Neither of the Above

A Conservative's Dilemma

Lin-Manuel Miranda’s Hamilton is a phenomenon. And it deserves to be. It is engaging, moving, and compelling. It is also, for a constitutional-law teacher, more than a little bit humbling: I have been trying for years to get law students fired up about the Ur-type significance of the arguments within George Washington’s cabinet about the National Bank. But Miranda’s Hamilton-Jefferson rap battle on the topic comes along, and now my teenagers are debating the reach of the Necessary and Proper Clause.

Early on in the production, the three Schuyler Sisters—basking in Enlightenment-comes-to-1770s-New-York enthusiasm—exult, “Look around, look around at how lucky we are to be alive right now!” “History is happening,” they marvel, and they “just happen to be in the greatest city in the world!”

It is, of course, always a blessing to be alive, but “right now” feels less “lucky” than depressing and dangerous. This is true in no small part because of the characters from that “greatest city” (or its suburbs) who have been served up as the two major parties’ candidates for president. That they have been does not reflect well on our time, on our political process, or on us.

Most Americans, for good reasons, distrust and dislike both of these candidates. Both have been fixtures on the national scene for decades and still—or rather, therefore—their cumulative “unfavorables” are greater than in any modern presidential contest. Many regard the fact that one candidate is not the other as the best, and maybe the only, argument in favor of the one.

The contest is highlighting and worsening deep social divisions. Troublingly large percentages of each candidate’s strong supporters claim to know few, if any, of the other candidate’s. According to the Pew Research Center, only about a third of voters say they have “confidence in the public’s political wisdom.” For many, the prospect of one (or the other) of these candidates winning is not merely disappointing but horrifying, an “existential” or even “extinction-level threat” to our constitutional order.

American Catholics are used to it being the case that few candidates for national office and neither major political party’s platform support fully or reflect well the policy implications of the Gospel and the Catholic Church’s social teachings. As we respond to the call to faithful citizenship, we are resigned to regarding candidates, parties, platforms, and administrations as vehicles for promoting the common good and human flourishing in—this side of Heaven—an imperfect and incomplete way. Governor Mike Pence, the Republicans’ vice-presidential nominee, has said that he is a “Christian first, a conservative second, and a Republican third” and even those inclined to use different labels should agree that this ordering reflects the right approach to political affiliation and activity.

I am, I suppose, a “conservative” in the Anglo-American tradition (which means, I understand, that I am a “liberal”). Burke, Tocqueville, and Oakeshott ring more true to me than Rousseau, Mill, and Dewey. Traditions, forms, and the “little platoons” of civil society matter. I prefer Rehnquist’s judicial opinions to Brennan’s. My views were shaped, for better or worse, by Solzhenitsyn, C. S. Lewis, and Pope John Paul II. I thought (and think) that Reagan was right about the Soviet Union, Christopher Lasch was right about the New Left, and Henry Hyde was right about abortion. I voted for Mitt Romney in 2012 and wish that I could again this year.

Clearly, then, Donald Trump does not speak for me. Contrary to what he said at the Republican convention, he is emphatically not “my voice.”

Now, my sense is that, for those American Catholics whose policy views and preferences are on the left-liberal side of the American political spectrum, this election does not, at the end of the day, present an unusually difficult choice (although many concede that the options are disappointing). For many of us on the right-conservative side, though, it does. The party that has, for decades, claimed to be the “party of ideas,” insisted that “character matters,” and been an imperfect but reasonably effective vehicle for political conservatism has nominated a person of ostentatiously bad character who is uninterested in ideas and seems hell-bent on discrediting conservatism.

I am confident that Hillary Clinton will be elected the forty-fifth president of the United States. This is not because, in President Obama’s words, “there has never been a man or a woman...more qualified than Hillary Clinton to serve as president of the United States of America.” No one believes that. Nor is it because her careers in private law practice, government, and political campaigning are marked by notable achievements or successes. It is not because of the usual left-leaning biases of leading commentators and journalists. Notwithstanding the many reasons she probably would have lost to a typical Republican candidate, she will win because Donald Trump reminds people daily that he is strikingly unprepared, comprehensively unsuited, and dangerously unfit to be president and commander in chief.

I am sorry, though, that Clinton, and not a typical Republican, will be the next president. This is, in part, for the unremarkable reason that I think mainstream “conservative” policies are, in our second-best world, usually the better ones. However, it is also because I believe she is morally unworthy of the office. To be sure, other presidents have been, and her opponent is, too. Still, the evidence of the past four decades compels the judgment that she is unusually and offensively dishonest, unethical, and entitled. This is, I realize, a sobering conclusion, but it is not partisan, sexist, or “false equivalence” to report it.

There is insufficient space, and there should be no need, to set out the particulars. Just because some of the many scandals are “old news” does not mean they are not scandals. To borrow Daniel Patrick Moynihan’s phrase, it “defines deviancy down” to claim that she is just a garden-variety politician who sometimes hedges, fibs, and exaggerates.

 

WHAT, THEN, to do? I believe that Catholics ought to show love of neighbor and solidarity with the vulnerable through—among other things—informed, prudent, faithful participation in political affairs. We are not, however, morally required to vote, let alone to vote in every electoral contest or for one of the candidates listed on a ballot. That a few million partisans settled on these two unadmirable candidates does not obligate me to choose between them or to (symbolically) “stop” either with my vote.

To be clear: in politics, not only should the perfect not be the enemy of the good, the bad may be preferred to the worse. I am not convinced that non-voting is a necessary form of protest against the two parties’ failures and internal contradictions. Again, I’m resigned to those. I do not contend that a vote for one of these candidates would violate my conscience or make me culpably complicit in his or her bad acts. My position is more like Bartleby the Scrivener’s than Thomas More’s: “I would prefer not to” vote for either of these nominees.

Although Trump is a dangerously unfit and morally objectionable candidate, I am clear-eyed, I think, about the law-and-policy consequences of Clinton’s election and administration. Many of these will be, from my perspective, bad. The Democrats’ platform this year has moved to the left and, in particular, that party’s stated position on abortion rights and funding is deeply unjust. More important than a party’s platform, however, are an administration’s personnel. A Clinton administration will be carefully staffed with well-credentialed, competent, ideologically motivated people. They will interpret regulations, enforce rules, exercise discretion, and control funds in a wide range of consequential departments and agencies. In the modern administrative state, and particularly after President Obama’s embrace of an expansive view of executive power and regulatory authority, this is where the action is.

And so, whether or not the Democrats control Congress, committed but largely unaccountable activists, lawyers, and think-tankers will aggressively and creatively use a variety of tools, including litigation, accreditation, licensing, contracting conditions, funding-eligibility determinations, and “Dear Colleague” letters, to pursue their goals. I expect they will do what they can—which is a lot—to undermine or overturn reasonable limits on abortion, remove barriers to and increase support for embryo-destructive research and physician-assisted suicide, hamstring school-choice and education-reform efforts, narrow the sphere of religious freedom, and continue divisive “culture wars” campaigns.

Also unfortunate, in my view, will be the effect of a third consecutive Democratic administration on the federal courts. About a third of federal judges are Obama appointees and the next administration will replace hundreds who were selected by Reagan and the first President Bush. Both the Supreme Court and the courts of appeals will move significantly to the left, and the effects of this shift will not be limited to, say, a more permissive stance regarding gun control and campaign-finance regulation. There is every reason to think that a 6-3 “liberal” Court could backtrack on letting parochial schools participate in voucher programs, on allowing states to ban euthanasia, and on permitting limits on late-term abortions. The Court’s role in civil society and in our country’s moral and policy arguments, which is already unhealthily outsized, would increase.

 

AFTER NOVEMBER,, when the circus packs up, I hope three points will be remembered and considered: First, although Donald Trump’s dog-whistling, nastiness, and vulgarity have been on full display for months, no one should imagine that incivility and uncharity exist only on one political side. We can also find smugness, meanness, and even hate at progressive rallies, on MSNBC, and in politically monochrome faculty lounges. If one continues to snarkily condescend to or to attack as “bigots” those with different political views and concerns, or to embrace and impose an increasingly grim and censorious mix of identity politics and political correctness, one has failed to learn from this season.

Next, and related: Trump’s defeat should not result in the dismissal of all the developments that explain his rise. Some will enjoy the affirmation and self-congratulation that come with blaming Trump’s nomination on the same nostalgia, nativism, and nationalism that, they think, Republicans have exploited for years. And there is no denying the troubling role that anger, prejudice, and racism played in his win. Still, this explanation falls well short.

Large numbers of people on both sides voted this year for candidates who are well outside the parties’ historical mainstreams. On both sides, there is, as David Brooks recently observed, “anomie, cynicism, pessimism, and resentment.” All of us—“conservatives” and “liberals” alike—need to engage the developments that Charles Murray describes in Coming Apart, that Robert Putnam documents in Our Kids, that Yuval Levin reviews in The Fractured Republic, and that J. D. Vance vividly portrays in Hillbilly Elegy. The gap and incomprehension between those whom Peggy Noonan calls the “protected” and the “unprotected” is increasing, as is the distance between Murray’s upscale “Belmont” and working-class “Fishtown,” and between the comfortable and credentialed meritocrats and those in “flyover country” whom the blogger “Anne Amnesia” has heart-wrenchingly described as “the Unnecessariat.”

Finally, the election of Hillary Clinton and the empowerment of a third consecutive Democratic administration should not be understood as a mandate for a significant leftward shift in law and policy. Her election is not an endorsement or validation of President Obama’s record and policies, whether having to do with Iran and immigration or public-school bathrooms and contraception-coverage mandates. It is better to regard it as the product of defensive nose-holding, prompted by Trump’s glaring unacceptability, and to act accordingly. Not only should moderate voters strongly consider voting for divided government, but center-right governors and legislators, in Congress and in the states, should unapologetically and diligently do what they can to lawfully “check and balance” attempts by the new administration or Democrats in Congress to overreach.

One of the innovative features of the Constitution that Alexander Hamilton feverishly and forcefully defended against its critics is the way political authority is structured, divided, checked, and limited. The potential for obstruction and delay in government is a feature, not a bug, of the plan. In particular, as his collaborator and rival James Madison put it, the Constitution was designed to provide a “double security” to freedom by separating the national government’s power among the executive, legislative, and judicial branches and by distinguishing between the powers of the national and state governments. Thanks to this arrangement, and notwithstanding this disappointing presidential contest, there is no shortage of important opportunities for faithful citizenship through voting and for protecting educational opportunity, the right to life, and religious freedom. They are just further down the ballot.

Published in the September 23, 2016 issue: 

Richard W. Garnett is the Paul J. Schierl/Fort Howard Corporation Professor of Law at the University of Notre Dame.

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