are admittedly thin reeds for a good life.
Such apocalyptic thinking is really beside the point. As Walker Percy asked–what happens when the bomb doesn’t drop and destroy everything? Any ethic that requires the destruction of everything in order for it to flourish is nihilism, and as guilty of willfulness and arbitrariness as the most radical of historical actors gone down in infamy.
So as Peter says, we’re stuck with virtue and may as well recognize this fact instead of expecting such no TV, no internet, no Wal Mart, no modernity ethic that can only emerge short of a miracle or complete annihilation.
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