Time flies when your country is burning down, doesn’t it? The week after Donald Trump’s many fans took him seriously rather than literally—“March peaceably, folks! But stay strong! And save your country from the greatest crime in history! Only you can do it! And don’t take no for an answer!”—Mr. George F. Will, intent on taking out two birds with one stone, penned a column titled “Trump and many of his ‘woke’ critics are more alike than they realize”, a column that included the following:
Postmodernists say, with Nietzsche, that there are no facts, only interpretations — alternative “narratives” about reality. As Andrew Sullivan writes at Substack, to be “woke” is to be awake to this: All claims of disinterestedness, objectivity and universality are bogus. So, reasoning is specious, and attempts at persuasion are pointless. Hence, society is an arena of willfulness where all disagreements are power struggles among identity groups. The concept of the individual disappears as identity becomes fluid, deriving from group membership. Silence is violence; what is spoken is mandatory and must accord with the mentality of the listeners. Welcome to campus.
As a description of the moral idiots on both sides of the current political spectrum, that isn’t half-bad, And I’m sure Mr. Will and I both agree with the judgment of P. G. Wodehouse’s ineffably inimitable Jeeves, who, when seeking to rebut the formidable Honoria Glossop’s foredoomed attempts to improve Bertie Wooster’s “mind”, remarked “You would not enjoy Nietzsche, sir. He is fundamentally unsound.”1
And yet. And yet I have a caveat—for what would my life be without caveats to sustain me?—unless we are talking about “facts” such as “the temperature is now 38 degrees”, there are no facts.
Many years ago—so long ago that Warren Burger was Chief Justice2—the Supreme Court issued a 9-0 decision regarding the First Amendment that seemingly infuriated Mr. Will, who insisted that the correct decision was both plain as day and the precise opposite of the position unanimously taken by the Court.3 And I wondered at the time that, if the opinionated Mr. Will actually took himself seriously, as he seemingly did, why didn’t he conclude that, the U.S. Constitution being so utterly nebulous a document that nine lawyers, specifically selected for their supposedly superior acumen, experience, and, above all, knowledge of both the law and the Constitution, all got it wrong—wrong, furthermore, on an outstandingly easy case—that there is no point to having a Supreme Court—or, really, any appellate court—that we could make enormous savings in money and, even more importantly, time, because the existing Court’s accuracy could be efficaciously replicated—in fact, more likely, improved—by the mere tossing of a coin. The notion that any mortal—other that Mr. Will, of course—could correctly align a given lower court decision with the supposed "principles” so obscurely enunciated by the Founders was mere stuff and nonsense, if not actual moonshine.
Of course, Mr. Will did not come to such a conclusion. Instead, he held, as so many people do (of themselves, not of Mr. Will), that he always understood the U.S. Constitution—and any other matter to which he turned his attention—perfectly, and the fact that so many of his supposed peers, and even superiors, failed to do so meant nothing. If only they would look at it correctly—if only they would look at it as he did—they would see “the truth”, objective and irrefutable.
Mr. Will has recently written a book, The Conservative Sensibility, which, judging from its first few pages, looks to be quite interesting, and also devoted, extensively, to setting forth Mr. Will’s view of the U.S. Constitution, which, according to Mr. Will, very largely reflects James Madison’s “correct” understanding of John Locke’s doctrine of “Natural Law”, which Mr. Will also accepts as “the Truth”, and contrasts Locke sharply with Thomas Hobbes, who, according to Mr. Will, held that there was no such thing as “natural law” and natural rights, that they were all works of human artifice, with nothing natural or necessary about them.4
This is rather convenient for me, since I embrace Hobbes rather than Locke. Locke’s arguments closely resemble the “founding lies”, one might say, advocated by Plato in the world’s first great exercise in nation-building, The Republic. Locke’s Second Treatise on Government, which sets forth his arguments on natural law, is one of the most famous—and most influential—political documents ever written. But his First Treatise on Government was, to his mind, it would seem, even more important, and its purpose was to refute the existing justification for government prevalent in Great Britain, the divine right of kings. The First Treatise is largely devoted to a point by point refutation of the leading text in English on divine right of Locke’s time, Robert Filmer’s Patriarcha, or The Natural Power of Kings. Most Americans today, I would think, simply can’t imagine that anyone could believe in the divine right of kings, but as late as 1900, just prior to the revolutions that swept Asia and, of course, the First World War, the great majority of the world’s population lived under rulers who claimed divine justification for their authority. Locke was “discovering” natural rights, and natural law, that no one had ever “seen” before.
I wrote, in an extensive takedown of libertarianism, the following concerning “natural law”:
I don’t believe there are “natural laws”—because if there were everyone would agree on what they are, and nobody does. I don’t believe there are any natural rights that precede the organization of society, rights whose defense are the purpose of government. Private property, the “god” of the libertarians, is the creation of government, and, prior to government, had no meaningful existence, determined only by the “right” of the stronger. In other words, Mr. Jefferson, with his supposedly “self-evident truths”, got it wrong, and so have his followers. As the frequently but not always wrong Jonah Goldberg has argued, in his both fatuously and dubiously titled tome, The Suicide of the West, “Capitalism is unnatural. Democracy is unnatural. Human rights are unnatural. God didn’t give us these things, or anything else. We stumbled into modernity accidentally, not by any divine plan.”
Or, I would say, any other kind of plan.
Mr. Will insists, of course, that the opposite is the case, that we do understand the necessary foundations for a just and effectively functioning society, not from a divine plan but from natural law, whose principles are very largely embodied in our Constitution. Like his originalist heroes—Justice Scalia, in particular, that “jurist of colossal importance”—Will argues that we can ascertain, within very narrow limits, the Constitution as the “Framers” intended it to be understood, and apply that understanding without stint to “contemporary” (i.e., Democratic) legislation sans mercy.5
Will is seconding the argument of Justice Clarence Thomas, who has argued that “precedent” should never be considered “controlling” in the Court’s decisions, arguing that, with enough antiquarian effort, one can always obtain a clear understanding of how the Framers intended the provisions of the Constitution to be understood by the public. Yet, according to “Ballotpedia”, Thomas votes on the losing side more than any other justice, except for Neil Gorsuch, and has been on the losing end of 27 8-1 decisions. If it were all that simple, wouldn’t he have more wins?
The reason, of course, is that the Constitution doesn’t have a single, inconvertibly ascertainable meaning. It never did. It was written, necessarily, as a compromise, and fitted to a specific political situation. It is very easy to believe that there would have been no constitution at all had George Washington not been alive to endow both the proceedings and the new government with his own immense prestige, or, even more, if he had been opposed to it. How different would the Constitution be if John Marshall had died early in Jefferson’s presidency and Jefferson had replaced him with James Madison, whose own prestige would very likely have allowed him to “rewrite” the Constitution to his own satisfaction? How different would our understanding of the Constitution be if Jefferson had been chief justice and Marshall president? Our Constitution is very thoroughly a product of history rather than, as Mr. Will have it, standing apart from it.
It is “interesting” that the “conservative” doctrine of “originalism” specifically contradicts one of the basic arguments of the grand godfather of conservatism, Edmund Burke, who argued endlessly against reliance on “first principles” in his speeches. Burke believed—“correctly”, in my opinion—that arguments about the “true” meaning of sacred texts led you nowhere. There is no objective standard for “truth”.6 But, Burke realized, there is an objective standard for “old”, which is why he strove to replace “truth” with “tradition”, the only problem being that sometimes “tradition” merely leads to a dead end—in the case of the Bourbons, a very dead end indeed.
And if there were “truth”, available for human affairs, what of that? I would join with Mr Hobbes:
For I doubt not, but if it had been a thing contrary to any man’s right of dominion, or to the interest of men that have dominion, that the three angles of a triangle, should be equal to two angles of a square; that doctrine should have been, if not disputed, yet by the burning of all books of geometry, suppressed, as far as he whom it concerned was able.
Afterwords
Since 1992, the Republican candidate for president has won more votes than the Democrat precisely one time, yet six of the nine sitting Supreme Court Justices was appointed by a Republican president. I wonder if this will cause problems.
I have gone after poor Justice Thomas a number of times, most notably here. And yet, there is no justice without flaws, not even the notorious RBG. Which increases my belief that we shouldn’t rely on them so much.
Thomas Hobbes unwittingly illustrated his own “parable of the triangles” when he claimed to have “squared the circle”—that is, constructed a square whose area would be equal to that of a given circle, using only the basic geometric tools of a compass and straight edge. When mathematician John Wallis “corrected” him (correctly), Hobbes defended himself furiously, and incorrectly. (See the Wikipedia post on “Hobbes—Wallis Controversy”.) Several centuries later, it would be shown that squaring the circle, as Hobbes sought to do it, is impossible. Wallis didn’t know that, but he did know that Hobbes’ “proof” was faulty.
1. I’ve written about TV adaptations of both Bertie and Blandings, a second series of books by Wodehouse (though in my article you have to scroll down a bit past the treatment of Call My Agent!/Dix Pour Cent).
2. Unusually, Burger retired from the Court (in 1986). I have always thought it very possible that he was forced out, in some manner, though I have never read anything arguing that that was the case. Burger voted for the affirmative in the “infamous” abortion decision, Roe v. Wade and was generally a “country club Republican”—a “Nancy Reagan Republican”, one might say. He was replaced by William Rehnquist, who had voted against Roe v. Wade.
3. I can’t recall the specific case, nor whether I agreed with Mr. Will or the Court.
4. Over at the Manhattan Institute, James Peireson has an extensive review of The Conservative Sensibility, taking issue with many though not all of Mr. Will’s arguments, basically accusing him of being a classical liberal rather than a “conservative”. However, I am not relying on Mr. Peireson in my response.
5. Mr. Will, who bravely and explicitly identifies himself as an “atheist” (like me), understandably does not mention Justice Scalia’s specious “argument” that the “natural law” employed by the Framers in fashioning the Constitution actually rested on Catholic “natural law”, even though they were too thick to know it. Only 2 of the 39 signers were Catholic, while many were actively hostile to the Catholic Church, either on Protestant or Deist grounds. Furthermore, the Framers’ favored source of “natural law”—or at least the source most frequently cited in the Constitution’s defense—was the “celebrated Montesquieu”, whose famous work, The Spirit of the Laws, was unavailable to Catholics, being on the Index of Prohibited Books due to its materialist account of human nature.
6. I argued this, a bit, in my takedown of poor Russell Kirk.
