Mob Rule, Mob Rules: Part 3, Section 1

(Part 1, Part 2)

Trumphantism: Donald J. Trump & The Post-Trump World

By: E. Kyle Richey

Earth to America: Crashing til Landed

Marred by 2020 the world braces for impact in 2021. Humanity has witnessed a paradigm shift, yet the dust still settles as outcomes and consequences remain to be decided. Donald J. Trump, United States 45th President has lost an election which determined the cascading trajectory of the United States of America. Now is the time to understand what we are leaving behind as American’s and the world enter the fragmented universe of 2021. 

The irony of collapse is eventually a replacement appears. No power, however impressive, lasts forever per the testimonies of time by empires that long lay in ruin. Ancient Egypt, Greece, and Rome lay in ruin while continuing to influence the present; they may be in ruin yet their voices speak an eternality of what is to come, “an end and new beginnings,” they whisper.  

Transitions from beginning to end are never definite in degree, but shared similarities showcase potential possibilities for historians and political thinkers alike to study and consider. 

In 1992 a profound and controversial book was published, The End of History and the Last Man (1992) by Political and Social theorist Francis Fukuyama. Immediately in his introduction Fukuyama premised that liberal democracies are the pinnacle of a free and open society, an end of history, while acknowledging stable nations such as the United States or France would continue to have issues due to an “incomplete implementation of the twin principles of liberty and equality (p. xi).”1 Within the end of history and fasts-forward to 2018 with the publication of Identity: The Demand for Dignity and the Politics of Resentment, both works acknowledge a demand for universal recognition (an idea from the philosopher Hegel) or dignity according Fukuyama, a place where all are seen heard, and known. Yet the ideal turns toward the ideological as demands of recognition include no forms of discrimination or disrespect felt by oppressed groups giving rise to a new totalitarianism, a “soft totalitarianism”2 whose overarching hand comes largely from corporations whose cooperation with governments make them complicit actors of the state. This is Modernity’s present conflict and a test concerning history’s end due to its irreality and polarizing affect of identity politics: 

Being a citizen of a liberal democracy does not mean, moreover, that people will actually be treated with equal respect either by their government or by other citizens. They are judged on the basis of their skin, their gender, their national origin, their looks, their ethnicity, or their sexual orientation. Each person and each group experiences disrespect in different ways, and each seeks its own dignity. Identity politics thus engenders its own dynamic, by which societies divide themselves into smaller and smaller groups by virtue of their particular “lived experience” of victimization (p. 164).3

Specific to the United States of America, a serious conflict is taking place concerning its future in the world as it continues to dim in the night sky. Our nebulae is fading while false promises of return continue from Trump to Biden. The election of 2020 further marks a crisis of culture and legitimacy. Black Lives Matter, ANTIFA, and additional Marxist movements in the areas of culture and political life are merely one revolt competing against another. Attempts in the final weeks of the Trump Presidency to override the Capitol was an extension of a radical right of QAnon conspirators and Alt-right fascism determined to prevent what they believe was an election stolen and an America quickly fading in front of their eyes. As Anne Applebaum from The Atlantic observed, extremists are emboldening one another.4 Events in America today are reminiscent of Germany as Marxist’s caused anarchy in the streets and out of frustration far-right extremist groups -began to take the streets ending in bloodshed and a revolution that brought about Adolf Hitler into power.

Would it be hard to believe that both sides of the the quarrel in America today carry legitimacy and illegitimacy? A conundrum for sure but a postmodern reality as conflicting interpretations5 swirl us into further disaster. Internally outcomes mean a warring between a weak versus strong state, however, a much larger powers hover over the once great nation. China, Corporatism, and Globalism each carry a new weight on the shoulders of Uncle Sam.

Socialist Technocrats riding of the back of Capitalism are aiming for a Great Reset in the midst of C-19.6 Spiraling out of control, disillusioned by their grander, they believe they can land a plane already in flames with President Biden and Vice-President Harris at the throttle. In order to comprehend the erosion and decay; to predict the outcomes that are likely to arise in 2021; and to understand the pinnacle of modernity—late modernity, a perpetual state7 of totalitarian incantations8—we must first review President Trump and the American ethos of 2016 that built up to this point. Mob Rule, Mob Rules did not develop overnight but it is rooted in the unsettled nature of mankind whose fears, wants, needs, and desires collide in a world of duality with the Self at the center of an unraveling universe that is the End of History & the Last Man.   

America’s Second Postmodern President

Donald J. Trump was an enigma and an archetype representative of the reverberating tensions in the modern world. America’s 45th President was not in the mundane category as he set a new standard for future leadership in the political landscape—an all gloves off approach. His own outrageous behavior polarized the most moderate into unmarked territories while enflaming political baselines. To call the man evil ignores the good he committed himself to doing while President, yet to call the man good evaporates his offensive oddities that perturbed Conservatives and non-Conservatives, Christians and non-Christians alike. The now former President was our first purely postmodern President; a genius capable of fragmenting and uniting in ways not thought possible in modern America.9 He successfully made the ecological landscape appear upside-down and right-side up, greatly due to the fact that American society at present is itself fragmented and united, engaged and disengaged, troubled and relived.

As I engaged on the EKR Report, it is important to reiterate here:

It is my belief that America’s 45th President Donald J. Trump was a complete postmodern President; a manifestation of late modernity’s yearnings for a hero and a villain. Trump just so happened to represent the radical right, the alt-right, but it is questionable if President Trump was indeed a man of the right or a man who took advantage of their woes. Previously I have mentioned that I believed Trump to be the first postmodern president, but I stand corrected as Barack Obama was the first (another topic to be sure). However, in reaction to thematics of Obama, Donald Trump entered center stage to fill a void in the political right, a strong arm who could MAGA his way though Washington. QAnon and the Alt-right are blatant examples of the modern malaise that is postmodernism. 

Continuing that thought-line I presented Donald J. Trump as a Postmodern Nebuchadnezzar:

Manifestation being the keyword President Trump embodies the essential postmodern stigma. He is the result of an ecological convergence within late modernity—a billionaire titan hungry for an abundance of power and wealth in order to make a legacy and the presidency was the perfect construct at a point of political strife…

President Trumps election and win in 2016 was understandably a response to the status quo, a push against the vanguard found in the Democratic and Republican parties that elected George W. Bush and Barrack Obama, respectfully, and a reactionary response from the public to the potential presidency of Hillary Rodham Clinton. People have grown weary of globalism, capitalism, socialism, war, and even peace. Citizens are worn.

And the election of Joe Biden is a reaction to Trump and Trumphantism, however, is also a response to the ills that minorities and progressives argue are repressing them. They too are enraged by hate speech, discrimination, low wages, and an expensive bloated healthcare system.

Combined a catalyst has been formed of good versus evil; light versus darkness. The postmodern stage has been set and the audience is watching:

In his book, Simulacra and Simulation, the postmodern thinker Baudrillard argues that within the United States a switch took place between the image relationship of art forms and reality; the image now has ontological priority over the real. Signs and Symbols have become the reality rather than the actual world itself thus resulting in life itself becoming “film-like” as he puts it:

It is not the least of America’s charms that even outside the movie theaters the whole county is cinematic. The desert you pass through is like the set of a Western, the city a screen of signs and formulas.”

Continuing:

A simulacrum is a representation of something or someone. Donald Trump, I am arguing, is a simulacrum due to the sociopolitical economic environment of the United States. He is a superficial force Americans had to contend with as either good or evil; right or wrong. Trump was not one but both. A master of media, Trump knew exactly how to market himself as savior and king as much as antichrist and tyrant. Christian professor and author of the book, Disruptive Witness: Speaking Truth In A Distracted Age, Alan Noble describes our media saturated society—what I see as a postmodern product of late modernity the emerged from secularism, technology, and science— Nobles writes that the:

[C]onstant engagement with media also invites us to unreflectively adopt ethical and political positions, creating a hodgepodge worldview. From a film on the treatment of animals in amusement parks we develop a fleeting concern for animal rights. A documentary on modern farming practices makes us see shopping local and organic a moral issue.

Are the events we are witnessing real? Who is telling the truth? What will become of the human estate? Former President Trump offered America one way forward and it was a way that now nearly half of America sought to maintain rather than surrender. So much so that a cabal raided the Capital. While another half, a half fearful of Trump and “his” America, elected Joseph Robinette Biden Jr to repose from a sudden decay in their vision of democracy.

Disturbingly there is a serious disconnect between needs and wants for the average American citizen versus the conflicting natures found in Washington. Following that logic, the innumerable hands influencing decisions in the American political system has designed a wide range of conflicts in terms of visions and, as I have termed it, a collision of ideas that relate to the competing visions of the nation and the world for that matter.10 

If the controversial terminology Deep State11 means anything it is that there are far too many actors involved in the decision making of the U.S. Government beyond its traditional capacity of the three branches of government and their inability of functional overwatch. Additionally, Deep State as I define is a clear cooperation, not conspiratorial, between the State (i.e. the Federal, State, and local governments including its many agencies) and private entities (i.e. Corporate entities such as Media conglomerates, Banks, and Private Military Companies); a layering of networks that has become the security state entwined with a global economy called neoliberalism. Modernity procured a “Too Big To Fail” attitude because our interconnected global economy is dependent upon its own continual success. Security and prosperity are its goals. Civilization is not post-modernity, its in the thicket of modernity. Postmodernism— philosophically and ideologically—acts a reflective state that mirrors modernity’s crisis. This is the present Market State12 out of which Trump triumphed, at least, momentarily.

Never A One Man Show

Trump became President in the midst of a rise of authoritarian figures, nationalism, and Brexit.13 But he also stood as a bulwark against socialism, critical race theories, and leftist radicalism. Yet he adopted agendas that aligned with alt-right motives.14 A man who was bitter and vial towards those he disliked and quick to dispose all those who showed a lack of Trump style loyalty. Paradoxically, Trump was willing to stand against our greatest enemies in the world including China and rail against the greatest evils such as abortion; the paradox would also have bizarre relations with our greatest enemiesRussia and North Koreathat themselves left many perplexed.

Mob Rule and Mob rules goes both ways. Once a society or group accepts a particular culture to the extent of an unwavering obedience that is when the mere obedient citizen morphs into the crazed devotee.15 In such a state of mind the individual joins a collective consciousness that bestows an ideological framework with its authoritative structures, a tyrannical voice speaks over the disillusioned. Granted that both authority and legitimacy are each necessary means to gaining such societal clout. Without that respect the people protest, rebel, and eventually turn into revolutionaries. Todays status quo can be tomorrows tyranny as the vanguard can be heroes and mob alike. No modern government is unaware of the populist pull.

With the populist shift in the recent decade as seen in the election of President Trump a void continues to grow in the desire of American political stability. As previously written in part 2 of this series:

Donald Trump was not Russia’s (forever) President Vladimir Putin nor North Korea’s Supreme Leader Kim Jong-un, however, the current President fit well within mob tactics. Portrayed as a hero who was set on “draining the swamp” it was clear that the Washington outsider brought in his own muck. 

Biden is the pendulum swing further to the left. Hardly a stabilizing force considering the policies the President and the democratic party have adopted.

Life’s A Riot

            Movements and the groups who fight for their beliefs can quickly be perceived as either just or unjust depending on which side a person stands. The avant-garde of the new or the progressive versus the conservative institutions or the reactionary, these are only a set of varying “stances” a person can be part of. However, where do hate groups, real hate groups such as the Ku Klux Klan, Nation of Islam, or Neo-Volkisch stand in the spectrum of differences between progressives and conservatives? They may share similar accepted norms and mores of general society, but their responses are dehumanizing, threatening, and often violent. Truthfully, they have no justification in relation to either the avant-garde or the establishment considering that these movements of hate are beyond even the fridge of accepted beliefs and are considered fraudulent in their cause. Yet liberalized governments tend to protect even the most hateful. Such a decision hardly premises legitimacy but it begs the question, How do liberal democracies successfully funnel extremist groups within their countries? That question relates to the United State most recent socioeconomic and political trajectories of riots and movements via Black Lives Matter and the Alt-Right. And it is a central topic as the 46th President Biden intend to tackle “white supremacy” after President 45 attempted to address the radical socialist left. It is therefore essential to understand Black Lives Matters, ANTIFA, and the Alt-Right; to see them as archetypical trajectories of what lays ahead in the radicalism that has overtaken the American Dream that is no more.

————

Next Time: Mob Rule, Mob Rules: Part 3, Section 2 Trumphantism: The Alt-Right, Black Lives Matters, ANTIFA, and the Fate of American Liberty

References

1 Dreher, Rod. (2020). Live Not By Lies: A Manual For Christian Dissidents. New York, NY: Sentinel

2 Fukuyama, Francis. (1992). The End of History and the Last Man. New York, NY: The Free Press

3 —. (2018). Identity: The Demand for Dignity and the Politics of Resentment. New York, NY: Farrar, Straus and Giroux. 

4 Applebaum, Anne. (2020 October 30). The Answer to Extremism Isn’t More Extremism. The Atlantic. https://www.theatlantic.com/ideas/archive/2020/10/left-and-right-are-radicalizing-each-other/616914/

5 As a point of reference I am using Jean Baudrillard’s usage as he explained this loss of the real in how we interpret events around us. In his example, he used Watergate. This is directly quoted from Simulations (1983) Translated by Phil Beitchman, Paul Foss and Paul Patton, “All hypotheses are possible, although this one is superfluous: the work of the Right is done very well, and spontaneously, by the Left on its own. Besides, it would be naive to see an embittered good conscience at work here. For the Right itself also spontaneously does the work of the Left. All the hypotheses of manipulation are reversible in an endless whirligig. For manipulation is a floating causality where positivity and negativity engender and overlap with one another; where there is no longer any active or passive (p. 30).”

6 World Economic Forum. The Great Reset. https://www.weforum.org/great-reset/; and for further commentary on events see: Doane, Thomas. (2020 November 1). The Convergence of the Progressive Telos. Truth In Focus. https://edwardkylerichey.org/2020/11/01/the-convergence-of-the-progressive-telos/

7 Richey, Kyle. (2020 October 26). PostModernity: A Perpetual State of Modernity. https://edwardkylerichey.org/2020/10/26/postmodernity-a-perpetual-state-of-modernity/

8 —. (2020 November 2). Totalitarian Incantations: Late Modernity’s Radical Manifestations. https://edwardkylerichey.org/2020/11/02/totalitarian-incantations-late-modernitys-radical-manifestations/

9 —. (2020 August 20). Mob Rule, Mob Rules 2020: Part 2. https://edwardkylerichey.org/2020/08/20/mob-rule-mob-rules-2020-part-2/

10 —. (2020 November 2020). Too Divided To Stand: Election 2020 & The Future of America. https://edwardkylerichey.org/2020/11/06/too-divided-to-stand-election-2020-the-future-of-america/

11 Several references: Lofgren, Mike. (21 February, 2014). Essay: Anatomy of the Deep State. Moyers On Democracy. https://billmoyers.com/2014/02/21/anatomy-of-the-deep-state/; Kaizen, Michael. (Fall 2017). The Rise of the Security State: From the Great War to Snowden. Dissent Magazine. https://www.dissentmagazine.org/article/world-war-i-aftermath-security-state-nsa; Healy, Gene. (1 March, 2015). National Security State. (Book Review) National Security and Double Government By Michael J. Glennonhttps://www.cato.org/publications/commentary/national-security-state; Epstein, Richard. (20 October, 2019) How Bad Constitutional Law Leads to Bad Economic Regulations. The Atlantic. https://www.theatlantic.com/ideas/archive/2019/10/how-bad-constitutional-law-leads-bad-regulations/600280/

12 A great reference point for understanding the Market State is from Constitutional scholar Philip Bobbitt’s, The Shield of Achilles, including on page 347 where a small set of graphs or “plates” he calls them demonstrate the evolution of the state including a small definition of each entity. The Market State according to Bobbitt “will maximize the opportunity of its citizens.”

13 Greven, Thomas. (2016 May). The Rise of Right-wing Populism in Europe and the United States: A Comparative Perspective. Friedrich Ebert Stiftung Foundation. http://dc.fes.de/fileadmin/user_upload/publications/RightwingPopulism.pdf

14 Wilson, Matthew. (2020 July 17). Donald Trump and the “Alt-Right”: How Much Connection Is There. ISPI. https://www.ispionline.it/it/pubblicazione/donald-trump-and-alt-right-how-much-connection-there-26990

15 Richey, Kyle. (2020 August 20). Mob Rule, Mob Rules 2020: Part 2. https://edwardkylerichey.org/2020/08/20/mob-rule-mob-rules-2020-part-2/

Riled By Politics: The Fate of the U.S. Supreme Court & The Constitution

(Special Report/Special Edition)

Politics had become the possession of a regime, not an establishment, and there was no role for him, unless he were somehow to create a new one.

– Anthony Everitt, Cicero: The Life and Times of Rome’s Greatest Politician, p. 233

Political discourse has turned acrimonious at the federal level. America’s constitutionally instituted branches are demonstrating immense wear against present social and economic pressures. The latest comes at the wake of Justice Ginsburg’s death this past Friday September 18, 2020 within months of the presidential primary election between incumbent President Donald John Trump and potential candidate elect Joseph Robinette Biden Jr. Yet the U.S. government also faces internal uncertainty as the government grows far and wide beyond the Constitution and the rule of law.

He Said, She Said

Reported by the The Annenberg Public Policy Center’s Fact Check, Joe Biden has blundered on multiple occasions since the passing of Justice Ginsburg1:

  • Biden falsely claimed that “there’s no court session between now and the end of this election.” The next Supreme Court session begins Oct. 5, nearly a full month before Election Day.
  • Biden said, “I think the fastest justice ever confirmed was 47 days.” That’s false; since 1975, the shortest time from formal nomination to confirmation was 19 days. 
  • Biden exaggerated when he said that 30% to 40% of Americans “will have voted by Oct. 1.” His campaign later told us he meant by Nov. 1 — two days before Election Day.
  • He also wrongly claimed the Trump campaign asked him to release a list of potential Supreme Court picks “only after” Ginsburg’s passing. President Donald Trump and his campaign had called on Biden to produce such a list prior to her death.

Democrats fervor over the potential SCOTUS nominee selected by President Trump as Senator Chuck Schumer and Representative Alexandria Ocasio-Cortez take to the podium to announce their dismay that the President would dare to defy Justice Ginsburg’s last wish that no nominee be chosen until after the election2:

Senator Schumer: She was an amazing woman. So, the first reason we’re here is unity, and the second is to honor her legacy, to demand that her last wish be fulfilled by the Senate… But the third reason we’re here is the most important of all. So many people’s rights are at stake in this election. The right of people to health care. The President is pursuing a policy which would get rid of all protections for preexisting conditions, which would take healthcare away from 7 million people, and he will appoint a justice that will enact that in the Supreme court case that is due only a few weeks after election day. We are here to protect the rights of women, their rights to their own body, their rights to choose, their rights to healthcare, their rights to equality would all go down the drain if that wish were not realized. We’re here to protect the rights of working people.

Representative Alexandria Ocasio-Cortez: So, we need to make sure that we mobilize on an unprecedented scale to ensure that this vacancy is reserved for the next president. We must use every tool at our disposal, from everyday people, especially in swing states. We need everyday people to call on senators, to call on folks on the bubble to call Republican senators, to make sure that they hold this vacancy open. We must also commit to using every procedural tool available to us, to ensure that we buy ourselves the time necessary. We must commit to allowing and to considering and to utilizing every single procedural tool available to us, again, to buy that time. We need to make sure that we realize and fight this fight with the weight of every person who sacrificed for voting rights, every person who sacrificed their wellbeing and their lives to make sure that they could marry whomever they love, to make sure that they can live freely and safely in a workplace, to make sure that they can live in this country and make sure that dreamers can stay in this country, and that families can have the path to citizenship that they deserve.

Here for a complete transcript.

Strong claims considering that the U.S. Supreme Court is not a political institution that merely overturns politically “left” or “right” hot button issues such as abortion, healthcare, and voting rights anymore than the second amendment, religious freedom, or property rights. It is an institution of law and justice; a constitutional interpreter not a maker of statutory laws (though it does review congressional statutes and offer legal remedies per a Constitutional relationship), but nothing happens until a real living case is brought before the Court which has often gone through the rigors of a Federal or State Court and an Appellate Court. Even if a case makes it through the system, rarely does a case reach the Supreme Court for as few as 100 to 150 cases are heard each session out of the thousands of certiorari asking for the ear of the nation’s highest court. That’s real talk. Nothing political about its intended functionality. Egregiously what made this institution malfeasant are the political parties themselves.

In 1995 the Presidential Studies Quarterly published an article by attorney Michael A. Kahn titled, The Appointment of a Supreme Court Justice: A Political Process from Beginning to End.3 Kahn’s main argument was that the Supreme Court justices have always been appointed for political reasons throughout America’s developing history. Judge Robert Bork was not the first appointee to be denied by the Senate either:

In 1881, President Hayes’ nomination of Stanley Matthews met this fate; and, in 1930 Judge John Parker was rejected because his political views were unacceptable to the Senate. The Parker Senate fight was every bit as political and nasty as the Bork fight and the vote in the Senate was even closer.4

Hayes nominated Matthews on January 26, 1881 only for the Senate to never take action until President James A. Garfield renominated Matthews on May 12, 1881 who was confirmed by the Senate May 17 that same year.5 Although Matthews would only live eight more years, passing at the age of sixty-four, he did become a Supreme Court Justice unlike Judge Bork.

Robert Bork, nominated by President Reagan on July 31, 1987, nomination hearing took place in October 1987. Perhaps the most intellectually informative nomination hearing ever recorded, Bork openly explained his legal philosophy for the Senate. Sen. Ted Kennedy, who had been leading the front against Bork6 (very similar to AOC and Schumer today), during that hearing said:

In Robert Borks America there is no room at the inn for blacks and no place in the Constitution for women and in our America there should be no seat on the Supreme Court for Robert Bork.7

For a complete reading of Bork hearings.

For Part 1 and Part 2 of Day 1 of hearings by video.

Hyperboles are not new to American politics from either political party. After the Courts famous conservative Justice Antonin Scalia passed away unexpectedly, President Obama was preparing to nominate Merrick Garland but Republican Senator Mitch McConnell responded with the “Biden Rule” going on to say:

The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the Court’s direction…The American people may well elect a President who decides to nominate Judge Garland for Senate consideration. The next President may also nominate someone very different. Either way, our view is this: Give the people a voice in the filling of this vacancy.8

Whatever the reasoning the American people have little say in the nomination process if any at all. Nevertheless the political ploy worked in 2016 for Republicans who mirrored a consistent message that the nation was in dire straits, the American people had a voice, and the Senate must wait until after the election to selected a new Supreme Court justice.9

Professors Bryon J. Moraski and Charles R. Shipan published in the American Journal of Political Science, The Politics of Supreme Court Nominations: A Theory of Institutional Constraints and Choices (1999).10 In their 27 page study they demonstrate the varying limitations a President has in nominating their selected choice for the Supreme Court. Two limitations have historically prevented a nomination: 1) Ideologically the candidate is out of step with the Senate; or 2) The candidate is less-qualified.11 Everything comes down to the attitude of the Senate, “Whether the Senate constrains the president, however, depends on the configuration of institutional preferences… there are three distinct regimes, and which variables affect the position of the nominee depends on which regime exists.”12

According to Moraski and Shipan there are three regimes: 1) Unconstrained President; 2) Semi-Constrained President; 3) Fully Constrained President.13 The President unsurprisingly has the most control under Category 1, Category 2 the Senate’s indifference has a greater impact, and in Category 3 the median of the Court affects the Senate’s decision-making.14 The Supreme Courts median was measured by the voting score on civil liberties from the Court’s previous term.15

During the 2018 nomination of Brett Kavanaugh, whom the Senate voted down political lines 51 yeas, 49 nays, President Trump was replacing the retiring Justice Anthony Kennedy. Kennedy remained a conservative justice throughout his career while moving liberal overtime on big key issues (e.g. gay marriage) but hardly the moderate he was proclaimed to be.16 Kavanaugh has been portrayed as far-right and more recently a “man in the middle.”17 His track record shows a mild lean to the right while voting most consistently with Justice Roberts 95% of the time and Justice Breyer at 86%.18 A record that I suspect will continue, making Kavanaugh likely a Chief Justice in the making who, like Chief Justice Roberts, is concerned more about the institutional stability of the Court over their own ideological leanings.

The Regime

In Cicero’s time the regime was Julius Caesar, Pompey, and Marcus Licinius Crassus; military men set on taking Rome. While modern America is layered in partisan politics with Democrats moving further to the left and Republicans growing stagnant19 underneath is a real Deep State (not Trumps Deep State) but a nexus of Private-Public institutions including corporations, national security agencies, military networks, and financial powers all too big to fail due to their interconnectedness in maintaining a global economy.20 As Nero fiddles while Rome burns the U.S. Supreme Court dwindles right along with the U.S. Constitution.

Perplexingly democrats have argued for decades against the rise of corporations in government while republicans rage against the increasing size of government; the politically left and right having written hundreds of books between them concerning the alarming demise of our government, our liberties, our constitution but neither party nor the ideologues seem willing to actually acknowledge the elephant in the room that is Deep State in its entirety. Wall Street to Main Street progressives voice all the while Amazon, Google, Facebook, and dozens of multinational corporations enforce “anti-racism” training, censor their workers and the public, and commoditize data, information, and knowledge of millions outside the purview of average Americans. While conservatives rail against the U.S. government for spying on every American they push for the next war with Iran, North Korea, or Russia. Granted both parties support war when it is politically savvy.

Crumbling beneath their feet is the very structure that provides them existence, hardly unaware rather perhaps most keen to the situation, the U.S. Supreme Court holds on tightly.

Now with alarming rhetoric the nation once again is told that the future stands or falls on the nomination of a justice and of a president. At the RBG Vigil one speaker exclaimed that healthcare, economic rights, reproductive rights, women’s rights… everything is at stake this year.21 Yes, the election is important. No two candidates could be more different, the established parties hold very different visions for the United States. But the historical ignorance displayed by both sides of the political aisle is abysmal. Their partisan attitude damages an already weakened system.

Unless the old Washington establishment can muster enough of a push against the partisanship there is little hope that they will address the political mangling taking place in our nation today. Richard Allen Epstein, legal scholar and professor made famous by Biden during the nomination process of Clarence Thomas, has been warning for over a decade against the Administrative State that started to rise during Franklin Roosevelt’s New Deal. A “fourth branch” of government the administrative state today is a conglomerate of agencies that have their own laws, courts, powers, and authority. Congress pushed away their responsibility and the responsibility of the States by creating agency after agency. Epstein warns that the very rule of law itself is weakened by this structure:

As I have made clear on many occasions, I do not accept, even today, this vision of the administrative state. First, I do not think that it is possible to shield administrative agencies in highly sensitive areas from various forms of factional and political influence that have little or nothing to do with technical expertise. These risks are, if anything, increased once it is possible to select persons exclusively for their views on a single topic. Now all interested parties can hone in on single issues in selecting key administrative officials. Unlike the situation in choosing people for courts of general jurisdiction, these parties need not be slowed down by worrying whether their favored candidates on one issue will disappoint them on a second. Stated otherwise, expertise is an overrated virtue, while the risk of political capture by interest groups and the discord that faction produces is an underappreciated vice.22

And in The Atlantic last year while promoting his new book, The Dubious Morality of Modern Administrative Law (2020), Epstein writes:

The administrative state, of course, is not unconstitutional in all its manifestations. The large and sophisticated corpus of 19th-century administrative law offers us a benchmark by which we can evaluate post–New Deal developments. The success of that body of law depended heavily on the limited mission that it was asked to discharge, given its deep respect for both the doctrine of federal enumerated powers and a relatively robust conception of property and contract rights. But the New Deal expansion of the constitutional order has failed, as I argue in my new book, The Dubious Morality of the Modern Administrative State. To understand the extent and character of that failure, look only to what administrative law now allows: excessive government discretion to implement vast statutory schemes, many of which impose overbroad controls in such critical areas as environmental, labor, and food and drug laws.23

America’s fourth branch is now in line with its fifth branch, the National Security State24 completing a globalized out of control Deep State. How can America’s constitutionally established third branch truly function when it and our nations founding document are overridden by a network larger and more powerful than ever intended? Reviewing Professor of International law at The Fletcher School of Law and Diplomacy at Tufts University Michael J. Glennon’s book, National Security and Double Government (2014), CATO Institute’s Gene Healy explains “that the national security state has become a runaway train and that presidential elections are contests that determine who gets to pretend he’s driving.”25

Congress must put away the pettiness but that is too much to hope for at a time when the President can either do no wrong or no right; when radicals burn down cities in the name of a movement whose real aims are to overthrow an entire social structure rather than reform a broken system; when threats of adding more seats to the Court are made; and Cultural Marxism takes center stage.

Today America needs statesmen not men of the state. We can only pray that one will rise to the occasion.

Sources

1 Gore, D’Angelo., Kiely, Eugene. (21 September, 2020). Biden’s False and Exaggerated Supreme Court Claims. https://www.factcheck.org/2020/09/bidens-false-and-exaggerated-supreme-court-claims/

2 The Hill. (20 September, 2020). AOC says NOTHING IS OFF THE TABLE to ensure Supreme Court seat is filled by next president. YouTube. (Video). https://www.youtube.com/watch?v=yk2ba4LONXY&ab_channel=TheHill

3 Kahn, M. (1995). The Appointment of a Supreme Court Justice: A Political Process from Beginning to End. Presidential Studies Quarterly, 25(1), 25-41. Retrieved September 22, 2020, from http://www.jstor.org/stable/27551374

4 Ibid, p. 26.

5 The Supreme Court Historical Society. Stanley Matthews, 1881-1889. https://supremecourthistory.org/timeline_matthews.html

6 Reston, James. (5 July, 1987). Washington; Kennedy And Bork. New York Times. https://www.nytimes.com/1987/07/05/opinion/washington-kennedy-and-bork.html

7 ABC News. Kennedy Mounts Ideological Attack on Bork. (Video). YouTube. https://www.youtube.com/watch?v=GvFLXFCJvJA&ab_channel=ABCNews

8 McConnell, Mitch. (16 March, 2016). McConnell On Supreme Court Nomination. Mitch McConnell Senate Majority Leader. https://www.republicanleader.senate.gov/newsroom/remarks/mcconnell-on-supreme-court-nomination

9 Desjardins, Lisa. (22 September, 2020). What every Republican senator has said about filling a Supreme Court vacancy in an election year. PBS News Hour. https://www.pbs.org/newshour/politics/what-every-republican-senator-has-said-about-filling-a-supreme-court-vacancy-in-an-election-year

10 Moraski, B., & Shipan, C. (1999). The Politics of Supreme Court Nominations: A Theory of Institutional Constraints and Choices. American Journal of Political Science, 43(4), 1069-1095. doi:10.2307/2991818

11 Ibid, p. 1070

12 Ibid, p. 1074

13 Ibid, p. 1075

14 Ibid, p. 1085

15 Ibid, p. 1079

16 DeVeaux, Amelia. (3 July, 2018). Justice Kennedy Wasn’t A Moderate. FiveThirtyEight. https://fivethirtyeight.com/features/justice-kennedy-wasnt-a-moderate/

17 Stohr, Greg. (23 September, 2020). Kavanaugh Emerges as Man-in-the-Middle With Supreme Court Set to Shift Right. Bloomberg/Quint. https://www.bloombergquint.com/politics/kavanaugh-emerges-as-unlikely-liberal-hope-for-court-swing-vote

18 Feldman, Adam. (3 April, 2019) Empirical SCOTUS: Is Kavanaugh as conservative as expected? SCOTUSblog. https://www.scotusblog.com/2019/04/empirical-scotus-is-kavanaugh-as-conservative-as-expected/

19 Richey, Edward K. (1 September, 2020). Welcome to the Party: America’s Established Political Parties By Race. Edward Kyle Richey. (Blog). Truth In Focus. https://edwardkylerichey.org/2020/09/01/welcome-to-the-party-americas-established-political-parties-by-race/

20 Lofgren, Mike. (21 February, 2014). Essay: Anatomy of the Deep State. Moyers On Democracy. https://billmoyers.com/2014/02/21/anatomy-of-the-deep-state/

21 Now This Politics. (19 September, 2020). RBG Vigil. (Video). Facebook. https://www.facebook.com/NowThisPolitics/videos/vb.908009612563863/2671486516401954/?type=2&theater

22 Epstein, Richard. (2008). Why the Modern Administrative State Is Inconsistent with the Rule of Law. New York University Journal of Law and Liberty, 491-515; 492 cite. https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2355&context=journal_articles

23 Epstein, Richard. (20 October, 2019) How Bad Constitutional Law Leads to Bad Economic Regulations. The Atlantic. https://www.theatlantic.com/ideas/archive/2019/10/how-bad-constitutional-law-leads-bad-regulations/600280/

24 Kaizen, Michael. (Fall 2017). The Rise of the Security State: From the Great War to Snowden. Dissent Magazine. https://www.dissentmagazine.org/article/world-war-i-aftermath-security-state-nsa

25 Healy, Gene. (1 March, 2015). National Security State. (Book Review) National Security and Double Government By Michael J. Glennon. https://www.cato.org/publications/commentary/national-security-state