Saturday, March 3, 2018

OK, what exactly is a 'conservative'?

Republican candidates continually bill themselves as the most 'conservative'. Republican voters respond to these appeals, voting for 'strong conservatives', 'conservative outsiders', 'Christian conservatives', 'Constitutional conservatives', etc., though their behavior when they actually get into office is all over the map. This has lead to the term 'conservative' seeming almost meaningless, but it was not always so. Part of the reason is that people have forgotten what being conservative actually means. Conservatism in general and our special tradition of American conservatism has deep roots and that is so because conservatism is precisely about being connected to our roots (one of the reasons I use a radish— a root— in the logo for this blog.

So, what in the world is a 'conservative'? Where are our roots? Let's dig.

[Draft 0.3]

In which we start with the plain meaning and break the surface...

conservative (adjective)

1 Averse to change or innovation and holding traditional values.

2(in a political context) favouring free enterprise, private ownership, and socially conservative ideas.

In politics, progressives often stop with 'averse to change' and assume that to be conservative is simply to afraid of 'progress'. But we also have 'traditional values' and in definition #2, a hint of what those values might include. Conservatives are not merely averse to change, they are trying to protect something of value. This should not be surprising, because of the relationship to the verb, to conserve:

1: to keep in a safe or sound state - He conserved his inheritance.; especially : to avoid wasteful or destructive use of conserve natural resources conserve our wildlife

There is gold here: "He conserved his inheritance." This is exactly what we are looking for. What, as conservatives, is our lost inheritance?

... to uncover a lost inheritance.

Lord Coke, in the 16th century, talks about the treasure of the common law, its accumulation representing:

...the wisdom of the most excellent men, in many successions of ages, by long and continual experience (the trial of light and truth) in his head the wisdom of all the men in the world...

[As quoted in: David A.J. Richards. Foundations of American Constitutionalism. Oxford University Press. New York. 1989. pp 69-71 or see The Reports of Sir Edward Coke, Knt. [1572-1617]: In Thirteen Parts, Volume 4]

Coke, almost two hundred years before our Revolution, points to the fact that none of us is born into this world alone, but that we inherit the written wisdom of those that came before us, something which none of us, even the wisest (wo)man alive can alone match. In law, this wisdom is accumulated in centuries of common law histories, cases, controversies, and court decisions passed down to us which our constitutional framers in turn used as the foundation for our system of government.

The idea of a kind of trust was created, something we inherit from those long dead, maintain, improve incrementally, and hand on to children not yet born. We conserve then something which we recognize does not belong to us. The Parable of the Three Servants [Mathew 25:14-30], teaches us we cannot merely bury this trust in the ground and ignore it, we must nurture and invest that with which we were entrusted, but nor do we mindlessly tinker. As Edmund Burke, a British Whig often seen as the father of modern conservatism, reflected on the French Revolution:

An ignorant man, who is not fool enough to meddle with his clock, is however sufficiently confident to think he can safely take to pieces, and put together at his pleasure, a moral machine of another guise, importance and complexity, composed of far other wheels, and springs, and balances, and counteracting and co-operating powers. Men little think how immorally they act in rashly meddling with what they do not understand. Their delusive good intention is no sort of excuse for their presumption. They who truly mean well must be fearful of acting ill.

[Edmund Burke, Reflections on the Revolution in France, emphasis mine]

This is no less true given that our Framers fought a violent revolution and established a new system of government. Our founders were not the victors of one revolution but of two. They were raised on the history and literature of the English Civil War and the British Bill of Rights. As Winston Churchill wrote of that conflict in his four-volume history of Britain:

Here is the salient fact which distinguishes the English Revolution from all others: that those who wielded irresistible physical force were throughout convinced that it could give them no security. Nothing is more characteristic of the English people than their instinctive reverence even in rebellion for law and tradition. Deep in the nature of the men who had broken the King’s power was the conviction that law in his name was the sole foundation on which they could build.

The early Americans followed the same pattern. The Declaration of Independence was a revolutionary document, but also a profoundly conservative one. The American Revolution was not an assertion of radical of ideology over law but a protest against the usurpation of traditional rights by the British Crown and Parliament, rights won by the sacrifices of generations of Englishmen. The Declaration painstakingly sets out a checklist of the reasons for this break and establishes it in the traditional principles and duties of a moral people. The principles of the Declaration established a strong root of conservatism to flourish in American soil, established a new —but not radical— inheritance, cut from still older stock.

Progressivism in the United States attempts to follow the same disastrous path as the French Revolution, cutting us off from our inherited traditions in favor of a modern and 'scientific' approach, but one, which, strangely, ignores the evidence of millennia of human experience, tinkering with the clock while skipping the cardinal rule of the competent tinkerer: save the parts. What results, as Calvin Coolidge stated in his Independence Day speech in 1926, is no improvement:

...About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions.

Jefferson's declaration of the primacy of liberty, however did not stand alone. It was based on an assertion of a higher law, that of "Nature and Nature's God" and it came with a deep skepticism of unrestrained democracy and of human nature. After all, it was as much the British Parliament and native Englanders as the British Crown which failed the American Colonists. John Adams asserted that liberty could not exist outside the checks and balances of law, but it is perhaps most famously and compactly stated by Madison in the Federalist Papers (#51):

It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

So again, we fall back on experience to guide us. Certainly the Constitution was built on a such a foundation, perhaps the most literate of such exercises ever attempted, relying on detailed research of many governments over several thousand years (much of it compiled by Madison himself).

This then is our inheritence...

It is a complex and rich inheritance, one which we could spend a lifetime exploring and still have more to discover. Various people along the way have summarized its core principles, however. One such is Russel Kirk with his "Six Canons of Conservative Thought", itself a condensed summary of Burke which I excerpt further (follow link for full text):

  1. "Belief in a transcendent order, or body of natural law, which rules society as well as conscience. Political problems, at bottom, are religious and moral problems...
  2. "Affection for the proliferating variety and mystery of human existence, as opposed to the narrowing uniformity, egalitarianism, and utilitarian aims of most radical systems;...
  3. "Conviction that civilized society requires orders and classes, as against the notion of a 'classless society.' With reason, conservatives have been called 'the party of order.' If natural distinctions are effaced among men, oligarchs fill the vacuum. Ultimate equality in the judgment of God, and equality before courts of law, are recognized by conservatives; but equality of condition, they think, means equality in servitude and boredom.
  4. "Persuasion that freedom and property are closely linked... Economic levelling, they maintain, is not economic progress.
  5. "Faith in prescription and distrust of 'sophisters, calculators, and economists' who would reconstruct society upon abstract designs. Custom, convention, and old prescription are checks both upon man's anarchic impulse and upon the innovator's lust for power.
  6. Recognition that change may not be salutary reform: hasty innovation may be a devouring conflagration, rather than a torch of progress. Society must alter, for prudent change is the means of social preservation; but a statesman must take Providence into his calculations...

[Russell Kirk, "The Conservative Mind, From Burke to Elliot" 7th Ed., revised. Gateway Editions. Washington, DC. 2016. pp 45-46]

Someone who does not demonstrate this faith in both a natural order, something greater than ourselves, and of natural law, a non-negotiable higher law, defining rights and duties above mere human law, is not a conservative. As a Christian, I profess to know what this 'something greater' is, though we may not always precisely agree. What we should agree on, as conservatives, is that our faith drives us to both trust that the natural order exists for a purpose (one which we may not understand) and that we are to struggle against it to find justice, not burn it down, but struggle.

...which it is our duty to conserve.

Our duty, then is to strive for justice within a reverence for natural law, inherited wisdom, and social structures which we believe to have a value in and of themselves. The Constitution is not an outdated document, nor is it an immutable shrine, but it is a treasure, something of surpassing beauty with which we have been entrusted. A conservative neither hides from change nor rushes to embrace it. This is the sense of duty which would lead an inveterate conservative like John Adams to fight a war for freedom against his King and yet act as defense counsel for the soldiers responsible for the Boston Massacre, courting personal danger both times. As conservatives, we have a tremendous legacy to attempt to live up to, but our roots are strong, and deep, watered in generations of sacrifice.

Friday, March 2, 2018

Trump, Florida, and Gun-Control: Dues and Don'ts

On the issue of gun control, due process, Florida, and Trump: even if Trump's statements regarding due process are taken very generously they are still wrong, dangerously so, and inapplicable to the Florida shooting in any case. There was no need in Florida to short-circuit due process and violate rights. There was plenty of warning and plenty of time for the law to act well within its authority and regarding the limits of the Constitution. They simply didn't.

Pre-deprivation vs. Post-Deprivation Process

Due process is ALWAYS required. That is simply what the word 'due' means: it is what is required to satisfy rights. The process which is 'due' is usually pre-deprivation process. In pre-deprivation process, an adversarial proceeding such as a hearing occurs in front of a neutral-arbiter (judge) before rights are offended by the government. An adversarial process means both sides are represented and the person(s) being deprived get to make their case, examine the evidence, etc. A criminal trial is one way to satisfy due process but not the only one and never has been. It is not even the only way to satisfy pre-deprivation process.

Post-deprivation process is usually invoked when there is an immediate danger to life or property. An eviction of a tenant, for instance, often requires a hearing first and the eviction happens only if the court finds in favor of the landlord. If the landlord's property is in danger of being damaged by the tenant before that can happen, the order can be reversed: the tenant is immediately removed, then the court argues about it. Post-deprivation process means that the adversarial part happens after the defendant has already been deprived of something.

Another example is an 72-hour psychiatric hold on an individual who is (arguably) an immediate danger to themselves or others. An emergency hearing is then held to decide whether to release the individual or if involuntary commitment or some other action actually is necessary. Not surprisingly, there are rules for how this has to happen and— if these rules are satisfied— due process is satisfied as well. Process is not short-circuited, merely follows a different path.

Attorneys among my readers may be cringing that this explanation simplifies things a bit. Although this is quite true, I am not writing for attorneys but for people (like Trump?) who have no understanding of the law. This is also why I am uncharacteristically not peppering this piece with citations: just understand that there are already provisions for emergency circumstances and there have been for centuries. Lack of such options is not really the problem (here).

Not Relevant Anyway

In the case of the Florida shooter, Cruz, this really does not matter anyway. There were opportunities and plenty of time for authorities to do things the long and slow way. It is not disputed that the would-be shooter, Cruz, interacted with law enforcement many times (the exact number, either 23 or 36, apparently depends on how you count) over a period of several years. This was not a last-minute development, not in any sense, any more than it was in the case of Virginia Tech. What is more, at least three incidents rose to potential felonies. Arguably a number of them did, but that hardly matters: Cruz, at the least, was the subject of a 9-1-1 call where he is alleged to have threatened his adoptive brother with a firearm, a potential felony. Further, he was alleged to have texted threats to his ex-girlfriend and her new boyfriend. Making specific threats of violence or death to specific individuals in a specific context and putting his name on it is a potential felony. It is indisputably reasonable cause for a criminal investigation which is in turn likely to furnish probable cause for arrest. It can be argued that imminent danger and probable cause for arrest was already present with no need for an investigation before-hand (post-deprivation process), but the slow way would likely have worked as well.

If Nikolas Cruz had been convicted of or plead guilty to, say, felony assault, particularly as an adult, this would have started a criminal record. Given a criminal record, it would have been much more likely his other activities would have been put together. The FBI, for instance, might have immediately seen that the subject of the called-in tip already had a history of potential violence. Certainly, it would have made it harder for Cruz to pass a background check to purchase firearms!

[Note, I am not excusing the FBI here for dropping the ball by not referring the tip, merely saying that local authorities might have made the FBI's error less likely.]

Who Should Bear the Blame

Random law-abiding citizens should not be punished for this incident by having their constitutional rights to due process nor their natural, common law, and constitutional rights to keep and bear arms violated. Period. Giving more power to the very authorities who dropped the ball has two results:

  1. the power will be abused in the wrong situations
  2. there will still be nothing to guarantee it will be used to prevent tragedy

The same authority which failed to act in this case can still refuse to act in the future, but they will have even more tools to abuse authority when they feel so inclined. There may be ways in which the existing process can be tweaked (I am cautiously in favor of GVROs myself, I have written elsewhere about potential loopholes in juvenile criminal records and background checks), but none of that really matters here. The background check did not succeed because a juvenile record was prematurely expunged, but because no record was ever created in the first place because the local authorities failed to do their jobs.

The people who should be punished (under whatever process is due) for this horrific act of violence are, in order:

  1. the shooter himself
  2. the local sheriff's office, including potentially the sheriff and individual deputies
  3. whoever at the FBI failed to pass the phoned-in tip to the regional office as procedure required

It is possible that other legitimate targets for ire may come to light. The first one, the shooter, is ongoing. It is actually unusual for the perpetrator to be available for justice. I had to endure the long process of a trial for the shooter at my school, but many of the perpetrators suicide or are killed by police. There is a potential for closure available here in that process and that is not a small thing. The second one is best conducted by Floridians and particularly those in the affected county through whatever process is available under their state constitution. At the very least, the locals can and should respond at the ballot box, but that is not something any of us can do for them; they have to want to take action. Finally, we are told that an investigation of the missteps within the FBI is ongoing. Perhaps this will yield results and perhaps it will not. We, as citizens, need to keep on top of this process, but it is too early to expect results.

None of these things particularly involve making new laws, short-circuiting due process, or even gun-control at any level. The criminal justice system failed in what it is already authorized and charged with doing. The failure cost lives. The details of the precise magnitude of the failure and why are still forthcoming, but the fact that it occurred is not really in question.