TEMPO and HUP

A Blog for Civil Debate on Political Philosophy

A Blog for Civil Debate on Political Philosophy

The Religious Right Invents Religious Rights

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Leaders of the religious right misleadingly paraphrase the First Amendment. They claim it assures some unbounded “freedom of religion.” It does not. As we all know, the text reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

For convenience, analysts separate “the establishment clause” from the “free exercise clause.” The clear, self-limiting opposition of the two clauses uses freedom to prevent establishment, but it does not thereby allow just any freedom.

Two examples of the right’s exaggerated claims occur in the Hobby Lobby and the Masterpiece Bakeshop cases. Both of these rely on a 1993 act of Congress, the Religious Freedom Restoration Act (RFRA) which, by its very name, shortened “no infringement of free exercise” to “religious freedom.” RFRA begins with a strong defense of religion. Even laws claiming to be neutral toward religion, it says, may indeed burden free religious exercise. Its exact words are these:

“Laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.”

Therefore, if the federal government or any state claims a “compelling interest” to burden religious exercise, it must create the slightest burden possible. But even the authors of that strong nod to the Free Exercise clause felt obliged to append this concession to opponents.

“Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion.”

That is: You can’t make religious freedom become religious establishment.

Despite this carefully articulated ideal, that balance does not describe the relationship between church and state today. The Hobby Lobby and Masterpiece Bakeshop cases favor conscience and threaten to establish the scruples they advance. In the Hobby Lobby case, the claimant essentially says, “I will not pay for you to do what I disapprove of.” In the Masterpiece Bakeshop case, the claimant’s position is, “Even though you would pay me for my product, I cannot condone the use to which you would put it.” These claimants would not actually do the forbidden thing, but they do not wish to participate even indirectly. That, they claim, is complicity. In their interpretation, the free exercise clause allows an exemption from a law because it protects one from participating directly or indirectly in actions prohibited on religious grounds. Claiming that the First Amendment protects one from complicity in an action prohibited by one’s religion violates the balance between the establishment and the free exercise clause.

* * *

This question then arises. Why, if the First Amendment is so clear, was there a need as late as 1993 to reaffirm this balance? And what, after all, is the status of complicity in our constitutional law? For answers, we must circle back to the Founders and their deliberations as they framed our Bill of Rights. To do so, let’s recall that when advocates of the Constitution, called Federalists, campaigned for its ratification by the states, they encountered many objections. Anti-Federalists argued that, by granting powers to the new, federal government, the Constitution had crippled the states and ignored the rights of individuals. In order to win the votes of these opponents, the Federalists promised to amend the Constitution and regain their trust. That is why the Bill of Rights uses the phrase “Congress shall make no law . . .” and it is the sense of the Ninth and Tenth Amendments. Thus, when the First U. S. Congress met for its first session in New York from March to September, 1789, amending the Constitution was high on the agenda. On June 8, James Madison introduced measures intended to honor this promise.

The story of what follows is told superbly by Vincent Phillip Muñoz in his article “The Original Meaning of the Free Exercise Clause: the Evidence from the First Congress,” Harvard Journal of Law & Public Policy 31, 3 (Summer, 2008), 1083-1120. Members of the First Congress explored freedom of religion and respect for conscience as they debated what would become the First and Second Amendments. In what follows, I cite the printed edition of the actual proceedings as published in 1834 by Gales and Seaton, vol. 1. If you wish to read these fascinating records, you can find them via the HathiTrust.

As Muñoz observes, the Free Exercise Clause was intended to allow people to choose whatever denomination or religion they wanted. Madison explained

“that Congress should not establish a religion, . . . nor compel men to worship God in any manner contrary to their conscience” (730mid).

It is nonetheless clear that only Protestant denominations were considered. Immediately after Madison’s speech, Benjamin Huntington of Connecticut hoped

“the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize [i.e. secure the rights of] those who professed no religion at all” (730-1).

Although conscience is mentioned in opposition to establishment, it was considered most seriously, not in the context of the First Amendment, but the Second, having to do with the militia. We should remember that among the Anti-Federalists’ greatest hesitations in agreeing to form a federal government was the possibility that it might maintain a standing army capable of overpowering the states. To win over doubters, the Federalists promised to allow each state to form its own militia and to oblige its citizens to serve in it. In addition to guaranteeing the individual states their own militias, Madison’s draft also acknowledged the pacifist convictions of Quakers:

“[N]o person religiously scrupulous of bearing arms shall be compelled to render military service in person” (434bot).

The words “in person” are crucial.

In the debate that addressed this question on August 17, three considerations arose. 1. Granting objectors an exemption from military service might tend to establish religion because it would induce others to become Quaker. 2. Such people would make bad soldiers. 3. Such a provision would deplete the militia’s ranks. James Jackson of Georgia proposed an answer: If “no person religiously scrupulous shall be compelled to bear arms,” he must procure a substitute (750bot).

Having served in the Revolutionary War and opposing conscientious objection, Jackson’s suggestion deliberately introduced a wrinkle to make the Quaker exception more onerous. Certainly, there was the task of finding a substitute, but there was also a moral complication. Even if the conscientious objector did not serve in person, by paying a replacement, he would nonetheless be complicit in war. A few members objected to this callousness. Roger Sherman of Connecticut explained:

“Those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent. Many of them would rather die than do either one or the other” (750bot).

John Vining of Delaware agreed.

“To compel a man to find a substitute [is] the same as if the person himself turned out to fight” (751top).

Elias Boudinot of New Jersey approved Madison’s formulation but omitted the words “in person” (749bot). In total opposition, New York’s Egbert Benson objected to granting any exemption on grounds of conscience:

“No man can claim this indulgence of right. It may be a religious persuasion, but it is no natural right, and therefore ought to be left to the discretion of the Government” (751mid).

Benson presumably meant that, since refusal to serve in the militia on the basis of conscientious objection was not a natural right, it did not inhere in the individual, and therefore the government had the power to compel citizens to fight in the militia against their conscience.

In fact, neither our present First or Second Amendment mentions conscience. Except for a tiny minority, our Founders did not see an issue in the idea of complicity. During the Civil War, once the Confederacy and the Union introduced conscription, both sides allowed a person to pay a replacement. We now understand how paying substitutes exacerbates inequities of wealth. It does not protect conscience. The idea of complicity is, however, crucial and it recurs in our twenty-first-century debates about the Free Exercise clause.

* * *

The problem I have in dealing with claims of conscience that I don’t agree with is that I strongly sympathize with conscientious claims to exemption from military service. The question then becomes: How can you defend some claims of conscience and deny others? In my opinion, religious freedom does not give some the right to prohibit in others what they deny themselves. Our country has already rejected this tendency. Civil law no longer forbids conducting business on the sabbath. Prohibition has come and gone. You deny yourself alcohol. By what right do you deny it to me? The same logic applies to same-sex marriage, abortion, and many other things. Congress cannot allow some to say, “You should not do what offends my conscience.” Congress is obligated to “insure domestic tranquility” not uniformity of belief and certainly not conformity in religion. The founders sought “to promote the general welfare,” and preserve “the public peace.” Only tolerance of differing conscientious convictions will bring about this goal.

What our review of the First Congress shows is that the religious right invents religious rights by devising a novel prominence for complicity that it did not have for the Founders. One might legitimately ask, however: If the First Amendment guarantees “the free exercise of religion” why not rely on complicity to expand religious freedom? Help with this question comes from an article by Mark Storslee, Executive Director of the Constitutional Law Center at Stanford University. “Religious Accommodation, the Establishment Clause, and Third-Party Harm,” The University of Chicago Law Review 86, 4 (June, 2019), 871-944. To illustrate the issue, Storslee examines the debate within the First Congress over conscientious objection to military service — precisely the issue that most interests me. The dilemma is this. A military force requires a number of combatants, and every conscientious objector reduces that number by one. So, on the one hand, there is the harm done to others when one person asserts conscience for an exemption from the law. On the other hand, there is the risk that recognizing the conscientious objection might have great appeal and thereby establish the religious precepts behind the exemption.

Turning to the Founders, Storslee quotes Georgia’s Revolutionary War veteran James Jackson reiterating in the second session of Congress what he had already asserted the year before.

“[T]he operation of this privilege would be to make the whole community turn Quakers; and in this way it would establish the religion of that denomination more effectually than any positive law could [or] any persuasion whatever” (2 Annals of Congress p. 1869 bot, Dec 22, 1790, cited by Storslee, p. 912).

Fife and Drum

Storslee therefore contrasts harm and establishment. The same opposition structures Burwell v. Hobby Lobby. The case arose in reaction to Barack Obama’s Affordable Care Act (ACA) which defined the type of insurance employers must offer their employees and imposed a penalty on those who refused. Therefore, the Green family, owners of Hobby Lobby Stores, a closely held corporation, risked significant monetary penalties when they claimed that their Christian faith prevented them from offering the required insurance whose coverage included abortifacients and abortions. The Greens refused to become complicit (as they saw it) in those medical interventions. Justice Samuel Alito, who wrote for the Court’s majority, prioritized the financial harm to the firm. In her dissent, Justice Ruth Bader Ginsburg stressed harm to the firm’s female employees who might be denied this medical care.

Following Storslee’s lead, we can propose two tests of any proposed exemption: harm versus establishment.

(1.) The harm test. Does forcing employers to pay for medications (contraceptives) or medical procedures (abortions) they find morally objectionable harm the enterprise or the economy as a whole? If so, how much? Then, compare that harm to what would be suffered by the employees denied medications or medical procedures if the employers were to be accommodated. Instead of focusing on the employer’s conscience, this approach considers the enterprise, employer and employees, as a whole. Accommodating the employers’ conscience disadvantages their employees by denying them important services and by providing less protection than what is given to workers at comparable businesses where no exception is granted.

(2.) The establishment test. Exempting employers from insuring certain medical needs would encourage religions that prohibit that practice and violate the establishment clause.

* * *

Many claim that denial of exemptions like those allowed in Hobby Lobby privileges all beliefs except the religion of the employer and effectively establishes secularism. The answer to that argument lies in the the Supreme Court Decisions Owen (1969), Welsh (1970), and Gillette (1971) that grew out of the widespread resistance to the war in Vietnam. The turning point occurs in Welsh. In 1966, Elliott Welsh II sought conscientious objector status under the draft laws of that time. Dating from 1948, The Universal Military Training and Service Act’s section 6(j) states:

Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code (as quoted in Welsh).

The broken rifle symbol of War Resisters International

When Welsh refused to say that his objection to war was based on any “relationship to a Supreme Being” or on his “religious training and belief,” his draft board denied his application and sentenced him to three years in prison. His appeal reached the Supreme Court, and the majority decided for him. The concurring Justice John Marshall Harlan II quoted section (6)j and repudiated its distinction between religious and philosophical reasons for conscientious objection.

[This language] not only accords a preference to the ‘religious’ but also disadvantages adherents of religions that do not worship a Supreme Being. . . . This in my view offends the Establishment Clause.

Further:

If the exemption [i.e. Conscientious Objector status] is to be given application, it must encompass the class of individuals it purports to exclude, those whose beliefs emanate from a purely moral, ethical, or philosophical source.

He concludes:

Since this [refusal of CO status] created a religious benefit not accorded to petitioner [Welsh], it is clear to me that this conviction must be reversed under the Establishment Clause of the First Amendment.

It is interesting that, in reaching his decision, Harlan also cited cases that go in the opposite direction, which

all sustained legislation on the premise that it was neutral in its application and thus did not constitute an establishment, notwithstanding the fact that it may have assisted religious groups by giving them the same benefits accorded to nonreligious groups.

For Harlan, the standard for such decisions had to be equal treatment for religious and nonreligious groups.

The Peace Symbol designed by Gerald Holtom, London, 1958

The official summary of the Court’s decision (called “the syllabus”) highlights Harlan’s reasoning and states:

Section 6(j) contravenes the Establishment Clause of the First Amendment by exempting those whose conscientious objection claims are founded on a theistic belief, while not exempting those whose claims are based on a secular belief. To comport with that clause, an exemption must be ‘neutral’ and include those whose belief emanates from a purely moral, ethical, or philosophical source.

“Neutral,” therefore, is the key word in this debate, and I believe it is at the core of the RFRA’s quotation marks around the word and its intimation that neutrality in legislation about religion is often feigned. In fact, RFRA reverses the trend so dramatically emphasized in Welsh. The Vietnam War-era Supreme Court’s decisions acknowledge that conscience can exist independently of religion. In order to avoid undue establishment, secularism, a mindset and code of conduct composed of “purely moral, ethical or philosophical” convictions, must be granted legal parity with religion.

* * *

In order to reduce the tension between these competing claims the first requirement is to increase good will throughout our community, the United States of America. The Free Exercise Clause allows you to deny yourself actions your religion prohibits, but the Establishment Clause prevents you from imposing that on me. For example, if you claim that paying taxes (or insurance premiums) to fund my abortion makes you complicit in abortion, I answer that the tax exemption granted to your place of worship and its associated school makes me complicit in your propagating doctrines I consider false and behavioral restrictions that inhibit freedom. Seen from the angle of either clause, the violation of another person’s rights perpetrates harm. Abridging the legally exercised liberty of your neighbor is always wrong.

Yin-Yang symbol. The complementarity of all things.

This principle was soundly established from the very beginning of our country. In a 2016 article, the same Vincent Muñoz cited above quotes from the constitutions of the individual states before the ratification of the U. S. Constitution. (“The Inalienable Rights of Religious Liberty,” Notre Dame Law Review 91:4 [2016], 1387-1417.) He finds many passages guaranteeing these kinds of protection against harm to others. He quotes a Delaware provision of 1776 to the effect that

“[N]o Man ought or of Right can be compelled to attend any religious Worship [i.e. religious service] . . . contrary to or against his own free Will and consent (1406). 

Some state constitutions asserted a universal duty to worship God. Benjamin Huntington opposed “those who professed no religion at all.” But, generally, the founders considered variety in belief and style of worship less important than community coherence. As Massachusetts put it, each man is allowed to worship according to his own conscience “provided . . . he doth not disturb the public peace, or obstruct others in their religious worship” (1394, 1414). New Hampshire used similar language (1405). Muñoz concludes, “the Founders held religious freedom to protect both believers and non-believers” (1408). Or again, “The Founders understood natural rights [such as freedom of conscience] to have natural limits. An individual’s exercise of his natural rights does not extend to interference with other individuals’ natural rights” (1416).

This lack of interference in another’s rights (called freedom) was therefore a driving premise of the Founders and those who drafted the Bill of Rights. In modern times, as we have seen, the Selective Service decisions such as Welsh gave “moral, ethical, or philosophical” beliefs equal force with religion. If these secular reasonings can be used on a par with Quakers’ status in seeking conscientious objection to military service, the parity of moral philosophy with religion is firm. To deny that parity is to establish religion. Although the First Congress sought primarily to avoid imposing any one Protestant denomination on the whole country, the Vietnam War-era decisions are entirely consistent with the statement by Madison I quoted above:

“Congress should not establish a religion, . . . nor compel men to worship God in any manner contrary to their conscience.”

Reason and faith, secularism and religion are now legally equal. The free exercise of religion inheres in all moral scruples, and the Establishment clause prevents any one person’s scruples from harming another.

IN CONCLUSION: The Founders considered but then excluded all mention of conscience and complicity from the Bill of Rights. Therefore the religious right invents religious rights when it exaggerates religious precepts and understates the danger of establishment and harm to third parties. Rights claimed to protect the conscience as understood in RFRA without equal regard to Welsh violate the First Amendment’s constitutional parity between religious and philosophical convictions. RFRA itself and cases like Hobby Lobby ignore the neutrality (without quotation marks) between religious and secular reasoning stipulated in the First Amendment and reaffirmed through attention to conscience during the war in Vietnam. We must defend those advances.

Dove of Peace

Many thanks to JoAnne Bernstein, Jonathan Beck, and Marcella Calabi for helping me think my way through this essay. For the peace symbols, see https://www.thehistorypress.co.uk/articles/peace-symbols-through-history/ and https://spiritualray.com/signs-symbols-of-peace.

Collusion Collision

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                              Attack on the Capitol, Jan. 6, 2021.

     The invasion of the Capitol on January 6 fused the interests of the violent mob with those of the demagogue who incited them. In my post of January 9 (“No Surprise”), analyzing the factors behind the events of the 6th, I referred to collusion between President Trump and the invaders. Now I wish to say more about that. This collusion was not only the result of Trump’s incendiary words at the rally on the Ellipse. It also involves the convergence of more general pressures from above and from below. Let’s take them one at a time.

     Right wing extremist groups produce pressure from below. Many newspapers and magazines and websites cover currents within the American right wing systematically. The Anti-Defamation League and the Southern Poverty Leadership Center have long tracked the activities of militias, Christian nationalists, white supremacists, QAnon believers, Three Percenters, Oath Keepers, and others. We’ve seen the fanatical, murderous actions in Jonestown, Oklahoma City, Waco, Pittsburgh, El Paso, and elsewhere of these and similar groups. Since the rise of social media, alert reporters can quote their exact language. The symbols on their flags and badges and tee shirts carry coded messages. Perhaps the most obvious is the Confederate flag. The rioters harbor nostalgia for the slave-holding, secessionist South and for their demagogic President who refuses to condemn that cause.

   Their websites indiscriminately lump together Democrats, liberals, progressives, leftists, socialists, and communists. They also revile journalists, politicians, academics, experts, anyone they smear as elitist, and ordinary government employees of what, in their paranoia, they call the “Deep State.” The federal bureaucracy actually serves the public, but they consider its employees enemies. Then, wrongly appropriating language from the Second Amendment, they call themselves militias and proclaim themselves patriots. Fashioning themselves as “defenders of freedom,” they express their hostility to American mainstream institutions with militaristic language. Leaving aside overt references to civil war or “the Storm,” the idea of “taking back our country,” used almost universally on the right, is a military metaphor that evokes an armed troop recovering a lost vantage point by force. 

     President Trump exerts pressure from above. It has been clear since long before the Republican nomination debates of 2016 that Donald Trump is a vicious bully. Demands of fidelity characterize his relationship with subordinates. One might have thought that, as head of the FBI, James Comey would be autonomous. But no, he could be fired. Similarly dispensable was Attorney General Jeff Sessions, who had been the first senator to endorse Trump as candidate. To Trump, everyone is expendable. 

   After he fired a very long list of senior officials in top agencies, the President’s appointees (often only acting secretaries) purged the ranks of their respective organizations. The Republican desire to shrink government served as a cover for this operation. In the Executive Branch, new cabinet department secretaries or agency heads retained only personnel presumed loyal to the President. Trump’s appointees have not only purged obvious organizations like the EPA that he targeted during his campaign, but also the Global Media Agency (home of the venerable Radio Free Europe), the Department of Justice, the Defense Department, and the Department of Homeland Security set up to improve coordination of intelligence gathering after 9/11. When Covid-19 hit, he also purged the FDA, the CDC, and the NIH to prevent advocacy of cures he did not favor or the publication of reports contrary to his own pet theories.

   Trump has turned the upper echelons of our government into a hostile workplace environment where insecurity undermines its function. Fealty to the President, like a vassal’s to a lord, permeates the administration. There is a party line, and those who depart from it get forced out. One result was that just “a day before rioters stormed Congress, an FBI office in Virginia issued an explicit warning that extremists were preparing to travel to Washington to commit violence and ‘war’.” How could such intelligence be ignored?   

     Given the deference Trump demanded throughout the government, it is easy to see how security personnel would react to unwelcome news. Developments threatening law and order must be reported from local agents upwards. But the screening system in the Executive Branch made it imperative that no harsh facts reach the top.

     How can even a responsible government official alarmed by the increasingly hostile rhetoric and numerous outbreaks of armed, threatening demonstrations of Trump’s base present the situation to a boss and his immediate associates who agree with the militants? It’s even less likely that ambitious, insecure, opportunistic personnel now in mid-level administrative posts would risk offending their superiors or blowing the whistle. Their boss has been stoking those emotions since before his election. 

    And what emotions? These people assume and sometimes assert that demonstrating whites, even those fearful of being “displaced” by minorities, are somehow more orderly than supporters of Black Lives Matter. They think whites who plan protests against the legal succession of presidents do not require surveillance. They are better behaved, it is assumed, by virtue of their racial superiority. This bias is manifest in the remarkable laxity of the intelligence community which failed to develop official threat assessments to warn of the true dangers in the demonstrations summoned by Trump for January 6 to protest the “theft” of his supposed electoral victory. Why did they fail? In her brilliant reporting on the subject, Dina Temple-Raston quotes R. P. Eddy, “a former U. S. counterterrorism official and diplomat who now runs Ergo, a private intelligence firm.” Eddy explains why the threat was invisible to the intelligence community. “[I]t was very hard for these decision-makers and these analysts to realize that people who look just like them could want to commit this kind of unconstitutional violence and could literally try to and want to kill them.” How could pro-Trump protesters, people who support the police and attack BLM demonstrations in defense of “law and order,” themselves turn violent? How could they have even worse goals? This blindness comes from systemic racism.  

    Here is an argument for diversity. A more diverse corps of intelligence gatherers and analysts would not have made the same naïve assumptions about white power marchers.

    If you don’t think they’re marching for white power, consider the photo above. Its slogan, “Come and take it,” alludes ostensibly and quite legally to the Second Amendment. But it is a Confederate flag, indicating their sympathies, and an AR-15-type assault weapon, indicating their intention.

  To sum up. Trump himself puts the top and the bottom in conspiratorial conjunction. That’s the essence of populism: resentment and insurrection disguised as patriotism. Watchdog groups knew where these populist, militant, apocalyptic beliefs were heading. They reported them to the FBI, which took no action. With Trump’s censorship of bad news in place, intelligence reports get buried, there is little preparation, and only an inadequate defense against the rioters. Trump and his people get their way. The Capitol is breached. Collusion collision. 

Update 1. How extreme were the rightwing chatroom statements prior to the actual insurrection? This one was quoted by The Washington Post January 12, a day before I posted this essay. “As of 5 January 2021, FBI Norfolk received information indicating calls for violence . . . . An online thread discussed specific calls for violence” including “Be ready to fight. Congress needs to hear glass breaking, doors being kicked in, and blood from their BLM and Pantifa slave soldiers being spilled. Get violent. Stop calling this a march, or rally, or a protest. Go there ready for war. We get our President or we die. NOTHING else will achieve this goal.”

Update 2. March 4, 2021. Here is a very concise account of security lapses (or deliberate malfeasance) by Trump appointed officials at the Pentagon in the days leading up to the insurrection of January 6. It is by Heather Cox Richardson’s newsletter of March 4. 

Today’s biggest story about the previous administration . . . came from the Senate hearings about the January 6, 2021, attack, held before the committee of Homeland Security and Governmental Affairs and the committee on Rules and Administration. While there is still confusion about what happened when, it became clear that there were some serious lapses in the protection of the Capitol, and it appears those lapses originated with Trump appointees in the Pentagon.

Because the District of Columbia is not a state, its National Guard is under the control of the Defense Department, and it is overseen by Army Secretary Ryan McCarthy. The Commander of the D.C. National Guard, Major General William Walker, told the Senate that, in response to a request from D.C. Mayor Muriel Bowser and the director of D.C. Homeland Security and Emergency Management Agency, Dr. Christopher Rodriguez, Walker requested approval for the mission from McCarthy on January 1.

McCarthy’s approval did not come until January 5, when the event was already upon them. And, in what Walker saw as an unusual move, McCarthy withheld approval for Walker to deploy the Quick Reaction Force, guardsmen equipped with helmets, shields, batons, and so on, to respond to civil disturbance, without the approval of the Secretary of Defense.

Then, at 1:49 pm on January 6, then Chief of the U.S. Capitol Police, Steven Sund, called Walker to say that the Capitol had been breached. “Chief Sund, his voice cracking with emotion, indicated that there was a dire emergency on Capitol Hill and requested the immediate assistance of as many guardsmen as I could muster,” Walker told the Senate. Walker immediately called the Pentagon for approval to move in his troops, but officials there did not give the go-ahead for 3 hours and 19 minutes. Once allowed in, the National Guard troops deployed in 20 minutes. But by then, of course, plenty of damage had been done.

The delay in deployment stood in dramatic contrast to the approval accorded to the National Guard to deploy in June 2020. Today’s testimony suggests that the Pentagon placed unprecedented restrictions on the mobilization of the National Guard on January 6, preventing it from responding to the crisis at the Capitol in a timely fashion.

No Surprise

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Supporters of President Donald Trump, carrying Confederate flag, inside the Capitol, Wednesday, Jan. 6, 2021. (AP Photo/Manuel Balce Ceneta)

 

     Planning for the January 6 assault on the US Capitol began long before the notorious rally at the Ellipse. Looking at only the Trump presidency we can see the preparation. First, Trump flattered the armed and violent, racist alt-Right. In one of history’s greatest waffles, Donald Trump said of the protesters and counter-protesters at the tragic 2017 Unite the Right demonstrations in Charlottesville that there were “very fine people on both sides.” Wrong: there were only “very fine people” on one side.

     The Right took the hint. They were encouraged to protest more boldly. Once the Corona virus hit, armed protesters opposed to masking invaded the state capitol in Lansing and threatened the assembly and the governor of Michigan.  In Portland and Kenosha, vigilantes, who claimed to be defending the police, killed marchers protesting the murder of Black suspects such as George Floyd, Breonna Taylor, and Jacob Blake. On January 6, extremist rioters entered the U. S. Capitol to disrupt the counting of electoral college votes. With his protesters still inside the building, but hearing widespread condemnation of the action, Trump finally told his supporters to “go home.” Then, echoing the welcome he gave to the violent right in Charlottesville, he added, “We love you, you are very special.” How chastened they must have felt!

     On December 20, after the results of the 2020 Presidential election became clear, Donald Trump asked his faithful to gather in Washington precisely on January 6 — the day the electoral votes of all fifty states would be counted. He Tweeted to them: “Big protest in DC on January 6th. Be there, will be wild!” So it is no surprise that his followers at the Ellipse obeyed when Trump ordered them to march to the Capitol “to cheer on our brave senators and congressmen and women.” Everyone knew what January 6 was to be. The Anti-Defamation League sent over a thousand notices to law enforcement itemizing overt statements culled from right-wing social media with plans for the coming violence.  Washington DC Mayor Muriel Bowser requested the National Guard to keep order, but “someone” at the Department of Defense, in an act of criminal negligence, denied her petition. It is as if there was collusion between the invaders of the Capitol and those with authority over the building’s defense and responsibility for keeping the legislators safe. (Why does “collusion” keep cropping up in connection with D. Trump?)

     Trump had pressured Pence to reverse the decision of the electoral college. Pence had refused. A mob was marching toward the Capitol.  Because of sabotage from above, the Capitol Police were left shorthanded and unprepared for the confrontation. Besides, the marchers were strong advocates of police immunity and, in contrast to the Black Lives Matter protesters, they were white and many belonged to groups long connected to white supremacy. The ingredients for this disaster had brewed for a long time. The stench will linger. It’s imperative that the country not regard the invasion of the Capitol as an isolated, “one-off” incident. We must prepare for similar attacks at the Inauguration (if not in DC, perhaps in many state capitals) and thereafter, for the long term.

     Dreams of attacking the government and fomenting civil war have animated right-wing thinking for a long time. Ronald Reagan had declared government “the problem” decades ago. The bombing attack of 1995 that killed 168 people in Oklahoma City was against the Federal Building and destroyed government offices. The NRA has for years argued that citizens need guns not to serve in a militia, but to resist “jack-booted thugs” from the government who would impose Washington’s will on a defenseless, subject population. Belief that there is a Deep State is evidence of a paranoid distrust of the most commonplace bureaucratic resources.

     There are formal organizations who monitor the activities of hate groups. I support the Southern Poverty Law Center, but there are several others. The militias and hate groups they expose are no longer just camping in the woods and hiding under rocks. The Proud Boys and Patriot Prayer came out in force this year in Kenosha and Portland. When asked about them during the presidential debate on September 29th, the President told them to “stand by.” Then on December 20, he summoned them to Washington. Since then, theories of non-existent conspiracies spawned by QAnon and similar fantastic propagandists have exacerbated tensions.

     Whether Trump leaves office peacefully or not, the point is that he has orchestrated currents in our country that most of us thought were safely beneath the surface. They are not!  Anti-Black, anti-immigrant, anti-Sanctuary, Anti-Semitic, Ku Klux Klan bearers of Confederate flags, white nationalist, male supremacy activists have been energized by Trump and his appeasers. These currents go very far back in American history. They will not be stopped by the inauguration of a new administration. Not all of this sentiment is equally extreme. But let’s remember how the word “liberal” has been made into a sneer, thus forcing liberals to call themselves “progressive.” Conservatives use “Democrat” as a slur, adjectivally, when they refer to the “Democrat Party.” Such liberties seep from conversation to ideology to hate and, as we saw on Wednesday, to violence.

     The radical right no doubt thinks the left is capable of the same: that those on the left hate America, seek to establish Venezuelan socialism here, disregard racial boundaries, devalue faith, and want open borders. The right has developed a “mirror-reflex” that supports their own echo chamber. It’s the old school-yard taunt: “Oh yeah? Well, you’re one, too.” But it ain’t so. In today’s America, the level of hatred and the proneness to violence is asymmetrical — far greater on the right.  It was there before Trump and will be there after he is out of office. We must be prepared for more of the same and not expect a sudden relaxation “just because” our new administration will be more sane. As Seyward Darby has observed, this is not a “last gasp” of Trumpism. The recently elected Republican delegate to the West Virginia House of Delegates, Derrick Evans, posted a video of himself participating in the invasion of the Capitol. He announced on Facebook, “Today’s a test run.” 

The Barr-Trump Monarchy

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Unchecked power is the defining goal of Donald Trump’s presidency. When he accepted the Republican party’s nomination on July 21, 2016, he declared, “I alone” can fix “the system.” The words evoke intolerant, absolutist, political concepts, particularly monarchy. “Monarchy” means rule by one. During the twentieth century, we called this dictatorship or authoritarianism. But Trump and his allies have cloaked their view of the President’s immunity, his superiority over the law, in a religious garb that springs from deeper and more sinister roots. What support could the political evocation of such themes find in the United States of America? Two speeches by William Barr, the current Attorney General, shed light on that question.

First, there’s Barr’s exaggerated notion of presidential power. In his speech to the Federalist Society (Nov. 15, 2019), the Attorney General deplores the weakening of the presidential office. The Founders, he argues, rejected England’s notion of “an overweening Parliament” or a king limited by a royal council. Instead, the Founders established “a strong Executive, independent of, and coequal with, the other two branches of government.” Independent, yes, but not isolated from, and not superior (remember: “co-equal”) to the other branches. Having set out the problem so well, he proceeds to ignore its fundamental premise: equilibrium in conflict. Barr argues instead that, by Executive power, the Framers meant more than just “carrying into effect the laws passed by the Legislature.” Indeed, the president should have “essential sovereign functions” such as foreign relations, meeting emergency situations like a plague or a natural disaster, and, dramatically, the prosecution of war. In his haste to elevate the Executive, he omits Congress’s unique ability to declare war.

Next, he itemizes what he sees as encroachment on the Executive first by the Legislature and then by the Courts. In his opinion, the Executive should have the ability to use executive orders to bypass congress and initiate something like Donald Trump’s travel ban against primarily Muslim countries. But there are exceptions. For example, in Barr’s view, Barack Obama had no right to implement DACA, thereby “refusing to enforce broad swathes of immigration law.” The independence of the president vis-à-vis congress seems to depend on who occupies the office.

The courts also encroach on the Executive when they interfere with the debate that should take place between the President (who has veto power) and the legislature. But why would the Executive, if it is “independent” as Barr defines it, even need to debate with congress ? Besides disrupting the dialogue between the president and the congress, Barr says, the judicial branch also interferes with the President’s “prudential judgment.” The courts are mired in bothersome evidentiary standards such as the preponderance of evidence or guilt beyond a reasonable doubt. Some decisions draw on deep qualities of personal character: prudence, humility, empathy, foresight. It is therefore wrong for the courts to employ their desiccated formulae to undermine the personal judgment of the president who, alone, can make these judgment calls. Note that when Mr. Barr was making these remarks the president was Donald J. Trump. One would have to believe absolutely in rule by one to assign this much discretion to the presidential office when one of them could be a person like Trump. Barr abuses the concept of office to excuse the failures of the man who holds it.

At the same time that the Attorney General exaggerates the Executive he disparages the state. His reasons are not political but religious. In his speech to the Federalist Society, Barr contrasts “so-called progressives” to “conservatives.” Those on the left treat “politics as their religion” and “seek an earthly paradise.” In Barr’s view, progressives are deceived by a false, secular religion. “In pursuit of an abstract ideal of perfection,” their “deific end” justifies “whatever means they use.” Typically, Barr stigmatizes all liberals with the excesses of history’s worst examples: those who resort to “any means.” His description may fit Leninists or Stalinists, but not left-of-center Americans. In contrast to leftist, Machiavellian ruthlessness, conservatives, he intones, seek the “proper balance of freedom and order necessary for the healthy development of natural civil society and individual human flourishing.” For Barr, therefore, everything depends on your ultimate goal. Do you “seek an earthly paradise” or pursue a heaven properly located in the other world? So stark a dichotomy is wrong. The Attorney General deliberately ignores the large numbers who seek to improve conditions on earth (some call it “repairing the world”) such as the climate or the distribution of wealth or opportunity, nutrition or healthcare— ethical goals that religious leaders of many faiths have advanced for centuries.

The Attorney General elaborates on his contrast between secular and religious aims more explicitly in his speech to the Law School at the University of Notre Dame (October 11, 2019). Presenting what is actually a top-down argument, but pretending to build from the ground up, Mr. Barr asserts that the founders removed control over citizen behavior from the government and left it to the character of individual citizens. “If you rely on the coercive power of government to impose restraints [on individual rapacity], this will inevitably lead to a government that is too controlling, and you will end up with no liberty, just tyranny.” Still, “unless you have some effective restraint, you end up with something equally dangerous, licentiousness . . . another form of tyranny.”

To escape the tyranny of licentiousness, Barr invokes moral law which he claims is based on natural law, the visible manifestation, in his view, of divine law. This would serve as the foundation for the absoluteness of his conception. Any abandonment of the moral law, as disseminated by religion, harms society. Human freedom, then, would be subject to authoritative interpretation of divine law, not by the people or by their representatives, but by experts in religion. Consequently, he attacks what he calls “modern secularists” for their “moral relativism,” which, by definition, is not absolute. Individuals who deviate from the moral law should, in his opinion, have to suffer the consequences. Unfortunately, secularists do not allow individuals to pay the price of their wrong behavior because, he says, the state cushions them. By weakening moral restraint, the state actually enables bad behavior. Therefore, in Barr’s view, the state acts against the moral law which flows downward like grace from God, not, as the Founders saw the system they established, upwards from the sovereign people. If we did not have popular sovereignty why would the Framers have guaranteed the people the freedom to seek redress of grievances against the government and reserved to the states and the people all powers not specifically assigned to the federal government as specified in the First, Ninth, and Tenth Amendments? Barr is wrong about our constitution. His hierarchy of moral, natural, and divine law is not political philosophy, it is theology. Worse, it is also political.

When China’s Xi Jinping got himself voted president for life, Trump joked (March 3, 2018), “I think it’s great. Maybe we’ll have to give that a shot some day.” Later, on July 22, 2019, in China, and pretending to be the only president ever to tackle delicate trade issues, Trump joked “I am the Chosen One.” Following the “I alone” statement, this pattern is not random. These are not jests—especially to the Evangelical component of his base that is prone to believe in them. The President can later deny that he meant them, but receptive ears hear them with gratitude and faith. Always credit the President’s rapturous exclamations over his later efforts to walk them back. They are far closer to his actual meaning than the revisions scripted for him by a circle of advisers in charge of damage control. Nor is Trump alone in his belief that he is chosen. Caleb Parke of Fox News wrote two articles (May 13 and June 25, 2020) that identify religious leaders such as Franklin Graham, who either share the President’s delusion or helped foster it in the first place. Widespread among Evangelicals is the idea that God appointed Trump to save the country. Parke lists prominent members of the government who agree, including Secretary of State Mike Pompeo, Energy Secretary Ben Carson, and former White House Press Secretary Sarah Huckabee Sanders.

How does this relate to William Barr? The hierarchy of moral to natural to divine law did not spring from his own head. It dates from the Middle Ages and includes an element not even he dares acknowledge. Without saying so, Barr is reading royal theocracy, better known as the divine right of kings, into our constitution. Here is the theory. Just as the universe has one Creator and one providential Ruler, just as reason rules the soul, and the heart the body, so should one divinely guided power rule the world: the emperor (in the early days) or the king. Less scholastically, there was this maxim: “The law of the land is in the breast of the king.” This unitary principle does belong to our constitution when applied to the carefully defined Executive, but not when carried any farther, as Barr does. When blended with Trump’s so-called jests about being unique and ruling for life and exploiting the religious overtones of being the chosen one, the threat of a supposedly divinely guided monarchy gets way too loud for this American’s ears. If you want to know what spirit animates our country, let’s go back to Thomas Paine: “In America, the law is king.”

Has this monarchist infection gone beyond the inner circles of Trump’s cabinet or the very committed Evangelical base? Consider what happened in July, 2020, when the Republicans abdicated their responsibility to define a program for the coming administration, should their candidate win the election. The pandemic prevented the Platform Committee from meeting in person, but not from deliberating. Instead, like faithful serfs to a lord or like good subjects of a sovereign, they said that if had they met, the RNC “would have undoubtedly unanimously agreed to reassert the Party’s strong support for President Donald Trump and his Administration.” Really? “Undoubtedly unanimously?” This is intellectual bullying. It allows no room for dissent or even doubt. The party assimilates its goals to the notions of its head, like the limbs of a body. This is monarchy, especially when the president is assumed to be an instrument of God or, as Barr puts it, a defense against godless, secular, moral relativism.

Since we, the people, have the power, we should employ it against this monarchical threat to our republic and vote these deluded people out of office.