Claremont Institute Senior Fellow John Marini is one of the few experts on American Government who understood the rise of Trump from the beginning of the 2016 election cycle. Now he looks to the fundamental question that Trump's presidency raises: is the legitimacy of our political system based on the authority of the American people and the American nation-state, or the authority of experts and their technical knowledge in the service of "progress"?
The fate of conservatism in an age of illegitimacy
The following is adapted from a speech delivered at The Philadelphia Society on September 23, 2022.
Conservatism, in any normal understanding of the word, depends upon a generally acknowledged and widely shared sense of legitimacy if it is to survive.
Absent the authority of legitimacy, conservatism has nothing to conserve. It floats anchorless. In so far as its habits, rituals, and formalities persist, they contract into increasingly antiquarian gestures, detached from the vital pulse of lived experience. In such situations, conservatism degenerates into a largely rhetorical exercise. It mouths the same pieties that once rallied the troops, but it does so nervously, either without conviction or with that brittle belligerence that substitutes for conviction in decadent times.
There are several ways in which a regime can declare its illegitimacy. One way is when its governing apparatus becomes detached from or is at odds with the laws and mores that define it. This can happen, in fact it usually does happen, even when a soothing political rhetoric assures the public that everything is just fine, that the canons of our forefathers are just as operative today as they were in the past.
Examples are not far to seek. In the Federalist Papers, Alexander Hamilton, John Jay, and James Madison said a lot of lofty things about the nature of the proposed Constitution of the United States. Perhaps their descriptions of the structure of the governing apparatus were accurate when they wrote at the end of the eighteenth century. We still give lip service to the dispensation they described and helped to devise. But is that dispensation still alive? Or is it, like virtue according to Falstaff, mere “air,” words without a corresponding reality?
In Federalist 45, Madison noted that the powers delegated by the Constitution to the federal government were “few and defined.” Those powers, he said, pertained mostly to “external objects” like war, peace, and foreign commerce. Somehow, neither climate change nor transgender bathrooms nor “unlawful acts of hate”—the latest wheeze from the executive branch—made the cut when Madison was enumerating the powers of the federal government.
He did, however, have a lot to say about the powers delegated to the individual states. Those powers, he said, were “numerous and indefinite,” extending to “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” Is that still the case?
It is worth acknowledging that the Founders, although deeply concerned with limiting the sphere of government power, were also concerned with forging a strong and efficient federal government. The Federalist Papers, after all, took aim at the abundant anti-Federalist commentary that opposed the proposed U.S. Constitution precisely because, so thought the anti-Federalists, it arrogated too much power to a central authority at the expense of the states.
But just this, the Founders argued, was the price of creating and maintaining that “more perfect union” of which the Constitution speaks. “The vigour of government,” Alexander Hamilton wrote in the very first of the Federalist papers, “is essential to the security of liberty.” The goal, he put it later on, is “a happy mean” which combines “the energy of government with the security of private rights.”
So much for acknowledging the requirements of “the vigour of government.” I promise not to say another word in its favor. For our problem today is not to assure the “energy of government,” but quite the opposite, to redress the balance, to reestablish that “happy mean” Hamilton spoke of by asserting the legitimate jurisdiction of private rights against a rampant and engorging bureaucratic Leviathan.
As an aside, let me note that conservatives, in the American context, anyway, have always been suspicious of Leviathan. They are for “limited government” and worry about the coercive power of the state intruding upon individual liberty. I know that these days some conservatives tell us that, when they finally get their hands on the levers of power, they will be energetic in exercising them to achieve their (presumably conservative) ends.
Is that a contradiction or indication of hypocrisy? Maybe. Or maybe it is just a sign of how deeply anti-conservative sentiment has burrowed into the tissues of our society. No doubt I would prefer the policies promulgated by a conservative administration to the policies we are saddled with now. But my low opinion of human nature inclines me to distrust governmental power no matter who is in charge.
Ronald Reagan is out of fashion these days, but I think that the fortieth President of the United States was right when he observed that “Democracy is less a system of government than it is a system to keep government limited, unintrusive: A system,” Reagan continued, “of constraints on power to keep politics and government secondary to the important things in life, the true sources of value found only in family and faith.”
Whether what Reagan says is true of democracy itself is something that we might, with Tocqueville, and with sadness, want to question. Too often democracy has been prey to deformations that encourage rather than retard the growth of government. That indeed was part of what the Founders had to conjure with as they combed through the graveyard of history’s failed republics in their efforts to frame a more robust and long-lasting system of government.
But let me return to those signs of illegitimacy I mentioned. Can anyone read what Madison said about the Constitution delegating to the federal government only powers that are “few and defined” without a smile? How quaint it all sounds to our ears. And what do we make of the observation, from Federalist 57, that the people would never tolerate a law that was “not obligatory on the Legislature as well as on the people”? I have a call in to Nancy and Paul Pelosi on that one.
Illegitimacy occurs when there is serious disjunction between precept and actual behavior. Article I of the Constitution vests all legislative power in the Congress. But for many decades now, Congress has been assiduous in avoiding that duty. As the political philosopher James Burnham noted back in the 1940s, laws in the United States were increasingly being made not by Congress, but by an alphabet soup of executive-branch agencies. And note that Burnham wrote decades before the advent of such monstrosities as the EPA, HUD, the CFPB, the Department of Education, and the rest of the administrative agglomeration that governs us in the United States today. More and more, we are ruled not by laws but by ad hoc diktats emanating from semiautonomous and largely unaccountable quasi-governmental bureaucracies, many of which meet in secret but whose proclamations have the force, if not the legitimacy, of law.
Indeed, Americans today find their lives directed by a jumble of agencies far removed from the legislature and staffed by bureaucrats who make and enforce a vast network of rules that govern nearly every aspect of our lives.
One of the most disturbing features of this phenomenon was exposed by Philip Hamburger in his work on the history and evolution of the administrative state. As Hamburger notes, the expansion of the franchise in the early twentieth century went hand in hand with the growth of administrative, that is to say, extralegal, power. For the people in charge, equality of voting rights was one thing. They could live with that. But the tendency of newly enfranchised groups—the “bitter clingers” and “deplorables” of yore—to reject progressive initiatives was something else again. That was unacceptable.
As Woodrow Wilson noted sadly, “The bulk of mankind is rigidly unphilosophical, and nowadays the bulk of mankind votes.” What to do? The solution was to shift real power out of elected bodies and into the hands of the right sort of people, enlightened people, progressive people, people, that is to say, like Woodrow Wilson. Therefore, Wilson welcomed the advent of administrative power as a counterweight to encroaching democratization. And thus it was, as Hamburger points out, that we have seen a transfer of legislative power to the “knowledge class,” the managerial elite that James Burnham anatomized.
A closer look at the so-called “knowledge class” shows that what it knows best is how to preserve and extend its own privileges. Its activities are swaddled in do-gooder rhetoric about serving the public, looking after “the environment,” helping the disadvantaged, fighting racism, and similar performative kindnesses. But what they chiefly excel at is consolidating and extending their own power.
It is interesting to ask how they accomplish this. Back in the 1770s, Edmund Burke criticized the Court of George III for circumventing Parliament and establishing by stealth what amounted to a new regime of royal prerogative and influence-peddling. It was not as patent as the swaggering courts of James I or Charles I. George and his courtiers maintained the appearance of parliamentary supremacy. But a closer look showed that the system was corrupt. “It was soon discovered,” Burke wrote with sly understatement, “that the forms of a free, and the ends of an arbitrary Government, were things not altogether incompatible.”
That discovery stands behind the growth of the administrative state. We still vote. We still have a bicameral legislature. But the institutions that govern our politics are increasing decadent: that is, they are empty shells that merely look like their democratic originals. As Tocqueville noted in his analysis of governmental paternalism, “Almost all the rulers who have tried to destroy freedom have at first attempted to preserve its forms.”
This has been seen from the time of Augustus down to our own day. Rulers flatter themselves that they can combine the moral strength given by public consent with the advantages that only absolute power can give. Almost all have failed in the enterprise, and have soon discovered that it is impossible to make the appearance of freedom last where it is no longer a reality.
I think that is more or less where we are now. You still hear people talk about the importance of individual liberty, the rule of law, limited government, and so on. “Liberty and justice for all,” we declaim. But more and more, I believe, the slogans are delivered rote, shot through with a brittle cynicism.
One sign of that decadence is the resignation that now greets every fresh assault on the impartiality upon which the rule of law, and hence liberty, depend.
Consider Kevin Clinesmith, the FBI lawyer who, in 2017, helped get the Russia collusion delusion going by altering a CIA email regarding Carter Page, one of the many pro-Trump figures who was harassed by that ironically misnamed entity, the Department of Justice. The CIA had identified Page as a CIA source. Clinesmith, part of the anti-Trump team that staffs the upper reaches of the FBI, changed the email to say that Page was not a CIA asset. This gave the green light for the Bureau to obtain a warrant from the FISA Court to spy on Page and, through him, on the entire Trump Administration.
Remember what happened to Mike Flynn? He was set up by the FBI and then lost his job as national security advisor and was bankrupted trying to defend himself. What happened to Kevin Clinesmith? In 2020, he pleaded guilty to doctoring the email and was sentenced to probation. What Clinesmith did is a felony. Usually, a lawyer who is convicted of a felony is disbarred. Clinesmith got probation.
It’s all part of our two-tier, which is to say, illegitimate system of putative justice. If you are a Deplorable, you do not have the same rights and privileges that the elite have. Compare and contrast, for example, the treatment accorded to Andrew McCabe, FBI malefactor and paid-up member of the protected class, with the treatment accorded to someone like John Eastman, a former member of Trump’s legal team, or Jeffrey Clark, a former DOJ official who thought it worth investigating the many questions that haunt the 2020 Presidential election. McCabe tries to foment a coup against the President of the United States and is punished with a gig at CNN. Eastman and Clark become pariahs, have their electronic devices confiscated and, in Clark’s case find themselves out in the street in their pajamas after a dawn raid by a squad of heavily armed FBI agents.
Joe Biden’s speech at Philadelphia’s Independence Hall provided what he likes to call an “inflection point” in this saga. For one thing, it was a breathtaking example of what psychoanalysts term “projection,” blaming others for the bad things you do yourself. For another, its garish, neo-totalitarian staging—the red lights, the flanking military personnel, the madly gesticulating Joe Biden— made it one of the most minatory political performances in the annals of American oratory.
A year or so back, I might have thought that the theatrics were inadvertent. I have changed my mind. Having watched Biden’s Justice Department morph into an American Stasi with the FBI conducting predawn raids against various its political rivals, arresting their aides and confiscating the mobile phones and other property of their lawyers, I now think that the tactics of intimidation are part of a larger strategy.
The FBI’s raid on Mar-a-Lago belongs in this category, as of course do the hundreds of indictments and incarcerations of January 6 protestors. Almost all of those unfortunate souls wind up being charged with minor torts like “parading” in or around the Capitol, yet are nonetheless thrown into a special D.C. gulag for months before being found guilty by biased juries and subject to enhanced sentences handed down by Trump-hating judges.
None of this is adventitious. All of it is illegitimate. Like the intimidating and slightly unhinged theatrics of Biden’s speech, they are all deliberate scare tactics, warnings to us all of what can happen to those who dissent. The spectacle of 87,000 newly minted IRS agents waiting in the wings is another part of that “shock-and-awe” campaign.
Biden’s speech in Philadelphia was billed as a reflection on the “soul of the nation.” Remember, Biden was sold to the country as Mr. Normality, as someone who would bind up the nations’s wounds after four years of the bad, horrible, no good, unacceptable, supremely divisive Donald Trump.
It hasn’t worked out that way, notwithstanding Trump’s occasional zingers and rhetorical molotov cocktails that have keep the fires of outrage burning. In this respect, Biden’s speech typified the new Democratic dispensation, according to which the world is divided sharply in two. The good guys are those who espouse the Democratic agenda. The bad guys are anyone who dissents.
What we are seeing, in fact, is the promulgation of a neo-Manichean philosophy. According to the creed of Biden and the elites who formulate his thoughts and speeches, the radical Democratic agenda of climate change, “green” intimidation, wealth redistribution, and sexual perversion is the gospel of light. Outer darkness is occupied by people who espouse conservatism, embodied in such traditional American values as hard work, frugality, patriotism, individual liberty, and the canons of private property that guarantee those rights. It is a strange and unforgiving religion, one whose chief sacrament is excommunication. Ultimately, as some wag put it, its goal is a world in which everything that is not prohibited is mandatory.
That is the background. You often hear the world “democracy” uttered in these heady precincts, usually in the now-noxious phrase “our democracy,” which really means “their prerogative.” As I note in a column for the October Spectator, it is a world in which “democracy” really means “rule by Democrats.” To such questions as, “was the election fair?” what you first need to know in order to answer is who won. If it was the Democrats, then the election was fair. If the Democrats lost, then the election was stolen. Hillary Clinton and Stacey Abrams can fill you in on the details.
There are two things worth bearing in mind as we contemplate the political distempers of the times. One concerns the hardening of the Left. Obama’s victory, followed by the incomprehensible victory of Donald Trump, has radicalized and emboldened the Left.
Today, the Left says things they would hitherto only have thought, and does things that they would hitherto only have said. It used to be that there was a certain latitude accorded to opposing views. That’s all over now. What we see is the triumph not just of political correctness but also of visceral intolerance that nurtures a “by-any-means-necessary” attitude. Every issue is an existential emergency for which the Left’s shock troops are willing to go to the wall. Every loss demands that people scream at the sky. We win or we threaten to burn everything down. At least since Trump’s victory, the dominant attitude has been that only the Left is allowed to win. Any conservative victory is by definition illegitimate.
The Right’s problem has been that it was too frightened by the Left to respond effectively. Deep down, many on the right secretly agreed that only the Left was allowed to win. In some precincts, anyway, that may be changing. Not among the Liz Cheneys and David Frenches of the world, of course. But there are more and more people who don’t mind shouldering the obloquy of the Left and the housebroken Right. And they have just been joined by a majority of the Supreme Court, which this summer handed down two major decisions, not just on Roe v. Wade but also on the Second Amendment, that are deeply unpopular with the regime consensus.
The second thing worth bearing in mind is that this novel exhibition of backbone by the Right is down almost entirely to Donald Trump. The promiscuous desire to be liked is a common character flaw. Donald Trump does not suffer from that disability. What happened at the Supreme Court over the summer would never have happened absent Trump. And indeed the little eruptions of resistance to the Left and emasculated Right are possible only because of his example.
This is a reality that many people have yet to take on board. But it is nevertheless an important truth about the political and moral configuration of the United States circa 2022. Donald Trump’s governing passion can be summed up in one word: winning. Similarly, his path to that goal can be summed up in one word: fighting. He showed the Right that it was OK to win and that the way to win was to stand up for the things you professed to care about.
That prospect gives some people unpleasant palpitations. I file that under the rubric of collateral benefits. But as we contemplate the fate of conservatism in this age of illegitimacy, it is worth pausing over some particulars of Joe Biden’s Nuremberg-style speech in Philadelphia. In 1984, George Orwell showed how daily rituals of hate bind the party of Big Brother together. Biden’s hectoring attack on “Donald Trump and the MAGA Republicans [who] represent an extremism that threatens the very foundations of our Republic” was clipped from the same playbook.
A week earlier, at a speech in Maryland, Biden explained that the problem was [quote] “not just Trump, it’s the entire philosophy that underpins the . . . semi-fascism” of the MAGA agenda.
But what is the MAGA—or, as we are being taught to say, because it sounds scarier—the “ultra MAGA” agenda? When Donald Trump first proposed his “Make America Great Again” formula, he specified several things that it encompassed. At the top of the list were efforts to restore American prosperity, in part by exploiting our enormous energy resources, in part by abolishing mischievous and burdensome regulation, in part by cutting taxes and providing incentives for American business to hire Americans and produce their goods in America.
Also at the top of the list was the integrity of our Southern border, stanching the flow of illegal immigration, and rebuilding a military that had been woefully neglected during the Obama years. Elsewhere on the domestic front, Trump battled against political correctness and what has come to be called “identity politics.” He largely remade the federal judiciary, seeing three Supreme Court Justices and hundreds of lower court federal judges installed, all of whom were nominated because they subscribed to a Antonin-Scalia-like judicial philosophy that limited the role of judges to interpreting the law in the light of the Constitution, not making law under their inspiration of their personal policy preferences.
In the sphere of foreign policy, the MAGA agenda meant “putting America first.” He insisted that our NATO allies begin to shoulder their stipulated financial burden, challenged China on trade and military adventurism, and scuttled the disastrous Obama-era nuclear deal (since renewed) with Iran. Trump also stood firmly against the democracy-exporting policies of the Bush era. America would go to war not to promulgate democracy but only to defend its own interests. His Abraham Accords brought peace to the Middle East, a world historical achievement for which Trump deserved the Nobel Peace Prize.
And how did all that work out? Pretty well, I’d say. By the time Trump left office, America was a net exporter of energy; illegal immigration had been slowed to a trickle; before the onslaught of COVID, his policies had resulted in the lowest unemployment in decades, the lowest minority unemployment ever. Wages were rising, especially at the lower rungs, and the stock market was booming. All-in-all, MAGA equaled American prosperity and success.
It did not, however, bode well for the elite globalist agenda which rested upon endless foreign wars, the neglect of American workers, and a disdain for traditional bourgeois values like hard work, family solidarity, and local initiatives. And it is just this—the existential threat that the MAGA agenda poses to the entrenched wardens of wokeness—that tempts me to acknowledge that there is a sense in which Joe Biden was right to see the “entire philosophy” that underpins the MAGA agenda as a threat. From the point of view of the self-appointed guardians of the status quo, the populist upsurge that Trump represented really does appear as a form of “domestic extremism.”
Where does that leave “conservatism in an age of illegitimacy”? It seems to me that conservatism has three main choices. One is outright surrender. One is the dhimmitude of the well-pressed but housebroken Right which exchanges its pampered place on the plantation for political irrelevance. The third choice is the perhaps paradoxical option of we might call Alinskyite conservatism, after the canny left-wing activist Saul Alinsky. This option eschews the quietism of surrender for the activism of what Trump called “winning.”
How is this to be accomplished? One major goal must be to downgrade the place of Washington, the spirit as well as the city, in the metabolism of American political life. Legitimacy is draining out of our governing institutions at an alarming rate. Stanching that debilitating flow requires that we redirect our attention away from the greedy puppet show in Washington to the true source of legitimacy, which is with the people. As I have suggested elsewhere, we might start by moving the next presidential inauguration out of Washington altogether.
Don’t laugh. There is no Constitutional reason to hold the ceremony in the swamp. Calvin Coolidge took the oath of office in his living room in Vermont. LBJ did so aboard an airplane in Texas. CNN and the New York Times would squeal, but so what?
When Thomas Jefferson lobbied to move the capital to Washington, he did so partly to locate it closer to his home state of Virginia. But he did it also to locate the capital on more or less politically neutral ground. The capital of the republic was meant to be above partisan affiliation.
Alas, as the years have gone by, Washington has become a wholly owned subsidiary of the regime party and its enablers in the administrative state. That political dispensation is defined by the progressive, Democratic agenda and its toxic philosophy of wokeness, but its overflowing ranks are stuffed to the gills with members of both parties. You see this, for example, in the January 6 Committee, which is about as straightforward a partisan attack machine as it would be possible to contrive. The reputation of the January 6 Committee on Main Street is in tatters because its antics are so clearly an expression of a wholly corrupt system, epitomized by the city which battens on the public treasure and the public trust.
There are messy ways that other countries throughout history have dealt with a regime party that is thoroughly corrupt. The process is seldom edifying, even if, in the end, it is cathartic. A kinder, gentler alternative would be to treat Washington, D.C. as Hercules did the Augean Stables. I doubt that the Potomac, suitably diverted, would sport enough water to do the job, but moving the government, piece by piece, out of Washington, beginning with the ceremonial occasion of the inauguration, might be the least expensive, and least sanguinary, alternative.
The American Mind presents a range of perspectives. Views are writers’ own and do not necessarily represent those of The Claremont Institute.