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E-Pluribus | September 6, 2022

Clear and present foolishness; so you want a new constitution? Chile shows how it's not done; and where those race checkboxes came from.

Jeryl Bier

Sep 6, 2022

A round-up of the latest and best writing and musings on the rise of illiberalism in the public discourse:

Kevin D. Williamson: A Clear and Present Danger

Kevin Williamson of National Review is up front about his characterization of the “semi-fascist” Trump movement: “Nationalism? Check. Authoritarianism? Check. Cult of action? Check. Contempt for liberal norms, procedures, and institutions? Check.” But Williamson says the fight-fire-with-fire response from President Biden is no better than when it comes from Trump.

Begin with President Biden’s irresponsible and foolish invocation of the phrase “clear and present danger,” which is not only the title of a Tom Clancy novel, but also a legal rationale — one invoked in order to permit the federal government to abrogate Americans’ civil rights in the face of a public emergency. It is a doctrine that has been cited in order to permit the state to imprison war protesters — and even war critics — or to arrest a man for making a speech at a political rally. The phrase “clear and present danger” comes to us from Oliver Wendell Holmes Jr. and the Schenck decision, which also gave us that nonsense about “shouting ‘Fire!’ in a crowded theater.” In Schenck, war protesters were distributing flyers advising draftees of their options for resisting induction into the military, and for this they were jailed, ultimately with the blessing of the Supreme Court.
The notion that the state — or some political messiah not yet in control of the state — must act through some extraordinary means to meet an extraordinary threat to the political order is not limited to fascism per se. It is a tenet of streitbare Demokratie, a general European principle of German origin under which illiberal and antidemocratic actions are permitted to the state when deemed necessary to address fundamental threats to liberalism and democracy themselves. This is the principle under which Germany prohibits certain political parties from competing in elections and under which Austria criminalizes the sale of certain books; the laws against so-called hate speech in Canada and elsewhere are based upon a similar rationale, with Canadians’ civil rights being subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
A classic fascist strategy is provoking — or simply inventing — an existential emergency in order to justify suppressing political enemies on national-security grounds. The Reichstag fire of 1933, which the Nazis used as a pretext for the abolition of certain German constitutional rights, is the textbook example of this. An invented or exaggerated crisis is not the only brick in the wall of fascism — sometimes, an invented or exaggerated crisis is merely an instrument of bad and destructive policy, such as the so-called War on Drugs: There is a world of difference between the Reichstag fire and Reefer Madness.

Read it all.

Francisco Toro: How Not To Write A Constitution

The US Constitution runs just under 4,500 words, about 14 pages worth. The newly proposed (and recently rejected) replacement constitution for the country of Chile ran on for 178 pages and for good reason as its framers attempted to cram in every right known to man (and perhaps even some most of us have overlooked). But Francisco Toro at Persuasion writes that, whatever the good intentions, brevity, just as it is with wit, is a better choice for the soul of a constitution.

[T]he [Chilean] Assembly elected to draft the text was dominated by progressive activists, and a fierce sort of group-think seems to have run away with them. Instead of asking hard questions about how a state organized this way could function at all, members competed with one another to prove themselves progressiver-than-thou by casting their policy goals in the phraseology of rights and cramming them into the constitution. The result was a text where everything is a right.
But where everything is a right, no right is enforceable.
Think about it: if Chileans took the text at its word and started lodging legal actions demanding the positive enforcement of each right in it, the country would grind to a halt within a week. No polity on earth could ever be wealthy enough to provide all of the goods this constitution presents as “rights.” Under a deluge of injunctions, judges would be forced to issue a string of contradictory rulings, each enjoining the state to spend resources it doesn’t have to solve problems states can’t solve.
Alternatively, judges might opt to treat the constitution, as they say, “seriously but not literally.” In practice, this would mean cobbling an altogether different constitution through a series of rulings designed to work around the text’s many obvious impossibilities.
The problem is that to do this, you have to act as though whole swathes of the constitutional text just aren’t there. And from that, it’s just a short skip and a hop to judicial lawmaking and outright authoritarianism. Trust me, I know. My own country, Venezuela, went through a similarly churrigueresque constitution drafting process in 1999. The document that resulted was beautiful—a genuinely stirring description of an earthly utopia. (If anything, our housing article goes even farther than the Chileans’, enshrining the right to “a habitat that humanizes relations between families, neighbors and communities.”)
But blind to tradeoffs and resource limitations, the text soon proved utterly unworkable as a way of organizing what the state must and must not do—which is why judges soon learned to ignore it and rule the way their political masters wanted them to rule instead. A few years later, when those same masters turned dictatorial, our churrigueresque constitution offered no resistance at all: it was already a dead letter.

Read it all here.

Benjamin Klutsey: Racial Classification in America

In another installment in a continuing series at Discourse Magazine on classical liberalism, Benjamin Klutsey of the Mercatus Center at George Mason University, is joined by professor David Bernstein to discuss the ubiquitous racial classifications used in this country, how they came about, and why they are incoherent at best and, more often than not, counterproductive.

And the one thing I utterly, utterly reject—and I think is crazy really—is that on the other side of the ideological spectrum, there are people who believe, number one, that race is an immutable factor. They don’t believe race is immutable—they believe it’s a social contract—but they believe it’s immutable in the United States. Therefore the government must classify everyone by whatever groups that they find most convenient, then divvy out everything for equity purposes. That’s not itself crazy. That’s wrong, in my opinion, not crazy.
The crazy aspect is that there’s a whole group of people who write about race and the sociology, anthropology and law and other fields who, if you tell them, “Isn’t there a danger that by encouraging racial consciousness, you’re encouraging division and potential conflict?” they will tell you, “Quite the opposite.” And they don’t differentiate among white people. “We need to make white people more racially conscious so that way they recognize their white privilege. And once they recognize their white privilege, they can then become allies in anti-racism.”
Now, admittedly, there are people out there who are what we classify as white who are anti-racism activists. But if you look at social psychology, anthropology, history, basically any field you want, and say, “How often is it that you get people to strongly identify as members of a racial group, and they use that identity not to promote their own group but to promote the interest of minority or other groups?” I would say that’s a vanishingly small percentage of human history.

Read the whole thing.