The Diseased Politics of Late Empire

​Much Drift and Little Mastery

​These last few months, we have had too much “information” and almost no bloody news. This trend started some decades ago. We are overrun with opinions, partisan puffery, crude entertainment, and commercial messages -- all disguised as news. That interesting historian Morris Berman complained in 2000 that “there is not a square inch of American (or Americanized) life that is not bombarded by commercial messages.”[1] He was entirely too optimistic. Under the reign of the cyber maniacs, there is not a thousandth of a square millimeter of American life without such messages, and we can now meet with fourteen or so distracting, vulgar, jiggly, and (sometimes) noisy adds infesting and re-infesting a little thousand-word essay as fast as you can click them out. This is said to be progress and the only possible “business model,” once the lovely electrons are involved.

Right now, it would be nice to have some actual news-news. But with so much dreck passing for news, what do we actually know, for example, about this crony virus of many names? So far, we seem to know that it is rather nasty. It can be fatal. We also know that sundry governments – the good, the bad, and the ugly – are working on the problem full time. Top scientists and medical operators are on the case, advising and counseling these Hobbesian states on what should be done.  

And what follows from that? There’s the rub. There is a virus. People have died. Everything else is in dispute: numbers, rates, probabilities, you name it. Different experts produce widely differing mathematical models. One begins to lose faith (if one had any) in Big Science,[2] close ally of Big Government and Big Business. By some accounts, deaths to date are far fewer than projected by certain widely touted models,[3] which justified draconian measures in some nations.

It would seem then that worst-case thinking -- the same mentality that gave us nuclear “weapons” -- has spread from neo-conservative and militarist cadres (where it is normal) into medicine and beyond. Meanwhile, governments have issued orders to most of us: sit still, stay home, don’t fidget, don’t talk to strangers, etc. This side of the water, a creeping lockdown stole upon us. My last trip to a grocery store was two months ago. One begins to miss getting out.

On the other hand, some of the advice we’ve been getting seems reasonable enough and most people are willing enough to comply. At my age it might be wise to stay out of crowds, etc. There is nothing wrong with prudence, which is just Latin for “foresight.”

​Naturally, that isn’t enough for the minding classes, and here their style of work becomes our problem.   

Fearmongering and Doomsaying

It’s the end of the world as we knew it, apparently, and the fright mob feel just fine. Worse, they expect, on the strength of their unexampled merit, to take control of the details of everyone else’s life for the foreseeable future. Things may never be the same again, but they are happy to serve. (As some poet said, they also serve who only bark and threaten.)

As for the measures needed (it is said) for our salvation, there is more than an echo in them of a stern medical totalitarianism. That kind of thinking was in the air from the early 20th century onward, in the nicest of countries, and never fully went away. Loosely associated with progressivism, social democracy, and other projects of national hygiene and collective uplift, including eugenics, fascism, and communism, the medical totalitarians (along with their psychological wing) learned to sound more caring and “democratic” after World War Two, at least in in the NATO-sphere. But tidy-mindedness is all, whatever Goethe may have said.

Now, alas, their descendants have rediscovered some old totalitarian habits.

As noted, worst-case thinkers play a central role. Assuming worst possible outcomes, they spread panic, demand extensive overpreparation and total conformity, and quickly take on the spirit of Puritans, Jacobins, and the like. This pattern pretty much answers to Old Right journalist Garet Garrett’s “complex of vaunting and fear”[4] -- a national manic-depressive syndrome arising from Americans’ embrace of global imperialism.  

Our war parties having long since erased distinctions between war and peace, we now find those who (starting from the other end) are also erasing those distinctions so as to subject all domestic matters to the war technique.[5] Even relatively peaceful types are prepared to wage the moral equivalent of war on our home society, if good results seem likely.

The Immoral Equivalent of War

In 1947 legal historian Charles H. McIlwain wrote: “Arbitrary government, possible under the Tudors as an ordinary power, became impossible under the Stuarts except as an extraordinary power warranted only by the doctrine of emergencies.”[6] Having long worried about security panics and emergencies sponsored by our war parties, we see now how magical emergency powers of any kind can push us over a tipping point into irreversible statism.[7]

A 2012 essay on presidential supremacy during medical emergencies perfectly illustrates the convergence. It seems hardly accidental that the writer, Joshua L. Friedman, relies heavily on unitary-executive legal ideologues John C. Yoo and Robert J. Delahunty.[8] There is a perfect doctrinal fit. And if anyone should doubt the two authorities’ acquaintance with matters medical, let us recall their careful attention to pain, “organ failure,” etc., in memos advising George Bush II on how best to torture captives while evading both international and American law.

Emergencies so Emergent That They May Never Really End

​Naturally, our selfless saviors and rulers need advice. But to whom do they listen? Well, in this great land of freedom there are a great many Confidence Men, as Herman Melville told us. Do you want to be a millionaire? Do you need a two-headed dog? Do you (an atheist) crave immortality? Do you want to buy a “starvation blockade”?[9] How about a Celestial Railway? P.T. Barnum, Jay Gould, the Maxim Brothers, and many others of that ilk have solutions for you. Our leaders listen to some of them.

Especially important are a special subset of the Confidence Men, whom we may call “securitarians” -- borrowing a term from French political thinker Bertrand de Jouvenel. De Jouvenel wrote in 1948 that “there never was a time in any society whatsoever when some individuals did not feel themselves to be insufficiently protected….” Without always meaning to do so, seekers after excessive security often build “their descendants’ prison”[10] --or, more exactly, some leaders of the insecure do this.

As for who the leaders mentioned above may be, French Catholic philosopher Jacques Maritain noted in 1950 that ordinary people’s suffering serves to “settle the accounts of the unaccountable supreme persons or agencies, State, ministries, committees, boards, staffs, rulers, lawgivers, experts, advisers – not to speak of the intelligentsia, writers, theorists, scientific utopians, connoisseurs, professors and newspapermen.”[11]

Finally, on the theme of emergency, West German philosopher Karl Jaspers wrote in 1967 that “freedom itself is destroyed by false freedom, by a proposed legal abolition of legality. There is no absolute security in human affairs. (…) To want absolute security is to want unfreedom and political death. (…) In fact, laws that provide for declaring an internal emergency … protect an oligarchy of our parties, the powers of its government, and the powerful interests linked with it….” [12]

These are dire warnings indeed about the perils of abdicating in favor of those claiming vast powers to deal with emergencies partly (or entirely) of their own making.

Weird and Uncanny Politics

For decades now, one of our two venal political parties (along with its allied intellectuals) has assured us that federalism and states’ rights are little more than wickedly “racist” obstacles to progress. The states are backward and corrupt, except when bossed around by the Federal Instance with carrot, stick, or invasion. Most respectable intellectuals strongly agree. The other party (hereafter referred to as the Other Party) pretends to believe otherwise, but has been much too busy with decades of military-industrial adventurism to do anything for federalism.

Yet, in the present moment, every Blue State governor or junior assistant vice-mayor has become a great Napoleon on horseback, issuing decrees and proclamations with suitably draconian penalties for every instance of noncompliance – weeks, months, or years in prison, and fines of hundreds or thousands of paper dollars. This is par for the boneheaded American legal mind. Practice may be a bit milder in fact, but our rulers do thrive on making every misdemeanor into a felony. (Soon library fines will be the only misdemeanors left.) Having joined in the game rather late, the Other Party’s governors are blamed for their failure to snuff out our vestigial freedoms at their first opportunity.  

But as my historical mentor William F. Marina said of President William McKinley, “the man on horseback couldn’t keep his ear to the ground.”[13] (This is a practical matter, involving respective distances of ground, horse, and ear.) Clearly, our phony localist Horse-Persons of the Apocalypse can’t canvass public opinion, nor do they care to. After all, as our leaders by both right and merit, they know what’s best. Some of them have known it since the very founding of New England.

California, under Gov. Gavin Newsom, was one of the first out of the starting gate (March 4th). Then Gov. Quasi Cuomo of New York leapt into the saddle, as did Governors Gretchen Whitmer of Michigan and Ralph Northam of Virginia, followed in time by many other such worthies.

Even Interstate Compacts are in fashion with these postmodern Democrats for states’ rights! This has all been very hard to follow. Of course, the catch is that this renewed enthusiasm for local government is deeply totalitarian in spirit and its obvious slogan is “Think despotically, act locally.” (Will someone please pass the new formula on to NPR?)

On What Legal Basis?

​Asked by Tucker Carlson, where he got the power (for example) to arrest “15 men at the funeral of a Jewish rabbi,” New Jersey Governor Phil Murphy answered, “That’s above my pay grade, Tucker.” He added: “I wasn’t thinking of the Bill of Rights when we did this.”[14]

Well, of course not. Who would?

And who would recall that we have fifty bloody states and each one of them has its own bloody constitution and each bloody state constitution has its own bloody Bill of Rights? Who would have noticed further that, sometimes at least, a right or freedom may be better protected in a state bill of rights, owing to clearer wording?[15]

Who would notice indeed? “Damned few -- an they’re aw deid” (to borrow on a Scots toast).

Yes, for a New Jersey Governor to think of any Bill of Rights, was probably more than his job’s worth (and well above his pay grade), which makes him a “jobs worth,” as the Brits say.[16]

Lockdown’s “Legal” Basis, If Such There Be

So, what, indeed, are the legal foundations of worst-case emergency policymaking, foreign or domestic? Superficially, there is quite a mountain of apparent law: dubious claims of inherent Presidential power; massive Congressional “delegations” to the executive of powers that Congress doesn’t self-evidently have; various decrees and tea-leaf readings by Presidents Jackson, Lincoln, Roosevelt I, Wilson, Roosevelt II, and everyone since; proliferation of metaphorical wars -- economic, medical, and other; decades of secret-secret Cold War emergency planning; made-to-order doctrines and presidential findings. (Similar things have happened at the state level, but at least as possessors of original police powers, the states have some excuse.)

Because so many have stacked so many molehills so high for so many decades, there is a mountain of emergency “law.” Inside or outside, alongside or above the constitutions and freedoms we allegedly enjoy, lurks the iron law – or anti-law – of emergency. Its friends say it is our duty to leave the discovery of emergencies to the very people whose power will be enhanced enormously if they can find one. What could go wrong?

But even with so much apparent “law” on hand, it is hard to tell which current emergency practices (if any) have any solid legal foundation. Are they consistent (for example) with state constitutions, state bills of rights, or with what’s left of the common law?[17] Of course, there is little reason to raise the question in terms of the U.S. constitution, which has suffered so much deformation at the hands of Congress, Presidents, and our federal/Federalist courts, that it could easily be made to sanction Hitler’s police methods, Stalin’s farm policy, or Chairman Mao’s theses on intellectual freedom.

With or without foundations, decades of creative institutional tinkering have left us with the mighty elective federal despot and his current tinpot competitors in the states: a unitary president, would-be unitary governors,[18] and great armies of policemen, every one of the latter tending to act as a micro-unitary executive in his own little patch. Each unitary executive, macro or micro, claims arbitrary magical powers suited to his station, even if such “law” amounts to pure executive decision-making replicated at every level. Under such direction, American police forces – federal, state, and local – may soon realize their long-anticipated role as public vigilantes.[19]  

Globalization of Sam Francis’s Anarcho-tyranny [20]

Still, under a supposed “social bargain” with the Hobbesian, bourgeois liberal, republican states found in Europe, North America, and elsewhere, we were supposed to have a degree of political and other freedoms. In theory, the peaceful bourgeois, peasant, or worker could expect some broad freedom in his-or-her little private realm. But modernity thought better, and it turns out now, after over a century of sustained meddling, that even at home we have no privacy the state must respect. Of course, if we had that, we might well do whatever it is that we might do, and that would never do.

At present, we are witnessing the return of many old themes: necessity, danger, Machiavellian moments, Roman dictators, and the lot – as stage-managed by Alexander Hamilton, Woodrow Wilson, sundry Cold War liberals and conservatives, and finally their neo-conservative and “liberal/progressive” heirs, public and private. Wars and rumors of wars abound. More war (and other) powers are needed to strengthen the single executive’s much-heralded decision, speed, and secrecy. Here, with “the very life” of the state, nation, and people “at stake” (a rather rare occurrence, to be sure), exceptional “law” suspends the normal law.[21]

Anyone who doubts these claims suffers from mere “libertarian panic,” on which legal gadfly Cass Sunstein first started lecturing us ca. 2005. Many others are telling us that now. By contrast, authoritarian panics are just the thing and the very best people indulge in them. With liberty duly hobbled and security upheld, the Nine Delphic Oracles in Washington City will adjust the delicate legal balances down to the nearest foot-pound,[22] and life will go on much as as it does in Terry Gilliam’s Brazil.

Toward the end of his life, historian Ralph Raico (1936-2016) took to asking whether there is anything the American people will not suffer from their rulers? With mass surveillance a fact (thanks again, Cyber Maniacs), and more of it on the way, the answer seems clear. (It is too soon to tell whether the corporal’s guard of critics of the crony-virus panic, including Peter Hitchens, David Stockman, and various writers at Intellectual Takeout, Reckonin’, and other sanely conservative websites, has had an impact.)

Waiting for the Inexorable Inevitabilities

Way back in 1965 or so, the Statler Brothers had a hit song about a self-isolating social distancer. But we can’t go that poor fellow’s route. Smoking cigarettes will be out – they are both evil and “nonessential,” you know – and watching Captain Kangaroo is doubtless, in retrospect, very racist and imperialist. Perhaps we may count the flowers on the wall. Health officers will be around shortly to advise us on this matter and many others (and no answering back).

If we’re lucky, this thing -- crony virus, Chinese virus, covey-whatsit -- will end fairly soon, and we can dig ourselves out of the wreckage. That’s pretty good by itself. But how many wonderful, iron-clad “precedents” will have been set in the meantime? Given the newfound alliance of the tidy-minded with the bloody-minded, quite a few I’d guess -- all of them bad and liberticide.

But how many of these precedents will stand? We must hope that that will be another matter. One or two writers hope that the prominence of the states in the present “crisis,” and the people’s chance to compare different approaches taken, may spark interest in actual federalism and limited government, despite the largely unprincipled character of this “states-rights” turn on the part of the Bonapartist governors.[23]

It would be nice to have some kind of silver lining. Otherwise, we shall suffer a new wave of post-9/11-style fables about how everything has changed and only a renewed, unified national “will” (apparently the will to take orders blindly) can save us. Interested parties will dust off old projects, previously rejected, as keys to our salvation: national service for the young, ever more cyber-surveillance, internal immunity passports, and God knows what all. Lawyer Dershowitz has restated his interest in needles, but on a new front; and lawyer Sunstein will find unlimited scope for more federal (or state) nudging. Neo-conservatives will doubtless claim that attacking Iran (or someone) is the first order of business. And so forth.

If so, we are going to need a certain amount of political won’t dispersed across this vast former federation.

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NOTES

[1] Morris Berman, The Twilight of American Culture (2000), 114.

[2] See James Pinkerton, “Competing Pandemic Projections Driving You Mad?”   and Edward Peter Stringham, “How a Free Society Deals with Pandemics, According to Legendary Epidemiologist … Donald Henderson,”.   

[3] See recent columns by Peter Hitchens, among others. ​

[4] Garet Garrett, “Rise of Empire” in The People's Pottage (1965 [1953]), 123-125.

[5]Randolph Bourne, “The War and the Intellectuals,” in History of a Literary Radical (1956), 205-222; William E. Leuchtenburg, “The New Deal and the Analogue of War,” in John Braeman, R. Bremner, and E. Walters, eds., Change and Continuity in 20th-Century America (1964), 81-143. 

​[6] Charles H. McIlwain, Constitutionalism Ancient and Modern (1947), 150 n (emphasis supplied).

[7] As Franz Neumann put it, “magic powers are invoked every time the sovereign tries to assert independence of religious and social forces.” Behemoth: The Structure and Practice of National Socialism (1966 [1944]), 94-95.

[8] Joshua L. Friedman, “Emergency Powers of the President: The President’s Authority When All Hell Breaks Loose,” Journal of Law and Health, 25 (2012), 265-306. 
​
[9] An option promised me by a robotic ad, ca. 2003, when I was researching the British blockade of Western Europe during World War One.

[10] Bertrand de Jouvenel, On Power: Its Nature and the History of Its Growth (1962 [1948]), 340.

[11] Jacques Maritain, “The Concept of Sovereignty,” American Political Science Review, 44 (June 1950), 356–357. 

[12] Karl Jaspers, The Future of Germany (1967), 18-19, 22, 44 (emphasis supplied).

[13] Chapter title in William F. Marina, “Opponents of Empire: An Interpretation of American Anti-imperialism, 1898–1921” (Ph.D. Diss., University of Denver, 1968).

​[14] Jeff Minick, April 23, 2020,  https://www.intellectualtakeout.org/the-rise-of-american-caesars/ .

[15] This is perhaps because those bills escaped the too-clever oversight of James Madison that somewhat undermined our federal Bill of Rights.

[16] See the Jobsworth song by Jeremy Taylor, https://www.youtube.com/watch?v=1jiLVC_RX08. 

​[17] In the 19th century we can find claims in favor of emergency powers for hanging horse thieves or suppressing labor unrest. Much of this was local. Since it was admittedly extra-legal (even if widely tolerated), it hardly supplies much support for claims about law.

[18] On the face of it, state constitutions do not leave much room for grandiose “unitary” theorizing.

[19] This tendency was present in American standing police forces from the beginning, ca. 1835, and has always been fairly popular. See Richard Maxwell Brown, Strain of Violence (1975), Ch. 6. 

​[20] Sam Francis, “Anarcho-Tyranny, U.S.A.,” Chronicles, July 1994, 14-19. 

[21] See Michael Mendle, Henry Parker and the English Revolution (1995) for a pioneer of this art form.

[22] Such close reading of poultry entrails is only for the experts.

[23] José Nińo, April 28, 2020, Decentralization is Gaining Popularity During COVID-19  and Annie Holmquist, “Faced With Legal Pushback, Governors Are Backing Down,”.