Sunday, November 14, 2021

We Are Clearly In A Pre-Civil War Situation

NC |  My read at this point is that we are in a pre-civil war situation, with conservative and libertarians just itching to get on with killing the liberals (just like sothorons were itching, by spring of 1860, for a war to begin killing Yankees). This is the true context in which to view the Rittenhouse trial in Kenosha. The drift into a second civil war should properly be understood as the end result of the past 90 years organizing by rich reactionaries against the New Deal, and their attempt to restore the preponderance of power to capital versus labor. For all the short termism of a financialized economy, the rich reactionaries have had a stunning lomg game in mind, and the most impactful part is probably going to be the creation and propagation of “law and economics” and the (anti)Federalist Society seizure of control of the judiciary.

The drift into a second civil war is also the context in which to view the “left’s” demands for censorship, which Taibbi, Greenwald, and a few others have assailed repeatedly and, imho, unwisely. We must build the cultural capacity to limit the free speech of the rich, in much the same way the there are cultural limits on speech by military officers. It bears repeating that the ascendancy of the reactionaries, who are now poised to deploy the authoritarians they have cultivated within the population, has been a 90 year project. At various points, severe penalties and a cultural disapprobation of free speech would have avoided the present drive to war. For example, G. Gordon Liddy and Oliver North should never have been allowed to become stars of right-wing TV and talk radio.

And, a subject of the British crown, Rupert Murdoch, should never have been allowed to have control of major American media. The case of Murdoch points to the real vulnerability we face: there is no understanding of what a republic is, and how a republic must be defended. Hence, Madison writing about “aristocratic or monarchial innovations” sounds very strange to us today. But Ganesh Sitaraman, in his excellent book, The Crisis of the Middle-Class Constitution: Why Economic Inequality Threatens our Republic (2017), points out that Americans were culturally hostile and suspicious of aristocracy and monarchy up until World War Two and the Cold War, when the new foe to be guarded against became fascism, then communism.

This lack of republican culture allows Gitlin, Isaac, and Kristol, in their “An Open Letter in Defense of Democracy,” to purvey a series of frauds on public opinion. They write, ““Liberal democracy depends on free and fair elections, respect for the rights of others, the rule of law, a commitment to truth and tolerance in our public discourse.” This is certainly not untrue, but what they omit is crucial. First, this is supposed to be a republic, not a democracy. While a republic should have a democratic form of government, a republic is different because a regard for the General Welfare must be balanced against individual freedoms. There used to be a consideration of public virtue, in which citizens were expected to abandon their self-interests when they conflicted with the public good. For example, citizens should be expected to wear masks and embrace vaccine requirements in a pandemic, and any refusal or disobedience should be properly seen as an assault on the republic.

Second, in a republic, there is a positive requirement to do good. The exemplar of this is Benjamin Franklin, and the various organizations he helped create: a fire company, a library, a hospital, the American Philosophical Association, and so on. All of these resulted in the network that fought the Revolutionary War, then attempted to codify republicanism in the Constitution. But the compromise with slavery was a fatal flaw.

President John Quincy Adams, in his first annual message to Congress, summarized this positive requirement to do good:

The great object of the institution of civil government is the improvement of the condition of those who are parties to the social compact, and no government, in what ever form constituted, can accomplish the lawful ends of its institution but in proportion as it improves the condition of those over whom it is established. Roads and canals, by multiplying and facilitating the communications and intercourse between distant regions and multitudes of men, are among the most important means of improvement. But moral, political, intellectual improvement are duties assigned by the Author of Our Existence to social no less than to individual man.

Law journal articles on the Guarantee Clause:
Bonfield, Arthur E., “The Guarantee Clause of Article IV, Section 4: A Study in Constitutional Desuetude”, [On the Constitutional guarantee of the federal government that each state shall have a republican form of government]
46 Minnesota Law Review 513 (May, 1961)
https://scholarship.law.umn.edu/mlr/863/
https://core.ac.uk/download/pdf/217205534.pdf

Erwin Chemerinsky, Why Cases Under the Guarantee Clause Should Be Justiciable,
65 University of Colorado Law Review 849-880 (1994)
https://scholarship.law.duke.edu/faculty_scholarship/787/

The Yale Law Journal
Vol. 97, No. 8, Jul., 1988
Symposium: The Republican Civic Tradition
[12 articles on republicanism]
https://www.jstor.org/stable/i232687

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