Thread by @EveKeneinan

The 4th of July

The Absolute State of the Union: Faction and Retortion

[THREAD]

I wish all Americans a Happy 4th of July. I hope you celebrate and take the day to appreciate our remarkable Republic.

For me, the 4th of July is a somewhat melancholy day—the American Republic seems ailing, and has for some time.

Can the American experiment work?

One of my habits is to reread the Federalist Papers on the 4th of July. I know, that’s not normal, but it’s proven a good habit for me.

In Federalist 10, “Publius,” in the case James Madison, writes about the main cause of the failure of a government by the people, that is, democracies and republics: FACTION.

Here is link to Federalist 10: I encourage you to go read it: avalon.law.yale.edu/18th_century/f…

"By a FACTION, I understand a number of citizens, whether a majority or a minority of the whole, who are united & actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent & aggregate interests of the community."

Faction is the eternal ruin of democracies and republics.

It is one of the most difficult political problems to handle.

Madison argues that a Federal Republic can adequately deal with problem of faction.

The CAUSE of faction, Madison writes, lies in the different opinions, powers, faculties, passions, and interests of human beings.

There would be only TWO WAYS to eliminate faction at the level of its CAUSE.

“Liberty is to faction, what oxygen is to fire.”

One way to eliminate faction is to eliminate liberty.

This “solution” is no solution, since it combats an evil with a greater evil. It is like “curing” a disease by ending the life of the patient.

The other way to eliminate faction is to IMPOSE unity, i.e. "by giving to every citizen the same opinions, the same passions, and the same interests.”

This too is necessarily doomed, owing to the nature of human beings. It would be as unwise as it is impossible, says Madison.

I note that the radical left has a habit of attempting both these means, simultaneously.

What was communist totalitarianism if not an attempt to eliminate faction by eliminating liberty and forcing everyone to think and believe the same?

Nothing else.

We see this today. Just the other day, we witnessed the New York Times calling for the elimination of the 1st Amendment.

Not long ago we had a retired Supreme Court Justices calling for the abolition of the 2nd Amendment.

“Hate speech” laws just won’t seem to die, despite:

Getting back on track, Madison argues that, since the causes of faction are (1) liberty and (2) human nature, we cannot address the evil of faction by attacking its causes.

We must instead attempt to mitigate is EFFECTS.

Madison argues that the federated union proposed in the Constitution would be the bast way to mitigate the EFFECTS of faction, essentially by CABINING it to one state or another.

Madison: “The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States."

And again: “A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it."

Madison’s idea of federalism does seem to be a very happy idea as a check on faction.

So why is America so divided, so factionalized?

That would require a long, detailed, complicated analysis and this is Twitter. These two things are antithetical.

But I can give a synopsis.

1 Marbury vs Madison +
2 The 14th Amendment +
3 the “living document” conception of the Constitution

together create a “perfect storm” that serve to defeat Madison’s plan to counteract the effects of faction.

What was Marbury vs Madison?

Probably the most important Supreme Court case ever to happen in the United States.

In it, the Supreme Court ruled that Congress is unable to act above and beyond the Constitution.

Marbury vs Madison is so important that you should go read it too, here: law.cornell.edu/supremecourt/t…

Really, it is a worthwhile thing to do on the 4th of July.

Chief Justice John Marshall pulled of a truly remarkable thing. The SCOTUS ruled that a power given to the SCOTUS by Congress was null and void, because the Constitution authorized no such power for the Supreme Court nor any power of Congress to give it such.

Marbury vs Madison, on the surface, SEEMS to limit both the power of Congress AND the power of the Supreme Court.

Why should Congress’ power, the legislative power, be limited?

Marshall rightly argues that, if Congress in its ordinary operation of making laws can ignore, supersede, or reinterpret the Constitution, then there is no Constitution.

As in the case of morality, a Constitution that does not bind—isn’t one at all.

Marshall:

“This doctrine would subvert the very foundation of all written Constitutions.”

Remember that line. It’s going to be important shortly.

Those who follow me know that I hold the principle of RETORTION to be as essentially philosophical test of things, and this extends to matters of politics and law as well.

What is retortion?

In simple terms, it is the question: "How does a principle apply to itself?"

Marbury vs Madison, it seems to me, has a retortive problem.

It established limits to the power of Congress BY WAY OF granting to the Supreme Court de facto power to interpret the Constitution.

Every American “knows” that the job of the Supreme Court is to interpret the Constitution and “strike down” laws at odds with it.

How did the SCOTUS get that power? Nothing like that is given to it—explicitly—in the Constitution.

So where did it come from?

It came from Marbury vs Madison.

The Supreme Court interpreted the Constitution as saying that that the Supreme Court has the right, task, and authority to interpret the Constitution.

And we know the SCOTUS has this power because the SCOTUS ruled that the SCOTUS has this power.

Do you see the problem here?

In Marbury vs Madison, the Supreme Court GAVE ITSELF the power to INTERPRET THE CONSTITUTION—by INTERPRETING THE CONSTITUTION.

The Supreme Count bootstrapped itself into having exactly the same “practical omnipotence” that it denied Congress has.

Step 2: The 14th Amendment.

Go read it too: law.cornell.edu/constitution/a…

As the website I just sent you to, that of Cornell Law School, notes:

"The most commonly used — and frequently litigated — phrase in the amendment is "equal protection of the laws",

More fully,

"nor shall any state … deny to any person within its jurisdiction the equal protection of the laws."

That sounds sane, and it is, depending on how this is taken.

It seems almost blindingly obvious that every state ought to honor the principle of equal protection or equality before the law, within its jurisdiction.

But how would that affect other states?

In effect, the 14th Amendment has come to mean that “what one state does (or no states, but only what the Supreme Court thinks should be done) APPLIES TO ALL STATES.”

This interpretation of the equal protection clause of the 14th—and it is an interpretation, albeit presumably an authoritative one, since it comes from the Supreme Court, which has the power to do this because it gave itself that power—BTFOs Madison’s protection against faction.

Add the final element, the conception of the Constitution as “a living document.” What does this mean?

It means that the Supreme Court’s (remember—self-given) power to interpret the Constitution is not actually limited by the Constitution.

"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less.”

“When we interpret a Constitution,” the Supreme Court said, “it means just what we choose it to mean—neither more nor less.”

So, put together, we have

1 The Supreme Court has the power to interpret the Constitution—it said so.
2 The Supreme Court has the power to impose law on all states via the 14th Amendment
3 The Supreme Court is not limited by the Constitution in interpreting the Constitution.

For the last half-century we have seen the Supreme Count become thoroughly politicized and a toll of advancing the AGENDAS of FACTIONS.

Thus it is we have the nationwide decriminalization of abortion in Roe v Wade, the decriminalization of sodomy, the implementation of same-sex marriage, and so on, and so on.

Having same-sex marriage be legalized by the law? Hard. Even California passed an Amendment barring it.

Having the Supreme Court impose its will in a top-down manner? EASY.

At least, EASIER.

We are now in a situation where the Supreme Count, it appears, has de facto power to amend the Constitution at its pleasure.

Want to conjure a right to privacy which enshrines abortion out of thin air?

*snap*

Done!

A political principle which I have appealed to many times before is sometimes called “The Iron Law of Economics,” and it states simply

THINGS WHICH CANNOT GO ON FOREVER, DON’T.

I am afraid that the situation of the Supreme Count functioning as a de facto super-legislative body cannot go on forever.

They will keep imposing new “rights” as Constitutional law—that is, super law—until the nation factionalizes to the point of civil war.

In Marbury vs Madison, the Supreme Court tried to answer one of the oldest and hardest political questions:

Quis custodiet ipsos custodes?

“Who guards the guardians?”

“Who will oversee Congress to make sure it doesn’t get out of hand and impose tyrannical and extra-Constitutional laws?” asked the Supreme Court.

And it answered, “We will—by giving ourselves the very power that we must at all costs prevent Congress from assuming.”

I really don’t see a way out of this. As long as we concede the Supreme Court has the power it says it does—and its own proclamation of its authority is the source of its authority—then de facto, a Supreme Court majority can amend the Constitution at will and make super-law.

If the President or Congress wanted to CHALLENGE the power of the Supreme Court—in what forum or venue would this challenged by ANSWERED?

Could one SUE the Supreme Court for acting above and beyond its authority? How?

By DOING SOMETHING, the Court de facto rules it CAN do it.

Eventually, something has got to give.

I’m not sure the American republic can survive it.

America was an experiment of the Enlightenment, which perhaps depended too much on the idea of FORMAL RULES.

This has always struck me as profoundly, totally wrong:

This is a characteristic error of the Enlightenment, actually of Modernity in general, the idea that, so to speak, “rules or texts interpret themselves, or are clear to all rational persons.”

In religion, this is the principle of sola scriptura, the idea that the meaning of the Holy Scriptures is clear and unambiguous to all rational people. The is one of the foundations of Protestantism.

We can all see how that worked out.

What’s wrong with Protestantism? FACTION

EVEN IF documents such as the Bible or the US Constitution WERE clear and unambiguous to all rational persons (and they are not)—it still WOULD NOT MATTER, since not all persons WILL BE RATIONAL.

Anyone can take an irrational position and SAY it is the rational one, after all.

So either we figure this problem out, or America will have another civil war—one it might not survive—by 2100.

Not a happy thought.

Nevertheless, we aren’t dead yet.

So happy Fourth of July! 🇺🇸

Go eat some 🍔🌭

And hope that our republic will outlive you.

God bless.

[This is not the THREAD end. The next post is linked not to the tweet above, but two above. Two steps back, one step forward.]