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Thomas K. Sarrouf, JR.
In the midst of Congressional gridlock surrounding the Build Back Better Act, a now 1.75 trillion dollar spending bill that is being negotiated in Congress, the issues of reconciliation and the Senate filibuster itself have come to the forefront of Congressional politics. Reconciliation is a process that gets around the filibuster, thus making it easier for President Biden and the Democrats, whose majority in both houses of Congress is razor thin, to pass legislation without requiring 60 votes that they certainly lack. The 60-vote requirement in the Senate is a function of the filibuster, which is a rule that requires 60 votes in order to invoke cloture, which is a vote to end debate and come to a vote on a piece of legislation. The filibuster has thus been the tool of prolonging debate ad infinitum and preventing legislation from being passed. The logic of the filibuster is thus: if the party wants to end a filibuster, they will have to make changes that satisfy their opposition so that something gets passed. The filibuster has drawn the ire of Senate Democrats, most recently as they have ascended to the majority in Congress after the 2020 elections. Now that they are in power, the filibuster represents a serious challenge to their legislative agenda, which has led many Democratic leaders to call for it to be scrapped. The filibuster rule, though a part of Senate tradition, and used by both parties throughout American history, is not a passed law, but is only a Senate rule, one which could easily be discarded by the vote of a simple majority. And yet, it remains. In particular, Senator Joe Manchin III (D-WV) has opposed repealing the filibuster, as he considers it to be a dangerous shift towards partisanship. Manchin, a Democrat, is considered to be part of the party’s “moderate” wing, and thinks it is important to have minority participation in lawmaking. When pressed by Meet the Press host Chuck Todd, Manchin said, “Just by assuming that, hey, they will never work with us, that’s the other side. This is tribal. The Republicans will never agree on anything, or the Democrats will never agree….I don’t buy into that.” Moderates like Joe Manchin and Sen. Kyrsten Sinema (D-AZ), and someone like John Kasich (R-OH) or Liz Cheney (R-WY) on the Republican side, typically do not have much political clout or national influence. Likewise, “moderacy” is not a political ideology, nor is it a policy agenda; rather, it is more of a persuasion or disposition that exists to temper both the liberal-progressive and conservative ideological camps that characterize the Democratic and Republican parties, respectively. Some argue that moderate politicians like Sinema are trying to navigate the political winds of their respective states to come out on top. That could very well be true; ambition and a desire for power are strong motivating forces, and after all, who likes to lose? But the political considerations are complicated and debatable, and we cannot truly know the complicated set of motives and forces that weigh on a politician at any given time, though some arguments are better than others. In his exchange with Chuck Todd, Manchin offered a substantive argument in favor of the filibuster, and I think it’s one that should appeal to moderates. I would argue that the filibuster is not only a tool for moderates to organize its own political constituency, but it is probably their best last hope for saving America. As polarization becomes a larger concern for the unity of the country, the moderate is likely to find himself/herself alienated from both political parties. Both sides have shifted further apart. I remember a time in high school when my history teacher put a Left-Right political line on the board, and then put the Democrats slightly to the left-of-center and the Republicans just to the right-of-center; they were very close to each other. That was just a few years ago, but the data shows that both sides have shifted further from the center, and both sides also have a strong distaste for the other. That being said, there is still a large constituency of moderates in America. Moderates might skew to one side of the aisle or the other; they might be people who haven’t found either party to represent them in past years, though both sides try to court independent voters who don’t stick to one party in any given election cycle. They could be the average person who self-describes as “not political.” It could just mean people who, for various reasons, are not well-informed about politics. The point is less about where the moderate comes from and more about why the filibuster acts in their interests—and in the interests of preserving a unified country. As Sen. Manchin points out, the filibuster requires minority input on a bill before it is passed. It fosters reasoned debate, and requires a ruling majority to respect and listen to their opponents so that they cannot just ram through a piece of controversial legislation. Bear in mind that “opponents” on the other side have the support of many of the majority’s own constituents. The filibuster is thus a mechanism that fosters debate and negotiation, and protects the rights and voice of a ruling minority within the legislative process. It would not be possible for a slim and transient majority to pass a controversial agenda that doesn’t represent the values of much of the country. It also would prevent a flip-flop of policy and legislation every two-to-four years when the other party regains control. Rather, the moderates would hold onto the balance of power and maintain it over the long-term, imposing a boring moderacy on the country at large. Given that the filibuster requires 60 votes, various constituencies would have to listen to each other, negotiate, and come to a compromise, otherwise achieving nothing. It’s been said that when there is compromise, no one is truly happy with the result, but when there is compromise, prudence rules the day, and things get done. The Founding Fathers recognized and envisioned a system that moved slowly, and where change would be difficult, but would ensure lasting change. Gridlock is a feature, not a flaw. With each presidential candidate threatening to undo the legacy of his (and soon to be her) predecessor, America gets caught up into a partisan whirlwind. The filibuster would slow things down, temper the extremes of both sides, and make sure that any changes made in the country can command the assent of a true, or as John C. Calhoun put it, a concurrent majority, one that aggregates not the mere number of voters, but the varied and oftentimes opposing interests in the country. There are tens of millions of American voters who are moderates or centrists. There are also many partisans who like to identify as moderate because it sounds nice or because it offers the pretense of common ground. For all those who don such a label, or who simply see the polarization and partisan divide to be not only exhausting, but genuinely dangerous to the existence of a unified country, the filibuster is the powerful tool to seeing a return to bipartisanship. The filibuster is not a Jim Crow relic, as many race-obsessed Democrats falsely claim. Avoid the temptation to seek after a politics that offers instant gratification, and instead settle for a more workable, sensible, and calmer politics that allows us to move past the fraught tensions that characterize our current moment. The filibuster is thus a safeguard against the pervasive radicalism of both sides. Guard it jealously.
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Don't Date a Liberal9/5/2021 Thomas K. Sarrouf Jr.
I am the only conservative in my family. Everyone on my mom’s side, with the exception of my late grandfather, is left-leaning, and everyone on my dad’s side, including our large extended family, is quite liberal and increasingly progressive. My dad might be the only exception, as he is personally conservative, though is “moderate for moderacy’s sake,” which might be considered a soft form of Burkean prudential conservatism. But as far as staunch traditional conservative politics goes, I stand alone. It is actually a meme in my family, as any political conversation is a 1v15, almost by definition. And that is all fine with me. The unconditional love of family is higher than politics, and I love my family dearly, politics aside. A valuation of the family as the fundamental unit of society is essential to conservatism; in short, when it comes to family, “we’ve got to stick together” is rightly the conservative motto. Being the sole conservative in my family has also been grounding for me personally. As my friends like to spurn “the Left” as such, I must be more careful and considerate, lest I unfairly damn my own kin! Being the sole conservative has imbued a certain level of respect for the Left, and keeps me slightly more restrained, which I think is necessary, especially these days. A story: at a family holiday gathering a couple years ago, one aunt asked me if I felt burdened by the liberal ethos of the family, or if that difference made me resent them in some way. Channeling my inner Aristotle, I replied, “filial piety is a virtue.” I meant that only as a facetious way of saying “no.” My philosophy professor would have laughed at such a joke; sadly for me, my family is not versed in the intricacies of Aristotelian virtue taxonomies, so they were mildly offended. They interpreted it as me saying that I love them from the necessity of virtue rather than unconditional love, and I must admit that is not an unfair interpretation; I should have been more straightforward. But as the conversation continued, we ended up talking about whether I would date a liberal. My straightforward answer was that I would not. They, again, were offended, as they took that as a personal slight against them. Leave it to the Left to take things personally. They conflated being a member of the family with building a family with someone else. Perhaps because they all agreed, more or less, this was not such a manifest issue, or because the landscape of politics has shifted in a more partisan direction since they were building the family. Point being, a conversation ensued, and I thought my reasons for why I would not date a liberal were worth putting in writing, so here they are: the psychological argument; the argument from culture; and the question of judgment. A disclaimer. These arguments cut both ways. I will be looking at things from a conservative angle, but for the liberal reader, these arguments are still worthy of consideration, albeit in reverse. Also, these arguments are hardly deductive proofs, and are not hard and fast rules. There are plenty of exceptions. The Psychological Argument Individuals are psychologically different. Interactions between individuals are thus governed in part by the interaction between the psychological profiles of the individuals in question. Those traits and characteristics that we find annoying about another person, or endearing or desirable, is the relational agreement or disagreement between myself and the other. It’s not relative; there are some traits that are objectionably intolerable and undesirable. But relationships are somewhat beholden to the psychological “goodness-of-fit” principle. That is simply at the level of the individual. There is also relevant and interesting empirical data about how various groups of people differ psychologically. For instance, men and women are psychologically different along the “Big 5” personality trait model (sadly, all of the information I am about to present exists behind a paywall, but to learn more about these phenomena, go to https://www.understandmyself.com/ and take the official “Big Five Aspects Scale” test). Women are more agreeable compared to men; women are slightly more orderly than men, and men are slightly more industrious than women; women are significantly higher in neuroticism (negative emotion) compared to men; men are rated higher in intellect, which is defined as interest in abstract ideas, compared to women. These are just a few of the major differences. These are not laws of nature, but by looking at the results of someone’s test, it is possible to guess their gender with perhaps 70% accuracy, which suggests a considerable psychological difference between the sexes in aggregate. So on top of individual-level differences, there is also a pattern that emerges that suggests sexual difference. Superimposed on top of that are differences in political and moral psychology. Liberals are significantly higher in “openness to experience” than conservatives, and conservatives rank much higher in levels of conscientiousness than liberals. There are also other trait differences, though they are less pronounced or do not predict any political leaning. Jonathan Haidt’s work on moral psychology shows a similar pattern: liberals tend to value harm/care and fairness/reciprocity, while conservatives value those same two moral foundations, albeit less than liberals, as well as authority, sanctity/purity, and ingroup/loyalty. Thus, we see that people with different political ideologies are likely to have some sort of underlying psychological difference. To review, there are individual-level psychological differences, which plays a role in how well people are able to get along. For instance, someone who loves to go out and party, which would indicate a high level of extroversion, might find someone who stays in on weekends, indicative of low levels of extroversion, to be quite boring. Stack these differences up for each trait, and one can see why two people might not get along. But then add gender differences, and on top of that, the underlying differences in political psychology, and one could see how these compound to make a relationship difficult. Of course, it is conceivable that liberals and conservatives fall in love and make it work, as the differences could also cancel each other out, but as Jordan Peterson says, “It’s very difficult for people who widely differ on those dimensions to come to consensus, because it’s not just a matter of opinion, it’s really a matter of really different types of people.” To demonstrate this, I composed a matrix of what this might look like:
The Argument from Culture I would not want to paint the picture that political belief is solely the basis of our psychological tendencies or characteristics; if political belief is determined this way, then there is no reason to assume that all belief is not merely the product of personal psychological, biological, and neurochemical variations between individuals; if this analysis is taken too far, one gets the picture that all human ideas are merely the product of external forces, which is an overly-reductionist view of the human being. Furthermore, it paints a troubling picture with respect to man’s freedom; Haidt’s work proves less problematic in this regard, as his idea of the “moral matrix” is that these five traits are something akin to the Lockean faculties, and open to revision within the human being; in fact, if Haidt is able to talk about it as moral psychology at all, that is because man is free to form judgments. There is an entire realm of transcendent political philosophy that exists in addition to the psychological nature of man; we have spiritual, intellectual, and physical dimensions integrated into one being, so in addition to the psychological basis for political belief, there are also real reasons that inform political beliefs. Contra Freud, all reason is not rationalization. The argument from culture stems from the proposition that “politics is downstream from culture.” In other words, political beliefs do not exist in a vacuum, but are informed by larger cultural norms and values. These cultural values are antecedent to political society, and inform the structure, laws, and procedures that the political society follows. For instance, the equality of people was the cultural value that inspired the overthrow of the so-called “divinely sanctioned” monarchy during the American Revolution. Another example of this is the observation that countries with majority Muslim populations do not, as a general rule, have high levels of negative liberty, and the religion informs how the political society takes shape. Again, conservatives place a great deal of emphasis on conserving the “Judeo-Christian values” that undergird the American political sensibility. Therefore, many of the political differences between people are actually indicative of larger cultural chasms; this is not always the case, but the exceptions seem to prove the rule. This is increasingly true between conservatives and progressives, as they make a number of vastly different assumptions of human nature and the world. In the realm of dating, this would mean that people with differing politics have differing politics because they have different values, and it is the value differences that count. The value differences point to the fact that two people want different things, not just politically, but in life. A conservative might want low levels of welfare because they value individual responsibility and achievement, whereas a liberal might support a robust social safety net because they value solidarity and the common good. In a political analysis, one could break down these values and give arguments, but in the realm of dating, what matters is not why people differ in values so much as the fact that people have different values, which like psychological differences, can lead to significant strife and discord between a couple. This argument probably does not hold as strongly for moderates, as the moderates likely value a lot of the same things, though one still has to analyze why someone is moderate. It’s the underlying beliefs that inform our politics, and it is those beliefs that matter most in a relationship. Thus, the argument from culture. A caveat: the proposition that “politics is downstream from culture” is not true, strictly speaking. It isn’t false, but it is, as a means of explaining the genesis of political beliefs, incomplete. More properly considered, it is a two-way street: politics draws on larger cultural norms and traditions, and the legal and political structures and decisions can likewise change and shape the culture. The reader will notice that my argument does not require the proposition to be solely true, but I only make the caveat to correct a popular albeit insufficient political argument. A Question of Judgment Above, the policies themselves were not the subject of inquiry, but the underlying values that informed those policies. Here, I want to say that the policies themselves actually matter when it comes to dating. The policies affect the lives of America and the world. The policies shape our social, political, and economic landscape. If the person with whom I propose to build a family supports policies that I believe will make the country, the life of my children, and me worse off, why would I marry her? Small political policy differences are one thing. But if two people are substantially disagreeing on many, most, or all political issues, and each thinks the other’s policies are doing harm to the country, then how highly can they really judge each other? I am an isolationist and nationalist. I am strongly opposed to so-called abortion rights. I am in favor of low taxes, banning pornography, and the proliferation of religion in schools. I strongly support gun rights, federalism, and constitutional originalism. If my spouse opposes all of those things, is it really a good idea to marry her? I think that other ideas are not good for America. If my spouse is to propose political policies that I think are ruinous to the country, what do I think of her judgment? If I say, “Well, she is judging wrong on all of these policy positions, and those ideas are, I think, quite harmful to the country for reasons X, Y, and Z, but I think she has great judgment” does that not make me crazy? Judgment matters. Thus, the question of judgment. There are many who would say, “that’s her opinion. She is entitled to it. Why are you discriminating against her beliefs?” I do not disagree with any of those objections. My future wife is entitled to believe whatever she wants; that’s beyond my control. The human conscience is free by nature. Everyone is entitled to their own political beliefs, much in the same way people are free to do as they please, within reason, in America. However, that does not mean that all political opinions are equally good or should be considered equally valid. If two people have contradictory political views, and each believes they are right about what is best for the country, then surely they must be mutually exclusive; someone has to be wrong. Abortion cannot be both moral and immoral at the same time and in the same respect; that’s logically absurd. So she is entitled to her opinion; that does not mean she is right. I could also be wrong, but I think I have developed a sound judgment on an issue, as does she, and therein lies the problem. There are others who would extend this argument to say that I am implying that one should not be friends with people who differ from them politically. That is unequivocally not what I am saying; I have many friends across the political aisle; my whole family is across the political aisle! Politics can play a part in friendship, but determining friendship solely on the basis of politics has many troubling implications: it misses the other dimensions that bring friends together: shared interests, company, and in an Aristotelian sense, someone with whom to strive towards virtue and the Good. The same argument applies to family: family is antecedent to politics, so political differences in the family should not strain family relations. But in dating and creating a household, we are talking about something wholly different. Unlike friendship, dating and marriage are exclusive. Unlike family, who we do not choose, we choose our spouse. And when we select a spouse, that is not like picking with whom we would like to be friends; marriage is something higher than friendship, and it’s much more important. Values trump interests and commonalities; values are the foundation of the household and the family unit. Character matters; if friendship entails the mutual pursuit of virtue, then that is even more important in a marriage.
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This article is part of a series of articles written in celebration of Independence Day in the United States. We celebrate with gratitude the achievements of the Founding Fathers and the wisdom of the Founding Generation, who pledged to each other "our Lives, our Fortunes, and our sacred Honor," in the pursuit of freedom against the shackles of tyranny. We wish all readers a Happy Independence Day. In the words of President Andrew Jackson: "Our Union: it must be preserved." Happy Birthday America! THOMAS K. SARROUF JR.
Over the course of the past 100 years with the rise of modern American progressivism, there have been many complaints and criticisms of the Founding Fathers and the American government, particularly the Constitutional structure. One might commonly hear criticisms of the electoral college being an “undemocratic system,” or that there are forces in play, like the “top 1%,” who are trying to undermine and erode our “democracy.” “Power to the people” is a common phrase used by many political activists, derived from the John Lennon song of the same name. Because the system was created by the Founders and written into the Constitution, people blame the Founders for creating an inherently unjust and oppressive system; according to these people, America is an inherently bad place, lacking certain values that protect human rights. But why did the Founders structure the Union the way they did? On Independence Day, I think it timely and important to evaluate and recommit to the values of the Founders. The fundamental principle understood by the Founders is the rights of all human beings. The Declaration reads, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights.” The Founders did not have a specific concept of dignity the way we do today; the term post-dates them. However, they understood that our human tie to the Transcendent, “the Creator,” came with a package of rights; our rights come from a higher source. They understood that human beings were special, and that by virtue of being human, every human, despite individual differences, were created equal. This idea was a radical departure from the common understanding of governance at the time. As Jefferson wrote in that famous last letter of his: “The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God. These are grounds of hope for others. For ourselves, let the annual return of this day forever refresh our recollections of these rights, and an undiminished devotion to them.” Contrary to what King George III believed—and what was the common sentiment throughout the entire world—no man had a divine writ to rule over any other man. From that principle of equality comes the principle of consent; government may only be legitimate where consent is given for governance. Because we are all equal, no one can force another to do something without their consent. For the purposes of government, consent must be ongoing, which begets the Constitution, a system of government that ensures perpetual universal consent for government. Why did the Founders choose a representative government? They understood the potential of people to become corrupted by power (e.g. King George III), and needed to impose strict limits on the ability of people to become corrupted. That is why we have a system of checks and balances between the branches of government. Representation allows for continuous consent for government by way of voting, but it also sets a difference between the government and the people. Because the people give consent for government, they are the sovereign. However, they have no political power outside of voting (lobbying, free speech, the rights to bear arms, and protesting are influential and even powerful, but they are not formal mechanisms of political power). This is by design. The Founders wanted to separate the power from the sovereign so that the sovereign could not change the rules of the government like George III did. Hence, America is a republic, not a democracy. The Founding Fathers, knowledgeable of their Classical history and philosophy, knew well that democracy was evil and trended towards corruption. Those who say “power to the people,” do not see the government as being “for the people.” However, as we have seen, this is quite untrue. The Founders created the American government, a federal representative Constitutional republic, based on human anthropology. They saw human beings as having a will and an intellect, equal under God, capable of both tremendous good and terrifying evil, and having a freedom for excellence. From that philosophic foundation, they created a system that would allow us to be ruled by the “better angels of our nature.” Because it is grounded in an understanding of human dignity, the American government is the single greatest nation in human history. So on Independence Day, let us all reflect on just how well the Founders did at making our government, and let us always commit and recommit to those principles gladly and freely. Originally published at the World Youth Alliance, appearing here with slight edits.
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Are Libertarians Conservative?4/11/2021 THOMAS K. SARROUF, JR.
Last week was a great week for the Boston College Republicans. On Monday, Professor Hadley Arkes delivered a speech to the club over Zoom. It was a spectacular event. During the Q&A, someone asked about Senator Rand Paul (R-KY) and the conservative-libertarian debate on the Right. The next day, the club got together for a political theory discussion on that same topic. There was great debate back and forth, and I found the discussion to be rich with intellectual content; in my opinion, it was the best political theory discussion we have had in my time with the club. While the subject is still fresh, I want to chime in and bring in some of what Prof. Arkes said on Monday. I do think libertarians are conservative. I also think libertarianism fails as a political philosophy. I am not going to defend that premise in this article (for my refutation of the philosophy, read here). But I do not think that conservatism fails as a political philosophy, neither in theory nor in practice. So why do I think libertarians are conservative if I think their philosophy is insufficient? It is because libertarianism collapses into conservatism. First, it will be helpful to elucidate the difference between a liberal and a conservative, so we can determine which position libertarianism collapses into. The difference, so it seems to me, is regarding the role of pleasure and pain. Conservatives, drawing upon Aristotle, recognize that pleasure and pain are part of life. However, it was not until modern times that the subject of pleasure and pain was seriously considered essential to a political anthropology; only the Ancient Epicureans actually centered their philosophy around the pursuit of pleasure and the avoidance of pain. Modern “classical liberals” like John Stuart Mill, Jeremy Bentham, and John Locke, among many others, also treated pleasure and pain as essential; Mill specifically focused on the difference between “higher” pleasures and “lower” pleasures, namely the pleasures of the mind versus the pleasures of the flesh. Even so, Mill’s hedonism was what set him as a liberal, albeit in the “classical” sense. Unlike what some people believe, conservatives are not anti-pleasure per se, it’s just that we harken back to the Ancient understanding of how pleasure should play into our lives. Pleasure is a byproduct of an act, not the telos of the act itself. For an example, let’s use a “cradle argument” that was often debated between the Stoic philosophers and the Epicureans. A newborn baby is crying. Why is the baby crying according to each philosopher? The Epicurean says that the baby is crying because of some pain or some lack of pleasure. The Stoic responds and says that the baby is crying because she is hungry, and is lacking in health, which is a state of being; for the Stoic, what matters is oikeiosis, that innate knowledge of what is beneficial for the preservation of one’s constitution. The baby knows that she is hungry, and that her hunger is indicative of a lack of health, and therefore she is crying out to be nourished. Who is right, the Stoic or the Epicurean? Let’s find out. We will give the baby a morphine drip so that the pain goes away; if the Epicurean is right, in the absence of pain, the baby will be fine. The baby is shot up with morphine, and stops crying. It worked! Then the baby dies from starvation. Oh no! What’s the lesson? If you assign intrinsic value to pleasure, not only will you not get it in the long-term, but you will lose the ability to get it long-term (because you will be dead like the baby). We all intuitively know this truth: a life well-lived will be full of pleasure, but not because we seek the pleasure, but rather the goodness that pleasure happens to be a byproduct of. About this enough has been said. What is the conservative summum bonum? I take the line from that old Baltimore catechism: “to love and serve God in this life so that I might be happy with Him in the next.” Likewise, Aristotle posits that it is happiness, the highest happiness being homoiosis theoi: “to think the thoughts of the gods before them.” How do we do that? By pursuing virtue, or doing what one ought to do. It is a moralist position. There are many other differences between the core of the liberal philosophy and the conservative philosophy, but the pleasure-virtue difference is something quite important. Now, from Mill’s statements in Utilitarianism about the higher and lower pleasures might make him seem as if he is a liberal, and in the history of philosophy, he would be considered to be one. However, as Arkes pointed out in his speech, “the problem for the libertarians is that they haven’t quite grasped the notion that libertarianism is a moral position.” Libertarians are moralists! Just think about what they say: “The government ought not legislate morality; it is wrong for the government to legislate morality; the government ought not limit my autonomy to do what I want to do with my own free choice so long as I do not hurt anyone else.” These are clearly moral claims, and they represent the core of the libertarian position. The problem lies in the fact that they believe that the government ought not legislate morality. It misunderstands this key point: all laws legislate some morality, even something as seemingly banal as which side of the road people drive on; if no law is posited on that point, people will die. Indeed, to create a law, one must make the moral argument that we ought to have such a law. And so the error in the libertarian argument is that the conclusion of that argument is to seek the obfuscation of all moral claims and instantiations of morality in law and society, even though they begin from a premise that is moral; in short, it is a contradiction. But the moralist starting point is undoubtedly true, so the conclusion must be false, which means that the libertarian moralism ought to collapse into conservatism. That’s the theoretical argument. There is also a practical argument. Arkes said another thing on Monday: "The main point I convey is that the Republican Party really is not shattered or in disarray. It’s in very good condition, because the people in the country have just a clear sense of who the opposition is. As an administration and Congress of the Left extend the powers of the government, in a way that is destructive of the economy and the families, so if people recoil from this new surge of the power of the government, they know exactly who the opposition is, and the party is gifted with so much talent right now, and rising stars." This is indeed true. The libertarian impulse is anti-government, so as the Biden administration and the modern Left continue to grab power, especially in light of continued restrictions under the pretext of the COVID pandemic, any serious libertarian will find themselves turning to ally themselves with the Right. And all the better. Conservatism has long been described as a “big tent,” and we welcome libertarians to engage with us in the tent over the battle for ideas. I have spent the duration of this article asking if libertarians can be called conservative, assuming conservatives are the paradigmatic gold standard by which to judge all other ideologies. But I will conclude with a piece of praise for libertarians, which is that they have something to remind conservatives. In fact, they remind us about something so central to our own beliefs: that there are moral truths beyond the positive law, and that it conforms to a natural law that we can know by our reason, and that the natural law discovered by us teaches us how we ought to act in accord with virtue to achieve true happiness. Arkes said a third thing on Monday: “[Libertarianism] is a good disposition; it’s pretty sound. It takes the point that we have a claim to all dimensions of our freedom, and the burden lies with the government to justify its restraints on any one of those things.” That is not to say that there can be no principled ground for justification of restraining liberty; the liberal and the conservative both hold that there is ground for doing so, though we disagree when it is appropriate to do so. However, the libertarian recognizes and reminds us conservatives that we must be careful when restricting the natural rights that are intrinsic to our existence as persons.
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THOMAS K. SARROUF, JR.
2020 was the most consequential set of elections in U.S. history, with the only exceptions being 1788 (the first one), and 1860, which saw our great nation divide in an unprecedented (and God willing, never to be repeated) way: secession and bloody civil war. Last year marked not only the most contested presidential election in American history, but also the most significant Senate run-off elections to date. This year, election season is early: Boston College Republicans is holding its elections this week for the upcoming school year. And this year, I am announcing my candidacy for President of Boston College Republicans for the 2021-2022 academic year. For those who are unaware of my experience with this club, I will briefly share. I have been a loyal member of College Republicans for the past three years. I was involved with BCR right away, and participated in a debate against the College Democrats during my freshman fall; despite what The Heights says, we walloped them, and in one case, they walloped themselves. More recently, it has been my honor to serve as the Chief of Staff this year, where I have led the reading group; secured Hadley Arkes to come speak to the club in a couple of weeks; co-authored the condemnation of the online COVID reporting system; led meetings; have written many of the founding documents and articles for the new conservative newspaper, The Free Press, and led the charge in The Free Press to fight against the sham impeachment of UGBC President Christian Guma. But that is what I have done. What I plan to do next year is a much taller order, but one I am fully equipped and eager to fulfill. I have long been a family man. If the individual is the nucleus of Western civilization, then the family is the cell—the fundamental unit of society. I want College Republicans to grow into a conservative family. We have long been the party of the “big tent,” where we tolerate diverse and disagreeing views within our own movement; in the aftermath of the abomination that occurred in the U.S. Capitol last month, the party stands split over the path forward. But I would like to say that you are all brothers and sisters regardless of where you stand on that. I feel like I know almost everyone in the club, at least as well as I possibly could over Zoom, but what I mean by family is a genuine community, rooted in shared values, principles, and a shared vision of the future. To that end, I propose a reincarnation of the social groups, which we have tried in the past, to no avail. But in the name of solidarity, we must come together and back each other the way a family does. I believe strongly that together, we can make it work, and I intend to do just that. As I make this bid for the Presidency, I think about my friends. I have always been gung ho on this campus that I am a conservative Republican; in classrooms, on social media, and everywhere in between, I will chime in and give an opinion during a political discussion, the personal consequences be damned. Just this past summer, as the online public square was being weaponized by progressives to malign Republicans and American patriots who are rightly proud of our rich heritage, I shared my views and arguments at length against them. I received much praise by friends who are conservative, but dare not share their views. We all know these people: the meek conservative who loves the country and wants to continue our tradition of building upon our Republic, but does not want to lose friends, be censured by classmates, or run the risk of having a reduced grade for holding different views than their professor. These claims are perhaps over exaggerated, but can you blame them for not wanting to risk it? I do not blame anyone for keeping their mouth shut; not everyone has the luxury to not care what people think of their political affiliation. But this way of being? IT ENDS NOW. The Left claims to want unity, healing, truth, and reconciliation, but we will never have any of those things if one side is politically repressed; that will only breed resentment. It ends now. So we will create a conservative family, one that backs each other up when the scrutiny is strong against us. We will stand up straight with our shoulders back, firm in our convictions, confident in the efficacy and rightness of our beliefs. If elected, my administration will hold to this principle: an attack against one of us is an attack against all of us, and I will bring the full force of Boston College Republicans to fight back against repression of right-wing views. But we will do even more than this. From this family will emerge a sweeping conservative movement that takes the campus by storm. We have read Yuval Levin; we have a systematic and mature way of conceptualizing and participating in the campus culture war; and it is about damn time to enter forthright into the marketplace of ideas. Our movement will take the activist administrators to task for employing, aiding, and abetting the leftist pariah that consumes this great University. We will push back (figuratively) against professors who are receptacles of radicalism, pumping us up with intellectual poison and pseudo-moralistic sophistries; they are making us all dumber, and we deserve better. And we will stand up in front of our peers and engage strongly, disagree vociferously, and advocate for a University, and an America we can proudly believe in. How will we achieve this lofty goal? We will erect tables on the campus lawns and invite people to dialogue, “change my mind” style. We will continue to discuss amongst ourselves the values and policies that will help America remain at the forefront of human civilization, and then spread those messages throughout the campus. We will disseminate our young newspaper, The Free Press, throughout the campus, spreading our cherished values and bright ideas. We will bring an onslaught of speakers to this campus; they can protest, kick, scream, chant ludicrous slanders and epithets at us, but if we persist—and we will persist—our classmates will have no choice but to concede: we exist. If they protest everything, they end up protesting nothing. And it is my intention to form a strong network of all of the conservative groups on campus, and with our combined efforts, we will force the University to protect us from harassment, censorship, and reprisal, including the heinous politically motivated hate crime that occurred to one of our own this past Fall, the infamous “egg” incident. Students should not be subject to political persecution, and school rules and policies must be uniformly enforced on this campus. I will do everything in my power, using the full institutional power of Boston College Republicans, to make sure this happens, and together, we will “secure the Blessings of Liberty for ourselves and our Posterity.” Like I said, this way of being ends now. But we also must think of the bigger picture. This University does not exist in a vacuum. We are a small node in a network that has a reach far and wide throughout the country, the West, and the wider world. As Charles Malik writes: “What is at stake is not this or that political interest, nor this or that government, nor even the security of the United States alone; what is at stake is the totality of Western civilization with its tested and wonderful values which have been cumulatively handed down for thousands of years. One can no longer think of himself or his interests or his country or his party or this or that superficial improvement or the span of a year or two when this is the issue.” My friends, this is the issue: our campus issues are both reflections and premonitions of what is and will be when we leave this beautiful campus. The whole of Western civilization has been infiltrated by a fifth column of ideas and actors that are committing treason against the Western heritage; these are the ideas we see in the lecture halls of our University, the frames of the arguments of the pundits on TV, and in the language and beliefs of many philosophers, public intellectuals, and “community organizers.” We are being branded as radicals for being conservative. AOC and others are pushing for making “Trump supporter lists.” That isn’t fascistic at all! Robert Reich and Liz Warren, backed by NPR and other media organizations, are pushing “truth and reconciliation councils” to rehash the past 4 years, outing every Trump supporter, and “seeking the truth” about his wrongs and all of his “enablers.” And in the aftermath of an attempted coup that threatened the Constitution that we cherish, the same powers that be wrongly spread the scope of their scorn to all conservatives, giving us no out, stoking the same tensions that they accuse Trump of stoking, which will lead to our collective ruin. My friends, we are staring into the void. We are looking at political repression the likes of which we have never seen; they are so radical that they are trying to shut the Overton window on mainstream conservatism! That’s unacceptable, and we have to be a part of the solution to that on a wider scale. The fight for the campus is more than just the campus. We are fighting for the future of this country. And the fight for this country is about stopping the assault on the entire Western Spirit of Being. Think about our classmates; they are growing increasingly stupid, opposed to free speech and free expression for ideas with which they disagree, increasingly in favor of socialism, opposed to the West, opposed to Thanksgiving, in need of safe spaces, soft, believing in infinitely evolving conceptions of gender. They impeached Christian Guma over a typo! Simply put, our peers, who I sincerely believe mean well, are learning to attack Truth itself. That’s where we are headed, and it’s all being led by an activist administration. Again, Charles Malik has the perfect line when he says, “more potently than by any other means, change the university, and you change the world.” Taking back the campus from the excesses of the Left is about more than just winning a spot where we can belong without repression or discrimination. It’s not merely about being represented in the student body; it is about participating in the body politic. I believe strongly that what we accomplish next year under my administration can be a template for conservative thought to flourish once again, here and everywhere. I want to thank all of you who support this vision. When I say that we are going public, I do not mean to say that we are going to fight the culture war rampantly, eristicly, and by embracing the scourges of radicalism; in short, we will not sink to the slander that we regularly face. We will commit to our values, and by doing so, and by having the courage and mutual support to stand strong together, we will spread a strong message that I believe will cut through the typical noise of our campus political culture, and make new waves that allow us to speak our minds and be heard, whether the opposition likes it or not. In closing, I also want to take this opportunity to endorse the current members of the executive board and our freshman representatives for their respective positions: Ian Gallaugher for Vice President, Emma Story for Treasurer, Dougie Neviera for Director of Political Affairs, Morgan Hunt for Secretary, and Charlie Wolther for Event Planner. My friends share this same vision as me, and have a number of their own gifts, talents, and perspectives that College Republicans need in our leadership for this momentous year ahead of us. Over this past year, I have come to know these friends of mine, and we have worked side-by-side to make this past year a success in spite of the tumultuous circumstances. And I am hopeful that we can do great things together with all of you, for all of you, for Boston College, and our beloved America. And so I ask for your vote. We need strong leadership, a bold vision, and someone with the ambition and energy to execute it, and that’s who I am, full stop. And I strongly encourage you to re-elect the current members of the executive board so we can continue the work we started this year. Thank you for your vote, I look forward to leading this organization to a new chapter in the school’s history as we do our part in the fight to save Western civilization and our beloved way of life. God bless. In patriotism, Tom Sarrouf, Chief of Staff Candidate for President of Boston College Republicans
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THOMAS K. SARROUF JR.
Jordan Klepper is a comedian from The Daily Show (TDS), a political satire show that airs on Comedy Central. He was hired by the former host of TDS, the left-leaning Jon Stewart, and now works side-by-side with the new host Trevor Noah, who shirks traditional American political titles, though is certainly a man of the Left. Klepper himself has hosted two of his own shows on Comedy Central, but is most famous for “Jordan Klepper Fingers the Pulse,” a segment on TDS that sees him attend Trump rallies and ask questions of some of Trump’s most ill-informed supporters. As one might expect, they give the dumbest answers, which makes for great comedy. I hate to throw my ideological kin under the bus and laugh at their expense, but Klepper’s segment is simply funny, no matter where one stands politically. I often watch with my family, all of whom are liberals of various sorts, but we all roar with laughter as we watch Jordan confound members of Trump’s base. In spite of the fact that his comedy is at the expense of the conservative movement, a movement to which I proudly claim membership, it is good comedy; Klepper, who was part of his high school’s national champion mock trial team, has a lightning-quick wit, which can be seen on display with his spontaneous retorts to the worst right-wing talking points. Some of his comedy is pre-thought and pre-written, but Klepper shines most when he thinks on his feet and ad-libs his jokes, which is one of the hallmarks of a talented comedian. Klepper’s brand of comedy, funny as it is, has serious implications for genuine politics. And I am not talking about the fact that he is a liberal; that hardly matters. Art is an invitation to expand the mind, and let the worldview of another enter into our own limited sphere through symbol, metaphor, and imagery. Comedy is an artform, and is an effective tool for explaining oneself, revealing the absurdity of things, and delivering arguments. I would not suggest that all art that is liberal or leftist is garbage that should be removed or insulated from any praise, as that would defeat the purpose of art. Likewise, comedy could take on any political content and be considered funny, and if it is funny, we should all laugh, whether it stands for our political worldview or against it. As conservatives especially, we can laugh at ourselves. And besides, it’s just comedy; it is not meant to be taken seriously. As Klepper himself noted in an interview with Stephen Colbert, “we [Comedy Central] are literally the fake news.” His actual shows, such as Jordan Klepper Solves Guns, The Opposition with Jordan Klepper, and Klepper, are still political satire, but are more serious and raise some legitimate political issues. By comparison, this segment is only meant to make the mostly-liberal audience of TDS laugh at the excesses of the political right-wing. Well….maybe. There are a couple problems raised in Klepper’s work in “Fingers the Pulse.” For one, and this is the lowest hanging fruit, his work breeds animosity and resentment for “the other.” His work makes the Right look like clowns, and if one does not put the segments into context, questions can easily arise. For the liberal, “this is my fellow American? This nasty, uninformed, unintelligent, racist, xenophobic, sexist bigot has the same rights and freedoms as me? They have the right to vote? Really??” By capturing the fringe, it reminds liberals what they hate about conservatives, and what they are fighting against. Also, keep in mind that the people interviewed actually are overtly racist and sexist. Just take this humorous yet cringeworthy exchange about feminism between Klepper and a portly Trumper: Trump Supporter (TS): These extreme nations, they don’t treat women with respect. Jordan Klepper (JK): We treat women with respect here. TS: Yes we do. JK: That’s an American ideal. TS: Yep. JK: Tell me about your shirt. What’s it say? TS: It says, uh, “Hillary sucks….but not like Monica.” JK: Hilarious. So we were talking about treating women with respect. TS: It’s an American ideal that we treat women with respect. JK: You’ve got to give me the back of that shirt one more time, that’s too much fun. TS: TRUMP THAT BITCH! JK: Haha, we don’t even see the irony in it, I love it! It is quite clearly sexist. And the interviewee is far from being the only one. When Klepper puts these clips back-to-back-to-back, it paints a picture that Trump country is sexist, racist, and xenophobic. Quite simply put, Klepper’s comedy is confirmation bias for the caricature of conservatives that most American cultural institutions paint of us. The conservative asks a different set of questions: “this is what Klepper is showing? These stupid people that make me look bad? Why does the media hate our president and hate hard-working Americans who love the country? Do they not realize that Republican policies actually help women? This is a ploy by the fake news media to malign conservatives and shut the Overton window on our ideas!” If taken seriously, “Jordan Klepper Fingers the Pulse” serves to make the conservative more cynical and resentful of false pictures and caricatures that make our lives more difficult. These ideas about conservatives spread like any other group of people. It is clear and obvious that Klepper is exaggerating the segments, only showing the worst of the worst for comedic effect. His purpose is not to give a well-balanced showing of Trump supporters and conservatives; he is not objective, nor is he purporting to be. Surely not every person he asked delivered a laughably absurd response; the intelligent conservative does not garner laughs required to make the cut. And besides, conservatives also caricature the Left by pointing out their least coherent constituents. Will Witt from PragerU goes around college campuses and records college students saying that Trump is “literally worse than Hitler,” which is hilarious. Or who could forget the famous clip of Jesse Watters eating meat in front of a vegan sociology professor as she explained why eating meat perpetuated “toxic masculinity?” Both sides make jokes at the expense of their political opponents for laughs. The real problem with Jordan Klepper’s political comedy is that it is purely personal. Some are simply exposing the ridiculousness of some parts of the Trump base, and have no deeper content. Other times his segments seek to couple his street interviews with a political point, and it is in these moments that the problem arises. His digs at Trump are all based on Trump’s character, and the implicit critiques are based solely on Trump's hypocrisy, rhetoric, and the inconsistencies of his supporters. For instance, after the Access Hollywood tape scandal, Klepper went around and asked Trump supporters what they thought of Trump’s contemptible comments, which his supporters defended. In another segment, Klepper asked Trumpers about the “lock her up” chants, and then told them that Trump had switched his tune about Clinton. He also questioned them about whether they approved of Trump “draining the swamp,” and then subsequently asked them if they liked Trump’s pick for Secretary of the Treasury, former Goldman Sachs CIO and hedge fund manager, Steven Mnuchin. He went to the boat rally, where he concluded that Trump supporters were privileged to have a rally and support the President in the middle of the COVID-19 pandemic and nationwide racial protests and riots. While attending one of Trump’s campaign rallies during the pandemic, one man said that Trump was our first “rock star, super hero president” and that “we should call him ‘President Iron Man,’” to which Klepper replied, “Tony Stark actually gave a shit about science.” When asking people about mail-in voting, Klepper snidely remarked that Trump uses mail-in voting, as if that were a refutation of Trump’s claim that they were more susceptible to fraud than in-person voting or excused absentee balloting. It is evident that the issues themselves are not being considered. Klepper’s retorts reflect the eccentricity of President Trump, some of the outlandish and shocking things he says, and his hypocrisy and self-contradiction. If the best Jordan can do to refute Trump’s presidency is to attack what he says, then that refutation falls far short of the mark. For example, Klepper claims that Trump does not care about science; President Trump has famously called climate change a hoax engineered by China; he suggested in the 2016 Republican primaries that vaccines should be administered to infants in smaller doses based on his own personal experiences; and on COVID he said some things that were quite mind-boggling and patently untrue. Based on what President Trump himself has said, one could be led to the conclusion that he is an anti-science radical. However, when one evaluates his policies on issues of “science,” one grasps a different picture of Trump’s view of science. Despite leaving the Paris Climate Accords, the United States has reduced carbon emissions, while simultaneously becoming energy independent by hydrofracking American shale oil and natural gas reserves. In spite of his concerns about vaccines, which is both a highly debated and highly debatable issue, he has funded the fastest vaccine production regime in human history, while still holding to the same safety standards as other vaccine production processes. And for all of the media’s speculation that Trump was going to “fire Fauci,” and that Trump was not “listening to the science,” Dr. Fauci testified that the President did listen to him and Dr. Deborah Birx about the dangers of the pandemic, and that his response saved lives. So in the final analysis, what exactly does Klepper have on Trump to lead him to such a conclusion? Klepper has Trump’s words; no policy analysis necessary. Jordan Klepper can muster nothing more against Trump and his supporters than Trump’s own words, personal actions that have no bearing on political policy, and idiosyncrasies. This is the heart of the issue. By watching Klepper’s “refutation,” one buys into the implicit frame that politics is only about refuting the hypocrisy and lies of the opponent. Klepper’s argument ultimately boils down to “Trump is a horrible president because all of his supporters are clowns, and he says a bunch of ridiculous and untrue things, and likes to brag about himself.” If you think that’s a ridiculous argument against the former president, and an illegitimate political argument, you would be correct. To be fair, there are issues to be had with Trump’s rhetoric, especially in light of the Capitol riots, which many, myself included, say Trump incited. The populist rhetoric of Trump vs. the establishment, calling the Press the “enemy of the American people,” and not coming out strongly against political violence are all real issues with Donald Trump. But Klepper does not even go after these issues; instead he grills Trumpers about “birtherism.” Refutation of the Right by exposing the hypocrisy of its least competent adherents is a dead letter. It is purely mean-spirited humiliation of fools. But the deepest dilemma is that Klepper’s frame is purely personal. People cannot be separated from politics; we need a politics that places the human being as central. But politics, rightly considered and deliberated, is based on the policies that place human beings at the center, rather than placing the personal idiosyncrasies of our leaders as paramount. Klepper’s brand of comedy inverts a proper understanding of political values. They are purely ad hominem arguments, and have no bearing on genuine political policy. With his red-herring political attacks on the Right, Jordan Klepper, the good comic he is, dumbs down America’s political discourse, and by extension, the American public.
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Contra Stare Decisis2/14/2021 THOMAS K. SARROUF, JR.
Chief Justice John Roberts has had a tough year. Trump’s presidency has caused Justice Roberts a lot of grief, as the president has been highly critical of Roberts’ jurisprudence. Consequently, many conservatives have critiqued what appears to be Roberts “politicizing the Supreme Court” by ruling with the liberal justices. Indeed, Roberts is being spurned for alleged judicial activism. In an era where trust in institutions is low, Chief Justice Roberts has been trying to restore faith that the Supreme Court is not a political institution. According to professors Varad Mehta and Adrian Vermeule, Roberts has been giving the impression of a balanced court by voting with the liberal justices instead of voting with his fellow conservatives on the Court. By trying to keep the peace, however, he is exacerbating tensions; not only does he diminish the legitimacy of the Court, but he also loses the ability to secure that legitimacy in the long-run by making unprincipled and poorly-articulated political rulings that obfuscate the meaning of the Constitution. However, conservatives must also reckon with something: Chief Justice Roberts has always been this way. The reason we are upset now is because he is ruling against us, but consider the fact that in his early years on the Supreme Court, Roberts actively rewrote Supreme Court precedent in a way that pleased conservatives. For instance, in Gonzales v. Carhart, the conservative bloc ruled that a law banning “partial-birth abortions” was consitutional, despite Stenberg v. Carhart’s holding that such restrictions on abortion were unconstitutional. He also overturned a precedent restricting campaign contributions from corporations in Federal Elections Commission v. Wisconsin Right to Life Inc. The real issue is not that he overturned precedent, but that it would appear he has always been an activist, and that should cause us all great concern. By contrast, this past summer Chief Justice Roberts concurred with the liberal justices to uphold Casey v. Planned Parenthood in June Medical Services v. Russo. In his concurring opinion, he cited stare decisis, the principle that precedent is important in deciding a case (it is Latin for “to stand by things decided”), for upholding the Casey ruling. He also cited that the facts of the Russo case were virtually identical to that of Whole Woman's Health v. Hellerstedt, which ruled a Texas law that restricted access to abortion unconstitutional; in that case, Roberts joined the minority in dissent. If he held that the holding in Hellerstedt was bunk, why uphold it in Russo? The political answer is that in 2016, when Whole Woman’s Health v. Hellerstedt was decided, Justice Kennedy acted as the swing voter, so Roberts was more free to vote in the way he saw fit the law. His legal defense was that Whole Woman’s Health was now the law under the rules of stare decisis and so he had to uphold it. However, as we saw with other cases, Roberts gave no consideration of stare decisis when making rulings, and therein lies the dilemma. Chief Justice Roberts is running up against two problems: first, he is exposing himself as a political justice that selectively chooses when to uphold precedent and which way to rule to keep the peace; second, his treatment of stare decisis raises a number of questions about its role in our judicial system, and it is to this problem that I will now turn. As mentioned, stare decisis is the legal doctrine that attributes added value to past precedent. One of the reasons that stare decisis is taken seriously is because of its “reliance interests,” namely, that people have come to rely on the law as it is written and interpreted, and to overturn a precedent upon which people have come to rely would be damaging to their interests. Adherence to the rules of stare decisis adds reliability to the law, so it can be predictable and evolve logically. This is one of its virtues. It is a safeguard against radical activism, whereby justices could arbitrarily and capriciously alter the meaning of the law. It is also a testament to the wisdom of prior courts and prior rulings. As Justice Neil Gorsuch said in his nomination hearing, “[precedent] has lots of value, it has value in and of itself because it's our history, and our history has value intrinsically.” That being said, stare decisis is not an “inexorable command.” In his opinion in June Medical Services, Roberts defends stare decisis by citing 17th and pre-Revolutionary 18th century law books—famous ones, namely Black’s Law Dictionary and Blackstone’s Commentaries on the Laws of England. These books were used by the Founding Fathers when they were learning law. However, those law books are English, which elicudates an important distinction between the English system of common law and the American legal system. In England, common law, which is the body of precedents dating back to the beginning of the 14th century, is the bedrock of English law. England’s constitution is not a written document like in the United States, and the passage of laws by Parliament and the consolidation of common law precedents is all the British have. It’s no wonder they place such an important premium on the doctrine of stare decisis! In American history, we initially followed English common law , and have incorporated it, in part, into our own legal system. But we departed from the English legal system by writing the Constitution and giving it supreme importance in the law. In the course of the late-18th and early 19th centuries, the Supreme Court departed from common law doctrines because they did not comport with the text of the Constitution. For example, in Parker v. Foote, the Supreme Court overturned the common law doctrine of “ancient lights,” which guaranteed that a property owner could not obstruct the natural lighting of their neighbor. Adherence to the common law precedent would have written provisions into the Constitution that were not there; the doctrine, though old, did not comport with the Constitution, so it had to go. Only the Constitution reigns supreme in American law. This is perhaps why conservatives are so frustrated by stare decisis as a legal doctrine. The Constitution is solely supreme, so why is past precedent so important, especially if the precedent clearly misinterprets the Constitution? This frustration is particularly strong amongst conservatives who subscribe to the “originalist” position, which is the philosophy that law, including the Constitution, should be interpreted based on the original public meaning of the text. Many originalists express displeasure with stare decisis because they focus on the text of the Constitution and on trying to discover the original public meaning of the text. Upholding a past precedent that does not interpret the Constitution as it was written is not a legitimate ruling, and is thus not worthy of being reaffirmed. That being said, stare decisis is not a worthless doctrine altogether, even for an originalist. Justice Scalia would sometimes hold to precedent, and created a “balancing test” for considering when to overturn it. Prior to Justice Gorsuch and Justice Kavanaugh’s ascendency to the Supreme Court, Justice Clarence Thomas was the only justice who placed little-to-no stock in precedent. As Justice Amy Coney Barrett wrote when she was still a professor at Notre Dame Law School: Originalism thus places a premium on precedent, and to the extent that originalists reject the possibility of deviating from historically settled meaning, one could say that their view of precedent is particularly strong, not weak as their critics often contend. In Barrett’s view, contra Thomas, stare decisis has value as a guide for determining what something meant in its original context. Past precedent can be the key to determining original public meaning, which makes it a strong guide for properly interpreting the Constitution. For example, looking at early rulings during the Marshall days can be instructive in determining what the Founders meant by “an impartial jury,” or “the power to tax.” Those early precedents are particularly valuable because they are closest to the original context in which the Constitution was written and ratified. To return to Justice Gorsuch’s statement, the law is valuable because it is part of our history. It tells us about ourselves. However, that is historical value, not legal value per se. The legal value of stare decisis in an originalist context is in the fact that it is instructive. It is a shortcut to determining the ruling of a case; we need not recreate the wheel every time a case comes before the Court. But past precedent is no substitute for properly interpreting the law. Justice Barrett implies just as much in her article. The value of stare decisis is in its ability to help interpret the law and the Constitution. Thus what is instructive is not the conclusion of a case, but the reasons why it was decided. A past ruling is not simply good by virtue of being a past ruling; they could have gotten it wrong, and they often do. If there is not a good legal reason for supporting the holding in a case, then it gives a bad interpretation of the law and is not a ruling worthy of being upheld as law. With this caveat in mind, it seems that Justice Barrett’s praise of stare decisis is much closer to Justice Thomas’ view with respect to its legally binding value. To this point, I have tried to reassign the value of the stare decisis principle from a place of significant priority in deciding a ruling to a helpful tool in determining original public meaning. It seems to me that Justice Thomas wins the legal argument by placing little stock in the precedent itself. However, I think it important to also demonstrate why stare decisis fails as a legitimate legal doctrine by itself. Most glaringly is the problem I alluded to, namely that reliance on the precedent detracts from a textualist reading of the law. Looking to the text of past rulings as the basis for making a current decision substitutes the supremacy of the Constitution for the supremacy of a judge. There is nothing wrong with looking to past precedent as a tool and a shortcut, but it must be used to demonstrate the right judicial reasoning for why a law is constitutional or not, which requires putting the precedential reasoning up against the Constitution rather than merely citing the precedent alone as a sufficient justification. Stare decisis is a useful shortcut—we need not prove the Pythagorean Theorem every time we want to use it—but it is no substitute for reading the law itself, and precedents must never take precedence over the weight of the Constitution itself. Thus, we see that stare decisis’ proper place is in bolstering the legal reasoning, rather than commanding a specific outcome. Less obvious, but perhaps more damning of the doctrine, is the origin problem, or the problem of the infinite regress. If current rulings must look to precedent, what was the basis of the first rulings? The first rulings had no legal antecedents to consult, so what did the judges who decided them use? If the rules of stare decisis are the proper yardstick for interpreting the law, then by the same standard, the first rulings, which did not use any rules of stare decisis, are unreliable as rulings. It is thus evident that stare decisis fails to meet logical muster because it is a self-refuting doctrine: the precedents upon which judges rely are bunk because they do not use precedents (because there are none to use). Conversely, one could argue that those who adhere to the rules of stare decisis should look to the method of interpretation used in the ruling upon which they rely, rather than the conclusion. In this case, the ruling's reasoning is being elevated as valuable, which once again demonstrates how stare decisis is properly conceived as a guide to consult rather than an “inexorable command.” It may occur to the reader that I am assuming stare decisis a complete judicial philosophy that holds the only way to judge a case is to look to precedent rather than make an original ruling. However, no judge actually rules this way. There is no “stare decisis judge” that completely abdicates their own authority to make a rule in favor of past rulings. It appears, then, that I am attacking a straw man. I do not deny it; that is precisely the point. My thought experiment is merely meant to demonstrate that in a vacuum, stare decisis is not a tenable legal theory, which is precisely why no judge relies on it alone. But the question still remains, if stare decisis is just one tool in the judge’s belt, why grant it binding authority when making a ruling? If Roberts dissented from the ruling in Whole Woman's Health on the basis of its faulty legal reasoning, then why bind himself to it in Russo? The obvious answer is that Roberts is playing politics. But for Justice Gorsuch or Justice Kagan, who make decisions based on the merits and legal arguments rather than the extra-legal circumstances, the question still remains. Precedent should be on tap; the Constitution should be on top. It is a good shortcut, but not a substitute. It suffers from the regress issue and is thus self-refuting. That a prior ruling was bad law is reason enough to overcome reliance interests. As Justice Thomas wrote in United States v. Gamble, a “demonstrably incorrect judicial decision...is tantamount to making law, and adhering to it...perpetuates a usurpation of the legislative power.” Stare decisis has its place, but we are a nation of laws under the Constitution, which is a system that sets up three branches of government to determine what the law is, should be, and can be; we are not a nation of precedents set by judges who can decide whatever they wish and then uphold that. Precedent helps tell us what the Constitution is and what the law is, but it is the Constitution that reigns supreme at the end of the day.
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THOMAS K. SARROUF, JR.
Former Secretary of Labor Robert Reich recently called for the Senate impeachment hearing to utilize the secret ballot to vote whether or not to convict former President Donald Trump on charges of “incitement to violence.” On Tuesday, Reich took to Instagram to call on Senator Chuck Schumer (D-NY) to implement the procedure so that the senators could “vote their consciences.” In the next sentence, he claimed that it was necessary to use a secret ballot because Trump supporters were not peaceful and Republican senators lacked integrity. Reich’s proposal is flawed on two grounds. First, his premise defeats the conclusion that a secret ballot is necessary. If Republicans lack integrity, the secret ballot will not cause them to vote to convict President Trump as Reich hopes it would. All it would do is masquerade those who didn’t vote to convict Trump, which is the opposite of what Reich wants. He wants the people who support President Trump to be held accountable, even going so far as saying that those who voted to overturn the electors in Arizona and Pennsylvania should be made to testify under oath under penalty of perjury. Reich thinks that the only reason Republicans might still back Trump is because they do not want to lose his base of ardent supporters, but Reich contradicts himself. According to him, they have no integrity, and giving them an out will not inspire some sense of constitutional zeal. Second, Reich’s proposal subverts the principles of representative government. He implies that representatives are free to vote as they please once elected, and he is right about that. It is a long-standing tradition—stemming from the times of Roman constitutionalism—that a representative who acts against the will of the people does not cease to be a representative of the people. But the safeguard against tyranny is accountability through regular elections. If a representative does something the people do not like, they vote him out of office in the next election cycle. If a secret ballot is used, that accountability is lost. It’s quite ironic—and disconcerting—that a guy like Robert Reich, who purports to care about things like transparency and accountability, is calling for a system that eliminates accountability for people in power. The second impeachment of President Trump is both important and divisive. How our representatives choose to navigate this political and cultural firestorm matters, and their constituencies have the right to judge them on the basis of how they vote for impeachment, just like any other piece of legislation. Politicians are elected on the basis of their promises; they are re-elected based on what they did for the people they represent. If we do not know how they voted on this important issue, we are left in the dark as we form judgments of our representatives. We entrust them with power; there have to be channels of accountability lest that power be corrupted, and the tendency of power to corrupt is something that Reich just doesn’t seem to understand. To that end, there should not be a secret ballot for senators voting on Trump’s impeachment.
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Is This the End?1/28/2021 THOMAS K. SARROUF, JR.
Three weeks ago, there was an attempted coup at the United States Capitol, an event which resulted in the deaths of six people, and two police officers. By itself, that is no small calamity. Put in the greater context of American history, this incident is just one in a growing trend of contests that threaten the fabric of the constitutional order. Of all the American elections, there have been four that were “interesting” or heavily disputed: 1824, 1876, 2000, and 2020. Many elections have been narrowly-decided, but these four stand out for either being decided in Congress where no single candidate had enough electoral votes to win (1824 and 1876), was decided by the Supreme Court (2000), or was at risk of being overturned (2020). Two of the last five elections have been heavily disputed, with cases being sent to the Supreme Court or potentially being decided in Congress. Let’s also consider impeachments: there have been four impeachment trials in American history; two of them have been within the last year and against the same president. Perhaps that merely tells us something about Donald Trump, who is an anomaly in American politics that should not be lumped in with the other instances. But perhaps it says something about the state of our politics more generally: things are breaking down, and our expectations of what politics should be are no longer realistic as a result. The question is “where do we go from here?” Is this the end? The Founding Fathers were brilliant statesmen. They were well-studied in political philosophy and classical history. At the Constitutional Convention in 1787, James Madison, Benjamin Franklin, Alexander Hamilton, John Jay, and Thomas Jefferson, among others, created a document that was to stand the test of time. The Constitution represents the pinnacle of the Western political tradition. The creation of a republic allowed the Constitution to extend its power over time and space; a republic is truly the most stable form of government. Compared to a democracy, the republic was seen as the ideal model for that very reason: the Roman republic lasted between 300 to 400 years longer than the Athenian democracy. That being said, is it realistic to expect that the United States will live on in perpetuity, without any major restructuring or fundamental change? No empire, kingdom, duchy, or nation has existed forever; the German philosopher Hegel suggested that each great nation would only last for its epoch, only to fade away in the face of a rival. Is it not arrogant to believe that the American republic will be the sole exception to this rule? Speaking of Rome, their republic faced a similar pattern of destabilization before it devolved into the Roman empire. Rome fell long before Caesar. Republican Rome experienced many civil wars, public assassinations of political rivals, and control of government by rich powerful generals. Specifically in the second century BC, a number of political reformers and populists, such as Gaius and Tiberius Gracchus, as well as Lucius Appuleius Saturninus, were murdered by senators, which signaled a deep failure of the Roman republican system to overcome conflict peacefully. This trend continued in the first century BC, with servile rebellions and oligarchic and military takeovers of government, culminating in the rise of Caesar Augustus in 27 BC. Likewise in Athens, the democracy failed as tyrannoi attempted to use the democracy to win widespread public support. After the failure of the Sicilian Expedition in 413 BC, the tyrannical forces in Athens instituted the oligarchic Council of 400, which was later replaced by a more democratic rule of the “5,000”; the “5,000” was overthrown in favor of democracy after the victory against Sparta at Cyzicus, only to be replaced by the rule of Thirty Tyrants following Sparta’s victory in the Peloponnesian War. In both cases, discord, structural crisis, and unrest brought about the destabilization of the government structure, which resulted in the loss of self-rule. The Founding Fathers recognized the problems of Athenian democracy as being unstable and susceptible to tyranny; this problem was also evident in Rome, but the Founders saw the possibility of extending the powers of the Constitution over time by creating a republican government and coupling it with a deep-rooted sense of anti-populism. Even so, we have seen constitutional crises occur with increased frequency in recent years, including an attempt to disrupt a constitutional process of certifying the electoral college vote, which is tantamount to a coup attempt. We have not had political assassinations of rivals in America like in Athens or Rome, but our politics has, at some level, devolved into character assassination. We have already had our first civil war, and are on the precipice of a second one; as of this writing, 71% of Trump supporters believe the US is headed towards a second civil war; 40% of Biden supporters agree. These phenomena could be small blips on our radar that ultimately result in no significant changes to the Constitutional structure of the country; they may also result in another civil war, one that either sees a new constitution be created, or sees some amendment to the current structure. But it all begs the question, “are we seeing the end of America as we know it?” I cannot make predictions about the future, as I do not know. But in the aftermath of the failed coup attempt, Senator Ben Sasse’s (R-NE) words gave me hope. He said: “I don't think we want to tell our kids that America's best days are behind us because it's not true….There's a lot that's broken in this country but not anything that's so big that the American people can't rebuild it. That freedom and community and entrepreneurial effort and that neighborhoods can't rebuild. Nothing that's broken is so big that we can't fix it….There are some who want to burn it all down. We met some of them today. But they aren't going to win…. The constitutional system is still the greatest order for any government ever, and it's our job to steward it and protect it.” Senator Sasse is right. And his message hits a crucial point: the issue of human agency. We have to continue to steward the Constitution. Not only that, but we have the ability to do just that. The Constitution is the greatest political document in world history, but it still needs adherents and believers; otherwise, it’s merely a brilliant essay that captures the essence of man and sets out a government based on those truths. We choose to follow the Constitution because we recognize its Truth, Goodness, and Beauty. The Constitution reminds of its Truth every time it is tested. They tried to stop the electoral college vote--they failed. The South tried to secede--they failed. The Supreme Court regularly upholds the Constitution; they are not always perfect, and are sometimes way off the mark, but that is part of the American philosophy. The Constitution was a document written based on truths about the human person: we are corrupt, imperfect beings, liable to error; the Founding Fathers created the government in light of those realities. The Constitution reminds us of these things when it is put under duress, and proves that it is the perfect political document, and the gold standard of all earthly political forms. When tested, it reveals its strength, which is why we still give our assent to live under it. There are some on the Right who say that the Constitution is outdated and insufficient to deal with today’s problems. Some say that the so-called “patriots” at the “Save America” rally captured the “Spirit of 1776.” The “Spirit of ‘76” was on display at the Capitol on January 6th, but it was not from the criminals attacking the People’s House, but rather the people defending it from their violent lawlessness, and from the politicians and statesmen who stayed up late into the night doing our work in an act of defiance against anti-Americanism. Folks, we’ve made it. We hit the jackpot with the Constitution. The challenge of the American patriot is thus to maintain the Beauty and live the Truth of our inheritance. Have fun coming up with something better. And to my right-leaning comrades who do want to try, I will say the same thing that I say to the Left, who regularly spits on constitutionalism with their policy prescriptions: come and take it! |