Thanks to Mr. Magness for this post. It's very clarifying. On first reading I'm spotting two root themes: (1) The post 9/11 exploitation of the "state of exception," which gives the Executive exclusive powers to be deployed at times of its own choosing; (2) The targeting of Lockean individualism as a fatal flaw in the American founding framework.
I think it's crucial to recognize that both these illiberal themes are facially cogent and reasonable. It is not hard to imagine a "state of exception" so dire that citizens would overwhelmingly approve an unconstitutional exercise of power when there was no realistic alternative for preserving the State. And Locke's portrait of the person is indeed incomplete in essential ways, as the communitarian implications of modern social science have amply demonstrated and as the Founders themselves would have granted, given the social and religious experiences common in the 18th century.
Philosophically speaking, the 20th century American response to these defects in Constitutionalism (if "defects" they are -- better to call them "limits") was to approach them in the spirit of American Pragmatism, acknowledging that there can be no perfect and frozen blueprint for human government, but that a robust and generally successful framework can be protected from its defects through conservative concessions to the need to respond to constantly emerging stresses presented by a changing world. Those concessions would be enshrined with close to Constitutional force as legal precedents, ultimately (if necessary) set by and overturnable by Supreme Courts. This approach was, for a time, recognized as "Legal Realism," and (if I recall) was inspired by both the philosophy of John Dewey and the jurisprudence of Oliver Wendell Holmes Jr.
We are getting a very clear lesson today in the defects of the Schmittian approach of Vermeule's legal theories -- so far, our only blessing is that the sickness of our Chief Executive is largely expressed through personal whim on the scale of Mussolini, rather than of Hitler, but the door has been opened for an unlimited and ongoing descent. As for the communitarian emergencies that Deneen identifies (which have been amply documented by sociologists such as Robert Putnam Anne Case, Angus Deaton, Jonathan Haidt, and many others), these do not seem to me to be the products of the limits of our Lockean Constitution at all -- the communitarian structure of American life flourished side by side with legal individualism for two centuries. They are products of increasingly rapid social and technological change in a capitalist system and need to be addressed through personal, community, local, and larger governmental policies within the framework of a Constitution that protects our ability to figure out these issues organically, rather than by fiat from an Executive, which could (just to offer a hypothetical) be composed of venomous sociopathic fools.
Late edit to an overlong post: I should have prolonged this by saying that I think the "beauty" of Originalism for illiberal post-Constitutionalism, is that if you adopt the theory you can demonstrate the inadequacy of the Constitution and promote its effective overthrow. That's why seeding the Supreme Court with Originalists and then bringing cases to it to overthrow pragmatic precedents has been effective in transforming America into a dysfunctional State.
An excellent article and important exercise in these illiberal times. Reading this series helps me connect data points that previously seemed to exist in separate alternate realities, let alone on different planes. It strikes me as impossible that my conservative grandmother could simultaneously claim to venerate the founding fathers while belonging to a political movement treats Madisonian separation of powers with outright contempt. Given that she married someone whose parents died in the holocaust, it is similarly galling that she would support a philosophy that originated with Carl Schmitt. Such are the times we live in I guess.
It's remarkable how much of postliberalism horseshoes into leftism:
-Claims that there's no such thing as neutral rules, therefore it's acceptable to ignore them and openly act solely in the interest of your favored groups.
-Holds that people are members of collectives first and individuals second.
-Economics is fake and was invented to turn the people against them, which is why their populist movement is inexplicably unpopular.
-Deflects criticism by demanding that all comment come from people who have read a vast and vaguely-defined body literature.
https://chicagounbound.uchicago.edu/journal_articles/10391/
Unrelated, would be interesting to see a full-throated defense of originalism as a form of liberalism. People would love that
Thanks to Mr. Magness for this post. It's very clarifying. On first reading I'm spotting two root themes: (1) The post 9/11 exploitation of the "state of exception," which gives the Executive exclusive powers to be deployed at times of its own choosing; (2) The targeting of Lockean individualism as a fatal flaw in the American founding framework.
I think it's crucial to recognize that both these illiberal themes are facially cogent and reasonable. It is not hard to imagine a "state of exception" so dire that citizens would overwhelmingly approve an unconstitutional exercise of power when there was no realistic alternative for preserving the State. And Locke's portrait of the person is indeed incomplete in essential ways, as the communitarian implications of modern social science have amply demonstrated and as the Founders themselves would have granted, given the social and religious experiences common in the 18th century.
Philosophically speaking, the 20th century American response to these defects in Constitutionalism (if "defects" they are -- better to call them "limits") was to approach them in the spirit of American Pragmatism, acknowledging that there can be no perfect and frozen blueprint for human government, but that a robust and generally successful framework can be protected from its defects through conservative concessions to the need to respond to constantly emerging stresses presented by a changing world. Those concessions would be enshrined with close to Constitutional force as legal precedents, ultimately (if necessary) set by and overturnable by Supreme Courts. This approach was, for a time, recognized as "Legal Realism," and (if I recall) was inspired by both the philosophy of John Dewey and the jurisprudence of Oliver Wendell Holmes Jr.
We are getting a very clear lesson today in the defects of the Schmittian approach of Vermeule's legal theories -- so far, our only blessing is that the sickness of our Chief Executive is largely expressed through personal whim on the scale of Mussolini, rather than of Hitler, but the door has been opened for an unlimited and ongoing descent. As for the communitarian emergencies that Deneen identifies (which have been amply documented by sociologists such as Robert Putnam Anne Case, Angus Deaton, Jonathan Haidt, and many others), these do not seem to me to be the products of the limits of our Lockean Constitution at all -- the communitarian structure of American life flourished side by side with legal individualism for two centuries. They are products of increasingly rapid social and technological change in a capitalist system and need to be addressed through personal, community, local, and larger governmental policies within the framework of a Constitution that protects our ability to figure out these issues organically, rather than by fiat from an Executive, which could (just to offer a hypothetical) be composed of venomous sociopathic fools.
Late edit to an overlong post: I should have prolonged this by saying that I think the "beauty" of Originalism for illiberal post-Constitutionalism, is that if you adopt the theory you can demonstrate the inadequacy of the Constitution and promote its effective overthrow. That's why seeding the Supreme Court with Originalists and then bringing cases to it to overthrow pragmatic precedents has been effective in transforming America into a dysfunctional State.
An excellent article and important exercise in these illiberal times. Reading this series helps me connect data points that previously seemed to exist in separate alternate realities, let alone on different planes. It strikes me as impossible that my conservative grandmother could simultaneously claim to venerate the founding fathers while belonging to a political movement treats Madisonian separation of powers with outright contempt. Given that she married someone whose parents died in the holocaust, it is similarly galling that she would support a philosophy that originated with Carl Schmitt. Such are the times we live in I guess.
It's remarkable how much of postliberalism horseshoes into leftism:
-Claims that there's no such thing as neutral rules, therefore it's acceptable to ignore them and openly act solely in the interest of your favored groups.
-Holds that people are members of collectives first and individuals second.
-Economics is fake and was invented to turn the people against them, which is why their populist movement is inexplicably unpopular.
-Deflects criticism by demanding that all comment come from people who have read a vast and vaguely-defined body literature.
-Frequently blames the Koch brothers for things.
Thanks for this excellent work of intellectual garbage collection