What Conservatives Owe Originalism

WHILST REVIEWING the current debate over the fitness of Neil Gorsuch to fill the Supreme Court seat vacated by the late Antonin Scalia, I am reminded of what has always struck me as an intriguing paradox. Scalia made a name for himself by defending the originalist interpretation of the Constitution—that is, the interpretation which strives, insofar as it be humanly and judiciously possible, to hold rigorously to the original meaning of the Constitution. Taken at face value, this appears to be, not only a moderate position, but the most moderate position available to any American. Assuming that the Constitution is the base line of all American politics, Scalia’s judicial philosophy should represent the ideally centrist position. And yet, Antonin Scalia is widely regarded as one of the most “right-wing” justices ever to sit the bench. How is this possible?
      There are, it seems to me, only two admissible explanations: either Justice Scalia was a rank opportunist who justified an esoteric right-wing agenda through the use of a sophisticated casuistry; or else there is a notable discrepancy between the Constitution as it was originally writ, and the political climate of today. Either Justice Scalia artificed a complicated hermeneutics capable of fabricating the partisan answers he secretly craved, and then passed the better part of his life endorsing this spurious system through many books and countless speeches and lectures; or else there has been a striking transposition in our American politics toward the progressive left.
      The first possibility is almost taken for granted by the left, and is sometimes persuasively argued for. But note well: it is always defended on the circumstantial evidence of the fact itself: because Antonin Scalia returned answers to judicial questions which were almost exclusively “conservative,” therefore his interpretive method was biased. This critique presupposes, however, that progressive legislation is as constitutional as conservative legislation. The progressive left quite understandably discounts the possibility that Scalia was an objective interpreter of the Constitution: for that would mean that the progressive agenda is itself of inherently dubious constitutionality.
      For many reasons, some obvious and others less so, the conservatives cannot afford to discount this possibility.
      If we are to lay aside the charge that Scalia was a charlatan—and indeed, I have always found it difficult to believe that any of the Supreme Court Justices work in bad faith—then we must explain Scalia’s supposed prejudices with reference to a historical shift in the center of American politics. This is not prima facie absurd. Indeed, it comes to the attention now and then of the more historically minded conservatives of our day that their country has, despite the dearest attempts of conservatives to hold it fast, been long drifting, and drifting consistently and most suspiciously portward. This same proclivity is recognized by others who have simply been alive long enough to note it; they find that, while their political positions have not altered in the least in the past forty years, they were once taken to be moderates, where today they are considered regressives or even extremists. This has led some critics from the new American far right to wonder if American conservatism was not a ship built to sink.
      Yet there is an easy explanation for the fact in question, and one that does not rely on some inherent flaw in the conservative mindset, and it is this: while the progressive has only to contend with the conservative, the conservative has to contend also with time itself. Permit me to explain.
      Conservatism by its very definition would hold, as much as possible, to the status quo; its standard political attitude is one of resisting change, which it regards as being, if not outright pernicious, then commonly deleterious to the principles of political and social welfare upon which our nation was founded. While progressivism points zealously to the future, to tomorrow, to the improvements and benefits which it would achieve by changing the present state of society, conservatism responds by gazing steadfastly toward the past, and in particular to the founding state of our country. This founding state forms the conservative polestar and the guiding pattern of all conservative political choices, and it is only with great difficulty and in times of great duress that the conservative will part from it.
      The “founding state” of any commonwealth is always historical, and generally is based on the conditions of society after a certain historical moment, which serves as a kind of calendrical marker, or “year zero.” Such a date in any nation of long and heterogeneous history is determined with a degree of arbitrariness. The United States is relatively unique amongst the nations of the world for being able to determine this “year zero” with uncommon, and uncommonly uncontroversial, precision: our “year zero” is nothing other than the year our Constitution was ratified. Conservatism makes constant reference, then, to that historical moment; and because its “year zero” is accepted as such by all parties, conservatism in the United States has an inherent advantage over the conservatism of just about any other country in the world, which helps explain the fact that in the United States conservatism has until recently been the natural position of the American right. Conservatives recognize, of course, that there have been fundamental changes in the political fabric of the nation since “year zero,” but the most important changes, they hold, are represented exclusively in the Amendments to the Constitution; which is to say, they are always and ever bound to “year zero.”
      Now, here is the trouble, and the true explanation for what is sometimes interpreted as the “failure” of conservatism: the conservatives constantly seek to maintain the status quo, but because human societies are ever in flux, they constantly find that status quo shifting beneath their feet. What is regarded as normal today, was certainly not normal one-hundred years ago. But none of today’s conservative was alive and aware one-hundred years ago, and so it is difficult for any conservative of today to perceive the degree to which the status quo which he would preserve has really changed. Moreover, because the only viable alternative to conservatism in the United States has hitherto been progressivism, the status quo shifts always to the left. What a conservative of today wishes to conserve, is thus already considerably more progressive than what a conservative of fifty years ago wished to preserve.
      This forms a challenge to conservatism. Conservatives have need, in a way that liberals simply do not, of thinkers who are able to gaze back through the years, to dip as deep into the well of the American past as they may: they require, that is, thinkers who are able to remind, through deep historical contemplations and a mastery of both the original conditions of our country, and all subsequent foundational legal developments, just what conservatism originally meant, and what the true status of conservatism is in our day, considering all the non-negotiable changes in law which have been effected, and all the legal precedents which have been lain down, in the meantime. This requires a formidable knowledge of the legal traditions of our country, and such knowledge is uncommon at best.
      The acquisition of such knowledge cannot be, or cannot be primarily, the work of conservative intellectuals; for those intellectuals must busy themselves with the present state of affairs; they must dedicate the greater part of their time to gleaning familiarity with current events not only in America but around the globe, and keeping abreast of the newest political theories and works of both the right and the left. The progressives have a far easier time of it: for the progressive intellectual, this most exacting preparation in present-day affairs is identical with progressive intellectualism as such. Historical studies for the progressive intellectual are but supplementary to his task. But the conservative intellectual needs something else besides: namely, he requires grounding in the original meaning and form of Conservatism.
      To demand of any single individual competency in both the current state of affairs and the historical development of American jurisprudence, is to demand an erudition of truly heroic breadth; it is to demand something that is, if not impossible, then surely exceedingly rare, to the point that it would be foolhardy to expect its appearance in any given generation. The conservative is thus in need not only of one kind of intellectual, as is the progressive, but of two: one kind to dedicate himself to the present, and the other to dedicate himself to the past.
      There is only a single office in all of our society which is capable of nourishing and promoting the latter kind of figure, and that is the office of the judiciary. The second kind of intellectual so badly needed by conservatism can be found only amongst those justices who devote their lives to a comprehensive understanding of the legal underpinnings of our country, and who possess the exceptional traits of memory, impartiality, and intelligence necessary to acquire it—those justices, that is to say, who work at the top echelons of the courts. And even more specifically: these justices must possess that clear-minded, clear-eyed commitment to the original meaning of our founding documents, which permits them to look upon American legal history without sophistry, and without being led astray by the prejudicing and obscuring lens of any political agenda.
      A man like Antonin Scalia is not merely an incidental boon to the Conservative project, as, say, Justice Ginsberg is to the progressive; on the contrary, he is a compass rose for the entire Conservative movement, to remind conservatives everywhere precisely in what direction their work should be tending, and to grant them the capability of pressing in that direction assiduously and shamelessly, though and precisely because they be dubbed retrograde and regressive for it. I claim that Conservatism owes a debt of gratitude to justices like Antonin Scalia or Neil Gorsuch, a debt which can only be repaid by the attentive study of the work of these men, and by deference to their opinions in all cases in which there is not excellent reason to demur.
      Indeed, I will go farther: it is imperative that conservatives ponder carefully the positions of these justices, particularly when these positions contradict the prevailing conservative attitude: for if American conservatism is not to surrender the field altogether to what I call the emerging American progressive right, then it needs must differentiate itself from this new right with all the clarity at its disposal. Conservatism can only do this by grounding itself firmly upon the deepest historical bedrock available to it—the bedrock of the Constitution, which the new American right at essence mistrusts and often even scorns.

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Neil Gorsuch and the Spirit of the Judiciary

NIGH UPON US are the confirmation hearings for Donald Trump’s nomination for the vacated seat in the Supreme Court. The man set to stand them, the Honorable Neil M. Gorsuch, has been greeted in a most skittish manner by liberals throughout the nation. On the one hand, there is an immediate temptation on their part—which is not only perfectly understandable, but should have been anticipated by the right—to return the favor that the Republicans extended to Obama, by opposing any given Trump nomination a priori, simply in the spirit of partisan vendetta. I am not interested in disputing the wisdom of such an attitude: after all, if it wins the day, it will not be to wisdom it owes its victory.
      I will neither consider the occasional objections which crop up here and there against Trump’s nomination—namely, that he is a little too conventional, and that it is really high time we got someone on the Supreme Court who did not come of the Ivy League. It seems a question of passing significance to me, where our Supreme Court Justices tend to take their education, confronted with the enormity of the duties they are to assume in our society.
      I would rather consider the more ideological objections which have been leveled against Gorsuch, for I find these intimately telling. I believe they stem in all cases from the general intuition that Gorsuch is a very conservative judge, which notion is inferred principally from two common observations:

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On Genocide, Part III

WE HAVE SO FAR given mind to the historical, cultural, aye, the biological antecedents for the present-day consensus regarding the peculiar evil of genocide. This consensus has been revealed, in its first origin, not to be the issue of reason, but rather of a kind of deep unreason, produced by the encounter of our historical vicissitudes with certain debilities of our contemporary politics. Yet the products of the unreason of the flesh have also their theoretical life, a life which is neither determined by, nor altogether divorced from, the physiological fundaments of the soul: a life which interpenetrates that same flesh, binds it with a different fiber, and, over the long course of time, may itself shape and alter it. We must then consider the theoretical meaning of the law against genocide, and its philosophical antecedents; we must give account for it, and through it, for ourselves. Else it and its antecedents are no binding law on us.
      To begin, we return to our original question, phrased now to set us upon our latest course: what is the rational justification for discriminating between the crime of genocide on the one hand, and the crime of mass murder on the other?
      Now, it is sometimes claimed that genocide is the worst crime in absolute for the way in which it attempts to smudge out the very existence of a human being, or cuts to the existential root of humanity itself. Other political crimes against human beings are generally actuated for political reasons; they are responses to this or that politically relevant action or belief of a human being, whether it be real or imaginary; but genocide alone, as an attack on the human being merely because he belongs to this or that ethnic group, reveals itself as a negation of the existence of the human being as such. It is therefore the epitome of the crime against humanity, and deserves special castigation and special punishment.
      Such a distinction between a politically motivated crime and an existentially motivated crime, however, disintegrates upon nearest review. The ethnicities that are targeted in genocides are targeted for a predictable canon of reasons: the ethnicity in question, it is claimed, endangers society by corrupting blood and custom, and by insinuating itself into politics and economics, wherein it presses for the good of its own, as opposed to the good of the whole; or it causes an increase in immorality, a decrease in the quality of life, by introducing execrable and destabilizing notions into the social order; or it foments rebellions and disaffection in a part of the populace and therefore threatens the general equilibrium. Now, all of these motivations are political in nature; an ethnicity which was not perceived to so vex the commonweal would never be targeted for special abuse. To say that a genocidal ruler is attempting to strike out the existence of such an ethnicity independently of all political considerations is basically vacuous.
      To say on the other hand that such a ruler is motivated more by the existential question than by the political one is not much more substantial from the point of view of law, for it can be claimed equally of any kind of mass killing. Mass killing as such is actuated against a group of human beings, be these members of an ethnicity, members of a social class, members of a particular party, members of a particular town or region. Stalin waged an explicit war against members of the kulaks, or property-owning peasants, and countless individuals lost their lives simply for their putative inclusion in this rather vaguely defined category. What makes this any different from Hitler’s purging of the Jews? Was Stalin attacking the humanity of these kulaks, or their socio-economic status? Is it possible to distinguish? It might be rebutted that Hitler’s position was the more detestable because he made no distinction between adults on the one hand and their children on the other; he was set on eradicating entire bloodlines. But did not Stalin do the same? It was probably just as dangerous in Soviet Russia to be the son of an aristocrat or a priest, as it was in Germany to be the son of a Jew. Or, to take an example nearer our European home, what of the French aristocrats during the Reign of Terror? Is one to say that Lavoisier was murdered for being a political threat to the state, or simply because he was an aristocrat—that is, because his “being” was “aristocratic”? All despotic murders are “political” murders, and all are “existential” murders; therein the very horror of tyranny.
      One might counter that genocide is peculiar amongst the crimes against humanity, for being actuated most purely by hate. But what does this finally mean? Are not many if not all the actions of a true despot actuated by hate? Was not Stalin motivated by an abysmal and inhumanly cold hatred for everyone? Indeed, if Stalin ever loved any human being, it was Hitler. Or was not the peasant Mao rife with plebeian loathing for everyone who had been born better or better-tended than him? So far as hatred goes, if wars themselves do not begin in hate, do they not commonly end in it? Does that make their endings more atrocious than their beginnings? And how if a dictator kills out of the love for what he believes he is defending and preserving? Would this in any way exonerate him? Or the man who kills his wife’s lover—is that not a crime of hate? Would it be less a crime, if he killed his rival out of bloodlust or boredom, or merely from the principle of the thing? And in any case—since, to say it again, genocide is a juridical principle—how precisely does one adjudicate with all necessary legal precision, the difference between a mass crime motivated by abstract political reasons, and a genocide motivated by hate?
      “Yes, but hate is like a flame upon the kindling; political crimes born in hate quickly spread to more and more actors, claiming more and more victims. On the international scale, hate crimes are abhorrent for this power of theirs to explode and to escalate, as what began as a small or isolated incident grows quickly to impossible proportions, sometimes consuming entire peoples, entire nations.” Surely! But is this exclusive to hate crimes? Lust does the same thing, lust for the flesh and lust for the blood; as does greed for material goods and for the possessions of others. Religious fervor against non-believers or against men of other faiths has historically made a similar pattern; indeed, even that religious fervor which would simply augment the glory of one’s own faith can bring men to perform deeds they would never otherwise have dreamed. But do we wish to establish an international tribunal to judge of crimes of lust, greed, or zeal?
      These arguments fail to persuade. Then let us return. The law against genocide is surely related to the pluralistic love of diversity, and the consequent praising of the virtue of tolerance, which characterizes the liberal states of the West. Now, the love of diversity posits a value in all human ways and all human customs. In terms of the law against genocide, we may phrase the issue thus: the law against genocide recognizes that the murder of a group of random individuals on the one hand, and the murder of a group of a given ethnicity as ethnicity on the other, differ in a fundamental respect: an ethnicity as ethnicity possesses a special value over and above a given undifferentiated mass of individuals, which value resides in what we may call its ethos, or its customs and its language, its traditional and habitual ways. The law against genocide, and the special and specially harsh punishments which attend it, exist in honor and in defense of the value inherent to all ethoi. A dictator like Mao who kills indiscriminately destroys human life, and that is terrible; a dictator like Hitler who kills people of a given ethnicity destroys human life and also something else, also the ethos of a people—and that is worse.
      This seems a tenable defense, and it is supported by the justification provided by the very inventor of the term “genocide,” Raphael Lemkin, when he states in his “Genocide as a Crime under International Law” that “[the term] mass murder does not convey the specific losses to civilization in the form of the cultural contributions which can be made only by groups of people united through national, racial or cultural characteristics.” For this reason, he saw fit to invent a new term which did recognize these specific losses.
      This defense has the added virtue of explaining a fact which our previous arguments could not: namely, why the contemporary world is loath to include attempts at elimination of economic or political classes as genocide. It explains as well why the attempt, say, to eliminate all the Christians of the world would somehow strike us as less genocidal than the attempt to eliminate all those who believe in the gods of the Bushmen. These groups of human beings are formed by incidental characteristics which can be adopted by any other human beings. Anyone can be rich; anyone can be a kulak, or a capitalist, or a Christian. If all the rich people of all the world were suddenly in this moment to disappear, that class of human beings could be easily recomposed with time. But if a true ethnicity disappears, nothing can bring it back again. An ethnicity is the product of a confluence of qualities and characteristics which, once lost, cannot be regained: namely, customs inculcated in human beings from birth by an entire social structure, race, living language, all linked to a given tradition and a given heritage, a given ancestry. Ethnicities are passed on in the blood. One can, in exceptional cases, become an honorable member of a given ethnicity to which one has not been born; but one will never pertain to it in the same way as a person born and raised in its care. In this concept of genocide, our modern world addresses, as profoundly as its superficiality will permit it to, the deep question of human custom and human race.
      But despite even this advantage to the explanation in question, we will perceive at once that even it is not without its defects. The first that confronts us is this: the communist dictators, while not being guilty of genocide per se (though Stalin, it should be noted, did target certain particularly “counter-revolutionary” ethnicities, as the Ukranians, the Poles, and even the Jews), nonetheless must be understood as deracinating, if nothing else, then surely their own peoples, their own ethoi. They must then be considered every bit as guilty of genocide as Hitler, if the particular significance of genocide is really to be regarded as the deliberate destruction of a people with a will to eliminate its ethos, its quality as a people.
      Yet it may be responded that Stalin and Mao represented precisely the historical expression of their peoples’ ethoi, so that it cannot rightly be said that they committed genocidal crimes against their own people. On the contrary—abhorrent as their deeds may appear to us today, yet still in the moment they were but manifestations of a greater popular will, the will of a given ethnicity to work upon itself. Their decisions were “sovereign” and did not threaten the “sovereignty” of any other group; therefore their actions are less detestable than Hitler’s, for he targeted groups which included non-German members.
      Now, I hope that this response will be regarded by most if not all of my readers as morally repugnant. But supposing we do so find it; how can we defend this feeling? For it is not easy to discriminate here between what is a genuine act of a people, and what is a false act of a people; it is not easy to distinguish between what really does emerge from the soil of a people’s ethos, and what is foisted on it by uncharacteristic growths within it. And even if we allow this rather cruel defense of the Asiatic dictators, this brings brightly to our attention a new and even more fundamental problem. If it is true that all ethoi are to be respected, despite their differences with our own liberal ethos, then why must we not respect those cultures which hold themselves to be superior to all others, such that they feel themselves justified in enslaving and massacring other ethnicities?
      Put otherwise, ken the matter thus. We are intent on permitting every of what we call human “cultures” or “sub-cultures” to do as they best see fit and to live as they think it good to live, and we go very far indeed in defending their “cultural” rights, if not in deed then most certainly in word. Yet we evidently believe, and unanimously, by all evidence, that no “culture” or ethos on Earth can legitimately hold to the proposition, for instance, that it is superior to all others; or that another ethnicity is inferior and so fit for enslavement or subjection; or that there should be no miscegenation between the races, on pain of the penalty of the law; or that religion or the favor of one’s god is carried with blood and must be preserved with blood; or that a given parcel of land belongs to a given ethnicity and should not be used or owned by any other; etc.
      I am not interested in disputing the contention that these are noxious convictions for any peoples to hold. I am questioning rather the compatibility of this belief with the theory that all human ways are essentially valuable. For are these not human ways, even as, say, the preparing of a trousseau for the daughters of a family, or the initiation of its sons into manhood through a vision quest, or the belief that the world was created by Raven? It is not enough to claim that what I have presented here are not customs so much as beliefs; for there is a clear and radical connection between the one and the other. Some peoples are warlike; some hold slaves; some refuse to permit intermarriage between members of their clan and the members of other clans; some are cannibalistic. Yet all of these practices, if they are not genocidal, certainly tend to encourage those habits and outlooks which finally render genocide possible. Very often, the only difference between the practices to issue from these customs, and the more infamous genocides of history, is one of scale: in principle, the ways of such peoples are not so different from the theories and the laws that brought the twentieth century to such precipitate bloodletting. Given our instinct to assert the total equality of all ethnicities and all ethoi, how can we consistently condemn those peoples who are warlike, conquering, enslaving? Is there not something arbitrary in our position—and how might we give account for it?
      It might be tempting to claim that the aggressive tendencies of a people cannot be considered cultural elements of the same, but that is patently false: for what would the Vikings or the Mongols have been, without their warrior ethic? They would have remained peoples, to be sure, but—the same peoples? What of the ancient Romans? What would they have been, had they not been conquerors and empire-builders, had they restricted themselves to the Seven Hills and satisfied their ambitions within the limits of Rome alone? (Not to speak of the fact that even to get so far as that they had to overthrow and displace who knows how many Etruscans!) Romulus murdered Remus: that is the originating myth of an entire people. How do you expect to strip such a people of its will to violence, without stripping it also of some basic aspect of its ethos?
      Yes—one will hasten to respond—but these are old stories, atavistic stories, from well before the European Enlightenment—that is, before we knew any better. Those were ignorant and dark times, in which the most improbable superstitions and the most naked and animalistic powerhunger ruled the day. Here and now, in our enlightened latter days, one knows better; here and now, one knows to value all human life, no matter to what tribe it belongs, or what shapes and colors it inhabits, or what ways and beliefs it tends. One knows, in short, that if you strip this human being of his costumes and his customs, and flay him of his skin, the results will appear quite equal here, there, or anywhere.
      I believe we really must respond in this vein, to keep any semblance of order amongst our jostling notions. But we must note well just what it is we are claiming: the warlike ethoi of the past were ignorant, they lived in darkness; but the peoples of today which hold to their own superiority and use this to justify violence, are wrongheaded, delirious, mistaken, deluded. Our Western liberal view, meanwhile, is the product of knowledge, of light; it is here and now the true and the good view. Western liberalism, far from being one amongst a variety of perfectly equal visions of the world, is here and now the right vision, and the Western liberal society that it generates is here and now the best society.
      This conclusion will be resisted, I know, by those progressives who are in particular the latest flowering of the liberal society. They will rebel with all their hearts against any such chauvinism as that implied in what I have just stated; they will object that this is the very position which leads us to act as conquerors and invaders, and not even particularly responsible or competent ones, by tinkering with sovereign nations which we ought by rights leave well enough alone, and attempting to inflict our views on all the world through “state-building” in places which have no relation whatever to us. The position that ours is the good society, they will claim, leads of a course to the positions and the policies of the neo-conservatives, and hence to new wars, a new colonialism, and—who knows?—new genocides.
      In the first place, I would beg these progressives—for I dearly do not see how such a thing is to be accomplished—to tell me how they expect to address the contradictions I have outlined above, without reference to Occidental superiority. It does not suffice to bury these contradictions under heaps of pretty bromides; in these troubled times, they will come out one way or another. Either the liberal position is superior to the ethnocentric conquistador’s, or it is morally indistinguishable from it; if the latter, then the law against genocide is but our peculiar custom, and is no more defensible than an international law prohibiting barefootedness out of doors, animal sacrifice, or the Jewish Sabbath. And it is no good avoiding the necessity of acknowledging the superiority of liberal society by referring to unalienable rights: for precisely if there are such rights, then the society which builds itself most coherently upon the respect of those rights, is the best society.
      Now, if we cast our glance a moment to the international scene, we are made aware of yet a further ramification of this inconsistency in our position. As tolerant and diversity-minded liberals, we are much enamored of the multicultural aspect of the globe, the wonderful and most colorful variety of its peoples, nations, and ethoi. We should most like to preserve this diversity, and our insistence upon the genocide laws is a very great testament to this desire. We feel that the world is richer with its Eskimos and its Maasai, its aborigines and its Aymaras. But if we cannot avoid acknowledging the superiority of our own society, it would seem to follow that all other societies must be ranked according to our standards: that is to say, they must be ranked by the degree to which they meet liberal ideals. The consequence of this in turn is that we must condemn all societies precisely by the degree to which they differ from our own societies, which difference was precisely what we sought most to preserve.
      We see this paradox in any number of particular cases in which our liberal mores come most clearly into conflict with the ways of other peoples, as when we look upon laws mandating burkas in the Middle East, or laws and customs perpetuating the caste system in the Far East, or tribal practices involving genital mutilations in Africa. To the degree to which such practices infringe on human rights, we cannot bring ourselves to abide them; yet we cannot condemn them or seek their eradication without sinning against our ideal of diversity. Silence about them is now and then denounced as Occidental heartlessness and self-infatuation at the expense of the sufferings abroad; yet to attempt to eliminate them is to impinge dangerously on that territory called “colonialist” or “imperialist,” a territory which is peopled, we are led to understand, only by heartless and self-infatuated occidentals. What then?
      In the first place, it would be well to dispel a certain myth which has crept up amongst us in recent years. The belief in the fundamental or present superiority of our ways does not perforce lead to militarism, to colonialism, to the invasion of other lands and the infringement on or the reformation of the customs of other peoples. It does so only insofar as it coincides with warlike tendencies existent amongst the broad generality of our people. But these are decidedly lacking in our contemporary West.
      The wars of the past two decades will be brought against me as proof that what I have just said is absurd, but those wars could only be publicly justified on the basis of preserving national defense, or bringing democracy to oppressed peoples who desperately craved it. Lacking these two pillars of support, our public will to international militarism quite decays, as we have seen with great clarity even in the recent case of Syria.
      One could well imagine—and there have been, and are today, historical examples—a nation dedicated unabashedly to the protection and preservation of its own laws and customs, which yet looks upon all the world from an aloof height, and refuses to become so much as tangentially embroiled in its affairs. Perhaps it even holds a dash of contempt for its neighbors as it goes about its own business with its great cool reserve, and perhaps it even does what it can to maintain all clarity of differences between it and those with whom it comes into contact. Thus this contempt, rather than convincing it to invade or enslave the peoples surrounding it, is yet another among the motives persuading it to retract into itself and live according to its own unsullied lights, high upon its hill.
      Or perhaps it even revels in the exoticism of what is different from it, and holds strongly to the principle that these differences should be, whenever possible, preserved to the world, if for no other reason than the aesthetic; perhaps it puts its hands on the wheel of history every so often, simply to see to it that the beautiful variety and marvelous painterly heterogeneity of the world be perpetuated; but this reasoning and this intervention, too, is nothing but the view from the hill.
      How can we explain such a nation to ourselves? In principle, and quite simply, this nation has never confused morality with universalism; it has never arrived at that most curious supposition, that all human beings everywhere are in principle identical to one another; it still possesses pride in what is its own, and it knows the folly and indeed the disgrace in attempting to make its ways, into the ways of all the world. Precisely because its ways are the best, they cannot be of everyone, and only a fool or a dreamer would attempt to impose the high destiny of such a nation, on peoples who are not prepared for it.
      The problem with such a position, of course, is that only nations in unique geographical or sociological positions can adopt such an attitude without having constantly to fear their neighbors’ interference. A nation surrounded by hostility and greedy enmity cannot permit itself the luxury of such disdainful isolationism. It must either take up arms against the aggressivity of its foes, or it must find a way of neutralizing that aggressivity in itself.
      Here we find the highest function, not just of the laws against genocide, but also of the spirit that inculcates them. These laws ought perform a twin function; they ought in the first place embody in internationally clarion form the stance of all the Occidental liberal nations, vis-à-vis a legitimate international system of ethics; and they ought in the second place form a binding precedent on these same nations, and all those near them, which can if necessary be brought to bear against abusers. The goal, unspoken as it has been, of our international stance against genocide, has not been to “make the world safe for democracy,” but rather to make the Occident safe for a higher liberalism.

• • •

The Battle for Bowling Green

COUNSELOR to the President Kellyanne Conway has lately stepped on another spine, and finds herself once again enjoying her rapport with her favorite segment of contemporary American society—the press.
      Here the spine: Mrs. Conway, seeking to defend Donald Trump’s immigration policies, made recent reference to a certain “Bowling Green Massacre,” by which she wished to illustrate the dangers of our airy immigration policies. Trouble was (as the press lost no time in bringing to public attention) the massacre in question never happened.
      Now, anyone reading any of the reports of Mrs. Conway’s slip of the tongue is liable to take the easy message: Mrs. Conway and her “alternate facts” have struck again; the Trump administration has once more revealed its unbending loyalty to the truth and its impeccable devotion to data. And the executive orders which had attempted to curtail certain portions of our immigration policy, are based on nothing better than the figments of diseased minds.
      But prithee stay a moment: a little deeper now. For this “Bowling Green Massacre” was not cut of air; and the deceptions of Mrs. Conway—let us not bite our tongues on the matter, for deceive, she did—were more in the misrepresentation than in the fabrication.
      For though there was no massacre at Bowling Green, Bowling Green was, by the say of the Department of Justice, the site of the arrest of two Iraqi nationals, who had been permitted to enter the United States under the guise of refugees (after being subjected to what we are continually assured is an extremely rigid vetting process), where they at once set to work undermining the country that was supposed to be succoring them. The two men were subsequently convicted (one to life in prison, and the other to forty years), having been found guilty of nothing less than “conspiring to kill U.S. nationals abroad; conspiring to use a weapon of mass destruction (explosives) against U.S. nationals abroad; distributing information on the manufacture and use of IEDs; attempting to provide material support to terrorists and to AQI and conspiring to transfer, possess and export Stinger missiles.”
      Ah, is that all! No bloodshed, no “terrorism”! Why, they were only amassing weapons and money to arm and fund our enemies abroad! Venal crimes, those, and surely nothing to lose sleep over. Pah! Some massacre!
      In its critique of Mrs. Conway, the Washington Post reminds us that Trump’s immigration policies are targeted against domestic terrorism; and since our Iraqi friends had no evident designs on Bowling Green or on any Americans within the country, we are evidently to agree that this whole fiasco has nothing to do with the executive orders on immigration. Now, credit where credit is due: the Post is surely right: these men were far too busy playing the parasites of the nation that hosted them and plotting to kill American soldiers abroad with the weapons and the money they had stolen from the United States, to ever think of carrying out a massacre at Bowling Green.
      Lay aside the question of whether we are really to assume that men who are capable of the one thing, are not capable of the other. But I wonder if this argument does not demonstrate just how absolutely ludicrous our situation has become. We are evidently expected to countenance the presence of these people, since the worst they have done so far is fund the death of our compatriots abroad. And this is really an argument?
      The irresponsibility of Mrs. Conway lies in this, that she has shifted attention away from the real question here—just who the devil we are letting cross our borders, and just what they have been getting up to—by once more directing the fickle public eye toward the circus-tent of the Trump Administration. By inventing immigrant-led terrorist attacks that never took place, rather than drawing our attention to ones that have, she does no favors to the policy she would defend. Thanks to her antics, the press has been able to concentrate wholly on the question of whether the Counselor to the President has the responsibility to speak accurately and to the point.
      Of course she does. But I will ask my readers—what is the greater sin? Exaggerating with one’s speech? Or reprimanding such abuses of language, to the point of distracting away from vital questions of national security?

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Anti-Fascism and Violence

AT THE HEART of the anti-fascist ethos is a rejection of the classical liberal notion adopted from Voltaire that “I disapprove of what you say, but I will defend to the death your right to say it.” After Auschwitz and Treblinka, anti-fascists committed themselves to fighting to the death to stomp on the right of Nazis to say anything.

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On Genocide, Part II

THE COMMENCEMENT of that long chain of devastating conflicts to afflict the West from the time of the First World War until at least Vietnam (and, it might well be argued, even beyond) was coeval with, and in part caused by, a fundamental change in the regimes of the European and even many Oriental states. This change might most colloquially, if inadequately, be described as the birth of the nation state from out of the fragmentation and transformation of older and generally larger hereditary polities. It is not our purpose at present to seek an understanding of this momentous political shift, but a single and most relevant facet of it must be brought to light: namely, the alterations it brought to the relations between the ethnicities within these new regimes.
      Prior to the rise of nation states, the principle states of Europe could generally be described as empires. In empires there tends to reign a sense of permissiveness as regards the ways and manners of the conquered. All the most successful empires of the world have, save perhaps in their contact with very primitive tribes of illiterate peoples, established a kind of paternalistic structural rule which leaves much of local governance to the governed. They have established the general law applicable to all those living in their territories, but have largely remained indifferent to peculiar questions of consuetude and religion. The Gauls, under the ancient Romans, the Armenians under the Ottomans, the Indians under the British, and the Hungarians under the Habsbergs were compelled to accept the structural forms of governance of their ruling empires, to pay taxes to the same, and to collaborate with their rulers in all matters pertaining to the law, but they were permitted to maintain all those elements of their original ethos which did not transgress the empire’s laws. Insofar as their traditional usances, their native tongues, and their most peculiar forms of worship and belief were compatible with the greater law of the land, these subsidiary peoples were free to retain them. Their local leaders were generally of the local ethnicity, and questions of crime and punishment were in most cases left to local determination. There is no question that these colonized or ruled peoples were not in any sense of the word sovereign; there is no question that they underwent profound transformations of custom, language, and creed under the rule of foreign agents; there is no question that their distant rulers sometimes became their violent oppressors, and that they could boast nothing like political liberty. But they enjoyed, if we may put the matter thus, a certain freedom of ethos, which the states swallowed by the Soviet Union, Nazi Germany, or Japan certainly did not.
      This oddity of empire is to a great extent explicable with reference to the peculiar exigencies of empires: the wider the liberty an empire can afford to grant to its constituent parts, the less resources it must expend in the ruling of them, the less time and energy it must use in the determination of a myriad of detailed local questions, and the less it must fear popular uprisings. This is particularly important, the greater the extent of the empire: an empire the size of that of Great Britain’s in the early years of the twentieth century, or of Rome’s in the first centuries of the Common Era, has need of that flexibility and versatility which can come only from a decentralized scaffolding-like approach to its diverse political constituencies.
      But there are other causes for this imperial attitude more directly rooted in the customs and the morality that actuates empires. Empires have no need nor certainly much desire to render all human beings homogeneous or uniform within the limits of their rule. To the contrary, there has always been in all empires everywhere a strong tendency, one might even say an imperial instinct, to maintain rigorous clear distinctions between the ruler and the ruled, between the society that governs and the peoples who are governed; and the best way of drawing these lines is along the wrinkles of ethos and ethnicity that nature itself has inlaid into the territory of human societies. Empires in this sense were the only truly “multi-cultural” societies.
      Now, the empires of the early twentieth century were built largely on hereditary rule, guaranteed down through the ages—not, of course, without interruptions and periods of civil unrest, but without any fundamental, widespread change in the basic principle of monarchy. The entirely new nation-states that issued from their dissolution had from the first to find other justification for their rule. They could not rely on brute power, for the evident reason that a government built on nothing but the threat of violence, can easily be overthrown by the same; yet they often enough retained but the most tenuous connection to any kind of traditional legitimacy, particularly because they tended to establish, in the place of monarchical rule, parliamentary and republican regimes which guaranteed an unprecedented degree of political equality to all members of the nation-state. A new concept of legitimacy had to be invented to accommodate this new form of government, and the name for this new concept was sovereignty.
      Now, the question of sovereignty is a question like the hedgehog, and we would do well to lay it aside for another moment when we are adequately gloved to handle it. Suffice it here to say sovereignty has historically been held to require the self-rule of the peoples in question; for which, by natural course, one is led to the question of what precisely defines a people. That is a difficult question even today; it was of considerably greater difficulty in the wake of the political rearrangements of the post-World-War-I era. Ethnicity was seen then to be the most immediately evident and most clearly natural border between human groups. Thus, sovereignty would be the principle that distinct ethnic groups have a native right to self-determination.
      Alas for Europe, alas for the world: but the new nation-states were political constructs, and their borders did not fall, because they could not fall, coincidentally with the divisions between the much intermixed ethnicities then living in those collapsing empires. Not even the most conscientious and ethnically-conscious authors of these changes (and they were in reality few enough in those days, for, as always in times of seachange, everyone was still reasoning according to bygone and increasingly irrelevant standards) would have been able to impose such a structure on Europe. In reality, the nation-states had to contend with a fundamental lack of ethnic consistency—and had simultaneously to build their very legitimacy on that elusive consistency.
      Although it would be foolishly reductive and morally facile to suggest that the ethnic purges of the twentieth century owed their origins to this fact alone, it would also be irresponsible to attempt an explanation of those purges without reference to it. Just as it is well worth our notice, that the three primary Occidental states on the side of the Allies, that is, the United States, England, and France, enjoyed from the outset three conditions that were not shared, or not shared to such an extent, by their enemies in the Axis: they were relatively ethnically homogeneous, their extant demographic diversity was more or less static in percentages and in quality, and they lay far from the fracture lines of the shattered pre-World War I empires.
      If this analysis is valid, it is evident that what we today call genocide arose from the conflicts brought about by the unstable formation of new and ethnically undifferentiated nation states. The international and very specific proscriptions against genocide, as opposed to those against, say, despotic mass murder, owe their particular valence and relevance, to this fact. Now, we have stated previously that these laws, as international laws, appear at first glance to constrain the actions of illiberal states, and to have their purpose in binding those nations beyond the borders of liberal nations. But we see now that they are intended as much, if not more, to be previsions against a debility inherent in the modern liberal state per se. They are specifics against the great disease of our contemporary politics, which made its true nature so horrifyingly evident in the second Great War. The degree of our abhorrence for genocide—or indeed for persecution, discrimination, and prejudice—can be explained as an instinctive sense of our fundamental political weakness, and an attempt to provide for that weakness through certain complementary hardenings of our customs and our laws.
      Let us put this as clearly as we may. No observer of the sociopolitical causes and consequences of World War II, can evade an awareness of the extent to which the precipitous mixing of ethnicities and diverse customs in one and the same society can produce conflict, and can perhaps leading even to violence and injustices. Precisely insofar as the great crimes of twentieth century Europe were characterized, not by actions against an external enemy divided from one’s nation by language, custom, and law, but by actions against an internal enemy who shared the language and law of one’s nation, but which was perceived as an enemy precisely to the degree that it differed in custom and ethnicity—precisely this far, it is necessary to take precautions against a novel descent into that chaos. Because the West still prides itself on its “diversity,” such a precaution can only be effected through the instatement of a subtle moral thread that runs throughout the entirety of our society, binding hearts before minds, a silent moral consensus which militates silently against those feelings and theories which might renew those internal conflicts which might spark once more such hellish atrocities as were perpetrated during the war.
      Our entire position vis-à-vis tolerance, our attitude of openness and open-mindedness, our stance of multicultural diversity, are all instances of our subterranean attempt to neutralize the venom which began to poison Europe one-hundred years ago. This is the first origin of the law against genocide: it is meant to regulate the interior life of liberal nations, as much as to stricture the interior life of illiberal ones.
      We are now in a position to inquire into the theoretical underpinnings of our modern notion of genocide—the justifications and the apologetics which attend to it. For there, and there alone, will we begin to perceive in faintest outline the true shape of our contemporary worldview.

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The Argument on Immigration We Aren’t Having

THE REPUTATIONAL DAMAGE done to America by Mr Trump’s action will be dangerous, as well as large. The attributes that make America attractive to migrants—its openness, fairness and opportunity—are also among its most effective security mechanisms. They help explain why America is at once the most desirable destination for migrants and less prone to jihadist violence than almost any other country with a large Muslim population. By singling out Muslims for discrimination—including a group currently detained at John F. Kennedy airport in New York who had risked their lives working with Americans in Iraq—Mr Trump’s order is a repudiation of these American strengths.

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Between the Dust and the Flame: American Conservatives and Trump’s Immigration Policy

MUCH HOLY IRE has descended upon President Trump and the American right, since the issuance of the executive orders on immigration. But holy ire as a sentiment weds itself conveniently to the hysteria which has reigned since our good real-estate magnate managed to make himself president-elect, and I do not anticipate we can expect much quietude from either side of the political fence in coming days. The cows have been well riled both to the left and to the right; woe to us if the stampede should come.
      The left, in this particular case, has certainly won the battle of inflationary rhetoric. There has been talk of the “tragedy” of America’s “broken promise to the world”; references to a “constitutional crisis” sparked by the President’s presumed refusal to abide a federal court ruling; and suggestions that conflicts of interest, not to say outright bribery, have governed, or at least shaped, his decisions.
      Strangely, the right does not respond to the pith of these critiques. There is a curious way in which the left and the right are speaking over each other’s heads: while the right justifies Trump’s orders (insofar as it justifies them) on the basis of national security, the left demonizes them on behalf of the “American dream,” pointing intently to the current “narrative” of the United States as a “melting pot” and a “nation of immigrants.” The right screams “Terrorism!” and the left responds “Statue of Liberty!” and both grow only the more irate when they fail to hear their own echo in din of the response.
      But note this well: though the left has some things to say regarding the question of terrorism, the right has nothing to respond regarding the question of the “American dream.” The left has its arguments against the crux of the right’s position, whether or not these be persuasive; the right leaves the left at peace precisely in its most fundamental values. The left, as it were, encompasses the right in this debate; and because the left embodies the wider question of principle, the left has seized the upper ground.
      That is hardly anything new. The American right is conservative, and that means, it attempts to enshrine and to protect the principles it perceives at the core of the American experience. But those principles, alas, are but the American principles as they were defined by the left, particularly in the past hundred years; they are anything but conservative. There is nothing conservative in the principle of human equality; two hundred years ago “human equality” was even considered the progressive principle par excellence throughout all the nations of Europe, sufficiently revolutionary to make the weary old European aristocracies quake in their lace. There is nothing conservative in the principle of democracy; democracy is precisely as static, precisely as stable, precisely as traditional, as the liquid masses that move it. There is nothing conservative in the principle of freedom, as that concept is today understood, namely, as a form of licence; for what good is human licence, if it is simply to be reigned in by this or that old-fashioned conservative morality?
      Yet whenever does American conservatism dare play so much as the gadfly to these sacred cows of our contemporary politics?
      Were the right in any way prepared for such an undertaking, the present moment would reveal itself as an opportunity, such as does not often arise, to open the question of the meaning of America. That questioning itself would be radically conservative in the best American tradition; for America alone of all the nations of the world was founded to some extent on the back of an idea. Aye, for an historically and ideologically prepared right, this would be moment to ask what is American culture—if it is anything at all anymore!—and what “immigration” or “diversity” really has to do with it. This would be moment to inquire what becomes of the melting pot when the primary metal within it is superseded by its complement. This would be the moment indeed to ask, with all due urgency, just what we want the America of tomorrow to embody, and how it must relate to our past, and how we may best arrive there.
      But who hopes for such depth or courage any longer from the American right? Oh, these conservatives! When they do not want to go back to that nostalgic moment when the left was first planting its most fertile seeds, they want to go ahead, they want to be—progressive. They pose then as visionaries on borrowed themes from the Europe of yesteryear, and radicalize and vulgarize and make themselves into far-right effigies primed for the vindictive fury of the left and the general scorn of decent men.
      I am afraid that in the chaos surrounding Trump’s first week, the status of our dear contemporary American right has become most painfully clear: there it is, poor confused beast, plodding ever on, bewildered and cowed, somewhere between the dust and the flame.

• • •

On Genocide, Part I

IT IS DIFFICULT to avoid a smile whilst reviewing these recent events, which are so characteristic of our day. A certain professor “tweets,” on the eve of Jesus’ birth, his Christmas wish for “white genocide”; many angry voices debouch, denouncing what is called a flagrantly racist and inciting speech; to which the good professor replies, no doubt most candidly, that he was clearly being ironic, was but pricking humorously at various soft-skinned movements of the American far right, and that his irony is most clear in light of the fact that “white genocide” has never been perpetrated, and so is an imaginary menace. Erupts a general scandal, an uproar and counter-uproar as some demand the professor’s resignation, or at least swift penal action on the part of his university, and others, who would almost certainly not be so lenient had the color of his statement but differed, vehemently defend his words and his right to say them. The university replies at once that it will inquire into the matter, to see what is fair in it, and then—nothing more is ever heard of any of it, but the affair is quite lost to the dark.
      Of course, it is no smiling matter, as many will remind me. There are real questions concealed in this simple debacle, questions regarding the freedom of our speech and the nature of our race relations, to say nothing of other and equally relevant political issues of our day. But if the good professor can with justice defend his right to his good humor, then certainly so can I: for I say, nothing is more serious than cheer, and nothing so frivolous as this bearded, frowning moral indignation which we ultramoderns like so much to wear upon our chins.
      Well. We leave that matter where we find it, and do not deign to comment on the justice of either of the two positions—save to observe that both of them have atimes been even embarrassingly hypocritical, insofar as neither of them can with any consistency claim to have fallen on the right side of that “freedom of speech” which they both claim to cherish and protect. But that is egalitarian politics for you: one holds oneself to a different set of standards than one’s adversaries, and calls it justice. For the rest, this is a passing event, a mere sideshow, and not even so much as that, to the news of the day.
      But no one can deny that it had its moment of incendiary fame; aye, it had hearts pounding righteously on all parts of our politic patchwork, and throughout all the many piebald regions of our country. Nor does one even need to ask why, the answer is so clear: our good professor’s “tweeting” struck so deep a chord for no other reason, than the appearance within it of those three potent little Grecian syllables.

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