Extreme “Conservative” Stupidity

The old saying has it that not all conservatives are stupid, but all stupid people are conservative. Modern, faux, U.S. “conservatives” are busy demonstrating their stupidity with their attacks on judges and on the judiciary in general. There are several candidates, but it is hard to beat attacks on judges as taking first place in any contest of absolute last things one would expect from any thinking person who called her/himself “conservative,” yet our modern, U.S. “conservatives” have made a habit of doing so with great gusto for at least the last thirty years or so.

This is very stupid.

A hallmark of conservatism, both the real kind and the degraded, faux, U.S. kind, is reverence for property rights. This is the point where real conservatives and faux, U.S. “conservatives” can easily agree. As we have seen here repeatedly, in historical terms, the poles of “liberal” and “conservative” as defining our politics date to the Glorious Revolution in England, when the English decided to chase off the Catholic James II in favor of the Protestant William and Mary. Conservatives insisted that the king got his authority as the result of genetic descent from the Adam of the bible. John Locke, who articulated the political theory we know call “liberalism,” said that was nonsense, that all legitimate political authority emanates from the governed, who retain always the right and the responsibility to evaluate their rulers and change them if they see fit. The people of England, or anywhere else, always have the right to chase off any king and find a new one, or eliminate monarchy altogether, if they so choose.

This idea in turn had a huge impact on the American revolution, which sent the good conservatives, as monarchists, running because it enacted open repudiation of the king. The closest the new nation in formerly British North America could claim to conservatives were the slave owners, who took reverence for property rights to the extreme of claiming that their right to private property was sufficient to justify their ownership of other humans, whom they forced to perform menial agricultural labor on pain of violent punishment. U.S. slave owning “conservatives” would hang on to their “right” to own humans as property through the Civil War, which killed some 750,000 people.

Even though Thomas Jefferson revised Locke’s original formulation of the natural rights to “life, liberty, and property” into “life, liberty, and the pursuit of happiness,” still “conservatives” in the United States, in their list of distinctively liberal “conservative” beliefs, include the right to own private property. And a key idea in the United States Constitution, due process of law, explicitly protects the right to own private property. The Fifth Amendment to the Constitution states, “nor [shall any person] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Note the reversion to the original, Lockean formulation.

As a practical matter, among those three things, the right to property depends more upon what we typically call “positive law” than either of the others. “Positive law” refers to the laws humans make, as opposed to “natural law.” Locke argued that humans create government because the complete freedom of the state of nature without government leaves one’s natural rights far too vulnerable to invasion by persons who refuse to respect them. So, your right to life is more secure if a government exists that prohibits murder and promises punishment for any person who even tries to kill you. The same is true of your right to liberty.

On the other hand, if someone does try to kill or kidnap you, you do have obvious, immediate remedies that depend mostly on your own physical capacity to beat up a would-be murderer and/or kidnapper, or escape either. With respect to movable property, the same is true. If you have laboriously accumulated a huge supply of berries, you might be able to spirit them away to protect them from theft. But your real property, the mere existence of real property at all, in some sense, as a practical matter, depends on government. We tend not to notice this in the modern United States, where most people pay attention to the federal government as having the largest effects, and to municipal government, since most of us live in cities, but counties are hugely important units of government in the United States for various reasons, a leading one of which is that the county is usually responsible for keeping track of who owns what property within its jurisdiction. Your right to property is natural, but, again, Locke’s point is that our natural rights are far more secure with a government to provide practical defense of them. No one needs a government office to keep track of her/his right to keep living or to move around freely, but the right to private property, especially in the form of real estate, does depend as a practical matter, on the registrar of deeds.

Counties also provide the mechanism to decide disputes over property. If your bank wants to foreclose on your house, they file in the county court where you live. If you have a dispute over a property line, you and the other person take it to the county court. So it is that judges are the key personnel in defending the rights of private property owners.

Yet we now have a so called president who inherited a fortune that derives from real estate, but is pleased to disparage any judge who’s decisions he disagrees with, despite having no legal training and no apparent understanding of the law, either as we practice it in the United States, or in general. In June 2016, the Donald asserted that the federal judge who was then overseeing a trial with him as defendant alleging fraud in the operation of Trump University had a conflict of interest because his parents were Mexican immigrants and the Donald had proposed to build a wall between the United States and Mexico. Besides being indefensibly scurrilous and a galloping violation of the principle of abjuring discrimination on the basis of national origin, this is hugely not conservative.

Soon after taking office, the so called President fulfilled one of his noxious campaign promises by issuing an executive order prohibiting admission to the United States by persons from several majority Muslim countries — but none where the Donald has business interests — and ending all refugee admissions, at least temporarily. To no one’s surprise, various entities filed suit in federal court with the result that several judges issues temporary restraining orders preventing the continued enforcement of the ban. One of those orders elicited a characteristically ill informed, whiny series of tweets from the so called president. In one of them, he referred to “this so called judge,” apparently failing to appreciate that the federal judge likely held his position as the result of a much more rigorous selection process than the one that put the Donald into the White House. He won confirmation in the Senate by a vote of 99 to 0, a much higher percentage of the relevant vote than the Donald won.

His whines about the order also reflected a basic lack of knowledge about what the order did and what it meant. He wrote in his first tweet, “When a country is no longer able to say who can, and who cannot , come in & out, especially for reasons of safety & security β€” big trouble!” Several minutes later, he wrote, β€œThe opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” But the point of the restraining order was not to take “law-enforcement” [sic] away from our country, nor to stop us from saying who can and cannot come in and out, the point was that all government action in the United States must comport with the Constitution. This is an elementary proposition that has obtained in the United States since 1803, when Chief Justice John Marshall pointed out that, if one has a constitution, either all laws have to comply with it, or there’s no point in having one. Various observers noted that the “Muslim ban” was likely unconstitutional before the Donald took office, largely because the First Amendment states that “Congress shall make no law respecting an establishment of religion,” which the courts have interpreted to mean that government may not use religious belief or practice as the basis for any public policy decision. Amusingly, what the so called president still does not seem to understand is that his statements about the Muslim ban are useful evidence for judges who want to see if animus towards the class is part of the motive for the ban, which can lead to the conclusion that it violates the equal protection of the laws as well as the ban on establishment of religion.

But we shouldn’t focus too much on the so called president. We should also look at one other prominent “consevative” for good measure. Newt Gingrich is a good candidate, not least because his criticisms of judges also invites the charge of galloping hypocrisy. During one of the moments of the campaign when Gingrich was being critical of the Donald, he noted how grotesque it was for the Donald to allege that Judge Curiel had a conflict of interest because of his Mexican ancestry. But this is absurd coming from Gingrich, who only a few short years ago proposed that federal marshals should arrest judges who render decisions that displease Congress (he fails to specify how large the majority of disapproving members has to be to trigger this glaringly unconstitutional remedy) to answer for their alleged offenses. The concept of checks and balances built into the structure of government as the Constitution defines it assumes that the various branches are “co-equal,” meaning that each one has its own domain in which it makes decisions. The Senate exercises control over who becomes a federal judge, and federal judges get to review laws that Congress passes for conformity with the Constitution. Making judges answer to Congress for decisions members do not like would completely destroy the whole system.

What neither of these stupid “conservatives” seems to understand is that having judges who render their decisions solely on the basis of their understanding of the law, without political interference, besides being essential to the basic design of government under the Constitution, is just a good idea, especially for persons who like the right to private property. They have forgotten, if they ever knew, that one of the key types of events that prompted the convention that drafted the Constitution was a spate of laws in several states canceling mortgages in response to the economic dislocation of the years immediately after the end of the Revolutionary War. The Constitution includes a provision prohibiting any state from passing any law impairing the obligation of contracts, and this historical experience explains why. On one very reasonable reading, Madison’s famous Federalist Paper #10 is all about this very issue. It is only a small exaggeration to say that the Constitution primarily aims to protect the rights of private property owners. It is no exaggeration at all to say that, as a practical matter, independent federal judges, the kind Newt Gingrich so deplores, are the specific mechanism for achieving this goal.

So, we have “conservatives,” who should revere private property and who’s best chance of making good on their claim to be “conservative” at all in the United States lies in defending the Constitution, yet attacking judges they don’t happen to like at the moment.

The stupidity is vast.

Cross posted on The Constitution Doctor.

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