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Changing The Supreme Court: The Real Problem

by Christopher Chantrill
October 09, 2005 at 8:13 pm

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THE CONSERVATIVE argument over the nomination of Harriet Miers to be associate justice on the Supreme Court is just like the Allied argument in the fall of 1944.

After the breakout from Normandy the British General Montgomery wanted to end the war by getting his Army Group 21 into Germany first with a bold left hook through the Low Countries. The American General Patton had the same idea. He wanted to end the war by getting his Third Army into Germany first with a bold right hook across the Rhine. But their boss, General Eisenhower, chose to advance towards Germany on a broad front, and rejected the high-risk plans of his subordinates. Ever since, military experts have criticized Ike for his timidity and lack of imagination.

In the Supreme Court battle, it’s the hot-shot Federalist Special Forces that want to assault the vital liberal citadel, the Supreme Court, in a daring coup de main. But President Bush has decided against such a risky scheme. He has chosen the Eisenhower strategy, and nominated Harriet Miers to the court. The Special Forces guys are fit to be tied.

But how smart is the ruthless coup de main strategy? Citadels cannot be successfully held or defended unless you have infantry all around them. That was the lesson of the Belgian fortresses in 1914, and the same lesson applies to the Supreme Court in 2005. Republican presidents have successfully infiltrated conservatives into the court time and again. But because conservatives on the court are surrounded by a liberal legal culture they find it very difficult to hold out against the endless siege of liberal opinion. Most of them give up.

The conservative raiding strategy for the Supreme Court is not a strategy, it is a tactic. The only way to achieve a conservative court for the long term is to change the legal culture of the United States. That, of course, is a much bigger, and much harder task than the decisive tactics of the coup de main. It requires conservatives to win the argument of ideas not just in economic policy and in national politics, but in the moral-cultural sector as well. It is with the moral-cultural sector that conservatives have their big problem.

F.S.C. Northrop pointed out 50 years ago that Anglo-Americans are fighting the battle of ideas with the seventeenth-century ideas of Locke and the eighteenth-century ideas of Burke while our opponents are fighting with the cultural ideas of the twentieth century, the precipitate of two hundred years of German philosophy. Look at the great cultural edifices of the present era. Compulsory education comes from Prussia. The research university comes from Prussia. Social insurance and pay-as-you-go pensions come from Imperial Germany. Modern science comes from Kant’s idea that we can’t know things-in-themselves, only appearances. Modern psychology? It’s German.

All these themes come together in the central article of liberal faith that a creative life is a Life, while a life of creating children is a cop-out.

This revolutionary program also took on the noble project of Anglo-American constitutionalism and irradiated it with postmodernism, an invention of French poseurs, it’s true, but founded on German ideas. Middle-class constitutional democracy wasn’t about the rule of law or a high-minded separation of powers, they said, it was a cunning bid for power. All knowledge was a narrative of power, an apology for the ruling elite and its shameful path to power.

Conservatives think that all this is ridiculous—a politically correct fantasy that no sensible person would consider for a moment. The trouble is that sensible people do believe it. Not only do they believe it, they proselytize it throughout the culture: in the government schools, in the elite universities, and above all in entertainment and the arts. Conservatives cannot easily hold the Supreme Court until they conquer and hold the cultural territory around it.

Conservatives must master the German canon. Then we can use the liberals’ weapons against them. Could it be, we could ask as conservative postmodernists, that the whole liberal narrative of the last century—the noble government programs for education, health, pensions, environment, even perhaps civil rights—amounts to nothing but a crude apology for power?

Conservatives will be able to dominate the Supreme Court when and only when we have cured liberals of their cultural confidence.

To do this, we need a conservatism rooted not just in the ideas of the founders, but expert in the ideas of the German tradition, the ideas that were used to marginalize us over the century of socialism from 1850 to 1970 and in the culture to this very day. Then we will win the culture war not in bloody confirmation battles in the United States Senate but in the way recommended by the great masters of strategy—by defeating our adversaries without even the need for battle.

Christopher Chantrill blogs at americanmanifestobook.blogspot.com.

Buy his Road to the Middle Class.

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Faith & Purpose

“When we began first to preach these things, the people appeared as awakened from the sleep of ages—they seemed to see for the first time that they were responsible beings...”
Finke, Stark, The Churching of America, 1776-1990

Mutual Aid

In 1911... at least nine million of the 12 million covered by national insurance were already members of voluntary sick pay schemes. A similar proportion were also eligible for medical care.
Green, Reinventing Civil Society

Education

“We have met with families in which for weeks together, not an article of sustenance but potatoes had been used; yet for every child the hard-earned sum was provided to send them to school.”
E. G. West, Education and the State

Living Under Law

Law being too tenuous to rely upon in [Ulster and the Scottish borderlands], people developed patterns of settling differences by personal fighting and family feuds.
Thomas Sowell, Conquests and Cultures

German Philosophy

The primary thing to keep in mind about German and Russian thought since 1800 is that it takes for granted that the Cartesian, Lockean or Humean scientific and philosophical conception of man and nature... has been shown by indisputable evidence to be inadequate. 
F.S.C. Northrop, The Meeting of East and West

Knowledge

Inquiry does not start unless there is a problem... It is the problem and its characteristics revealed by analysis which guides one first to the relevant facts and then, once the relevant facts are known, to the relevant hypotheses.
F.S.C. Northrop, The Logic of the Sciences and the Humanities

Chappies

“But I saw a man yesterday who knows a fellow who had it from a chappie that said that Urquhart had been dipping himself a bit recklessly off the deep end.”  —Freddy Arbuthnot
Dorothy L. Sayers, Strong Poison

Democratic Capitalism

I mean three systems in one: a predominantly market economy; a polity respectful of the rights of the individual to life, liberty, and the pursuit of happiness; and a system of cultural institutions moved by ideals of liberty and justice for all. In short, three dynamic and converging systems functioning as one: a democratic polity, an economy based on markets and incentives, and a moral-cultural system which is plural and, in the largest sense, liberal.
Michael Novak, The Spirit of Democratic Capitalism

Action

The incentive that impels a man to act is always some uneasiness... But to make a man act [he must have] the expectation that purposeful behavior has the power to remove or at least to alleviate the felt uneasiness.
Ludwig von Mises, Human Action

Churches

[In the] higher Christian churches... they saunter through the liturgy like Mohawks along a string of scaffolding who have long since forgotten their danger. If God were to blast such a service to bits, the congregation would be, I believe, genuinely shocked. But in the low churches you expect it every minute.
Annie Dillard, Holy the Firm

Conversion

“When we received Christ,” Phil added, “all of a sudden we now had a rule book to go by, and when we had problems the preacher was right there to give us the answers.”
James M. Ault, Jr., Spirit and Flesh

Living Law

The recognition and integration of extralegal property rights [in the Homestead Act] was a key element in the United States becoming the most important market economy and producer of capital in the world.
Hernando de Soto, The Mystery of Capital

presented by Christopher Chantrill

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