Communism failed because it ignored human nature. The question the current era presents to us – the question that underlies the crises represented by the words Brexit, Trump and gilets jaunes, but will also outlast them – is whether liberalism has the same problem. Communism could not handle humans’ individual and familial self-interest. Can liberalism handle their inherent need to be part of a group that defines itself against other groups?

Groups define themselves against other groups not only in the sense that they distinguish themselves on the basis of what they are not but also, unfortunately, in the sense that they compete with those other groups for status and resources. This is inevitable. Liberalism is, at bottom, the conviction that state coercion – also inevitable – should be neutral between fundamental aspects of the identity of the citizens that are subject to it. Coercion can be justified, if at all, only if it serves the equal freedom of all who are subject to it.

As a result, liberalism in the 21st century has to advance an idea that will undoubtedly meet with resistance. Since modern states are as bound to be ethnically pluralistic as they are to be religiously pluralistic, liberalism must advocate separation between nation and state, just as it earlier fought for separation of church and state. The social fact that nations and states overlap but do not coincide leads inexorably, for liberals, to the normative conclusion that no state should belong to a single people. The ability of past liberals to avoid this implication of their basic principles depended on historical circumstances that are now passing away.

If this is right, then it is not surprising that liberalism is facing resistance, or that the triumphalist narratives of globalization and democratization from the 1990s look hollow. The concept of democracy and sovereignty that we inherit is bound up with the nation-state. If nations and states are to be separated, who is the we that makes democratic decisions? How does the state retain the loyalty needed to fulfill its functions? How do the ethnicities that have identified with that state for centuries understand themselves when their countries become postnational?

It has taken liberalism a long time to get to this principle, and as a pragmatic movement comfortable with power it will naturally try to soft-pedal the implications. But liberalism now faces a global countermovement and needs to get its foundational commitments straight. And pragmatism increasingly pulls in the same way as principle: the coalitions that could put liberal parties in power in the West do not belong to a single “people,” and they will want the policies they vote for to reflect that.

Many liberals have proposed “civic nationalism” as a halfway house. But this will not work. If civic nationalism involves no real ideological commitments, it is too weak to count as nationalism. But if it is strong enough to have any real ideological weight, civic nationalism is no more compatible with liberalism than the ethnic version.

While there is no doubt that problems and struggles lie ahead, liberalism does have resources to address this problem. Liberalism is the ideology best equipped to deal with “intersectionality,” the principle that one has multiple identities and that the way each identity is experienced depends on the presence or absence of the others. Intersectionality is usually associated with a radical moralism that does not fit well with liberalism, but this is a contingent fact that can be changed. With a less individualistic and a more intersectional understanding of why states need to be limited and pluralistic, liberalism could be an appealing philosophy for younger people in the West and could regain enough vigour to put up a fight against its populist enemies.

Liberalism and Nationalism

People need to belong to groups bigger than themselves or their immediate families, but smaller than humanity as a whole. And those groups necessarily define themselves by the fact that they are not part of another group. This is a phenomenon familiar to anyone who engages in political speech online and, indeed, to anyone who went to high school. According to paleoanthropologists, it was true of our ancestors on the East African savannah. Everyone has particularistic loyalties to “their own” – a phrase characteristic of George Grant, English Canada’s leading critic of liberalism – just because it is their own.

This is a problem for certain traditional liberal theories that focus only on the rights of the individual and the need for a state to define and protect those rights. The essential goal of that form of liberalism is to figure out how to constrain the state from becoming so powerful that it threatens the individual, while ensuring that it is powerful enough to protect individuals from one another. The classical liberal solution was a state governed by the rule of law and representative democracy, appropriately constrained by guarantees of individual rights.

In the 20th century, most liberals recognized that negative rights needed to be supplemented by progressive taxation and social insurance. In the English-speaking world this recognition was notably expressed in the 1942 report of Sir William Beveridge, a British aristocratic liberal whose work was enthusiastically embraced by the democratic socialist movement.¹ They also recognized that the state needed to play a role in regulating total demand to avoid periodic economic crises, as taught by John Maynard Keynes, another liberal toff who became a source of intellectual inspiration for labour politicians. But the key point about the whole picture is that it did not specifically refer to any groups other than the state as a whole. Individuals would react primarily to economic incentives. States would be insurance companies with navies.

To be sure, liberals always emphasized the importance of freedom of association and freedom of religion as ways of guaranteeing group loyalties defined in contrast to the state. The foundational struggle for liberalism was to detach the state from a particular church, but the coalition in favour of doing this rested fundamentally on the social community of minority churches. Liberals welcomed voluntary communities as a source of sense of meaning and loyalty to their “own.” The only price of membership in the liberal state was that these groups must not coerce members who seek to leave and must not threaten the state itself.

There may be doctrinaire cosmopolitan rationalists somewhere who are offended by any claim of a community less inclusive than humanity itself. These people are bound to be disappointed by humanity’s tribalism, just as a doctrinaire communist would be bound to be disappointed on realizing that real proletarians were never going to be the “new socialist man.” People differ in how groupish they are, a measure of personality that psychologists label “openness” and can quantify as one of the five basic dimensions of personality. There has indeed been an evolution in the “WEIRD world” – Western, Educated, Industrial, Rich Democracies – toward higher and higher levels of openness with each generation. But no one – not even an Esperanto-speaking world federalist – can exist without a tribe. Liberalism prides itself on being a pragmatic way of thinking that does not seek to coercively impose a utopian vision on people, but rather to give them institutional space to decide for themselves. It therefore has to learn to live with this fact about human beings.

The trouble begins with the question of what sources of group identity legitimately hold the state together. Groupishness, as a universal human phenomenon, is not on its own enough to explain nationalism, which is not. For most of human existence, the groups that commanded loyalty and defined themselves against others were small enough for everyone to know one another. The territorial state as part of an international system is a product of European modernity, along with wage labour, the world market and the colonial empire.

Territorial states gradually undid the overlapping secular and ecclesiastical jurisdictions of medieval Christendom and replaced them with a single sovereign authority defined against other, similar sovereign authorities. These absolutist states needed to channel universal human groupishness into identities that secured their own cohesion. Modern institutions of public education were developed to try to reeducate the inhabitants of France and England (and later Italy and Germany) to be citizens of a country, in priority to all other smaller or larger loyalties. As the transformation of the Renaissance Kingdom of England into the19th-century United Kingdom of Great Britain and Ireland suggests, this process could not occur without violence and exclusion of stubborn attachments within.

In the 19th century, liberalism and nationalism were assumed to be allies. The “self-determination” of peoples seemed to be consistent with the self-determination of individuals. The idea of liberal nationalism was that each people would get its own state, once the “artificial” borders of traditional multinational empires had been broken up. The high point of this vision was Woodrow Wilson’s Fourteen Points. While it inspired many people at the end of World War I, it was fundamentally compromised by the reality of the Versailles Treaty and the use of the language of self-determination by the Nazis in their designs on multiethnic Czechoslovakia in 1938.

The trouble is that peoples do not conveniently locate themselves exclusively within contiguous borders. As a result, a state for one people is necessarily a state defined against some of those who live within it. Moreover, since history does not end and powerful forces drive peoples to move across borders, or cause them to have different rates of demographic increase, the ethnic relationships within the territory of the state will constantly change.

This problem could be ignored as long as those outside the ethnos but within the state could be ignored. This was never an option for countries like Lebanon, Belgium or Canada where no ethnic group could really triumph, but it could work as a matter of realpolitik in countries with numerically smaller ethnic minorities.

However, one of the features of liberalism is that it encourages internal critique, as the limit of the circle of equal, autonomous persons is expanded on the demand of those left outside it. Enlightenment liberalism was simultaneously a project of white bourgeois males and one making claims based on the situation of all human beings. This contradiction can be the basis for presentist condemnations of the racism and sexism of the Enlightenment project, but its more important consequence was that it provided rhetorical space for the excluded to demand change in the ruling elite’s own terms. The demands of equal liberty made by bourgeois white men have been rejected by leftist intellectuals, but actual progressive social movements embraced these demands while insisting that the scope of equality and liberty be expanded. Once this happened for peoples whose existence does not correspond to an existing (or even possible) border, the liberal answer to empire can no longer be nation, but rather some messy multicultural federation – a federation being a democratized empire.

Canada, for example, originated as the federal union of British North America. The Victorian conception of Britishness was complicated, involving racial mythology about Anglo-Saxons, the political economy of free trade, the science of the industrial revolution and the redescription of the common law as an instrument of individual freedom. “Britishness” meant different things to George Brown and to George-Étienne Cartier. But no matter what its exact connotations, the idea that any part of the world, no matter how distant geographically from the original islands, could be made British was an unmistakably imperial idea.

However, already with 1867, it was necessary to separate state and nation to accommodate the reality of a Catholic, French population that could neither be given full authority over a particular territory nor denied a share of political power altogether. This need to accommodate was not a given. It contrasted with how the British Empire treated the Acadians conquered in Queen Anne’s war in the early 18th century and with the hopes for assimilation expressed by Lord Durham – an English radical – in his 1839 report. After Durham, however, it was clear to Baldwin and LaFontaine that Canada could only be democratic on a binational basis.

This accommodation was originally offered primarily to French Canadians and to a lesser extent English-speaking Catholics, primarily of Irish descent. But compromises were also made with the Métis with the Manitoba Act and with the Indigenous groups of the west, at the nadir of their strength, with the numbered treaties. Although these promises were disregarded by the Canadian state with the full flowering of settler colonialism, they were not forgotten by those to whom they were made.

Since the 1960s, partly in response to Quebec nationalism and partly in response to its own increased diversity, English Canada has largely abandoned any British identity in favour of a “multicultural” one. At that time, English Canada expressed a nationalism directed primarily at the United States of America, and this nationalism remained politically salient up until the free trade election of 1988. But since then, urban English Canada has identified too closely with “Blue” America to be really nationalist, while the conservative belt of rural Canada has been more fertile ground for a populist nationalism that is ethnic in a broad sense. This has caused a counterreaction in urban Canada, which has basically rendered the idea of a Canadian identity based in a peoplehood untenable.

Francophone Quebec’s initial response to secularization and modernization was a thinly disguised ethnic nationalism inspired by anticolonialism, and formulated now in terms of language rather than religion and descent. Left Quebec nationalism has obviously not disappeared, but it is no longer the beating heart of progressive Quebec. As in English Canada, it is issues of immigration and assimilation that have the most resonance with populist nationalism.

Much of Indigenous Canada has embraced an anticolonial nationalism of its own. Some have disclaimed any identification with the Canadian state at all. But for pragmatists, at least, the real objective is to be integrated into the Canadian federal structure with an alternative source of sovereignty to that of the federal and provincial governments, along with tacit or explicit acceptance that the sovereignty so claimed is one that is shared with the transethnic institutions of the Canadian state.

Canada’s situation in these respects is not simple and is the consequence of its own history. But it also echoes developments throughout the world, where the cause of liberalism and the cause of postnational states have become more closely identified. Moreover, the struggle over the nonidentification of nation and state has increasingly replaced the 20th-century struggle between labour and capital or over the amount of government redistribution as surely as that struggle displaced earlier ones about the place of the throne and the established church.

Brexit is the perfect example. Its proponents see themselves as protesting against a federal Europe displacing the sovereignty of the United Kingdom. But its main obstacle has been how it has disrupted quasi-federal arrangements within the United Kingdom itself, particularly in Northern Ireland, unfortunately the laboratory of the identity conflicts of modernity from the 17th century to the 21st.

To the extent that the separation of nation and state becomes a core liberal value, it will face a backlash, which will not disappear with better economic times. National identity fits well with basic human groupishness. It has been central to both personal identity and state formation in the West, and in the world influenced by the West, for centuries. It is therefore hard to imagine that declining ethnic majorities will abandon nationalism, and the pretense that it is nonethnic will become increasingly thin. But since the “people” as defined by the populists will never really be all the people in the state, and since those excluded will easily perceive this fact, the ethnic majoritarian coalition will inevitably give rise to a countercoalition.

Since liberalism is fundamentally defined by the idea that the state should not enforce one particularist conception of the good against dissenters, it cannot really be neutral in this conflict, which is going to define politics for the foreseeable future. Just as liberalism emerged as a pragmatic response to religious diversity, while often having to manage unwieldy coalitions of dissenters from the dominant religion, now it must do the same with ethnic identity. Contemporary liberalism’s demand must be that nation and state be separated. Its base consists of those who are threatened by uniting them. Principle and strategy leave no retreat: liberalism allows ethnic identity, but it must deny that identity state power.

The Mirage of Civic Nationalism

But is there a compromise between modern liberalism and nationalism that we can live with once ethnic nationalism is excluded? Is there a “civic nationalism” that is demanding enough to represent an alternative to the ethnic variety, while being consistent with liberal principles? A number of writers worried about the threat of nationalist populism to liberal institutions – including Yascha Mounk, Francis Fukuyama and John Judis – hope so.² Mounk, Fukuyama and Judis are all liberals and can all see that if nationalism defines itself by claiming that membership in the state should be coincident with membership in the nation, illiberal results follow. But they intervene to ask the “left” to embrace a “civic nationalism,” arguing that without a thick sense of national identity, there will not be the will to put together projects like the social welfare state.

If “civic nationalism” means nothing more than that it is good if the citizenry identify with the state they live in as a common enterprise, and reasonable that they expect it to look out for their interests, then it is consistent with liberal principles. In this sense, though, the “civic nation” plays no greater role than the “civic province” or “civic municipality.” Public-spirited Torontonians or Manitobans expect their local or provincial governments to look out for their interests. A patriotism about a country that is similar to that felt for one’s city can certainly be a benign sentiment that no liberal would quarrel with. But patriotism is an emotion, while nationalism is an ideology. An ideology must define itself against something. So “civic nationalism” – if it is worthy of the name – must define the nation in a way that excludes some “civic” perspectives.

As Americans, Fukuyama and Judis want something like a commitment to the Declaration of Independence, the Constitution and an optimistic, entrepreneurial attitude to life as an identity substitute for blood and soil. The dilemma is that any ideological identity that is thick enough to fulfill the emotional needs met by nationalism will be as exclusionary as an ethnic identity – and even more in conflict with the liberal commitment to free debate of ideas. The phrase un-American has a nasty connotation for a reason. For all the flaws of old Europe, and for all the problems with its essentially ethnic understanding of national identity, at least the concept of an “un-Dutch” idea makes no sense.

Let us take Canadian examples of the problem with an ideological conception of national identity. In Lament For A Nation, George Grant claimed that Canadian identity depended on a less individualistic and more deferential approach to social life than prevailed in the United States.³ As a result, he wrote the Liberal tradition off as hostile to Canada – even though it had been the dominant tradition since Laurier and, in the 19th century, had led to the development of responsible government and had been part of the grand coalition leading to Confederation. Grant had to distance himself from the obviously individualistic strains in the Diefenbaker Conservatism that he was defending. Not surprisingly, since Canada has always been a pretty individualistic place, Grant had to conclude that Canadian identity was doomed before it could start.

Grant’s Lament foreshadowed numerous attempts to tie public polices about which there should be debate in democracies to national identity, about which there cannot be debate. Grant did this with federal Crown corporations, a theme that their CEOs have taken up ever since. Liberals and social democrats did it with the Canadian model of medicare and, after 1982, with a Charter and model of judicial review borrowed from the United States. Conservatives responded relatively harmlessly by tying national identity to peewee hockey and coffee-and-donut chains and less harmlessly to a more militaristic foreign policy. The liberal objection to all this is that it makes support for or opposition to certain contingent public policies matters of loyalty to the state.

It is not clear that there is actually a positive relationship between a strong sense of national identity and social welfare. Countries that have long struggled with a common national identity – like Canada and Belgium – do not seem to differ in any important way on this dimension from countries that have not, like France and the United States. If the welfare state is an efficient means of delivering social insurance – and it is – then it is not clear why it would not be enough for its citizens to recognize this. It is an empirical question, and the empirical evidence is not very strong that a specific ideological commitment is necessary for people to be public-spirited.

More fundamentally, though, civic nationalism faces the strategic and political problem of having no constituency. The resistance to Trump and Brexit, for example, comes primarily from the people who feel most excluded from their definitions of “American” or “British.” An opposing coalition must consist in people who have a wide variety of incompatible identity commitments. Negotiating such a coalition requires bracketing various commitments and promising them some space in the public policy that will result if the coalition succeeds. Liberalism is good at creating that kind of space. One possibility would be to define the common denominator of the antiethnic coalition as the “true” civic national identity. But this would just further enrage the majoritarian populists: they would not be “true” citizens of their own country! It is better to recognize the inherent asymmetry in the two contending coalitions.

The Intersectional Liberal Federalism of George-Étienne Cartier

We cannot put the question off any longer. If neither a single ethnic identity nor a single political identity for a state is compatible with liberalism, then how does liberalism learn to live with groupishness? Are we stuck with the pessimistic conclusion that the principles of John Stuart Mill and Benjamin Constant are for a species with a different evolutionary history from our own, possibly descended from solitary gibbons? As Edward O. Wilson, one of the world’s experts on ants, said of communism, “Great idea, wrong species.”

One response is that no one ever said it would be easy. Liberalism, like socialism, has a tendency to think of its success as guaranteed by history, so that when inevitability is put in doubt, the alternative seems to be despair. A more realistic approach would be to keep normative commitments separate from short-term success or disappointment.

Still, liberals do need a strategy. An alternative might start with the observation, banal on the cultural left, that identities are “instersectional.” This much-mocked word contains two useful and yet undeniable insights. The first is that every person is subject to multiple particularist loyalties and experiences: we are not just women/men or Canadians/Americans, but Canadian women/American women/Canadian men/American men – in exponentially more specific intersections of these sets. The second is that the experience of being part of the same group differs depending on the other groups to which one belongs: African-American women differ from African-American men not only in their gender identity but also in how they experience their racial identity. This example can be generalized indefinitely. Intersectionality is, in this sense, an undeniable fact.

And it is a problem for nationalism of any kind. That is because nationalism needs to elevate one identity cleavage to supreme importance while diminishing all the others. For a consistent nationalist, one must be an American or a Pole, but not a Polish-American. At minimum, such fractures are threatening to the national identity and to the idea of one people. From liberalism’s perspective, however, this is good news. Its enemies have a problem with the species they belong to as well, since, in fact, people do not spontaneously keep to a single identity.

But liberals have generally been suspicious of intersectionality. One problem is that those employing intersectional vocabulary tend to confuse oppression with virtue. They will often treat every identity distinction as a vertical one of oppressor and oppressed, and never a horizontal one of groups that must share a common space. Moreover, they will explicitly say that the oppressor can never judge – or even understand – the claims of the oppressed. If taken to the extreme, this would mean that differences could never be justly resolved or even effectively negotiated. Liberals have always differed with radicals in that they doubt that a politics in which the perspective of the “oppressor” can be ignored entirely would be either just as a moral matter or likely to succeed as a prudential matter.

But many liberals who object to intersectionality fail to recognize that an acknowledgement that everyone’s identity is complicated constitutes the best argument against radicalism. Very few people would fit into all the “oppressor” boxes, and even fewer would be “oppressed” in every respect. Even at the individual level, everyone has to find more or less principled compromises. An intersectional radical cannot pretend that there will be a single revolutionary subject, like Marx’s proletariat.

Another problem for liberals is the worry that a focus on intersectionality will lead to despair about the possibility of communication and collective action. If we cannot talk across identity categories, or if statements must simply be accepted, then a virtually infinite proliferation of such categories would create a hyperindividualized nightmare of noncommunication. On this point, it is precisely the liberal tradition, which has long been focused on the problems of common governance across divides of commitment to comprehensive worldviews, that has the resources to be useful to those concerned with the intersectional nature of identity.

Canadians should be more familiar than they are with George-Étienne Cartier’s 1866 speech in favour of Confederation, in which he called for a new “political nationality” with which neither the “national origin” nor the “religion of any individual” would compete. In Cartier’s vision, this political nationality would be shared by people of all parties and was not intended to replace ethnic or religious loyalties. In Cartier’s exposition on the new federal scheme, the political nationality of being a Canadian would serve those interests where religious, linguistic or ethnic identity was irrelevant. Cartier accepted that English-speaking Protestant Upper Canadians, French Catholics, Irishmen and Maritimers would all need to be represented in the councils of the political nation; were he alive today, he would no doubt modify his list to include women, Indigenous people and visible minorities.

Cartier’s concept of a political nationality should be distinguished from a civic nationalism dependent on allegiance to a substantive political ideology. Just as ethnic, linguistic and religious nations would meet in the institutions of the new political nation to hammer out their differences, so too would ideological groups. No doubt Cartier’s approach presupposed that anyone engaging in sedition against the state order would be suppressed. But it did not require any greater commitment than a willingness to work with the institutions as they existed.

One advantage the Confederation generation had over us today is that the socially and economically dominant English-speaking Protestants of Canada West were able to conceive of themselves not only as the true British North Americans but also as a section within British North America. As such, they advanced their interests through their representatives in a framework that implicitly accepted that others would also advance their interests. This did not prevent various identity panics on the part of this group, from the Riel rebellion through the Manitoba Schools controversy to the Conscription Crisis in the First World War. But through all of this, a framework remained in which Protestant Ontarians participated as one (loud) voice among many.

By contrast, neither left nor right is comfortable viewing the declining demographic “majorities” of the West today as one identity group among many – with legitimate interests, but also with an obligation to compromise those interests with the interests of others. For right populists, these groups just are “the people” and their identity demands are the demands of the nation as such. “Race” or “ethnicity” is something that only the Other has, which implies that the majority is raceless and without ethnicity. If challenged, the declining majority identity points to its acceptance of the principle of colour-blindness in law and its openness to the support of members of minorities willing to assimilate unreservedly to the majority.

The left sees through this and is understandably reluctant to acknowledge the legitimacy of a majoritarian identity politics. However, the left then goes on to insist that the majority just accept the moral untenability of its own identity as the corollary of accepting that its identity is just one among many. Instead of just making a principled demand for the separation of nation from state, the left in effect asks one people to cease to exist altogether.

The challenge is how to turn declining majorities into participants in multicultural compromise. Only on the racist and fascist far right is the contradiction resolved in favour of an explicit advocacy of “white” interests, but of course any use of multicultural language from this corner is just cover. This problem is insurmountable so long as the majority ethnicity defines itself as “white,” or as “French”, “Dutch” etc. The political entrepreneurs who seek to redefine majoritarian concerns in terms that speak to identity will probably continue to claim to speak for “the” people, as Trump and the Brexiteers do. From a liberal perspective, this is no better than an explicitly racist appeal, because it dissolves the universal into the particularities of one group.

While denying the concept of human nature, communism did speak to some perennial human characteristics: a longing for collective action, a dislike of hierarchies of rank and status. Its failure was its inability to integrate these aspects of human nature with others. Nationalist populism speaks to the need to be part of a group, and the need for that group to be “one,” but it suffers from the reality that our identities are multidimensional. On the left, this has been understood as “intersectionality,” but this insight has suffered from the left’s lack of attention to institutional realism. Liberals should give up on trying to renew their tradition by going back to the well of a single national identity and instead embrace the multiplicity they are best placed to reconcile with social order.

Continue reading “Is it Time to Separate Nation and State?” →

Every area of study has its classic puzzles; the “anomalies theorists” pay their dues by proposing explanations. For the biology of sexual selection, it might be the peacock’s tail. For early-20th-century physicists, it was the black body radiation problem. For comparative political sociology, it is, in German historical economist Werner Sombart’s phrase, “Why Is There No Socialism in the United States?” For over a century, the absence of a mass socialist or labour party has been a defining aspect of “American exceptionalism.” But what if that were no longer true? What if socialism were to become a major force in American politics, even as it declined in Europe?

Since the First World War and the Bolshevik Revolution, almost every major democratic country has had a self-proclaimed labour, socialist or communist party as a major contender for power. Most of the undemocratic world either had a self-proclaimed socialist government or underground insurrectionary movement (and, not infrequently, both).

The United States was different. It exited the 20th century with the same Democratic and Republican parties it has had since the 1860s, and without mainstream politicians rhetorically proposing an alternative to capitalism. The fact of an exceptional American aversion to socialism was undisputed, with leftists and academics alike arguing about the reasons: the racial legacy of Jim Crow and slavery, the immigrant experience, the frontier, Protestant revivalism or the canny political instincts of Franklin Delano Roosevelt.

But looking around in 2018, we might wonder whether this classic contrast makes sense any more. In Europe, these are gloomy days for the successors of August Bebel, Kier Hardie and Jean Jaurès, with the traditional parties of the left wiped out in France and Italy, in apparently terminal decline in Germany, and riven by serious internal crisis in the United Kingdom. On the other side of the Atlantic, things are looking up for the estate of Eugene Debs and Norman Thomas. In 2016, an unteleginic self-proclaimed “democratic socialist” almost won the Democratic nomination for president. Arguably (although, of course, controversially), in an anti-establishment election decided in the Rust Belt, Bernie Sanders would have won.

The election of Donald Trump has, naturally enough, led to increased attention to right-wing populism and the racist “alt-right.” But it is at least possible that developments on the left will be of longer-term significance. Trump’s support is overwhelmingly among older Americans, while the even older Sanders won big among younger voters regardless of race and gender. A 2017 YouGov poll showed that 44 per cent of millennials (defined in this case as people born after 1987) would prefer to live in a “socialist” country, compared with 42 per cent opting for a “capitalist” one. Other polls with other questions consistently show more positive associations with “socialism” than with “capitalism” among younger Americans.

Polls of inchoate public attitudes are one thing; organizational power and intellectual influence are another. Here too something is happening among millennials outside the visible parts of mainstream American discourse. The once moribund Democratic Socialists of America (DSA) have received a remarkable “Trump bump”; membership has gone from under 7,000, when Sanders’s campaign began, to its present 30,000. This growth in membership has occurred along with a sharp turn to the left, as the DSA in 2016 cut its ties with the Socialist International of mainstream social democratic parties, ties that its founder, Michael Harrington, worked hard to build in the early 1980s.

A larger ecosystem of a millennial socialist left – not to be confused with mainstream Democratic progressives or liberals – including the DSA, a “podcast” scene led by the popular and profane Chapo Trap House, “red rose Twitter” and Jacobin magazine has spread beyond its native university milieu. Common to all of these is the combination of a millennial cultural vibe with a remarkably “old left” orientation around class (as opposed to an “identity politics” primarily oriented to race and gender), Marxist theory, traditional activism and the internecine debates of left history.

It is important not to get carried away. The organized off-campus socialist left might be growing rapidly, but it is still tiny. The DSA is small, compared not just with the German SPD or the British Labour Party but even with other fringe American organizations like the Libertarian Party. High abstract support for “socialism” among young Americans might turn out to be a lifecycle phenomenon they grow out of rather than a cohort phenomenon presaging future political realignment – the old cliché that a person who is not a socialist at 20 has no heart while one who is not a capitalist by 30 has no brain may be relevant here. The DSA is also small compared with Eugene Debs’s Socialist Party, which obtained almost a million votes in the presidential election of 1920, 3.4 per cent of the total, before it split into Communist and anti-Communist factions. Like other ideologues, American socialists are undoubtedly overrepresented online.

Still, given the vast attention lavished on the alt-right that everyone ignored until Trump came along, it may be worth asking whether the left might also be able to mount a challenge to American consensus values. No generation before the millennials has ever reported a preference for socialism over capitalism to pollsters. DSA is already bigger than any overtly socialist organization since Students for a Democratic Society (SDS) imploded in 1969. According to John Michael Colon, DSA, unlike SDS, consists primarily of former university and college students, who are often facing downward mobility and large student loans. This is interesting, given Peter Turchin’s evidence that internal social conflict is correlated with the “overproduction of social elites”: in the modern world, this typically occurs when many more people have postsecondary educations than can use them in the economy.

Trump proves that the longstanding certainties of American politics have become less reliable. At a minimum, it is quite possible that socialism, in some form or other, might be on the verge of a breakthrough in the United States. If this happens, since a substantial proportion of the country will continue to view socialism in apocalyptic colours, the already bitterly divided American political culture will become even more polarized.

Straddling the Left Traditions

Characterizing this new trend is a difficult task, if we want to avoid both inaccurate generalization and a level of detail about obscure disputes that would induce eye bleeding in even the most tolerant reader. As Monty Python’s Life of Brian illustrated, the overeducated/underemployed in general, and Marxists in particular, have a love for nuanced theoretical-programmatic differentiation. To get a handle on things, and at the risk of offending anti-individualist principles, we need a representative figure.

Bhaskar Sunkara, the editor of Jacobin, will do as well as anyone. One way in which the 28-year-old Sunkara is typical is that, politically, he tries to straddle the social democratic, Leninist and anarchist traditions that characterized the 20th-century left. Sunkara defines this mission of Jacobin in explicitly generational terms, as “the product of a younger generation not quite as tied to the Cold War paradigms that sustained the old leftist intellectual milieus like Dissent or New Politics.” Sunkara endorsed Bernie Sanders’s purely social democratic program and points to Scandinavian countries as models of the kind of change he hopes for in the United States. He says he is not opposed to markets in principle, although Jacobin never supports the free-market side in any controversy.

At the same time, as the name Jacobin suggests, Sunkara uses revolutionary imagery and has published sympathetic articles about the Russian Revolution and the Communist tradition. The DSA combines Democratic Party elected officials with a “tankie” fringe of Leninists who retroactively support Soviet military suppression of democratic working-class rebellions in Hungary, Czechoslovakia and Poland against Communist rule.

Sunkara’s generation of left activist is defined in reaction not only to post-9/11 U.S. military interventionism and the post-2008 financial crisis and Great Recession, but also to what they rightly perceive as fundamental failures in the movements against those things. The anti–Iraq War movement essentially disappeared when Barack Obama was elected president, despite the substantial continuity in policy with the Bush administration when it came to the war in Afghanistan, the surveillance of Muslim Americans, drone strikes around the world and disastrous regime change policies. Neoconservatism gave way to a functionally similar liberal internationalism insisting on “U.S. leadership,” but any mass movement dried up with a Democrat in the White House.

While Obama expressed some disagreement with the interventionist foreign policy establishment and may have blunted their most bellicose instincts, he never expressed any interest in spending political capital in transforming U.S. foreign policy. Despite the anti-interventionist instincts of the American public, especially younger Americans, he faced no political pressure on foreign policy from the left. The political left just ignored these issues after Bush left office, while the intellectual left either recycled sixties anticolonial ideology or was sympathetic to liberal internationalism. The most interesting and hardheaded critiques of American hegemonism tended to come from conservative realists such as Stephen Walt and John Mearsheimer, writers at the American Conservative and antiwar libertarians.

Occupy and Identity

The financial crisis and its aftermath of low employment rates hit millennials harder than any other age cohort. The immediate leftist response, the Occupy movement, is a target of particular ire among millennial Marxists. Occupy combined complete inflexibility on its chosen tactic of creating ungoverned camps in urban public spaces with hostility to programmatic responses to the Great Recession. The leaders of Occupy, influenced both by anarchism and by traditional American hostility to telling anyone what to do, went out of their way to discourage the movement from posing any specific demands or analysis. No doubt this was a way of resisting Leninist entrism, but it also reflected a basically antipolitical refusal to debate alternatives. One common feature of the Jacobin circle is their disgust at this aspect of Occupy, which they analyze as an internalization of the post–Cold War narrative that “there is no alternative” to “neoliberalism.” Sunkara (and others like him) saw Marxism as a hardheaded and systematic alternative to this disgustingly New Agey “anarchist” antipolitics.

From my own perspective, Marxism has very little interesting to say about periodic financial crises and the business cycle, beyond the (salutary) emphasis that they are endemic to capitalism. Marx himself was never happy with his crisis theory, which Engels published after his death. With its dependence on the labour theory of value and a self-contradictory account of the determination of profit rates, it has little to offer now. It would be more useful to read the 20th-century American economist Hyman Minsky or various post-Keynesians.

But for young activists looking for something less soupy than Occupy was able to supply, the old left tradition seemed refreshingly hard-edged. Occupy, Obama and the antiwar left all celebrate feelings and moralism; old-line socialism told underemployed-but-overeducated young activists to open up books and argue about economics, philosophy and history as well as show up for demonstrations. That might appeal to intelligent young people with high student debts and suddenly limited job prospects.

Even more important, old leftism might liberate young people weighed down by the fraught world of identity culture but unwilling to embrace a right-wing backlash narrative. By now, anyone of any age knows how dangerous the online “call out” politics of race, gender and sexuality has become. The Jacobin–Trap House milieu gets to be the moderate middle here, a position that appeals to many millennials. They can parody or analyze both the moral posturing of the “social justice warrior” crowd and the anti–social justice warrior industry.

The 2016 Democratic primaries pitted Sanders’s class-based appeal against Hillary Clinton’s promise that the first female president would be transformative. Clinton explicitly made identity-based appeals to defeat Sanders. In her stump speech in the primaries, Clinton asked, “If we broke up the big banks tomorrow, would that end racism? Would that end sexism? Would that end discrimination against the LGBT community?” From a Marxist perspective, this looks like weaponizing identity politics in defence of “neoliberalism.” Sanders’s male supporters were labelled as (and sometimes acted like) “Bernie bros,” holding Clinton to sexist standards. One major intellectual influence (albeit himself a curmudgeonly Slovenian baby boomer), Slavoj Žižek, went so far as to endorse Donald Trump as the true proletarian candidate in the general election. While the millennial Marxist milieu certainly supports broadly feminist and antiracist positions, it also provides space for criticisms of identity politics that many on the centre-right would agree with.

The old left was often opposed to racism and sex oppression, a tendency that can be dated back to Marx and Engels, but beyond that the Marxist tradition never worked out its relationship to gender and national-racial inequalities. At its worst, Marxism engaged in genocidal politics, a thread that runs from Engels’s call to eradicate Slavic national identies after the 1848 revolution through the racist as well as murderous policies of Stalin, Mao and Pol Pot. Even at its best, Marxism never worked out how class analysis and what it called “special oppression” worked together.

It would be insane, in the era of Trump, to discount the significance of racial and gender loyalties on how people vote. But gender or racial polarization seems like a dead end for the left politically and rarely of much use as a lens into policy solutions. Even crucial racial issues like police violence and mass incarceration turn out to affect a numerically larger, albeit proportionately smaller, group of whites. The resistance to social democratic or even liberal solutions to America’s problems around access to healthcare and reasonable-quality education have everything to do with race. However, sensible solutions would redistribute power and resources primarily along lines of class, not race.

Moreover, objectively, class gaps kept getting deeper over the decades between the 1970s and 2016 as America was making cultural progress in its representations of nonwhites, women and sexual minorities, and the business and professional elite endorsed at least symbolically the principle of racial, gender and sexual inclusion. Trump’s election, which puts this cultural progress in doubt, can be seized on as evidence that a failure to address class will ultimately undermine even this progress.

For the millennial Marxists, the glory of the Sanders movement was that it challenged the “neoliberal” consensus they believe has prevailed since the end of the Cold War. In some ways, the rise of right-wing populist nationalism challenges neoliberalism as well. Now that the inevitabilist “end of history” illusions of the 1990s are finally shattered, it becomes possible to engage again with the Marxist tradition, hopefully without the dogmatism and hostility to civil liberties that disfigured it. The millennial Marxists explicitly see themselves as in continuity with those on the socialist left who tried to find a way between Leninism and social democracy, including the Eurocommunists, the British Labour left and strands of the New Left.

Defining the Enemy

Assuming, then, that millennial Marxism really is a “thing,” is it a good thing or a bad thing? My own perspective is that of a Generation Xer radicalized in the 1980s moment of solidarity with Nicaragua, anti-apartheid activism, zines and punk rock. It was a lesser moment for North American leftism than the 1960s or the present, but I have to be careful to avoid paternal condescension. I was in the minority of my generation in being attracted to orthodox Marxism precisely because it seemed to provide a hardheaded analysis as against anarchism, postmodernism and identity politics.

I certainly despised Clinton and Blair when they were elected. But I gave up on any emotional identification with the far left during the travelling antiglobalization protests of the late 1990s. It seemed to me then, and seems to me now, that the benefits of freer international trade for the global poor between 1989 and 2001 had to be prioritized if internationalism was to be meaningful. It also seemed to me that the dominant wing of capital was open to pushing for a postethnic West with a more egalitarian sexual morality. In other words, capitalism had not stopped playing the “most revolutionary” part Marx and Engels spoke of in the Communist Manifesto. I briefly thought there might be something to the “Third Way” of Blairite social democracy, although I was disappointed by Blair’s embrace of the Iraq War and then shaken by the financial crisis.

From this somewhat idiosyncratic perspective, there are some things to welcome in the development of millennial Marxism. While the mainstream left might long ago have been too exclusively focused on the concept of class, for many decades it has seemed to pay insufficient attention to this concept, in light of the growing disparities of wealth and income in the West. No decent person should regret the enormous reduction in global poverty as a result of globalization or the relative opening of cultural space to women, racial and sexual minorities as a result of the logic of commodification breaking down older patriarchal structures. But the Marxist tradition has special insight into the dialectical nature of these developments. Capitalism has both its brutal progressive side and its tired conservative side.

Any movement can be understood by how it understands its enemy. For the millennial Marxists, its enemy is “neoliberalism.” This core concept is a slippery one, both intellectually and politically. It basically includes everybody the millennial Marxists disagree with, other than right-wing nationalist populists and Stalinist tankies. “Neoliberalism,” in the hands of the millennial Marxists, becomes an oddly ahistorical and idealist concept, a spectre haunting not only Europe but the world, betwitching people into supporting policies clearly contrary to their interests, in very different political contexts and affecting movements with very different social bases, simply because it is the spirit of the (post–Berlin Wall) age.

Politically, it throws together every mainstream politician in the Atlantic democracies over the last two generations – from Mitterrand, Reagan and Thatcher to Obama, May and Macron. Intellectually, it includes mainstream economists behind the Washington Consensus in the 1990s or Clinton- and Blair-style centre left governments as well as economists such as Friedrich Hayek and Milton Friedman who rebelled against the postwar mixed economy from a libertarian direction. Neoliberalism is not only the explanation for the Iraq war and the financial crisis, but also for why movements that the millennial Marxists like (Syriza in Greece, Chavismo in Venezuela) have ended in disaster. Sunkara sometimes puts forward Scandinavia as a model, without perhaps realizing the extent to which it has combined high taxes and social spending with a more rigorous commitment to free market liberalism in many areas than prevails in the United States.

Millennial Marxists need to develop a more historically grounded analysis of the limits of the liberalism/social democracy of the era of Clinton, Blair and Obama, one that starts from the historical problems the forces associated with those names had to solve. By the 1970s, as the public sector increased, it became increasingly difficult to simultaneously satisfy the producer interests of public sector workers, meet the demands on already-established public services, not frighten off middle-income taxpayers and keep the positive-sum spirit of “les trentes glorieuses” (the 30 years of relative prosperity after the Second World War). High levels of aggregate demand led to widespread strikes and inflation. In the Anglo-Saxon world, Thatcher-Reagan-style conservatism appeared to provide a way out of these problems, with tight money, a harder attitude toward unions and a limit on the growth of the tax-and-transfer state (although no real attempt to actually reduce it in size).

During this time, Michael Harrington’s project of ideologically sorting the major parties actually succeeded: conservative southern Democrats left, the Democrats became the unquestioned party of labour and minorities, and organized themselves programmatically around filling in the clearest hole in the U.S. welfare state, the lack of universal healthcare coverage. Republicans, by contrast, became firmly committed to opposing any tax increases, even as market income diverged and even as these became necessary to pay for the federal government’s commitment to Social Security and Medicare. But with the defeat of Walter Mondale and Michael Dukakis in the 1980s, the Democrats tried to move to the centre culturally (to attract white working-class voters) and on taxes and spending (to attract upwardly mobile middle-class voters). This more or less corresponded to similar moves within the British Labour Party under Tony Blair and the German SPD under Gerhard Schroeder, so while disappointing from a left perspective it did not really falsify Harrington’s bet that the Democrats were becoming a social democratic force in all but name.

Outside the English-speaking world, so-called “neoliberalism” was not an ideological phenomenon at all, but a reaction to the reality that postwar social democracy faced the limits of the nation-state as a structure. The program of Mitterrand’s Socialists to “change life” had to be abandoned not for ideological reasons but because it necessarily implied a devaluation of the franc against the Deutschmark. The ultimate solution for these problems, the European monetary union, cannot be reconciled with an effective social democracy until and unless there is a European working class that thinks of itself as such. And that does not seem forthcoming. The structures of internationalism, and even of Europeanism, do not seem capable of being democratized the way the nation-state was in the 20th century.

If a breakthrough for the left does not seem to be coming from Europe, what about the United States? The difficulties are different. One is the nature of the U.S. Constitution, with its multiple veto points, which would render a coherent social democratic program hard to introduce. As the millennial Marxists rail against the failure of Clinton and Obama to accomplish more, they tend to ignore these structural problems. Another difficulty, which gets more analysis, is the way in which group status competition – around race, religion and education – fails to correspond to economic class, but is far more motivating. In the very long run, generational changes may make this less important, but as Keynes pointed out, we do not live in the long run.

Even more important to whether the end of this particular kind of American exceptionalism leads to good or bad consequences is the extent to which millennial Marxists avoid reproducing the illiberalism of the Leninist tradition in a desire to appear radical. The American left has often felt it can avoid the moral ambiguity of the often oppressive legacy of 20th-century socialism precisely because any extremism on the left will inevitably be so marginal to American politics as to be harmless. But that will no longer be true if socialism is no longer marginal in America. Even if they avoid a Leninist ancestor cult, American leftists will not get anywhere unless they embrace the pragmatic nature of their country, as well as create roots at the state and local level. But if they do these things, they might promote a better society at home and give some impetus to the left internationally. In any event, they are something to watch out for.

It isn’t easy keeping either of America’s big coalitions together. In the opening months of the Trump administration, Republicans divided over foreign policy (neoconservative hegemonists vs. Jacksonian isolationists), trade policy (traditional Republican business interests and libertarians vs. Trumpian protectionists), immigration (ditto), health care (everybody against the Ryan plan) and, it now seems, even taxes. The Democratic Party was better able to unify around opposing Trump and the Republican desire to repeal Obamacare, but the division between its social-democratic and neoliberal wings – exposed by the surprisingly effective primary challenge of Bernie Sanders – reemerged in the struggle for Democratic National Committee chair between Keith Ellison and Tom Perez. The Trump era looks set to realign the partisan and ideological system that has characterized American politics for the last half-century.

But one issue was an exception. The nomination of the mild-mannered Neil Gorsuch as junior justice of the U.S. Supreme Court united each party internally and totally polarized them against each other. The U.S. Senate – long a bulwark of individualism and cross-party back-scratching, with at least ten Republican members who have publicly feuded with President Trump – divided almost perfectly on party lines. The minority Democrats took the politically risky step of filibustering a nominee whose professional qualifications were difficult to question. And then the majority Republicans took the equally perilous step of rewriting the body’s rules to eliminate the ability of a minority to filibuster a Supreme Court nominee (the so-called “nuclear option”).

The United States has never had the disciplined party structure of parliamentary democracies like Canada and the resolution of the impasse undeniably reduces the overall power of senators. For this reason, the Republican majority has ruled out taking the same step of eliminating the filibuster for ordinary legislation or budget issues, and Democrats would be unlikely to force such a result if they could avoid it. On these other matters, the institutional interests of senators are more powerful than their ideological loyalties. But for Supreme Court nominees, neither party’s base would tolerate such a set of priorities. If another justice dies or retires before the next presidential election – and three of them were born in the 1930s – this disciplined partisanship is very likely to be repeated.

To an outsider, it is strange that the most perfectly partisan issue in American politics is nomination to a purportedly nonpolitical office. On further investigation, it just gets stranger – and says a lot about the dangers to the rule of law of constitutionalizing moral and political conflicts.

From Scalia to Gorsuch via Trump

The fight that led to Gorsuch’s nomination began almost a year before Trump took office. On the night of February 12, 2016, after a day of quail hunting, Justice Antonin Scalia died in his sleep. For someone who made his name as an expert in administrative law and statutory interpretation, Scalia was a colourful and controversial character. A conservative Catholic who was acerbic both in oral argument and in writing, he typically voted for results congenial to the political right – although he was proud of the exceptions, such as his vote in Texas v. Johnson that flag burning is constitutionally protected free speech, as well as his numerous decisions limiting the scope of criminal statutes and protecting what he thought of as rights of criminal defendants.¹

Scalia cut his teeth as a free-market critic of federal regulation, particularly of telecommunications. He was thus a minor player in the “law-and-economics” movement of the 1970s that analyzed law in terms of neoclassical microeconomic theory. But his more important role was in defining the specifically legal views of the American right, views that at least purport to eschew any connection with market economics or traditional morality.

Scalia propounded constitutional “originalism” (the idea, refined by Scalia, that the text of the constitution should be read in terms of the “public meaning” it had when adopted), Chevron deference (the idea that the executive branch should get to interpret its statutory powers when they were ambiguous) and statutory textualism (a refusal to pay attention to the political history of a law, combined with a relatively literal reading of its meaning). Although there are certainly conservative lawyers who disagree with one or more of these ideas, these ideas have largely defined the conservative mainstream since the Reagan era – in no small part as a result of Scalia’s energetic advocacy of them. Originalism and textualism in particular stood in contrast to the mainstream of American legal thought, which (as in Canada) prioritizes pragmatism and judicial discretion over the highly formalist and positivist approach Scalia advocated.

The relationship between Scalia’s legal commitments and political conservatism is as controversial as the legal ideas themselves. In any particular case, the results of reading constitutions historically, deferring to presidential administrations or reading congressional enactments textually could be liberal, conservative or neither depending on the constitutional provision, the administration or the Congress. Many of Scalia’s critics have argued that he applied his legal ideas inconsistently when they conflicted with his political biases.² Scalia did not always deny this, but argued that formalism created an objective standard by which he could be judged, while pragmatism makes a virtue out of political bias.³ At the same time, in a larger sense, Scalia probably thought his legal views supported an overall populist conservatism, because he thought that the progressive agenda was promoted by judges reading the modernist prejudices of their class into constitutions and statutes.

However, another view of the “original” meaning of phrases in the Fourteenth Amendment like “equal protection of the laws” and states being prohibited from depriving any person of “life, liberty or property without due process of law” is that these words enacted principles that are capable of new application as social understanding changes. From this “new originalist” perspective, the original force of the Fourteenth Amendment comes from the underlying revolutionary principles of the post–Civil War Reconstructionist era, not the specific views of the majority of the population at the time. It is perfectly consistent with these principles and with the text to apply “equal protection” to gay and lesbian people and “liberty” to their freedom to marry, regardless of how fringe a view this would have been in the 1860s. Recently, an increasing number of progressive judges and legal theorists have come to see that this is not a dispute about whether the original public meaning of constitutional texts is binding, but about how meaning should be understood. Jack M. Balkin’s 2011 book Living Originalism⁴ sets this progressive originalist position most coherently, and Elena Kagan, President Obama’s former Solicitor General whom he appointed to the Supreme Court, set it out most pithily at her confirmation hearing when she said, “We are all originalists now.”

While Scalia was on the court, the median justice in ideologically charged cases was Anthony Kennedy, a moderate Republican appointed by Ronald Reagan when the more fearsomely conservative Robert Bork proved unacceptable to the Senate. Kennedy clashed most memorably with Scalia on gay rights issues,⁵ but was often aligned with the conservative wing of the court in other respects. Scalia’s death during the presidency of Barack Obama appeared to open up the possibility of a Democratic-appointed liberal majority. Obama nominated Merrick Garland, by all accounts a moderate liberal generally disinclined to interfere with the elected branches of government, whether for conservative or progressive reasons. Garland was about as favourable a justice as Republicans could expect from a Democratic president. However, while Democrats controlled the presidency, Republicans controlled the Senate, and they refused to allow Garland’s nomination to come to a vote while Obama remained in office.

Trump’s nomination as Republican candidate for president came as a shock to the leaders of the conservative movement – who believed they had established a lock on the Republican Party since Reagan. The “Reagan coalition” was mobilized around three ideological blocs: social conservatives motivated by a desire to preserve traditionalist virtues, economic libertarians motivated by a pro-market ideology and neoconservatives who advocate an assertive military and foreign-policy posture by the United States. Trump’s obvious personal failings and lack of religious convictions, ingrained protectionism, support for popular spending programs and inconsistent isolationism did not faze the Republican primary electorate, which warmed to his ultranationalist identity politics and authoritarian persona. But little Trump said was consistent with movement conservatism as it had been understood for 40 years.

Nevertheless, while some conservative thought leaders – especially those for whom foreign policy was particularly salient – abandoned Trump altogether, most social and economic conservatives were won over by the time the election rolled around. And indeed while much postelection punditry has focused on the small number of traditionally Democratic rust belt voters who switched from Obama, Trump avoided the electoral annihilation midcampaign polls predicted because traditional Republicans voted for him.

Instrumental to this consolidation was Trump’s commitment to appoint a replacement for Scalia from a shortlist of judicial conservatives prepared by leaders of the Federalist Society, a group of conservative and libertarian lawyers and law professors (while Gorsuch was not on Trump’s original list, he was on a supplemental list delivered later in the campaign). More than any other single thing Trump did on clinching the nomination, this commitment brought the majority of the “movement” behind him – enabling him to win in November despite the well-founded doubts of many movement leaders about his ideological reliability, competence and character. Delivering on this commitment, shortly after being inaugurated Trump nominated Judge Neil Gorsuch, appointed to the federal appellate courts by George W. Bush, to the Supreme Court.

The right-wing legal counterculture

As political scientist Steven Teles documents in his 2009 book The Rise of the Conservative Legal Movement, the Federalist Society is a fascinating case study in long-term institution-building by the American right. Founded by Reaganite students at elite law schools in 1982, the Federalist Society advocates no positions and submits no briefs. It organizes conferences and student chapters for libertarian and conservative legal types to talk to one another and sometimes debate progressives. By creating a network, it built up a right-wing legal counterculture. Of course, there have always been conservative lawyers, but when the Federalist Society was founded, there was little in the way of right-wing legal theory, especially in constitutional or administrative law. But since 1982, whole intellectual movements – law-and-economics, originalism, textualism, Thomist natural law thinking – have developed, been refined and to some extent migrated over to the progressive legal academy.

The political moment of this more ideological brand of right-wing lawyering arrived as a result of disappointment of conservative movement figures in results from Republican appointees. Eisenhower appointed both Chief Justice Earl Warren and liberal icon William Brennan. Nixon appointed the very conservative William Rehnquist, but also Harry Blackmun, author of the Roe v. Wade decision that created a constitutional right of access to abortion. George H.W. Bush appointed Clarence Thomas, who has proven to be more doctrinaire even than Scalia, but also David Souter, who quickly became aligned with the liberal wing of the court and who voted along with Blackmun, Kennedy and Sandra Day O’Connor (another Reagan appointee) to uphold Roe in the 1992 decision Casey v. Planned Parenthood. Casey was the final straw for conservative activists, who adopted the slogan “No More Souters” and broke with George W. Bush when he tried to appoint the insufficiently ideological Harriet Miers to the Court in 2005.

The result is that the American right has demanded ideological reliability, not just Republican partisanship. And, as Lenin and Gramsci realized long ago, this requires ideological institutions engaged in more abstract theorizing. Gorsuch is a hereditary conservative: his mother was an official in the Reagan administration and he is a product of the debates in the Federalist Society and similar circles. As a law professor at the University of Chicago, Scalia was an early mentor of the Federalist Society, and he undoubtedly had an outsize influence on the people who have gone through its ranks. But Scalia was fully formed intellectually before the Federalist Society began, as were Clarence Thomas and Samuel Alito. Chief Justice John Roberts is a lawyer’s lawyer, with an instrumental view of theory. It is widely speculated that he avoided ruling Obamacare unconstitutional because he did not want to embroil the Court, as an institution, in the no-win partisan disputes about health care.

Gorsuch differs from his predecessors in being a generational product of a much more theoretical culture on the legal right. This will likely mean both that he can be relied on from the conservative perspective, and that he will be able to put forward his perspective in a less acerbic way than Scalia. (It also means departure from Scalia’s stance of deferring to executive agencies when interpreting statutes, a position now unpopular on the legal right.) As is now traditional, Gorsuch did not say much that is substantive in his testimony before the Senate Justice Committee. As a court of appeal justice, his record showed he was a better than average writer, with results that were not unusual for a Republican appointee.

Commentators turned to his doctoral dissertation, The Right to Receive Assistance in Suicide and Euthanasia, which examined the issue from various perspectives including common law, constitutional law and contemporary moral philosophy. The dissertation is a solid if unremarkable academic work, addressing the arguments of pro-euthanasia thinkers like Peter Singer and Richard Posner without rancour or hyperbole. But it ends up with a conservative conclusion, defending traditional distinctions between foreseeably causing death with pain medication and deliberately causing it, or between a competent person dying by refusing hydration or treatment and active medical assistance.

Gorsuch’s thesis supervisor, Oxford legal philosopher John Finnis, is a leading exponent of a neo-Aristotelian natural law approach to legal and moral philosophy – ostensibly secular but definitely influenced by a tradition in Western philosophy that had a major impact on the moral theology of the Catholic Church. Gorsuch borrowed from this tradition the idea of human life as an “intrinsic good” that cannot be reduced to a utilitarian calculus or equated with a right of personal choice. While Gorsuch steered clear of abortion politics, and regarded Casey as authoritative, activists on both sides of the abortion debate clearly decided he would support overturning it if the opportunity arose, and he will probably vote like Scalia, while employing more measured rhetoric.

It should be said, though, that Aristotelian virtue ethics and natural law theory are not necessarily right-wing, and that consistent utilitarians and libertarians come to extremely unpopular and counterintuitive moral positions. Singer thinks it is wrong to eat meat or give your child birthday presents if the money could help save someone from malaria, while Posner guaranteed that he would never reach the U.S. Supreme Court by advocating auctioning off rights to adopt babies. This does not mean those positions are wrong (Jeremy Bentham counterintuitively opposed sodomy laws and slavery), but it should put some of the hyperventilating in context. The actually alarming thing is that it is important to dissect a dissertation in moral philosophy for clues about the future of public policy in a democracy of almost 300 million people. This is the consequence of the superempowerment of final courts of appeal.

The balance holds – for now

The immediate effect of Gorsuch’s nomination will not be huge. Anthony Kennedy will remain the median vote on the Supreme Court of the United States, as he has been since Sandra Day O’Connor retired in 2005. Since the ideological space between Kennedy and O’Connor is not that great, really the Court will remain where it has been since Gorsuch was a teenager. But the next death or retirement is likely to be either Kennedy or one of the Court’s liberals, in which case the balance could shift dramatically.

It is surely unfortunate that so much of significance to American public policy turns on actuarial accident. Too much that should be left to politics is judicialized. The inevitable result is that, once the most salient issues are decided by a Supreme Court, the law becomes hostage to politicization. Scalia’s answer to this was to find formalist approaches to adjudication that would transcend the judges’ own biases, but the actual result is that these approaches just become shibboleths for one political coalition and anathema for the other. The political debate is channelled into jurisprudential abstraction, but at the end of the day the judicial balance depends on the brass-knuckle politicking of senators like Mitch McConnell and Chuck Schumer.

Canada does not yet have the problem of polarization around judicial choice and our Supreme Court enjoys widespread acceptance, if not widespread understanding. But the same logic may eventually triumph here, since there is no greater sense in Canadian elite legal circles that the results in constitutional cases are independent of the ideologies and perspectives of the justices. This was exemplified by the questionnaire for Supreme Court of Canada appointment filled out by our most recently appointed justice, Malcolm Rowe, and published by the Trudeau government on the internet. Reflecting the academic consensus since the 1930s, Rowe stated quite frankly that “Supreme Court of Canada judges ordinarily make law, rather than applying it” and that the legitimacy of court decisions derived from the “wisdom and well-founded principles” of its judges.

The appointments of Justice Russell Brown in 2015 and Justice Rowe in 2016 both provoked a more ideologically polarized debate than we have been used to. We can hope that the United States is not the mirror of our future, but pessimism is probably the better way to bet.

Continue reading “Law as politics, politics as law” →