Never Go Full Ninth Circuit

February 10, 2017

Dear Reader (including the manufacturers of the Bernie Sanders action figure, now with the seize-the-means-of-production Marxist grip),

One of my favorite scenes of any comedy — and it's very un-PC — is in Tropic Thunder when Robert Downey Jr. (in blackface!) explains to Ben Stiller that you "never go full retard." The conversation is about film roles. Well, if you haven't seen it, watch:

Now, I don't like the term "retard" — and I really don't like it in political debates. We aim for something loftier here.

Still, the scene came to mind because there should be a similar rule in legal circles: "Never Go Full Ninth Circuit." Personally, I think it sounds better in Latin: Nolite umquam ire plenus nona circuit (and if any of you Latin pedants send me an e-mail correcting my translation, I will come to your house and scatter your Dungeons and Dragons figurines off the kitchen table).

The other day I noted on Special Report that Antonin Scalia had a rubber stamp on his desk with one of his favorite phrases: "Stupid but Constitutional." I hope that one day, a Supreme Court justice will have a stamp on his desk that says, Numquam Plenus Nona Circuit.

Anyway, I understand that the case against the Ninth Circuit can be exaggerated. Yes, the West Coast's federal appellate court has the highest rate of cases that have been oveturned by the Supreme Court, but the vast majority of its cases don't get appealed to the Supreme Court. Hence the qualifier "Full Ninth Circuit." Going Full Ninth Circuit is when you claim that that the Pledge of Allegiance is unconstitutional. That's a Simple Jack move, not a Rain Man or even a Forrest Gump move.

It's not that any single one of their findings in the travel-ban case violates the principle of Nolite umquam ire plenus nona circuit,it's the totality of the thing. For starters, here is what the relevant statute says:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

As Ben Wittes notes:

Remarkably, in the entire opinion, the panel did not bother even to cite this statute, which forms the principal statutory basis for the executive order (see Sections 3(c), 5(c), and 5(d) of the order). That's a pretty big omission over 29 pages, including several pages devoted to determining the government's likelihood of success on the merits of the case.

This is like the pope changing a major part of Church doctrine without referencing the Bible or a film critic writing a book about mob movies without mentioning The Godfather.

Then there's the claim that states have standing to challenge this executive order because they have state schools where students or faculty may be affected, thus depriving them of the ability to provide an enriching educational experience. How does this new standard work? Universities would be affected by a draft or a war, can they challenge those policies because it would affect their students? The president, I gather, can order a naval blockade around the United States. That might interrupt some U-Dub student's planned semester at sea. Shall the commander-in-chief call to make sure he's not interfering with anyone's plan to take a few easy courses by day and smoke a lot of hash by night?

The fancy lawyer guys I've talked to think the most egregious thing in the ruling is that the judges are concerned about the "potential due process rights" of illegal aliens. This calls to mind Socrates' famous query: "Huh?"

The executive order is only aimed at people trying to enter the country. If you are an illegal immigrant already here, it has no bearing on you. If you are an illegal immigrant trying to enter or re-enter the United States — illegally! — what are these due-process rights you're talking about?

But I think the craziest part of the ruling is the idea that a president's campaign statements have legal weight and could violate the Establishment Clause of the Constitution. This is battier than Bruce Wayne's home office. Every cliché-spewing poli-sci major and pundit for the last 17,000 years (give or take) has noted that politicians say one thing when campaigning and another thing when in office. Even Mario Cuomo — that savant at casting banal observations as seemingly brilliant insights — said that we campaign in poetry and govern in prose (Donald Trump changed that to we campaign in limericks and govern in tweets).

Whatever you think of Trump's original call for a Muslim ban (I think it was ludicrous) the whole point is that Trump did the right thing. He talked to his advisors and they said, "You can't do that." So he said, "Okay, what can we do?" And they came up with this executive order. It was shoddily done and on the merits isn't nearly as vital to American national security as he claims. But that's my point. He did something vastly less ambitious because the demands of governing required it. The judges responded, in effect, "We don't care. We're still going to punish you for it."

David French is exactly right when he says this ruling is a Pandora's Box. Where does this retromingent line of legal reasoning end? Barack Obama insisted he would fundamentally transform America and suggested he'd make the oceans recede. Could some judge reviewing an EPA regulation have said, "But the president said . . . " about that? This is taking the rigorous rules of Twitter logic and putting them into law.

I firmly believe the Trump White House screwed the pooch on this thing from the get-go. By doing so, the president set in motion events that have made things even worse. The Ninth Circuit loves to preen under normal circumstances. The judges took a sloppily rolled out — but ultimately legal — executive order and used it to set potential precedents that, if left standing, will have calamitous repercussions.

If one thinks of the courts as a political institution with collective interests, the smartest thing the Ninth Circuit could have done is say something along the lines of "this is stupid but constitutional." If they really think Trump is the monster the "resistance" Left thinks he is, they'll need more, not less, credibility in the days to come. But, much like the mainstream media, they've decided that crying wolf from Day One is the preferable way to go. And that's why they went Plenus nona circuit.

Nationalism, Again

For those who haven't been reading NR this week, what the Hell is wrong with you?

But if you have a good excuse — e.g., the hooker handcuffed you to a towel rack in a motel, you had heart-transplant surgery, a bear ate your face, etc. — you missed a lengthy and civil badinage about the question of nationalism and its role in American life. (See, here, here, here, here, and here). I'm already running long so a lengthy recap is not in the cards. But, in brief: Rich Lowry and Ramesh Ponnuru penned an eloquent defense of nationalism qua nationalism in a cover story for the magazine. I modestly dissented, arguing that in America, nationalism is different from patriotism. I'm going to pick up where we left off below on the assumption you're pretty much up to speed. If it's not your cup of tea, that's fine. I'll see you next week (when I pretend to be the cable guy).

As Rich Lowry is my boss — or at least one of them (the perils of wearing many hats) — let me start off by saying that not only is he a powerful man, but a handsome one, too.

I should also say that I love these debates at NR, and it speaks well of him and the magazine that Rich encourages them.

And now that I've blown enough sunshine up his nethers to earn a solar tax credit from the Obama administration, let's get on with it.

In their cover story Rich and Ramesh wrote:

Indeed, the vast majority of expressions of American patriotism — the flag, the national anthem, statues, shrines and coinage honoring national heroes, military parades, ceremonies for those fallen in the nation's wars — are replicated in every other country of the world. This is all the stuff of nationalism, both abroad and here at home.

To which I responded, in part:

This is at the same time both entirely right and fundamentally misleading. It leaves out what the flag represents. It glides over the fact that the national anthem sanctifies the "land of the free." Our shrines are to patriots who upheld very specific American ideals. Our statues of soldiers commemorate heroes who died for something very different from what other warriors have fought and died for millennia. Every one of them — immigrants included — took an oath to defend not just some soil but our Constitution and by extension the ideals of the Founding. Walk around any European hamlet or capital and you will find statues of men who fell in battle to protect their tribe from another tribe. That doesn't necessarily diminish the nobility of their deaths or the glory of their valor, but it is quite simply a very different thing they were fighting for.

Rich responds to this by writing like an angel on a cloud (okay, now I'm really done with the up-sucking):

It is a charming characteristic of American nationalism to believe it isn't and can't possibly be nationalism — that is for other countries, not us. So Jonah seems to imply that other countries can't have true patriotism because they don't have the Declaration and our founding ideals. Their heroes honored with statues — I guess that means you, William of Orange, and you, Admiral Nelson, and you, Tadeusz Kosciuszko — were combatants in grubby wars of tribe versus tribe, as Jonah puts it. This is the equivalent of the New Yorker "View of the World from 9th Avenue" for world history, with the ideals and struggles for independence and self-government of others reduced to utter inconsequence.

Like a mail-order Ikea entertainment center, this is going to require some unpacking before we can even get started.

When Rich says, "Jonah seems to imply that other countries can't have true patriotism because they don't have the Declaration and our founding ideals . . . " you should translate that as, "Rich seems to be inferring." I have no problem conceding that patriotism exists in other countries. Americans didn't invent the word, after all.

Let's stipulate that patriotism means "love of country." People all over the world love their countries. Even people who live under oppressive dictators and hate their governments will say that they love their country. Indeed, many of the greatest patriots swim against the nationalist tides in their homelands.

Love is a quadrupedal, five-toed mammal with a prehensile trunk formed of the nose and upper lip. Oh wait, sorry that's an elephant. Love is like a movie about randy underwear models locked up in a prison run by a buxom bisexual warden. No wait that's not it either.

I guess the point is that love, much like pornography and elephants, is hard to define, but most of us know it when we see it. But I think we can all agree that love is contextual. Love requires an object, and the nature of that object defines the nature of our love. I love my wife, my daughter, my dogs, and eating cold fried chicken over the kitchen sink — but I love all of these things in very distinct ways.

Let me try it a different way. I have always believed that American conservatism is inseparable from American patriotism. I said "inseparable from" not "identical to."

Since everyone's quoting Samuel Huntington these days, I'll do it too. Huntington observed that conservatism is a "positional ideology." By that he meant that there are many conservatisms because conservatives in different societies seek to conserve different things. A conservative in France in, say, 1788 seeks to conserve that rich bouillabaisse of altar and throne. A conservative in England seeks to conserve the monarchy, among other things.

"Men are driven to conservatism by the shock of events," Huntington wrote, "by the horrible feeling that a society or institution which they have approved or taken for granted and with which they have been intimately connected may suddenly cease to exist." This is why I share Yuval Levin's contention that, at its core, conservatism is gratitude.

To my mind, conservatism is gratitude. Conservatives tend to begin from gratitude for what is good and what works in our society and then strive to build on it, while liberals tend to begin from outrage at what is bad and broken and seek to uproot it.

This is why I had no problem saying that Barack Obama's talk of "fundamentally transforming" America was literally unpatriotic. If patriotism is love, then wanting to fundamentally transform what you love isn't really love. In speeches I used to tell married men, "Go home tonight and tell your wives, 'Honey, you know I love you. I just want to fundamentally transform you.' See how that works out for ya." Love requires loving something as it is, not for what it might be at your hands.

Patriotism is also a positional orientation (I'm a little reluctant to call it an ideology). A patriot in England, never mind Russia or Botswana, loves different things than a patriot in the United States. It's something of a paradox: All patriotisms are equal in that they are all subjective, but not all patriotisms are equal when measured against certain ideals.

And that makes all the difference in the world. Lowry asserts that I think other countries can't have patriotism because they don't love the Founding and our principles of liberty. Not at all; rather, I think American patriotism is different because America — the object of our love — is different. As Hayek noted, America is the one place where you can be a lover of liberty and a conservative because in America conservatives seek to defend the liberal principles of the Founding.

This creates another paradox. The American colonists considered themselves English subjects and inheritors of an English tradition. But they were, quite obviously, not English nationalists. Indeed, they rebelled against the crown precisely because the inherent logic of nationalism — obey the crown, do as you're told, abide by tradition — was in their eyes a violation of more important English principles that stretched back to the Magna Carta and beyond. The Founders took the arguments of Locke, Burke et al and followed them to their logical and glorious conclusion that ended up leaving the monarchy in the dustbin of (American) history.

In the nations of the Old World, nationalism is a tribal passion or sentiment that relies (in theory) on mystic and ancient myths of a shared ancestral past. Most of the foundational writers on nationalism, like Johann Herder, argued that nation and volk were literally like an ancient family. There's no room to go into it here in any detail (though I do at great length in my forthcoming book), but the idea that the nation is a family is a very pernicious one, conceptually ceding all manner of authorities to the state that it does not and must not have.

In America there is nationalist sentiment, to be sure, but the "doctrines" of nationalism find no easy purchase here. Werner Sombart's famous question, "Why is there no socialism in America?" has elicited many answers, but the most agreed-upon one is that America has no feudal past. America represented a sharp break with the ancient notion that polities — nations, empires, city-states, tribes, etc. — were no different than families with an unimpeachable pater familias at the helm. We celebrated and enshrined very different notions in our national DNA, which is why Alexis de Tocqueville could observe that the American was the Englishman left alone. What makes America exceptional, what makes American patriotism and conservatism different, is that the object of our love and gratitude is different. If Rich wants to define nationalism as love of country and nothing more, that's his right. But he would be wrong.

So when Rich tries to insinuate that I don't think William of Orange was a patriot, he's wrong. But his patriotism was fundamentally, philosophically, and morally different than American patriotism. And, by the way, it most certainly was tribal, if one is allowed some leeway when using the term. As he knows, England — and Europe — was cleaved in a vicious "Cold War" (historian J. P. Kenyon's phrase) between protestants and Catholics. The Earl of Essex told the Privy Council in 1679: "The apprehension of popery makes me imagine that I see my children frying in Smithfield." To this day you can still find Irishmen who'll say, "I don't care if I swing by a rope, down with King Billy and Up with the Pope!"

If you don't want to call that tribalism, fine. But I think my point stands just fine. In America, we said goodbye to all that, and that's made all the difference in the world.

Et Tu, Abe?

Rich is a greater student of Abraham Lincoln than I'll ever be ("Lowry, you magnificent bastard, I read your book!"). But I'll risk his wrath by reminding him that Lincoln understood the exceptional nature of America as much as anyone. He was dismayed by the nationalist passions that trampled upon the patriot's commitment to law and liberty. As he said in his Lyceum address:

"I mean the increasing disregard for law which pervades the country; the growing disposition to substitute the wild and furious passions, in lieu of the sober judgment of Courts; and the worse than savage mobs, for the executive ministers of justice."
"Thus, then, by the operation of this mobocractic spirit, which all must admit, is now abroad in the land, the strongest bulwark of any Government, and particularly of those constituted like ours, may effectually be broken down and destroyed -- I mean the attachment of the People. Whenever this effect shall be produced among us; whenever the vicious portion of population shall be permitted to gather in bands of hundreds and thousands, and burn churches, ravage and rob provision-stores, throw printing presses into rivers, shoot editors, and hang and burn obnoxious persons at pleasure, and with impunity; depend on it, this Government cannot last."
"As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor; -- let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children's liberty."

Lincoln recognized that the lust of nationalism was unhealthy and destructive unless it be channeled into the proper orientation of American patriotism.

I should say that I agree entirely with Rich when he writes, echoing Huntington, "When you lose our nation and common culture, you're going to lose our creed, as well." Which is why I said that in a normal time our differences would be largely academic. My purely academic disagreement here is that talking about the burning need for more "nationalism" is not the best way to spark a recommitment to our nation and culture.

The Whitewash

And that brings me to our final disagreement. Rich is understandably perturbed by my closing paragraph:

In a normal time, I would still have the above disagreements (and a few others I left out) with Rich and Ramesh, but they would be entirely academic. But this is not a normal time, and the decision to slap a coat of paint over the term nationalism becomes difficult not to interpret as a whitewash. If the intent is to educate the president about what nationalism, rightly understood is, I wish them luck, but I won't get my hopes up.

Rich fairly notes that his nationalism-rightly-understood project predates the current moment and his own tenure in the captain's chair at NR. That is all fair. And if I had the chance to do it over I would rephrase that penultimate sentence to read: "But this is not a normal time, and the decision to slap a coat of paint over the term nationalism makes it somewhat more difficult to defend it against the accusation that it is a whitewash."

Politics is about moments. We put "under God" in the Pledge in order to kick dirt on the shoes of Communists. Trent Lott said many times that America would have been better off if Strom Thurmond had been president and no one noticed or cared. And then they did. Choosing to rush to the defense of nationalism — no matter how rationally or defensibly — at a moment when mobocratic nationalism-improperly-understood is on the rise opens you up to the charge of being on the other side of the question. As I suggested in my initial response, I think that's unfair and misguided. But it should also be expected.

Various & Sundry

First off, if you haven't signed up for the National Review Institute Ideas Summit (March 16–17), I really think you should. It looks like it will be the best one in a very long time even though — or perhaps because! — I won't be there. I have a family commitment I can't get out of. I am quite dismayed about it. But if you're interested in the prospects or plight of the conservative movement and you can make it, I don't know why you wouldn't go.

Canine Update: The beasts are the beasts doing their strange beastlike and beastly things. I'd fill you in on all the details, but I'm very late for an important date. We're taking the kid to Chicago to see the road show of Hamilton for her birthday (we couldn't afford or get tickets in NYC). So instead I will leave you with some important video of their strange goings-ons.

ICYMI . . .

My first response to Lowry-Ponnuru on nationalism.

My take on Trump's latest defense of Putin.

My latest take on Trump's . . . Trumpiness.

Who's afraid of Kellyanne Conway?

My NPR appearance this morning.

And now, the weird stuff.

Debby's Friday links

Can corn turn hamsters into cannibals?

The first underwater image of a diver

Your CDs may be decaying into worthlessness

The Dark Knight's debt to Michael Mann