Lex Anteinternet: Something in the wind, part 3 of 3. The rise of the radical populist right. Getting what you wish for.

Lex Anteinternet: Something in the wind, part 3 of 3. The rise of th...: 

Something in the wind, part 3 of 3. The rise of the radical populist right. Getting what you wish for.

Part Three of this series is brought to you by Giogia Meloni and Clarence Thomas.

Meloni and Thomas.¹

Thomas?

Yes, we'll explain down below, sooner or later.

In the first two parts of this three part series, I've looked at the election of Giorgia Meloni and the reasons for her rise. In the last episode, we tried to sum up the source of her popularity, and how that relates to a now, semi-fawning, American far right.  Italy has now gone down this path.  Others, now more than ever, are urging the United States to do the same.

Which bring up the dread Law of Unintended Consequences.

All of us probably heard our mothers, or somebody, give us the warning "Be careful what you wish for, lest it come true!"  Probably, few stop to realize that this warning was delivered by non-other than Aesop as far back as 260BC.  His sage advice has hung around for a good reason.  The danger of getting something more than you asked for, in terms of secondary effects, is always pretty high.  Nobody tends to think much about that, however.

Far right admirers of Meloni, or Orban for that matter, are disgusted with the "woke" drift of American progressivism and goals that it has, some of which have been quite successful, which seem to offer promise to countering that.  These folks, in many instances, are horrified by progressive efforts that seek to remodel every institution of society and even our basic natures, if they can, and they likely really cannot, which doesn't mean that they can't do a lot of damage in the effort.

But others, and indeed most, of the Americans who are on the Trump train are on it only for one or two reasons.  Some are there for economic reasons, upset by the export of American jobs overseas for decades and a rising tide of immigrants.  Others are horrified by the seeming triumph of the woke and the redefinition of marriage.  Probably most have a vague sense that this ain't the way things ought to be.²

And I agree.

This ain't the way things ought to be.

But, I'm a dreaded intellectual Catholic, the very sort of people that the founders of this Great Nation abhorred and dreaded, and which many in the culture still do. 

Some feel that this era has passed, and such distinctions no longer matter, but I wonder, and I'm not the only one.  Ross Douthat, regarding current American Conservatism, has posted the following on his Twitter account within the last few days.

Current American conservatism: a low-church nondenominational Protestant mass movement trying to exert influence via intellectual Catholics strategically placed inside hollowed-out/secularized institutions of high-church denominational Protestantism.

If you dig deeper into this, you'll find that folks like Douthat, and Catholic intellectual circles, are concerned that ultimately they are there to be used, but when the time comes, they'll be dumped.

Now this may be surprising in an era when the real intellectuals on the Supreme Court, for example, are all Catholics.  All of them.  And its no surprise that this is the case.  By their training, both in their Catechism, and in their profession, they have to be, and were probably always inclined in that direction.  It used to be, however, that this was also true of others of different backgrounds, and while saying it is definitely dangerous, as it can be so easily misunderstood, it's still true of observant Jewish individuals, such as the recently departed Justice Ginsberg, which is part of the reason she was so widely, and justifiably, admired.  

It's getting pretty hard, however, to find serious intellects of the same type who are coming out of what's become of mainstream American conservatism.  Yes, they are there, to be sure.  Mitch McConnell is one, no matter what you think of him.  He's a Baptist. John Hickenlooper is a Quaker. Ben Sasse is a Presbyterian who was once a Lutheran.  And I don't mean to suggest a person has to be Catholic, or even religious, to be a heavyweight intellect by any means.

Rather, what I'm suggesting is this.

A lot of those in the Trump populist right are basically adherents to a sort of intellectualism lite, and often participants in the American Civil Religion, which claims Protestant Christianity as its foundation, but which advances it in a very lenient fashion, omitting, in its current form, darned near all of the New Testament list of behaviors between male and female, and indeed between male and male, and female and female, of a certain category, that were listed as sinful.³

So again, if we're turning the clock back, as Chesterton says we can, who will be comfortable with that and who won't?

Let's get back to voting and what you get, in the end.

In the German elections of the early 1930s, some people really did want to elect a radical racist party into power that would kill the Jews and hopefully, in their line of thinking, punish the French and wipe out the Bosheveks whereever they could be found.

But most voters who went to the polls probably didn't really have sending their sons to freeze to death at Stalingrad or being asked to put a bullet into a rabbi's head, or crush the skull of a Jewish infant in with a rifle butt, in mind at the time.

Observant German Lutherans, over half the county's religious community, didn't imagine that they'd have to fight off an attempt to consolidate them into a state approved variant of their faith.  German Catholics didn't imagine they'd be hiding impaired children from thinly disguised euthanasia programs.

Italians, in the 1920s, didn't imagine, for that matter, that some twenty years later they'd be sending their sons to fight one of the best armies in the world in North Africa, and others to fight the Red Army in the East.

Benito Mussolini.  He was the authority.  All you would have to do to verify this would have been to ask him. . .

Oh, I know, some will read this (among the few who do) and dismiss it as wild hyperbole.  And, for that matter, I'm not saying that anyone is going to be freezing in a few years on the Volga.

What I am saying is that a lot of right wing populist truly talk the talk, but don't really walk the walk, and probably don't want to either.

I'm also saying it's hard, when you go shopping for really radical political movements, to buy just part of the pie.  I.e, it's hard to say "I'll have a think slice of immigration reform please" and not get "here's your populist pie, including a complete set of family values you aren't following. . . "

Which takes us back to Clarence Thomas and more particularly his dissent in Dobbs.

Now, the Dobbs decision is 213 pages long in the original reporter, and we can't expect everyone to have read it.  I haven't read it all, either. But Dobbs, we know, got the abortion topic right.  Roe v. Wade, as most constitutional scholars long ago admitted, just made stuff up that wasn't in the Constitution, and it had long prior become completely unworkable.  Dobbs just sent things back to the states, where they belonged in the first place.

The Dobbs majority was quick to point out, in the text, that it was in no way shape or form seeking to expand the holding in Dobbs beyond the opinion itself, and it in particular it was no threat to Obergefell.

Well, baloney.

That's the same thing Justice Kennedy said in Obergefell. At the time that decision was handed down, the Court indicated it wouldn't expand into anything else, and those advancing the cause that prevailed in Obergefell likewise promised they had nothing else on the agenda.  Obergefell was, as noted, in our opinion on it at the time, a judicial coup, one preceding the attempted January 6, 2021, coup, and one basically fed into the other.

Kennedy was wrong in his declaration, and those 

I write separately to emphasize a second, more fundamental reason why there is no abortion guarantee lurking in the Due Process Clause. Considerable historical evidence indicates that “due process of law” merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property. See, e.g., Johnson v. United States, 576 U. S. 591, 623 (2015) (THOMAS, J., concurring in judgment). Other sources, by contrast, suggest that “due process of law” prohibited legislatures “from authorizing the deprivation of a person’s life, liberty, or property without providing him the customary procedures to which freemen were entitled by the old law of England.” United States v. Vaello Madero, 596 U. S. ___, ____ (2022) (THOMAS, J., concurring) (slip op., at 3) (internal quotation marks omitted). Either way, the Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.” Reno v. Flores, 507 U. S. 292, 302 (1993); see also, e.g., Collins v. Harker Heights, 503 U. S. 115, 125 (1992).

As I have previously explained, “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution.” Johnson, 576 U. S., at 607–608 (opinion of THOMAS, J.); see also, e.g., Vaello Madero, 596 U. S., at ___ (THOMAS, J., concurring) (slip op., at 3) (“[T]ext and history provide little support for modern substantive due process doctrine”). “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment); see also United States v. Carlton, 512 U. S. 26, 40 (1994) (Scalia, J., concurring in judgment). The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion. 

The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, 381 U. S. 479 (1965) (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,” McDonald, 561 U. S., at 813 (opinion of THOMAS, J.). Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.” Ante, at 66.

For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment. Amdt.  14, §1; see McDonald, 561 U. S., at 806 (opinion of THOMAS, J.). To answer that question, we would need to decide important antecedent questions, including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights. See id., at 854. That said, even if the Clause does protect unenumerated rights, the Court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach. See ante, at 15, n. 22. 

You get the point.⁴ 

So here's the deal.  Thomas would strike down an entire series of substantive due process cases.  And indeed, his logic on this is infallible.  He's correct.⁵

And that's why I wonder, quite frankly, if rank and file populists have thought this out.

Once you board the logic train, you have to go where it goes.  It's like going on a transcontinental railroad trip. 

Once you board the logic train, you have to go where it takes you and you can't get off early.  It's like going on a transcontinental railroad trip.  You buy your ticket, and you can't pretend the train doesn't run all the way across the country and just stops, and turns around, in Denver.  You'll go through Denver. . . but the train will keep going.

The string of cases that Thomas mentions are in fact in peril now, and they likely also ought to be.  But Thomas didn't mention Loving v. Virginia.  Now, I think Loving v. Virginia can still be defended, and it undoubtedly can be on Natural Law grounds.

Loving v. Virginia was, you will recall, the case that determined that states couldn't ban interracial marriages.

Now most people, and certainly any decent people, would find that concept horrific.  Of course states can't ban interracial marriages. But they did, in some instances, up until that time.  It was Loving v. Virginia that struck that down.  Not too many people want to go back to that.

As critics of Dobbs have mentioned, as the state's can and have litigated in all of the areas that Thomas mentions, it's odd, sort of, that he omitted this one.  Well maybe not.  There's another way to address this case too, but it's still worth noting that this is the one area that would personally impact Thomas in a very direct way, and which is contrary to his personal worldview.

At the Wyoming State Bar convention, this came up during a speech by a constitutional scholar who also publishes in the Tribune. At some point during the speech, I don't know where, Harriet Hageman left the room, and she was apparently pretty disgruntled with what the speaker was saying, although I don't know that it was this. An email that circulated among Wyoming State Bar members later claimed that Hageman "heckled" the speaker, and the speaker perceived it that way, although many people disagreed with that characterization.  If nothing else, this all goes to show how uncomfortable people on the far populist right are with where this all leads.

The backdoor out of this is, as noted, Natural Law, but most populist really don't want to go there either.  

Natural Law has come up in American law repeatedly over the centuries, although now it is official eschewed. At one time it was not.  We've dealt with both of those themes here before, with the most interesting example of it being the case The Antelope, which we've written about at least twice.  That was the case in which the United States Supreme Court decided that slavery was contrary to the natural law, but allowable under the law of the United States as countries could legislate contrary to the natural law, to wit:

That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labor is generally admitted, and that no other person can rightfully deprive him of those fruits and appropriate them against his will seems to be the necessary result of this admission. But from the earliest times, war has existed, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was that the victor might enslave the vanquished. This, which was the usage of all, could not be pronounced repugnant to the law of nations, which is certainly to be tried by the test of general usage. That which has received the assent of all must be the law of all. 

Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent cannot be pronounced unlawful. 

Throughout Christendom, this harsh rule has been exploded, and war is no longer considered as giving a right to enslave captives. But this triumph of humanity has not been universal. The parties to the modern law of nations do not propagate their principles by force, and Africa has not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. Can those who have themselves renounced this law be permitted to participate in its effects by purchasing the beings who are its victims? 

Now, if somebody is wondering how this gets us out of this mess, it doesn't.  Under the holding in The Antelope, outlawing anything not mentioned in the Constitution, no matter how shocking, would be okay.

But following this, on more than one occasion, the Court referenced Natural Law in order to support a decision. At least as recently as the 1980s, the Court found that laws addressing homosexual conduction were allowable, as homosexuality was contrary to the Natural Law.  A Wyoming jurist found that laws banning adoption by homosexual couples were allowable for the same reason, and more recently than that.

Now, some are going to find that really shocking as well, but once again, if we're on the populist train, this is where that goes, and frankly most of those on the hard populist right, are okay with this.  I.e., that would cure the Loving v. Virginia problem, as banning marriage between heterosexual couples based on race is contrary to the Natural Law.

But the ancient law of humanity also tried to make sure that the same impulses that gave rise to marriage assured them.  Hence, the creation of the Common Law's common law marriage.  How many on the Trump train want to return to the days of the Heart Balm Statutes?

My guess is not many, and certainly not Trump himself, who is a serial polygamist.  

Now, I'm not here to judge people's morals by any means.  But this is a topic worth considering.  In the current political world we live in, we have a Senator who is divorced and remarried and at least one extremely right wing politician entering the legislature has a wife who was married before as well.  You can be guaranteed that some of those now running have openly lived lives involving cohabitation outside of marriage, as it is so common.  Are people really comfortable with a return to the old law on all of this?

Well, sincere Catholics, like me, might be. But this is a Protestant nation.  Here in town, there's a huge Protestant church that I think is "non-denominational" (I'm not completely certain).  Somebody I know who attends it is on their third marriage.  In the American Civil Religion, that seemingly doesn't cause problems, and I don't doubt that person's sincerity in attending.  But in American law, prior to the post World War Two Supreme Court trip that Justice Thomas complained, of, it would have.

Do people have this in mind?

Looking around, I really doubt it.  People seem to believe that the Constitution applies only to other people, not to themselves, or worse yet, they have a false belief about what the history of our laws and the Constitutional law really is.  In reality, at one time marriage was solely the province of the states, and they could allow or ban whatever they chose.  Restricting firearm carrying was pretty common, and the concept of "open carry" around town nonexistent.  Prohibiting members of certain races from certain neighborhoods through restrictive covenants completely allowable and in fact the norm.  The only way around that is the Natural Law, but the Natural Law brings in concerns that most Americans aren't really prepared to deal with, even remotely.

And if you are dabbling with concepts of Natural Law, you sooner or later are going to stray into concepts of Subsidiarity and the like.  Those concepts make most Americans squirm in their seats, at least if they aren't of the left.  Vest the economy entirely downwards, accept a lower standard of living for the middle class and the wealthy in favor of vesting the economy in families and elevating the poor.  Nobody too rich, and nobody too wealthy.  An economy that favors sustainability forever over one that does not.

Chesterton would have been comfortable with all of that.

Jefferson might have been.

Giorgia Meloni is probably comfortable with all of that.

Most Americans now. . . definately not.

Footnotes:

1.  Okay, Meloni's photo here, taken from a Reel, is unfair.  She's an effective speaker and clearly highly intelligent, as is Thomas.  This illustrates, however, how Italian politics isn't American politics, gushing from Ted Cruz and Marjorie Taylor Greene aside.  Meloni is an intellectual, if perhaps a somewhat scary one, compared to Cruz and Greene, and Thomas is definately an intellectual.  Greene and Cruz certainly dont' seem to be, and frankly some or perhaps a lot of their positions wouldn't square with either Meloni's or Thomas'

Added to that, Meloni is a politician in a  unique Italian environment where things are done, said, or portrayed that definately would never be here.

2.  This is the source, I think, of the lot of election discontent.

It's also the source of a lot of election denialism. The thought is that "people can't have really voted for Biden, as people can't really be for. . . ".  In another form, which isn't the same, its "votes for Biden can't count, as what he stands for is vile, and therefore. . . "

Almost lost in all of this is the fact that Trump lost the popular vote twice.  His first election was only legitimate, and it was legitimate, due to the artifact of the electoral college.  Of course, this causes people to unthinkingly babble "we aren't a democracy" (we are) "but a republic".  I've addressed that elsewhere, but using that as an argument shows that the person advancing a point is largley ignorant of what they're trying to advance.

3.  It might be worth noting here that fully 1/3d of American Evangelical Protestants believe the United States Constitution, which never mentions God, was inspired by God.  The newly appointed interim Wyoming Secretary of State has publicly taken this position in his campaign material.

For reasons that are partially addresssed in this essay, that's a fairly startling and scary proposition.  Traditional Christianity holds that inspired texts cease with the end of the Apostolic Age, at which point there were no more general revalations.

4. It should be noted, and will be later in the text, that even if Thomas' logic is correct on the cases he mentions, he's only commenting in regard to procedural due process. For that reason, his comments have been read to probably mean more than they should be.

I'll address Loving v. Virginia below, but Griswald v. Connecticut is another such example.  Even if Thomas' criticism of the case in a procedural due process context are correct, it doesn't address Federal Supremacy might mean that the Federal Government has completlely dominated the field here to the detriment of indivdual states through the laws pertaining to pharmacueticals.

5.  But see footnote 4.

Prior Related Threads:

Something in the wind, part 1 of 3. The rise of the radical populist right. A second look at the Italian election. . . and a bunch of other stuff.

Something in the wind, part 2 of 3. The rise of the radical populist right. A second look at the Italian election. . . and a bunch of other stuff.