Posted: May 11, 2016
aving previously questioned, if not trashed, in the CRB U.S. opposition to Communism (“Letting Bygones Be Bygones,” Spring 2015), Christopher Caldwell provides the sequel by giving a pass to Vladimir Putin, who he tells us merely wants to “defend the interests of his people” (“The Prince,” Winter 2015/16). Comparing Putin’s stout defense of his country’s sovereignty to Kemal Atatürk’s use of secularization for similar purposes, Caldwell would have us believe as well that the former KGB boss is unfairly maligned, marginalized, and misunderstood by a Western world that wishes to “intrude” in Russia’s affairs.
Surely we have not forgotten that the “old Soviet Union,” as it is strangely referred to today, lost the Cold War? Yet no Carthaginian peace was imposed on the loser, not even the peaceful occupation that the victorious Allies maintained for so many years after Nazi Germany’s defeat in World War II. Indeed, there is no reason to believe that the Soviet despots who kept the world in turmoil for much of the 20th century learned any sort of lesson from the massive injustices, to put it mildly, they perpetrated against their own people, and other nations’ peoples, through wartime atrocities en route to Berlin and Prague, not to mention injustices against the people of numerous “satellite” countries. The French-published Black Book of Communism totaled the deaths at a staggering 100 million.
Besides the current West’s distaste for occupation, there were prudential reasons for not attempting such a project in a country of Russia’s immense size. But we did what we could by at least placing limits on a revival of Russian imperialism. Putin may well describe Russia’s fate as the “greatest geopolitical catastrophe of the century,” but that’s what the Soviet regime deserved. To describe the West’s real reluctance to seek the fruits of victory as an overbearing presence, as Caldwell has, is misleading at best, dishonest at worst.
Caldwell’s rather casual dismissal of Russia’s attempts to seize Ukraine and Crimea (he forgot to mention Georgia), along with its over-the-top response to terrorists’ hostage-taking, is evidence of how far he is willing to go to indulge Putin’s desire to restore Russian “greatness.” The nation’s history of despotism, not merely clever statecraft, sheds much light on this sort of familiar behavior. The West’s failure to check Putin’s pursuit of the “near abroad” has allowed the leader of a militarily weak and economically anemic regime to believe he can overturn the altogether just settlement of the Cold War. President Reagan described his strategy in the Cold War as “we win, they lose.” We should never forget why that policy not only made sense but why it must govern our relations with the loser for as long as necessary.
We don’t need to be told that the consequences of defeat for the Russians are too hard to bear. Only a lack of means prevents Putin from resuming an even greater Russian expansionism. We must not relax our guard. Our presence in eastern Europe is essential to our national security and to global stability.
Christopher Caldwell replies:
The correspondent cannot tell contemporary (or, for that matter, Tsarist) Russia from the Soviet Union of the last century. His gripes, as well as his misrepresentations of my arguments about anti-Communism and other matters, arise from this failure of understanding.
The armed Chechen and Ingush Islamists who took 777 Ossetian primary-school children hostage in September 2004 would seem a more fitting object for the correspondent’s scorn than the authorities who tried to thwart them.
It is a shame the correspondent declines to share with us how he would have imposed a “Carthaginian peace” on a country that had 43,000 nuclear warheads.
In his new book, Churchill's Trial, Larry Arnn seems to be too close to his subject to offer an objective view of Winston Churchill's performance as a political leader. As Andrew Roberts notes in his review ("Guide to Greatness," Winter 2015/16), Dr. Arnn's thesis is that "Churchill's thoughts and actions are of practical use today and contain important insights for us even half a century after his death." Precisely. Churchill's actions and thoughts should be studied so that we can avoid the costly mistakes he made, which plunged Europe, England, and the entire world into the two most devastating wars of the 20th century. Consider these facts.
In the run-up to both World Wars Churchill's incessant war-mongering calcified British diplomatic efforts. Churchill twice caused England to fall into the classic "Thucydides Trap," where the dominant power, England, could not accommodate the rising power, Germany. Rather than seek accommodation before WWI, Churchill sought an alliance with England’s eternal enemy, France, and the decrepit Austro-Hungarian Empire in order to wage war to protect the British empire and privilege. The result? 700,000 English dead and over 250,000 dead from Canada, Australia, and India. The entire generation that would have led England over the next 50 years in industry, commerce, science, and art was wiped out.
At the end of the war Churchill was a proponent and supporter of the egregious Treaty of Versailles, which was extraordinarily punitive toward Germany. He also supported and enforced the naval blockade of Germany for 12 months after the armistice was agreed to, which resulted in the starvation of 500,000 German women and children. This war on civilians was breathtaking in its scope and in its depth of moral depravity and created such enmity that World War II was virtually assured. Moreover, as a Member of Parliament in the 1930s, he was a driving force for war with Germany.
Yes, we have a lot to learn from Churchill. But we can all benefit from a more balanced view of the man versus his deification.
Andrew Roberts replies:
When Mr. Maier asks us to consider some facts, we would be more than happy to. Unfortunately, he gives us no true ones thereafter.
The Allied blockade on Germany was lifted on January 17, 1919, and the figure of half a million deaths from starvation is entirely invented. Recent academic work done on the German rationing system points out that in fact there were very few deaths by starvation, despite Joseph Goebbels’ interwar propaganda.
Far from being a hawk, even before the war had ended Churchill was advising the British War Cabinet, “We might have to build up the German army, as it was important to get Germany on her legs again for fear of the spread of Bolshevism.” He wanted a strong Germany immediately after World War I.
Nor was Churchill a driving force for war with Germany in the 1930s, but rather a driving force for a grand alliance including France and Russia that would deter Adolf Hitler from going to war. To blame the outbreak of World War II on Churchill rather than Hitler requires a particularly politically skewed view of the period. The idea that Britain was unwilling to accommodate the rising power of Nazi Germany would be to most people worthy of general approbation.
All Mr. Maier has written should serve to raise Winston Churchill, and Larry Arnn’s book on him, higher in CRB readers’ esteem.
Self-Government and the Court
With his usual cogency and eloquence, Hadley Arkes laments the failure of the dissenting Justices in Obergefell v. Hodges to invoke human nature as their first and central ground of criticism (“The Self-Made Trap,” Winter 2015/16). He seems to regard the constitutional text and the idea of self-government as ancillary considerations.
Suppose, however, the conservative Justices had followed his guidance—that they had countered the majority’s moral arguments by explaining and affirming the traditional understanding of human sexuality. Wouldn’t they thereby have suggested their readiness, given the opportunity, to strike down a state government’s expansion of marriage to include homosexual unions?
Suppose clever lawyers found suitable plaintiffs and managed to put that very issue before the Court. Would Professor Arkes urge the Court to prohibit the legal recognition of homosexual marriage? If Arkes thinks that the legal recognition of homosexual marriage should be prohibited, nationwide, does he find one or more provisions of the Constitution relevant to that determination? If so, which? And does Arkes think that the desire for self-governance—and hence for republican political institutions—is inherent in human nature?
Would Professor Arkes accept the text of our Constitution as a plausible articulation of the nature of republican government? Would he agree that the Constitution’s separation of powers, and its division of responsibilities between the states and the central government, together outline a structure conducive to government of the people, by the people, and for the people?
Hadley Arkes replies:
I’d like to thank Mr. Rutledge for his compliments on my “usual cogency and eloquence,” but if he were really that well versed in my “usual” arguments, in my books and other writings, he would already know quite amply what I’ve had to say about that flood of questions that he releases as the grand finish to his letter. If he would like to see something on the deeper moral significance of the separation of powers—a moral significance that runs well beyond the dispersion or concentration of power—I’d recommend that he read “On the Novelties of an Old Constitution: Settled Principles and Unsettling Surprises,” the first chapter in my book Constitutional Illusions & Anchoring Truths (2010). If he is concerned as to what I know about the “division of responsibilities between the states and the central government,” I’d earnestly recommend chapters 6 through 9 of my Beyond the Constitution (1990). He may find there some things on the moral case for federalism—and the serious moral limits of federalism—that run beyond the clichés one hears so often.
Anyone who knows my writing should know that the “constitutional text” can hardly be an “ancillary” consideration. It matters quite profoundly to me as to who becomes president if a president dies in office, and when the term of a president comes decisively to an end. Those are matters of structure that form the most critical part of a constitution as a structure of governance. The enactment of Obamacare suffered a serious jolt when the Constitution served up—for the 84th time, in my count—a mid-term election in 2010. That was a constitutional check delivered by the text and structure of the Constitution, though few people seem to have made that connection.
I hope that it doesn’t come as a surprise to Mr. Rutledge that it becomes routinely necessary to move beyond the text of the Constitution in order to understand explicit passages in the text—much as Justice Frankfurter had to muse aloud as to where the accent was to be placed in this passage quite familiar: that no person “shall be compelled in any criminal case to be a witness against himself.” Was the accent on “himself”—so that someone could be granted immunity and then compelled to testify against his friends in the Communist Party? Or was it on “compelled”? But if so, that invites us to fill in the explanation; the explanation that the framers didn’t bother to supply in the text. As I pointed out in my piece, even Justice Scalia, a preeminent “textualist,” found himself going persistently beyond the text in explaining his reading of the text.
But perhaps I should have been alerted right away to Rutledge’s manner of reading when he wrote, in that very first sentence, that I would have had the dissenting judges “invoke human nature” as their ground of argument in sustaining the laws on marriage in Obergefell. Anyone who really claims to know my “usual” arguments would understand how gross it would be to invoke merely “human nature” as the ground of our judgments. Or to fall into that mistake noted by Kant: the willingness to arrive at an understanding of “human nature” by simply drawing generalizations on the rather checkered record of our species.
What is engaged here are the principles by which we are ever compelled to judge between the restrictions on freedom that are “justified” or “unjustified.” I’ll presume that Rutledge has no quarrel with the willingness of the Court, in the famous Loving v. Virginia case (1967) to strike down those democratically passed laws that barred marriage across racial lines. In that case, I’d presume that he would find nothing bizarre in the claim that the Court could find laws of that kind “unjustified,” while at the same time finding grounds on which to say that the laws confining marriage to one man and one woman can be amply “justified.” To say that those laws were justified was not to foreclose, in itself, any other changes in the laws—as in the case of New York, where the legislature came to install same-sex marriage. Rutledge may not recall that I was one of the authors of the Defense of Marriage Act (DOMA) (1996), and that we were criticized by some friends at the time precisely because we still left it open, in that Act, that states could indeed vote in same-sex marriage.
Perhaps Rutledge does not quite recall how moral judgments may function: when we cast a judgment, say, on the wrong of prostitution, and we foreclose that way of making a living, we still leave people free to make choices in that vast universe of things quite legitimate for them to choose as they consider how to make their livings. The same logic comes into play in judging—as federal courts are compelled to judge—whether some decisions taken by local majorities may be quite “unjustified.” As James Madison said during the Constitutional Convention, it was the concern for “the security of private rights” within the states—the dangers of those “local tyrannies” and their attendant “evils”—“which had more perhaps than anything else, produced this convention.”
I trust that Mr. Rutledge will forgive a certain raillery here, for if he has not been my closest reader he has been an active writer of letters, and he does offer the lure for me to take my response just one step further and join for a moment what he professes to fear. It is not at all implausible to me that the Court could review, in a demanding way, the laws of a state that allowed small human beings in the womb to be killed for no reason above the convenience or private interests of those who would kill them. Justices on the Supreme Court could bring out the compelling brief submitted by the lawyers for Texas in a case called Roe v. Wade (1973). They could review the evidence of embryology showing why that offspring in the womb could be nothing other than human from its first moments; that the child was an entirely separate entity, with a genetic definition of its own; that the child was not simply a part of the mother; and that the laws on homicide are usually quite indifferent to the height, weight, and age of the human who was killed. No, it is not inconceivable to me that the Supreme Court could quite plausibly arrive at the judgment, supported by empirical evidence and principled reasoning, that the child in the womb was of course one of those human “persons” who come under the protection of the Constitution when a state withdraws from that class of humans the protections that should be cast by the laws over human life. The Court could see as readily in this case as in others how the protections of the law were being removed for the most “arbitrary” of reasons.
Now the question presented in the book What is Marriage? (2012), by Robert George, Ryan Anderson, and Sherif Girgis, is whether a comparable case could be made for marriage as we have known it: not simply “traditional” marriage, as Mr. Rutledge has it, but as the most morally coherent and defensible form of marriage for human beings. That is the open question. And if that case can be made, we should not regard it as shocking, or unwelcome, if the Supreme Court, in a series of cases, starts checking states that go too far in undermining that understanding of marriage. Here I describe a better world—not an imaginary world, but a world that seems right now beyond the reasoning and wit of those lawyers who are caught in the formulas and clichés of “conservative jurisprudence.”
The 13th Amendment’s Liberties
Randy Barnett’s essay for the sesquicentennial of the 13th Amendment is an elegant gem of legal thought and explication (“Free at Last,” Winter 2015/16). It is all the more marvelous for its failure to mention the Declaration of Independence and the Dred Scott decision. The 13th Amendment was, of course, intended to complete “the more perfect union,” by placing the Constitution firmly on the basis of the Declaration and thus overturning Dred Scott’s distortion of the Declaration.
Eschewing that exercise, Barnett performs the noble service of arguing that the 13th Amendment is a friend of property rights and limited government. In addition to abolishing slavery, “Republicans…altered our system of federalism in order to empower the citizen to challenge state laws that irrationally or arbitrarily restricted his or her liberty, whether economic or personal.” I suspect Barnett and I would differ about the meaning of the liberty being opposed to slavery here (and of the consent of the governed at the heart of limited government). Surely a major part of natural right denied to slaves would have been the right to marry, a subject thoughtfully reflected on by Hadley Arkes and Robert Reilly in the same issue of the CRB.
Taking the three articles together, we see that the pro-liberty element of the anti-slavery Constitution requires a combination of the wisdom on property and on the family from Aristotle’s Politics. The arguments for the natural family and for private property are one and the same, as is the case for virtue and liberty.