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Coverage the recent case on the Defense of Marriage Act, United States v. Windsor, has almost universally omitted the fact that the case was not a contested issue; rather, the Supreme Court elected, by fiat, to decide to give its opinion on the case, anyhow.

Similarly, coverage of Justice Antonin Scalia’s dissent has focused on his caustic remarks regarding the majority opinion that any opposition to gay marriage could only be grounded in a mean spirit, hoping to portray the objection to the case as something like a bigot complaining that he is being called a bigot. How witty! However, the bulk of Scalia’s dissent is devoted to the novelty of SCOTUS’s decision to bring the case before it without any legal grounding for doing so. Forgive the long excerpt, but this is the core of this element of his dissent, abbreviated a little (all emphases in the original):

The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?

…Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.”

That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

This image of the Court would have been unrecognizable to those who wrote and ratified our national charter. They knew well the dangers of “primary” power, and so created branches of government that would be “perfectly coordinate by the terms of their common commission,” none of which branches could “pretend to an exclusive or superior right of settling the boundaries between their respective powers.” The Federalist, No. 49, p. 314 (C. Rossiter ed. 1961) (J. Madison). The people did this to protect themselves. They did it to guard their right to self-rule against the black-robed supremacy that today’s majority finds so attractive. …

For this reason we are quite forbidden to say what the law is whenever (as today’s opinion asserts) “‘an Act of Congress is alleged to conflict with the Constitution.’” Ante, at 12. We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party. The “judicial Power” is not, as the majority believes, the power “‘to say what the law is,’” ibid., giving the Supreme Court the “primary role in determining the constitutionality of laws.” The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the Federal Republic of Germany, Art. 93. …

In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of this Court, it is not a separate, freestanding role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us.

We have never before agreed to speak—to “say what the law is”—where there is no controversy before us. In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer. …

I find it wryly amusing that the majority seeks to dismiss the requirement of party-adverseness as nothing more than a “prudential” aspect of the sole Article III requirement of standing. (Relegating a jurisdictional requirement to “prudential” status is a wondrous device, enabling courts to ignore the requirement whenever they believe it “prudent”—which is to say, a good idea.) Half a century ago, a Court similarly bent upon announcing its view regarding the constitutionality of a federal statute achieved that goal by effecting a remarkably similar but completely opposite distortion of the principles limiting our jurisdiction. The Court’s notorious opinion in Flast v. Cohen, 392 U. S. 83, 98–101 (1968), held that standing was merely an element (which it pronounced to be a “prudential” element) of the sole Article III requirement of adverseness. We have been living with the chaos created by that power-grabbing decision ever since, see Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587 (2007), as we will have to live with the chaos created by this one.

Now, I’m not disinclined to affirm with persons like Eric Posner that SCOTUS is a body in which justices use legal reasoning for their preferred political ends. Justices rarely, if ever, agree to uphold or overturn decisions that they do not agree with, rather than ruling simply on the basis of their being judicially licit. Just because right–wing and left–wing justices do not always agree with each other (notice Scalia’s dissent in the Indian adoption case that was largely joined by Justice Sonia Sotomayor) does not mean that they have, in that moment, suspended their normal political preferences. While it might appear that Scalia has done so in upholding a special racial preference, there are plenty on the right who are comfortable (or even more enthusiastically in favor) in allowing special rights for Indians, but only Indians*.

Despite all this, what I quote above still matters. A precedent for SCOTUS to bring issues to its attention that would not otherwise have been is hardly one that those celebrating the decision should be OK with. What if, let’s say, another justice (Sotomayor?) joined the four conservative judges in overturning Roe on a case that had been settled in a district court? Or if, later, some successor law to DOMA or some state plebiscite on the issue is used as a precedent to overturn the current decision?

There is no doubt that the cultural–left in the current White House refrained from encouraging SCOTUS to bring this case on up in spite of its decided state. That’s what the left has devolved to in America, and one pines for Actually Existing Communism in a way. In fact, insanity like this would never have found a home in the USSR. While the Soviet state would ideologically criticize the great works of Western Civilization, it rarely totally blanked them; in fact, it is odd that more persons do not reflect upon the fact that, throughout the Cold War, the Russians were far better at promoting and preserving a number of traditional arts— why do Russian ballet companies stand forth, so many years after the Czars, as the pinnacle of the art?

This whole thing feels surreal.

It is the lack of historical context—as if there were a hiatus in history—that also stands out. The other important section of Scalia’s dissent focuses on just that. Formerly, the left saw itself as part of history— maybe it was bringing about its desired end, but the history was not obliterated in a new narrative which only saw the dialectic of Oppressed and Oppressor in the most abstract of senses. (This is not the Bolshevik ‘Who, Whom?’, even if it may be in continuation with it— a great–nephew or grandson.) For a number of reasons, those for whom their homoerotic proclivities double as their identities have become the new favored class; no more proof is needed other than the fact that the left’s thrill for Windsor eclipsed the prior day’s decision about the Voting Rights Act, a disappearing of black Americans that would have been hard to imagine even ten years ago. As I remarked in an off–blog reply to Owen White on this post of his, it’s ‘Because gay people who didn’t play sports have commentator and production roles in TV, duh.’

In that same reply, I remarked how the >115 IQ set that is most enthusiastic about gay marriage has not considered how it is easy for them to accept evolutionary novel behaviors† & ideas, but not for those on the left hand of the bell curve. But, I may have been foolish in saying that; as long as Americans watch a lot of TV (and more and more, the gap in TV consumption widens between the smart and the not–so–smart) and TV continues its push for both gay marriage and the increasing portrayals of gay couples, they will perhaps be just as easily swayed. Notice the divergence in how white Americans perceive black Americans based on whether or not their primary images of them come from TV or their daily lives; permanently coupling gay persons are a much smaller proportion of the American population than blacks, and far less visible. The comparison is imperfect, however, because actual proximity increases acceptance, anyhow, except perhaps for a wedge (like two gay men I’ve known).

However, I think I’m broadly right in believing that support for gay marriage will dry up.

In the end, it will be because such hedonist issues—and juvenile ones like the incessant demands regarding ‘identity’—will become exceedingly unimportant as really–real problems become again a part of the lives of Americans. We’re merrily skipping to an an economic Ragnarök** that will not be slowed by our virtuous pursuit of justice in the cause of gay marriage.

Well, it was a fun way to blow time while we waited.

* There is a smaller group who are also in favor of some considerations for African–Americans on the argument that they are the group of historically–harmed peoples in America, but there is no ‘special relationship’ of the same kind between the white American majority and other peoples who have come here voluntarily, since. The ability of foreign African students to capitalize on racial preferences for the descendants of slaves is a particularly bitter pill.

† Make no mistake about it: The current commonality of adult–adult male homosexuality is highly novel, and long term relationships are even more so. The appeal that is often made to Greek precedent on homosexuality is always amusing considering the withering words the Greeks had for those erotic pairings who kept it up after the beloved entered adulthood.

** A much more apt comparison than the too–typical Armageddon. It’s the Twilight of the Gods, not the End.


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he does not leave the worst unsaid. he says it.

“…Though [Notes on Democracy] purports to be the outline of a social philosophy, it is really the highly rhetorical expression of a mood which has often in the past and may again in the future be translated into thought. In the best sense of the work the book is sub-rational: it is addressed to those vital preferences which lie deeper than coherent thinking.

The most important political books are often of this sort. Rousseau’s “Social Contract” and Tom Paine’s “Rights of Man” were far inferior as works of the mind to the best thought of the eighteenth century, but they exerted an incalculably great influence because they altered men’s prejudices. Mr. Mencken’s book is of the same sort…

…One feels that Mr. Mencken is deeply outraged because he does not live in a world where all men love truth and excellence and honor. I feel it because I detect in this book many signs of yearning for the good old days. …but it is evident to me that his revolt against modern democratic society exhausts his realism, and that the historic alternatives are touched for him with a romantic glamour. The older aristocratic societies exist only in his imagination…

Nevertheless, I feel certain that insofar as he has influenced the tone of public controversy he has elevated it. The Mencken attack is always a frontal attack. It is always explicit. The charge is all there. He does not leave the worst unsaid. He says it. And when you have encountered him, you do not have to wonder whether you are going to be stabbed in the back when you start to leave and are thinking of something else.”

Walter Lippman

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post–modern hegelianism: a reply to “a reply”

“Hegelianism—like post–modernism—became ambient, infiltrating the language and thinking even of those who had never read or understood the master’s work.”

—Christopher Clark, Iron Kingdom: The Rise and Downfall of Prussia, 1600-1947


I apologize for the (very) belated reply to your post. Injury and incident have kept me from spending too much time at the keyboard this past month, and now that I find myself able and with the time and inclination, I find it hard to narrow my approach to this question in a way that will work as a blog post.

I’m not at all unappreciative of where Marx went right. As a prophet of the alienation brought about by industrialization, he’s without peer. The problem—though not the interesting problem—with Marx is that he absolutized that realization into a quasi–metaphysical system. (I am putting aside the “eschatological” question for the time being, because the role of millenarianism in modern politics, left & right, is something that is not unique to the Hegelian strain I’m interested in, here.) One of the clearer signs of this is one you respond to here, my complaint that core Marxist terms are essentially nebulous but also given great dialectical and historical utility. While that is fine if they are understood as imprecise rhetorical tools, they are also, in practical Marxism, used as precise political tools. Those outside the proletariat can be transformed into “class enemies”, “exploitation” a demon lurking behind all apparent failures. Is this transition essential to Marxism? Perhaps not, but it is natural to it.

You get to part of the issue here when you write: “Economic transactions… are social transactions. Any time human beings are interacting you are going to have levels of complexity which make ambiguity and contradiction inevitable.” (Despite your apparent pride in not having read but a hundred pages of von Mises, you sound remarkably like a praxeologist, here.1) This ambiguity is reason, at least, for some humility about the powers of our political/economic theories.

“But the other side of [Spirit’s] Becoming, History, is a conscious, self–mediating process—Spirit emptied out into Time; but this externalization, this kenosis, is equally an externalization of itself; the negative is the negative of itself.”

—Hegel, Phenomenology of Spirit (808) [trans. A.V. Miller]

You write: ‘The most interesting thought you’ve mentioned in this discussion is the notion “a Hegelian political order is the one remaining attractive option, and Marxism is the only remaining acceptable/coherent version of one.” I agree. I have also (and I realize this brings me full circle) waved the flag of surrender to Hegel.’

I do not know if this is what you meant, but I have not waved my white flag to Hegel. What I meant by this is that for the majority of persons concerned with the Good, Hegel remains the one way they see to have both the obvious fruits of modernity and have the reaction against its evils. That Marxism remains the only attractive option for doing so is largely a matter of historical contingency, not of philosophical rigor.2

Hegel is the first great thinker to stand after the four revolutions. Two were philosophical: Hume, then Kant. The others were political: the American and the French. And in a real sense, all subsequent revolutions have simply participated in those prior. Because Hegel is at his most useful when talking about history, the concepts of aufheben|sublation and aufgehoben|preservation are of use here. Hegelians constantly re–fight these fights because of the twin syntheses that lie at the heart of Hegelianism: An attempt to reconcile the old political order with the new, and the (not so very) old religious order with the new philosophy.3

A necessary digression: The common assumption is, whatever their shrunken utility today, the categories of “Left” and “Right” as established in the furor of the French Revolution are in fact the primary categories. Leftism is seen as revolutionary/progressive and Rightism as counter–revolutionary/reactionary. While this is true (to a point) for Left and Right, the truly primary divide is rather between what I wish to call “Liberals” and “Organicists”. (The reasons for not opposing “Conservative” to “Liberal” are two: (1) There are counter–revolutionary liberals, this is clear; (2) Not all organicists wish to conserve a prior social order, many wish to build a new one in an act of revolution.) The liberals are those advocates of the modern, rational state, the givers of rights and the champions of freedoms; the organicists are those who recognized the powers of the organs and structures of the ancien régime (in the case of right–organicists, this is especially true of the Church) and sought to preserve them when possible or at least construct new societal structures.4 The Left tended to use the tools of “Scientism” and “Moralism” to construct values on which to direct its endeavors, while the Right used “Societarianism” and “Moralism”. I make this last note about tools, because I think it is useful for examining political movements (like libertarianism) which contain left and right wings.

Anyhow, this immediate, manifest fracturing of what was already implicit begged for some attempt at rebuilding with the pieces at hand. (It seems to be the lot of most eras which suffer an obvious collapse to begin rebuilding without quite knowing what to aim for, sure that the New Order must be right around the corner.) Enter Georg Wilhelm Friedrich Hegel.

It was Hegel who wrote the first philosophy for a democratic age in over two thousand years. The characteristic philosophy of democratic Athens was that of the Sophists. Sophism was the philosophy of rhetoric, but for an innocent age which did not mind naked honesty; it admitted a simple truth—when the majority rules, philosophy becomes the act of discovering the truth not by reason, but by persuading the majority. The truth is created in convincing. The philosophy of democracy is rhetoric. We see this daily, as plain as anything else. If the comboxes of blogs seem bad enough with their unskilled appeals to base instinct in place of reason, it is even more evident in our news media and again within ourselves where, unless we had particularly excellent parenting, the only way in which we understand the very purpose of our education as the practice of informed discretion is from independent study and reflection; the “spirit of the age” (we are speaking of Hegel!) violently opposes just such an end for education, rather, its end has become the cultivation of the correct democratic impulses. The rhetoric begins before the information is even given.5

Hegel baptized rhetoric in the waters of metaphysics. By tapping into the monist hopes that have long rested within Western philosophy, Hegel’s Spirit is the force of rhetoric moving upon the mass of humanity. It retains the absolute within rhetoric, hiding its insubstantiality within layers of speech. Hegelianism is able to so perfectly give narrative shape to the twists and turns of modern intellectual history not because of its metaphysical validity, but because it so perfectly describes the position of philosophy after the revolutions as it creates it.6 Even as the English-speaking world long held Hegel at a distance, it could not keep the core of his teaching out of the popular mind; the Anglo–Saxon may hate Hegel for his obfuscating dialectic and prophetic declarations, but he resorts to thesis/synthesis/antithesis, anyhow.7

What is unique about the Hegelian political project is its left/right agnosticism, its essential organicism (with appeal to liberalism largely confined to its scientific pretensions) and how that organicism is directed towards either humanity as a whole or within nations themselves. The struggle between Left and Right Hegelians was not so much because of ambiguity or true impartiality one the revolutionary question in Hegel, but a necessary outcome of a synthesis that could not withstand the romanticism of Left or Right towards their readings of, in particular, the French Revolution. That Hegel himself walked this line is mostly due to the obvious complexity (or indiscrimination) of his affections.

There are many reasons a Hegelian political order remains attractive:

—It is essentially democratic in spirit, but accepts that democracy in practice is unnecessary.8
—It strives for an organic society in which people can “go home” without surrendering the advantages of the modern age.
—It is able to be at peace with modern technology and scientific revelation, unlike most authentically reactionary creeds, avoiding the stain of hypocrisy in its peace with things like… toliet paper, the internet or antibiotics.

Right Hegelianism has been branded with a swastika on its forehead, and that mark may never go away. So, Marx remains. This is the obvious reason for why Buckley had some nostalgia for the idea of being able to be a young Marxist today, as mentioned in that interview with Corey Robin you recently linked.9 Buckley genuinely hated Nazism and fascism (perceiving their influence in the counter–revolutionary furor the Birchers had against communist influence in the US) so when at the end of his life he began to doubt the firmness of the Burkean–conservative foundation, the last chance for an organic political order, the last chance for an aristocracy that would pay its obligations to the people, was Marxism. The tension in Marxism is that it can never resolve the synthesis with the aristocratic order inherent in its Hegelian roots in the real world. The egalitarian hope that the proletariat freed from its leash would be able to spontaneously govern itself is false in reflection, false in practice and increasingly shown to be false by science (IQ will remain largely genetic for some time, and hopefully, always). Thus, the dictatorship of the proletariat finds itself in need of a dictator, and that dictator in need of knights of the bureaucracy, the academy and the military. Marx’s continual attraction for the intellectual is the idea of being in a society where he will be able to wield power, unlike the democratic one where he is mostly impotent, though often privileged. This is why we have conservatives who love Marxism like the Red Tories, and Marxists who act awfully like conservatives in their tastes and attitudes. Zizek is the modern embodiment of the latter, but in being so he only mirrors the natural evolution faced in Marxist states; there’s a real point to the reactionary thesis that, after the death of Stalin, the USSR became the bulwark of European cultural tradition versus the global revolutionary stance of the United States.10

The ultimate problem with Marxism (ignoring its history) is that it cannot escape the problems of modernity because it cannot escape its own internal struggles. It ultimately has no absolute to grasp, there is no God in its heaven. No matter how much mental energy can be used and distracted by the subtleties of the dialectic, the mentally healthy Marxist will always remain aware of a certain emptiness (as well as the adherent of any of the modern totalities will). As government cannot be entrusted forever to the insane, it will always debase its functionaries by the constant exercise of hypocrisy, the moral effects of which are evident in any account of life under Really Existing Socialism. No man ever gets to ride the tiger. There is also nothing to be had by being an authentically religious person and a Marxist because either the Marxism will endanger the religion or the religion with overrule the Marxism. Politics as was able to co–exist with Christianity died in the revolutions, because politics became total with the advent of democracy and the drowning of philosophy in skepticism and rhetoric.

The political challenge of the modern man is to escape the political in order to have the authentically political life once again; the constant inner rush of demands to engage in the correct attitudes is political, but in a sense no longer directed towards the polis. Religion no longer provides a refuge from this (though that weakness is not inherent to it), and certainly Marxism does not, either.

• • •

1 You write: “Pure Austrianism and Mises proper are niche theoretical realms with seemingly little to no impact on social and economic arenas today.” While it may seem as such, the academic economists at places like Auburn and George Mason are usually far more interested in Mises–proper and the Hayekian wing than the anarchic–libertarian/Rothbardian wing represented by Lew Rockwell/LvMI and, to a somewhat lesser degree, Ron Paul. You may be aware that Ayn Rand—certainly a statist compared to the Rothbardians—detested Hayek for his compromises with social spending and taxation. Libertarianism is not the only, or even the primary end–game suggested by Austrianism. While von Mises certainly has his great flaws—chief among him his determinism, but that’s a flaw shared with Marx!—Human Action in particular remains readable and insightful. It doesn’t give that frisson of prophetic excitement that Marx does, but it does carefully outlay a number of truths about human economic activity that I think still elude many economists today.

2 The thesis that follows has novel elements, some of which I will not be able to support. I am aware of this.

3 This is the key to understanding the character of Napoleon as “the world spirit on horseback”, not as some youthful exuberance that would have been unuttered by an older, wiser Hegel, but an essential recognition that Napoleon was already working in the political sphere the twinned syntheses which Hegel wished to make manifest in the philosophical. This is the sense of destiny in Hegel—if Napoleon is not the New Christ, he is at least his prophet! The work had already begun.

4 Another divide, this one fairly meaningless for our purposes, as it was a matter of indifference to Hegel himself at most moments, is that between the an–, mon– and polyarchists within each group so described.

5 These propaganda structures create remarkable systems of distraction. A friend insists the real function of critical race and gender theory is to distract students from the fact that their colleges have ripped them off by directing them against an enemy that is simultaneously internal and non–existent. (The real function does not have to be the intended one, but I don’t know if she’d divide these like I do for this case.) Looking over signage from the various Occupy–protests, the ones that state coherent demands are frequently demands for some sort of unrealistic deconstruction of biology OR express some deep hatred of normal human good such as family, innocence or culture. Many of the Occupiers’s complaints have to do with… the student loan boondoggle. Surprise! While the Frankfurt school sought to destroy capitalism through these rhetorical viruses, it appears instead that they simply castrated the Left.

6 Attempts to use Hegel to understand the development of philosophy before—at least—the 18th c inevitably must distort and twist the actual arguments, motivations and actions to fit the reality to the template. While I disagree with a not–insignificant amount of what I wrote on my former blog, I stand by the essentials of my critique of Alasdair MacIntyre’s crypto–Hegelian reading of the project of St Thomas Aquinas.

7 This is ignoring the real postwar trend towards an Anglo–American reading of Hegel which began first among Leftists trying to get in touch with the core texts when the indigenous socialist traditions in both America and the UK had become co–opted by Soviet influence and has now begun to blossom as the distinction between analytic and contintental philosophy continues to blur. (Roger Scruton is the only significant proponent of a right Hegelianism I can think of in English.)

8 I mention this in particular as it will be what will drive more and more people towards some Hegelian political project or another as the obvious failings of democratic–in–practice societies to govern and sustains themselves becomes clear.

9 I liked that, unusually for an old leftist, Doug Henwood actually understands what “My Back Pages” is about, enough to where he cut the song off with two stanzas remaining, and the last the most generally effective in the song. (The fourth, of course, is the perfect expression of what is going on at Occupy Wall Street.) There’s more I could say about Robin’s statements.

10 For two non–military examples: the CIA funding of avant–garde art as psyops or the continuing State Department promotion of critical race and gender theory in things like badgering the French educational system for being insufficiently egalitarian and propagandizing. For military examples… well, there’s a reason I think Robin was being disingenuous in that interview when he simply said that people call neoconservatives the “Trotskyites of the Right”, when they aren’t just called that, they really are Trotskyites and were explicitly following in the pattern of a postwar Trotskyite tendency to see the USA as the best possible instrument of permanent revolution. They certainly are not Straussians, however much they borrow from his methods when necessary.


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