POLITICS AND LAW

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As we learn from Aristotle, man is the political animal because he is the rational animal—the speaking animal who gives and receives reasons for his actions. This makes engagement in politics, the arena where such reasons are debated, natural for humankind. We sometimes forget that Aristotle’s Nicomachean Ethics, devoted to the question of the virtuous life, is the first half of the political science that he concludes with his Politics. Politics and law, as Robert P. George observes in his essay “Five Pillars of a Decent and Dynamic Society,” are “necessary because none of us is perfectly virtuous all the time,” and because some overarching authority must be responsible for the common good. Hence, politics and law form the third pillar of a good society.

In this sense, politics—understood as debate and decision on the just and the unjust—is the architectonic science (or art, if you like) for human beings. As the architect brings order and design to the whole business of building a house, acting more comprehensively than carpenters, plumbers, and electricians, so does the statesman—particularly the founding lawgiver—impart order and design to the polity, setting its fundamental shape, principles, and direction. This should not be taken to mean that the other pillars of a flourishing society are simply subsumed or absorbed in the authority of the government. That would constitute totalitarianism. The dignity of the individual human person, and the crucial importance of the family, have their own non-negotiable integrity that cannot be simply subject to political control. Likewise, educational institutions and business firms, which give a society much of its dynamism, are not, in well-ordered polities, mere instruments of government power.

Hence, a just society is one in which a government does not bind all persons, families, institutions of civil society, and actors in the marketplace to itself as subservient features of an all-pervading authority. Instead, it honors and protects the inherent equal dignity of all persons, safeguards the family as the primary school POLITICS AND LAW

of virtue, and seeks justice through the rule of law. In this way, a government can avoid arbitrariness, untrammeled self-interest, or the excessive dominance of any one social element in the community.

Over the past ten years, we at Public Discourse have published a rich variety of essays on subjects political and legal, all animated by the sober recognition that nothing less is at stake than justice and the common good in our life together. The subject may be the place of religion in America’s constitutional law—as in Michael Stokes Paulsen’s article, reprinted here. Or it may be the future of conservative principles in an age of disruption in our political system—as we see in Justin Dyer’s contribution. Or it may be the role of simple due process in the humble environs of a local traffic court, as hilariously recounted by Adam MacLeod. Or, in the case of my own contribution to this small selection of essays, the subject might be the role that symbols and history play in the still painful process of racial reconciliation in America.

These and many more essays, on our laws and institutions, on our parties and elections, on our domestic and foreign policies, and on the fundamental principles of our political order, are here for you in the Public Discourse archive. Some will no doubt feel a little dated by the passage of time and the rush of events. But even those snapshots in political life at a certain moment are written to situate events in our political life in a full mosaic of durable meaning.

That attention to what is permanently of interest in discussions of the common good has always animated Public Discourse. It’s where we’ve always been, and where we’ll keep on going.

Matthew J. Franck is Associate Director of the James Madison Program in American Ideals and Institutions and Lecturer in Politics at Princeton University, and a Senior Fellow at the Witherspoon Institute, where he directs the Simon Center on Religion and the Constitution and serves as a contributing editor of Public Discourse. POLITICS AND LAW

That Time I Turned a Routine Traffic Ticket into the Constitutional Trial of the Century

BY ADAM J. MACLEOD

Laws that give municipal officials and their private contractors power to issue tickets via traffic cameras confer powers of both criminal and civil law while excusing them from the due process duties of both criminal and civil law. POLITICS AND LAW

The traffic-camera ticket: like a parking ticket, it looks lawful enough. When they receive one, most people simply write the check. It seems like the sensible and law-abiding thing to do.

But this is not a parking ticket. In legal terms, it is not a proceeding in rem—against your car. It is a legal action against you personally. And before you pay the fine, you might want to hear my story.

My story is not legal advice. I offer it only to show how our ruling elites have corrupted the rule of law and to suggest why this matters for the American experiment in self-governance.

THE TICKET

My story begins with a confession: I got a traffic- camera ticket. An affidavit signed by a Montgomery City police officer, it averred that I had committed a particular traffic violation on a certain date, at a certain time and location. It showed a photograph of one of our family vehicles. It charged me with a “civil violation” of “criminal law.”

I wasn’t driving the car. In fact, at the time I was in a faculty meeting at the law school where I teach. Thus, I decided to challenge this injustice on the principle of the thing.

MUNICIPAL COURT

On the appointed day, I tromped over to municipal court and sat down among those accused of armed robbery, drug dealing, and other misdeeds. After an hour, a bailiff emerged to herd into a corner of the courtroom those of us who had appeared for the slightly more respectable offense of owning a speeding vehicle. We waited some more, first for the clerk, and then to be called individually to meet the clerk. Those of us who requested a hearing (evoking an exasperated, poor-idiot-thinks-he’s-Perry-Mason expression) then waited for a magistrate to show up. Then we each waited our turn to appear before the magistrate.

After a summary hearing, the magistrate ruled against me. So I appealed to the county-level Circuit Court.

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Actually, I tried to appeal. The clerk’s office made me wait in the lobby. When they finally saw me, they insisted that I provide a criminal appeal bond. But I wasn’t convicted of a crime, I protested. No matter. No appeal bond; no appeal.

No, we don’t accept checks. Come back with the amount of your ticket in cash. I found an ATM and returned, only to be left waiting in the lobby again. When I was readmitted, I saw a different employee who insisted on twice the amount of the ticket in cash. I left and returned again.

More waiting.

THE CITY ATTORNEY

Next, I called the City Attorney to see if she really wanted to go through with this. She did. One does not One does not expect expect municipal officials to be paragons of lawfulness. municipal officials to be But it is a bit jarring to encounter a City Attorney who paragons of lawfulness. evinces no interest in, much less knowledge of, her But it is a bit jarring to constitutional duties. encounter a City Attorney who evinces no interest in, I asked her whether this was a criminal action or a civil action. She replied, “It’s hard to explain it in those terms.” much less knowledge of, I asked whether she intended to proceed under criminal her constitutional duties. procedural rules or in civil procedure. We would proceed under the “rules of criminal procedure,” she answered because this is a criminal case. I asked when I could expect to be charged, indicted, or have a probable cause determination. She replied that none of those events would occur because this is “a civil action.” So I could expect to be served with a complaint? No, no. As she had already explained, we would proceed under the criminal rules.

(For the record, the Montgomery City Attorney never studied law with me.)

She asserted that I had violated the “rules of the road” and explained, “You were caught on camera speeding.” I asked her for any evidence. She replied that she did not need evidence. I was deemed liable because an automobile that I own “was caught speeding.” But the complaint is against me, I noted, not my car. But I am liable, she insisted, because I loaned my vehicle to “someone who speeds.”

I asked where in the laws it prohibits me from loaning my vehicle, and how I am to know in advance that any particular person is going to speed using my car. Agitated by my “semantics,” she advised me to raise any due process issues with the trial court.

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[*click*]

This was going to be fun.

THE TRIAL

Before the trial, I moved to dismiss the case. I wanted the judge to pay attention, so I tried to make the motion interesting. Okay, maybe “interesting” isn’t the best word. It was over the top. I alluded to Hobbes and Locke. I quoted the Declaration of Independence. I suggested the success of the American experiment was at stake. I resorted to superlatives. You know: all the stuff I teach my law students never to do.

We proceeded to trial. The city produced one witness, the police officer who had signed the affidavit. On direct examination, he explained how the traffic camera system works. A corporation in another state called American Traffic Solutions operates the camera system, chooses the photographs on which to predicate enforcement, recommends the Montgomery police department initiate an action against a vehicle’s owner, and is paid for its work.

On cross-examination, I established that:

- He was not present at the time of the alleged violation. - He has no photographic evidence of the driver. - There were no witnesses. - He does not know where Adam MacLeod was at the time of the alleged violation.

And so on. I then asked the question one is taught never to ask on cross—the last one. “So, you signed an affidavit under the pains and penalties of perjury alleging probable cause to believe that Adam MacLeod committed a violation of traffic laws without any evidence that was so?”

Without hesitating he answered, “Yes.” This surprised both of us. It also surprised the judge, who looked up from his desk for the first time. A police officer had just testified under oath that he perjured himself in service to a city government and a mysterious, far-away corporation whose officers probably earn many times his salary. The city then rested its case. I renewed my motion to dismiss, which the judge immediately granted.

Vindication! Well, sort of. When I tried to recover my doubled appeal bond, I was told that the clerk was not authorized to give me my money. Naturally, the law contains no procedure for return of the bond and imposes on the court no duty to return it. I was advised to write a motion. Weeks later, when the court still had not ruled on my motion, I was told I could file

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a motion asking for a ruling on my earlier motion. Bowing to absurdity, I did so. Still nothing has happened now several months later.

WHY THIS MATTERS

Traffic camera laws are popular in part because they appeal to a law-and-order impulse. If we are going to stop those nefarious evildoers who jeopardize the health of the republic by sliding through yellow lights when no one else is around and driving through empty streets at thirty miles per hour in twenty-five zones, then we need a way around such pesky impediments as a lack of eyewitnesses.

Yet traffic cameras do not always produce probable cause that a particular person has committed a crime. To get around this “problem” (as a certain law-and-order president-elect might call it), several states have created an entirely novel phylum of law: the civil violation of a criminal prohibition. Using this nifty device, a city can charge you of a crime without any witnesses, without any probable cause determination, and without any civil due process. In short, municipal officials and their private contractors have at their disposal the powers of both criminal and civil law and are excused from the due process duties of both criminal and civil law. It’s a neat trick that would have made King George III blush.

STANDING AND THE FUNDAMENTALS OF CONSTITUTIONALISM

Equally troubling is that the municipality is authorized to make the owner answer a civil suit without any standing. Standing is a requirement for a person who wishes to enlist a state’s judicial power against another person. No fellow citizen can haul you into court without first alleging that you wrongly caused some particular injury to that person.

A city cannot lawfully do to you what your fellow citizen cannot do to you. And it has no standing if it has suffered no particular injury. If a driver rolls through a yellow light at an empty intersection and fails to cross the line before the light turns red, no one is injured, least of all the city.

In my case, the City Attorney argued that my city has standing because someone exceeded the speed limit while driving my car and thereby breached his or her duty to obey the law.

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Certainly, all citizens have a duty not to break criminal laws with culpable intent. But we owe that duty neither to the city nor to the state but to each other. If we breach the duty, the city prosecutes on behalf of the people and must afford us criminal due process.

That is American Constitutionalism 101.

THE MAYOR

The story continues. Lovers of liberty in Alabama kept political pressure on the state legislature, and earlier this year the legislature repealed the traffic-camera law. Yet Montgomery’s defiant mayor announced thatthe city would continue to operate the program. Curiously, he asserted that to stop issuing tickets would breach the city’s contract with American Traffic Solutions. One wonders how many tickets the city is contractually obligated to issue. Finally, after the Attorney General told him to knock off the foolishness, the mayor backed down. Sort of.

The city will no longer use car-based cameras, though Finally, after the Attorney it will continue to use stationary cameras mounted General told him to knock at intersections. In a fit of petulance, and belying his off the foolishness, insistence that the program is motivated by safety the mayor backed down. concerns rather than revenue, the mayor announced that Sort of. the amounts of fines for ordinary traffic violations will now be tripled.

A SMALL INCONVENIENCE, A BIG PROBLEM FOR SELF-GOVERNMENT

Traffic-camera laws seem like such minor, insignificant intrusions on liberty that few grasp their constitutional significance. But they reflect a profoundly mistaken view of American constitutionalism. One might say that the traffic camera is a sign of our times. Its widespread use and acceptance reveals how far we have drifted from our fundamental commitment to self-government. When our governing officials dismiss due process as mere semantics, when they exercise powers they don’t have and ignore duties they actually bear, and when we let them get away with it, we have ceased to be our own rulers.

Adam MacLeod is an associate professor at Faulkner University’s Thomas Goode Jones School of Law and author of Property and Practical Reason (Cambridge University Press).

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The Legacy of White Supremacy: Why Confederate Monuments Should Come Down

BY MATTHEW J. FRANCK

It is a natural thing for southerners to be drawn to Lee’s memory and to look up in admiration at a statue in his likeness. But the fact remains: such statues say to black Americans, in the voice of the unreconstructed white majority, “We’re back in charge, and don’t you forget it.” POLITICS AND LAW

Many years ago, as a young assistant professor in Virginia, I began to write occasionally for one of the daily newspapers in the state, contributing guest opinion columns from a conservative point of view. I had a pretty good track record of the paper accepting whatever I sent in, even though the editors were standard-issue liberal journalists. But one time—I think the only time—the paper declined to publish one of my essays was when I sent a draft on the causes and legacy of the Civil War, in which I compared Robert E. Lee to Erwin Rommel, the great field marshal of Hitler’s Third Reich.

What they had in common, I argued, was that both had served with distinction as military commanders in service to the most despicable political ideologies. But Rommel had turned against the Reich, had been implicated in the conspiracy to assassinate Hitler in 1944, and after its failure had been compelled to take his own life. Lee, however bravely he fought and whatever might be said of his conciliatory conduct after his surrender at Appomattox Court House, had stayed true to the bad cause of the Confederacy as long as it lasted.

The editors of the newspaper used good judgment when they turned down the piece. No doubt they saved me a good deal of hate mail, and a good deal of trouble from my neighbors and even my students (my liberal faculty colleagues would not have been the least bit upset). The Lee-Rommel comparison was a needless provocation on my part, evidence of a youthful taste for shocking people’s sensibilities that I have—mostly—gotten over.

WHAT DO STATUES OF CONFEDERATE HEROES SAY?

To this day, admiration for Lee still runs very high in the American South. This is especially true among more conservative whites, most especially if they themselves have ancestors who fought for the Confederacy. In the South, the enduring image of Lee is that of a Christian gentleman, a gallant soldier, and one of the most brilliant generals of any age. In the terrible conflict of the Civil War, the South was outmanned and outgunned, but thanks above all to Lee, it was not out-generaled, at least not until the ascendancy of Grant and Sherman. Hence it is a natural thing for southerners to be drawn to his memory and to look up in admiration at the many statues of him that dot the region.

But what do these mute statues and monuments—to Lee, to Stonewall Jackson, to the memory of other officers and soldiers of the Confederate army—really say in their own

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right? That is, setting aside any disagreements over Lee the man (who died in 1870, after all)—what do the statues of Lee and the others communicate?

We may place to one side of this question those memorials and monuments that appear in southern cemeteries. There the memories of the dead are a commingling of pride, tragedy, mourning, and love of one’s own—the stuff of elegies since men began to fight wars. But what of the heroic statuary placed in parks, on the broad avenues of southern cities and towns, in the central squares and plazas?

But what of the heroic statuary placed in parks, on the broad avenues of southern cities and towns, in the central squares and plazas?

These are the flashpoints of controversy today, and rightly so. For understood in reference to their sordid origin, these statues were meant to say to black Americans, in the voice of the unreconstructed white majority, “We’re back in charge, and don’t you forget it.”

In what other country have the vanquished been permitted by the victors to erect public monuments to their heroes? The typical Lee or Jackson statue is an artifact of the period after the collapse of Reconstruction in 1877, when white supremacists themselves became the victors in the southern states once again. Whether they propagated the “New South” mythology—the lie—that the protection of slavery had not been the cause of secession, or clung to the hard-boiled “Lost Cause” defense of slavery itself, what the ruling whites of the post-Reconstruction South had in common was a devotion to their superior political and social position, which meant keeping the black race down, by law, by privation, and by violence.

In his most recent book, the Civil War historian James McPherson offers the startling thought that when Ulysses S. Grant said “Let us have peace” in accepting the 1868 Republican nomination for president, our country “had not known real peace since the outbreak of war with Mexico in 1846.” The acquisition of new territory from Mexico had sharpened partisan discord over the potential spread of slavery, which “subsided with the Compromise of 1850 but flared up again after passage of the Kansas-Nebraska Act in 1854.” Then came “bleeding Kansas,” with hundreds dead, followed by John Brown’s raid on Harpers Ferry in 1859, itself

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followed by the war that cost three quarters of a million dead from 1861 to 1865, in turn followed by the disastrous administration of Andrew Johnson.

But Grant was not to have peace during his eight years as president. He constantly had to battle the Klan and other white-supremacy terrorists who kept the South in violent turmoil. “Peace,” when it came under Grant’s successor Rutherford B. Hayes after the disputed electoral-vote count of 1876, came at the price of justice for black citizens of the South, when federal troops were all withdrawn from the region. The Union was intact, and chattel slavery was gone as a legal institution, but the Jim Crow regime of segregation, subjugation, and disenfranchisement arrived with a vengeance.

That is when most of the statues of Lee and the other prominent monuments to the Confederacy and its military leaders began to become a feature of the southern landscape. Their message was unmistakable then, and should not be forgotten or whitewashed today.

SPEAKING TRUTH WITH RESPECT

All of us who have lived in the South, and many who have not lived there but have southern friends, know defenders of the Lee-Jackson-Confederacy monuments. We know defenders whom we call friends, who are reasonable people and lovers of country—of the United States, not of the Confederate States of America—and we know that such people aren’t racists. We can understand, even if at some distance, what “mystic chords of memory” (if we may borrow from Abraham Lincoln) pluck at their hearts when they think of the courage of their ancestors under the banners of the rebel South.

It can therefore feel like we are gratuitously slapping our friends in the face if we point out to them that the cause of rebellion was the cause of treason to the United States and that it was grounded in the still worse cause of perpetuating the enslavement of millions of human beings. This is why my Lee-Rommel comparison was justly rejected by those Virginia newspaper editors. It was just too hard a slap.

Yet there is truth in saying this to them. Can we respect our friends’ devotion to the memory of courageous forebears and affirm their impulse to honor their sacrifices on the battlefield? If Grant could do it—and he did—then so can we. That’s why we can and must resist the impulse to “cleanse” the whole country of all its monuments to those who fought for the South. The Confederate cemetery should be left alone, and so too, I think, should the obelisk in a small town’s square that merely names the war dead from that community (even if

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we wince to read, in the accompanying text, references to the glorious cause for which they fought).

But our friends of good will who wish to preserve something of all this should be willing to give up something too. That something should be the prominent statues and monuments in the great open spaces of our communities that we share with all our fellow citizens. For these are in their turn a gratuitous slap in the face of people who have felt the sting too much already. For a white Yankee like me, they’re bad enough. For black Americans, they must be intolerable. Large and forgiving natures might look on the statues now as relics of an ugly past that the country has in many ways overcome, fading into the background of noisy traffic in the modern, bustling South. But recent events in Charlottesville suggest that this overcoming is by no means a finished business. The statues should go, in order to deprive today’s feckless white supremacists of rallying points at the feet of monuments erected by yesterday’s more successful white supremacists.

NO SLIPPERY SLOPE

For his part, President Trump is sorely mistaken to suggest that there is a slippery slope from removing Lee and Jackson statues to removing the monuments that celebrate slave- owning founders like George Washington and Thomas Jefferson. Debates about the personal morality and the political legacy of such founders are very much worth having. But the defining moments of their lives, and the pivotal causes around which they organized their political careers, were about the advancement of human freedom and progress toward the realization of equality.

These men gave us the Declaration of Independence and the Constitution, and they were leaders of the generation that built the institutions that could survive the cataclysm of the Civil War and win through to a “new birth of freedom.” Lee and Jackson, for their part, led the armies of a government that set its face against the Declaration and the Constitution, grounding itself on the claim—the “cornerstone” of the Confederacy—that the black race was inferior to the white, and that the latter should forever govern the former without its consent. Understanding the principled difference between the founding generals and statesmen of the United States—including the slave owners—and the founders and generals of the Confederate States can give us a bulwark against the slippage that President Trump evidently fears. No one ever erected a statue of George Washington in order to communicate his race’s superiority and to lord it over others.

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Let us, finally, take these decisions about our public spaces and the commemoration of our past in full No one ever erected a statue daylight, with solemn deliberation in civic friendship of George Washington in and mutual understanding, and with respectful order to communicate his execution of the decisions we make. Let us have no race’s superiority and to lord more whisking away of statues in the dead of night, it over others. as in Baltimore—as understandable as this was as an act done out of concern for public safety. “We are not enemies, but friends,” said Lincoln in 1861. “We must not be enemies.” Let us not permit a pitiable band of losers with tiki torches to turn us into enemies. But let the statues of Lee be moved to cemeteries where death belongs, and let us the living get on with the business of being fellow citizens to one another.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute, Professor Emeritus of Political Science at Radford University in Virginia, and Visiting Lecturer in Politics at Princeton University.

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The Decline of Movement Conservatism and the Rise of the Alt-Right

BY JUSTIN DYER

Donald Trump’s election has made one thing clear: right-wing politics, conservatism, and the Republican Party are not interchangeable. POLITICS AND LAW

“How small, of all that human hearts endure,” Oliver Goldsmith concluded in his philosophical poem The Traveller (1764), “That part which laws and kings can cause or cure.” There is profound truth in these lines, originally written by Goldsmith’s friend Samuel Johnson. Politics is not the most important thing. Yet politics is, still, an important thing. Laws and kings can profoundly aid or hinder the flourishing of human beings in this life. The good of our families, our neighborhoods, and our communities depends on a healthy background culture and society, backed by a well-functioning political regime. Admittedly, this is an abstract ideal that is ever only approximated, never attained, and always in danger of loss.

One central insight of the conservative intellectual movement in the United States after the Second World War is that humanity is not on an upward trajectory toward political perfection. The arc of history does not always bend toward justice. Civilizations rise and fall, and there is nothing inevitable about either. The same can be said for political movements, which have a lifespan of their own and require diligent cultivation and periodic reinvention.

This became painfully evident to conservatives this election cycle, when each major party presidential candidate threatened, in his or her own unique way, to destroy—or at least significantly alter—conservatism as we know it. Old-fashioned conservatives, facing the specter of a Donald Trump or a Hillary Clinton presidency, received a political message this year equivalent to the telegram Hadley Arkes frequently jokes about: “Start worrying. Details to follow.”

AMERICAN CONSERVATISM AND ITS RIGHT-WING CRITICS

Although the election has now passed, we are still waiting for many of the details. What is clear is that generational and ideological changes, demographic trends, and the decline of traditional religiosity in the United States have made it difficult, if not impossible, to maintain a successful national political coalition around the tenets of postwar conservatism. Economic liberalism (including liberal immigration laws), hawkish foreign policy, and cultural traditionalism have historically been viewed as the three legs of the conservative stool. As George Hawley demonstrates in Right-Wing Critics of American Conservatism, however, being a conservative and being on the right wing of the political spectrum are not necessarily the same thing. In other words, not all of conservatism’s adversaries are in the progressive camp. Many of Donald Trump’s most enthusiastic supporters, for example, dissent from standard conservative orthodoxy on free trade, foreign policy, and immigration.

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Hawley’s timely book, written before the rise of Trump, gives a short historical overview of the modern conservative movement. It also highlights, through a series of case studies, several right-wing movements that have stood outside mainstream conservatism in the United States. These groups include localists and front porchers, right-wing secularists, radical libertarians and anarchists, paleoconservatives, and white nationalists.

According to Hawley, what these groups have in common is that, unlike the left, each ranks some value other than equality on “top of the hierarchy of values.” While one could certainly quibble with Many of Donald Trump’s Hawley’s suggestion that “throughout the world the most enthusiastic supporters, left advocates universal equality”—there is, after all, a for example, dissent from reason we laugh along with Orwell when he writes in standard conservative Animal Farm that some animals are more equal than orthodoxy on free trade, others—it is certainly true that the movements Hawley foreign policy, and investigates do not prize equality above all else. They immigration. are neither progressive nor conservative in the sense in which those terms are used in the United States. They are instead comprised of right-wing critics of American conservativism, part of “a strong tradition of antiprogressive thought in American history that stands completely outside the mainstream conservative movement.”

DEFINING AMERICAN CONSERVATISM

One general difficulty with the term “conservative” is that it derives meaning relative to what is being conserved. In the 1980s, for example, the New York Times would describe Communists in the Kremlin working to conserve the Communist regime as conservatives. In the same way, we might talk about the ruling mullahs of Iran or the aristocrats from Downton Abbey as being conservatives, but not at all in the sense in which we use that term in the United States. As Hawley notes, American conservatives “consider themselves the true heirs of the classical liberal tradition exemplified by such thinkers as David Hume, Adam Smith, and John Locke.” What they seek to conserve is liberalism,

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understood broadly to advance the cause of “limited government, strong traditional families, and strong national defense.”

William F. Buckley gave intellectual coherence to the postwar American conservative movement. “Free-market libertarians, cultural traditionalists, and foreign policy hawks all despised communism,” Hawley observes, “and this mutual loathing helped unite factions that otherwise had little in common.” Through his work at National Review magazine and on the long-running public affairs television showFiring Line, Buckley helped bring these various factions into a unified political coalition. Part of Buckley’s work in journalism was devoted to policing the boundaries of acceptable conservative opinion. In one particularly fascinating chapter, Hawley tells the neglected history of the mainstream conservative movement’s purges of unsavory ideological elements.

Buckley and others publicly criticized and withdrew support from organizations and individuals perceived to be racist or anti-Semitic—such as the anti-communist John Birch Society, the former Klu Klux Klan grand wizard David Duke, and (most recently) the paleoconservative columnist Sam Francis. Without a mainstream national outlet for their views and without support from the Republican Party establishment, Buckley and his movement relegated these individuals to political obscurity. Others, such as the atheist libertarian novelist and playwright Ayn Rand, developed a following outside the orbit of National Review but were never quite welcomed into the inner circle of the modern conservative movement.

George Nash has done more than any other scholar to chronicle the ideological development of modern American conservatism after 1945, and revisiting this history helps make sense of some crucial aspects of our political situation today. Relying on Nash’s 660- page book The Conservative Intellectual Movement in America Since 1945, Hawley provides a useful short introduction to an historical narrative that involves several major characters besides Buckley: Whittaker Chambers, Frank Meyer, Russell Kirk, Harry Jaffa, Irving Kristol, Milton Friedman, and many others contributed in unique ways to the development of the postwar conservative movement. What the movement did, with the help of Buckley’s leadership, was successfully define the ideological boundaries of political conservatism and translate the conservative movement’s broad ideological goals into concrete electoral victories and policy reforms through a political partnership with the leaders of the Republican Party.

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THE WANING INFLUENCE OF MOVEMENT CONSERVATIVISM

In light of Buckley’s leadership, consider now the remarkable fact that the February 2016 issue of National Review featured a one-sided symposium with twenty-two different movement leaders explaining why conservatives should reject Trump—and apparently it had no impact at all on the course of the Republican presidential primary. This is at least partly due to the waning influence of the established conservative media outlets in the Internet age. But it also is due to Trump’s ability to connect to those elements of right-wing opinion that had been purged from the respectable journals of conservative thought. These two things are related. Owing to his celebrity status and his use of social media, Trump was able to communicate with large swaths of primary voters without the blessing of the establishment’s gatekeepers. And he spoke to them on their own terms and about their own concerns. IMAGE CREDIT: / SHUTTERSTOCK.COM

Some of the same figures Buckley and company worked to purge from the conservative movement are coming back in the national political conversation once again. David Duke, buoyed by Trump’s campaign, announced his bid for the open Senate seat in Louisiana, and astoundingly qualified for the statewide debate by polling over 5 percent. Elements of the white nationalist “alt-right” have been vocal Trump supporters, and prominent figures in the politically exiled paleoconservative movement saw in Trump a champion of restrictive immigration policy, economic protectionism, and foreign policy non-interventionism. Electorally, most commentators and analysts thought the Trump campaign had a losing strategy from the start. Trump’s success in the Electoral College depended on white voters without a college degree turning out in force and key groups in Barack Obama’s coalition staying home in equal measure.

Demographics alone tell us that the strategy has an expiration date not too far in the future. Regardless of the coming demographic challenges for the GOP, however, Trump did tap into something that is not simply a function of demographics: popular angst about the economy, jobs, immigration, and foreign policy. Trump did not create the populist forces that drove his

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campaign, but he was able to ride them to the presidency despite having no early support from any major party establishment figure and being vilified by the highbrow commentariat on both sides of the aisle. In an anti-establishment year, this was his strength.

Some old-guard evangelicals, conservative lawyers, and constitutional originalists did eventually throw their weight behind the campaign, concerned above all else about religious liberty and future appointments to the federal courts. Those concerns were justified, and the dangers are still real. Four or eight years of appointments to the federal courts will fundamentally change the judicial landscape for a generation. The cultural winds are blowing hard against religious liberty, and the courts in a Clinton administration would no longer be—if they ever were—a place of refuge. Trump, of course, is hardly a panacea for this challenge, but there is a chance he will outsource the judicial nomination process to Vice President Pence or another reliable judicial conservative.

Supporting Trump for the sake of the Supreme Court always had an element of the Faustian bargain. Recall that in addition to his promise to appoint conservatives to the Court, he also pledged to build a wall along the southern border and raise a domestic army strong enough to deport thirteen million people, signaled his willingness to torture terrorists and target their families,

IMAGE CREDIT: / SHUTTERSTOCK.COM and showed very little appreciation for the wisdom of constitutionalism and limited government. The best case for Trump always consisted in assuming that he was lying about the promises we didn’t like and telling the truth about the promises we did like. The next four years will be revealing.

WHAT’S NEXT FOR CONSERVATISM?

One of the important lessons of George Hawley’s book is that right-wing politics, conservatism, and the Republican Party are not interchangeable. The GOP won big last week, but many conservatives saw no possible path to victory on election night. What should conservatives do now in light of the challenges ahead? There is no easy fix, but the starting point for national politics must be drastic: a new party, or at least massive rebranding of the Grand Old Party in a way that speaks to the interests and concerns of the white working class but also makes it clear that the Republican Party advances a vision of constitutional government for the purpose of protecting natural rights and affirming our common human

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dignity. To be morally serious and electorally successful in subsequent elections, the GOP cannot be the party of To be morally serious and nativism and racial identity politics. electorally successful in subsequent elections, the Russell Moore stated recently in an interview that his top GOP cannot be the party three public policy priorities were the sanctity of human life, religious freedom, and racial reconciliation. To this we of nativism and racial could add constitutionalism and economic opportunity (a identity politics. significant part of which depends on family formation and a healthy marriage culture). We must build a coalition that bridges racial, ethnic, religious, and class lines. This whole project will require a reinvigoration of the conservative intellectual tradition, an engagement with culture and the arts, and the diligent work of the many young, smart policy-oriented conservative reformers working in think tanks and winning offices in state and local governments.

After surveying the demographic and policy challenges facing the right, Hawley cautiously concludes that “it is too early to declare the conservative movement terminally ill.” Tuesday’s election has moved the diagnosis to critical condition.

Justin Dyer is Associate Professor of Political Science at the University of Missouri. He is the co-author (with Micah Watson) of C.S. Lewis on Politics and the Natural Law.

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Where in the Constitution is “Separation of Church and State”?

BY MICHAEL STOKES PAULSEN

Misleading talk of “separation of church and state” obscures the true meaning of the First Amendment. POLITICS AND LAW

When Delaware US Senate candidate Christine O’Donnell interjected this question in last week’s debate with her opponent Chris Coons, the audience—a law school audience—laughed and guffawed in derision. But the joke, of course, is on the audience: as everyone with even a modicum of understanding of the Constitution knows, the term “separation of church and state” appears nowhere in the Constitution. Even Mr. Coons acknowledged as much. The metaphor of a “wall of separation” comes from a letter President Thomas Jefferson penned to a group of Baptists in Danbury, Connecticut—a dozen years after the Constitution and Bill of Rights were ratified. The phrase is not mentioned in the Constitution’s text or in any of the debates leading to its ratification.

What the Constitution’s First Amendment does say is that government shall make no law “respecting an establishment of religion or prohibiting the free exercise thereof.” It is well to attend to the actual words of the Constitution (an admirable obsession of some Tea Party folks, like Ms. O’Donnell). Nowhere is this more important than with the Establishment Clause of the First Amendment: forbidding an officialestablishment of religion is something quite different from the much looser, imprecise term “separation of church and state.” The Constitution only forbids government sponsorship and compulsion of religious exercise by individual citizens. It does not require hermetic “separation”—implying exclusion—of religion and religious persons from public affairs of state.

A strict separationist view is not supported by the Constitution. Indeed, such an approach would contradict other parts of the First Amendment, in important ways. Most obviously, it would be at war with the protection of the “free exercise” of religion. If government could wall out religious persons and groups from participation in public affairs or from benefits or programs generally available to all, on the basis of neutral criteria, that would mean government could discriminate against religion. It is utter foolishness to think that the framers of the First Amendment intended such a result—and wrote an incoherent guarantee of religious liberty that contradicted itself in the same sentence, both requiring and forbidding discrimination against religion in one breath.

The strict separationist view is also at war with the freedom of speech and press, likewise protected by the First Amendment. Under a “separation” view, religious groups could not use government facilities (school buildings, public parks) for expressive purposes on the same basis as other groups. Literally dozens of Supreme Court cases reject that view. In a

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notable 1995 case (Rosenberger v. University of Virginia) the Court held that a state university could not refuse to fund on an even-handed basis a religious student newspaper, if it made funding available to other student publications. The Free Speech Clause forbade discrimination against religious speech or press, the Court held, and the Establishment Clause could not sensibly be read to require such discrimination.

The correct understanding of the First Amendment is not that it forbids contact—and even voluntary cooperation—between church and state. Rather, it protects private religious liberty, but does so in two complementary ways. In a nutshell, government may neither compel nor prohibit religious exercise. The Establishment Clause side of the coin says that government may not prescribe religious exercise; the Free Exercise side says that government may not proscribe, disfavor or otherwise punish or prevent religious exercise voluntarily chosen by the people. But the two phrases are two sides of the same coin. It is little wonder, then, that the Supreme Court has abandoned entirely the misleading metaphor “separation of church and state.” It simply does not help explain the true meaning of the First Amendment.

This is more than a quibble. The different understanding makes a difference in results. Under a separation view, government must discriminate against religion, reject school choice “voucher” plans that include religious options, and extirpate religious references and symbols from public discourse. Under the original meaning of the Constitution, government must protect religious choices and include religious persons, groups, and speakers on an equal basis. It may recognize and accommodate religion, as long as it does not in effect compel persons to engage in religious exercises or practices against their will—the hallmark of what an “establishment of religion” was understood to mean at the time the framers wrote the First Amendment.

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Ms. O’Donnell’s pithy challenge—“Where in the (...) government must Constitution is the separation of church and state?”—is protect religious choices actually an excellent shorthand critique of those (like and include religious Mr. Coons, perhaps?) who would sloppily translate persons, groups, and the First Amendment’s protections of religious liberty into incoherent hostility toward religion. And that is no speakers on an equal basis. laughing matter.

Michael Stokes Paulsen is University Chair & Professor of Law at the University of St. Thomas, in Minneapolis. He is the co-author, with his son Luke Paulsen, of the forthcoming The Constitution: An Intelligent Introduction and Brief History.

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