“Power is of an encroaching nature . . .”
The Federalist Papers #48
Introduction
So let me tell you what the problem is. Once upon a time, R.L. Dabney complained about the kind of conservatism that never conserves anything. Sometimes foreseeing is indistinguishable from just seeing.
That is just the first stage of the problem we need to address, but it is essential that we grasp this first principle before attempting to understand the next problem, one level up—the problem that we will be soaking with lighter fluid in just a few moments.
Here. Let me quote Dabney for you. Perhaps it might help if you make a point of reading this next bit aloud to yourself.
“It may be inferred again that the present movement for women’s rights will certainly prevail from the history of its only opponent, Northern conservatism. This [Northern conservatism] is a party which never conserves anything. Its history has been that it demurs to each aggression of the progressive party, and aims to save its credit by a respectable amount of growling, but always acquiesces at last in the innovation. What was the resisted novelty of yesterday is today one of the accepted principles of conservatism; it is now conservative only in affecting to resist the next innovation, which will tomorrow be forced upon its timidity and will be succeeded by some third revolution; to be denounced and then adopted in its turn. American conservatism is merely the shadow that follows Radicalism as it moves forward towards perdition. It remains behind it, but never retards it, and always advances near its leader. This pretended salt hath utterly lost its savor: wherewith shall it be salted? Its impotency is not hard, indeed, to explain. It is worthless because it is the conservatism of expediency only, and not of sturdy principle. It intends to risk nothing serious for the sake of the truth, and has no idea of being guilty of the folly of martyrdom. It always when about to enter a protest very blandly informs the wild beast whose path it essays to stop, that its “bark is worse than its bite,” and that it only means to save its manners by enacting its decent role of resistance: The only practical purpose which it now subserves in American politics is to give enough exercise to Radicalism to keep it “in wind,” and to prevent its becoming pursy and lazy, from having nothing to whip.”
R. L. Dabney
Okay. That’s pretty bad, and kind of on the nose. So what’s the next level problem then? This would be the refusal of this kind of conservative to recognize that the things he failed to conserve are already long gone. In short, these conservatives do fail, but then, having done so, they like to pretend to themselves that they did not in fact fail. So when genuine activist conservatives enter the chat, talking about how best to restore the older order, they get accused of being enemies to that constitutional order. People who recognize that we have lost something are accused of having a desire to wad it up and throw it away themselves. No, no—it was thrown away many years ago, and rice-paper-thin conservatives are wanting to pretend that this never happened. When we point out the Balkanization that has already been foisted on us, we are accused by ostensible conservatives of being cheerleaders for Balkanization.
Look. Suppose I was trying to convince a drunk friend that his wife had left him for good, and for evidence I point to the angry note she left on the fridge, not to mention all the broken glass everywhere. Suppose further that my friend turned on me angrily, and asked why I was trying to break up their happy home.
So “principle one” is that there is a conservatism that doesn’t conserve anything. Secondly, this is the same kind of conservatism that needs to pretend that it did.
Truth Hath Fallen in the Street
When we think about the differences between our day and the Founding Era, one of the ways we flatter ourselves is by looking at things like antibiotics, or indoor plumbing, or rocket launches. And if we look at the way we govern ourselves, because the civic roof has not (yet) fallen in, we think that our steady-as-she-goes conservatism is somehow principled. But in reality, the only principle involved is Newton’s First Law of Motion, which is that an object at rest tends to stay at rest.
Stare decisis means “don’t bother me with angular facts from history.” It means let sleeping dogs lie. It means that we must be doing what the Founders envisioned because of mom, apple pie, a red-checked table cloth, and a Winchester over the fireplace. At least I still have a photo of those things in my Instagram feed somewhere. Men from the ATF took the actual Winchester.
What this amounts to is that we think that because each state still gets two senators, we glibly assume that we have successfully preserved the form of government bequeathed to us by the Founders. We have actually done nothing of the kind. What we have actually done is replace their system with the kind of system that our Constitution was specifically designed to prevent.
“Although the details of absolute power in England may at first seem merely historical, it gradually will become apparent that they are disturbingly like the details of contemporary American administrative power—not exactly the same, but nonetheless remarkably close . . . Along the way, it will become evident that constitutional law developed largely to defeat such power.”
Philip Hamburger, Is Administrative Law Unlawful? p. 12
And I will just remark in passing that nobody should be allowed anywhere near the Federal switches and levers without having read Hamburger’s book. This is okay because, once they have read it, they will dedicate their lives to ripping out all those switches and levers.
The Fourteenth Amendment, Fer’Instance
Remember the quote from the Federalist Papers at the beginning. “Power is of an encroaching nature.” This is manifestly true, and over the course of our 236 years, it has done its encroaching bit very, very well. Nice and sneaky does it.
Prior to the War Between the States, the Bill of Rights constituted a set of restrictions that had been placed on the Federal Government, with the States serving in the role of guardians to make sure it stayed that way. After the War, the Fourteenth Amendment was passed, protecting the rights of former slaves, guaranteeing them the “equal protection of the law.” Okay, great, and nobody should have a problem with that part. That wasn’t where the difficulty was. The poison was in the very last part of the Amendment.
“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Constitution, 14th Amendment, sec. 5.
This was a changing of the guard, and now the Feds were the guardians. This inevitably began to manifest itself in subsequent court cases, which gradually—remember that verb encroach—applied the restrictions of the Bill of Rights to the States, with the Federal Government now the guarantor of the whole business. But Juvenal’s ancient question—Qui custodiet ipsos custodes?—who will guard the guardians themselves?—has been definitively answered by David Bryne in Once in a Lifetime . . . “Same as it ever was.” That question is answered by the men with guns, by inertia, and by the tendency of power to encroach.
The Federalist Papers were defending a proposed Constitution that had national elements and federal elements both. There was a national government, to be sure, but it was tied down like Gulliver was that time. Prior to the War, the federal element—the States—had the whip hand. After Gettysburg, the national element did. And look at us now.
The classicist Basil Gildersleeve once said that the War was fought over a point of grammar. Shall we say “the United States is going to do something very soon” or “the United States are going to do something very soon.” The third person singular won.
A Jeffersonian Case in Point
Thomas Jefferson used a particular phrase in a letter of his to the Danbury (Connecticut) Baptists, in which he told them that there was a “wall of separation” between church and state. This little phrase was excavated by legal archeologists after World War II and began showing up in federal court decisions, much to the dismay of anybody who knew anything whatever about this subject.
So let us see what Jefferson had to say about church and state in 1808, in a letter to Samuel Miller.
“Certainly, no power to prescribe any religious exercise or to assume authority in religious discipline has been delegated to the general [federal] government. It must, then, rest with the States.”
Thomas Jefferson, Memoirs, Vol. IV
The States? The States! Whaddaya mean, the States? Sit still, children. I will tell you.
Only Congress
The only entity on earth that could possibly violate the First Amendment would be Congress. The amendment begins with “Congress shall make no law . . .” Congress may not establish a Church of the United States. Denmark had a state church, as did England. But not here in America. We cannot do it. We cannot have a national church because Congress cannot do something like that at the national level. But this is NOT because of some “wall of separation” that keeps churches on one side and every forms of civil government—county, municipal, or state—on the other. If we were in an old-timey mood, we would say something like Heaven forfend.
The actual wall of separation was between the national government, represented by Congress, which could not establish a church, and which could not require a religious oath for federal offices, on the one hand, and all the state governments, which could cheerfully do all of those sorts of things. And cheerfully did do all those sorts of things.
New Hampshire had an established state church when the Constitution was ratified. Massachusetts had an established state church when the Constitution was ratified. Connecticut had an established state church when the Constitution was ratified. And as they say on television, “wait, there’s more!” Vermont came into the Union after the Constitution was ratified, as the fourteenth state, and they came in with an established state church. You know, nice and proper, the way Thomas Jefferson said it should happen. Now these were states that had a hard establishment—a formal tie to a particular denomination, the Congregational Church.
South Carolina, for example, had a soft establishment, the kind that I much prefer. Their Constitution said that the “Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State.” But the fact that I disagree with the sort of hard establishment found in New England does not entitle anyone to say that their bad idea is an unconstitutional idea. According the logic of Thomas Jefferson, Idaho could be officially Presbyterian if it wanted.
The reason why the Supreme Court of the United States today would strike down any such horsing around is that they are sitting on top of a bunch of court decisions based on the usurpation and revolution made possible by the fig leaf of the Fourteenth Amendment.
And if you are a conservative legal scholar, clearing your throat at this point, wanting to intrude in order to inform me that there is ample legal precedent for all these monkeyshines, and you cite a long list of court cases going way back, my reply would be simple. You are not a conservative defending the Constitution. You think of yourself as a conservative, which is nice, but what you are actually defending is a long list of encroachments by the regnant power.
One might even call them a long train of abuses.
Don’t Ever Neglect the Giveaways
You have two distinct sources for your giveaways. The first is the special page that Canon has set up to process their giveaway madness, and those titles can be found here. The offers will change week to week throughout the month, but for the Canon titles, they will always be found in the same place. As there is a new post up today, there are new free titles. Move it, move it.
The current free titles are Untune the Sky, Black & Tan, Easy Chairs, Hard Words, Mother Kirk, and Against the Church.
The second place to go would be to my Mablog Shoppe. The list of free titles will grow through the month. The current list of free titles there is as follows:
Concise and to the Point
Virgins and Volcanoes
Blue Sky Vision
The Pink Spiders of Empathy
Letters to a Rootless White Kid
Jokes I Like to Tell
Chestertonian Calvinism
21 Prayers for Pastors
Get ’em while they’re hot.
