Dear Reader (including all the haters and losers who are angry that I dared to have a good time on my podcast),
I wrote a column arguing that I think the allegations against Trump are true and that they’re impeachable, but I am less sure that he should be impeached for it. And just as I predicted in the first sentence, no one likes my take.
But I really don’t want to write about Trump or Ukraine or whether the transcript is white and gold or blue and black—oh wait, that was that dress. But the argument feels the same.
Instead, I want to write about impeachment and how it might illuminate the still smoldering French-Ahmari wars. Will I succeed in the amount of words I have available to me? Let’s find out.
As I keep saying, echoing everyone from James Madison to Andy McCarthy, impeachment isn’t a criminal or legalistic mechanism. It’s a political one. That’s why Madison passionately opposed having the Supreme Court handle impeachment trials. The Chief Justice may preside over impeachment, but it’s the Senate that acts as the real judge and jury.
Criminal acts are obviously impeachable, but so are all manner of perfectly legal acts as well. Prior to the 25th amendment, if the president went bonkers and only wanted to spend his days eating cat food, the only way to get him out of there was to impeach him. There’s nothing illegal about spending all your time eating cat food, but it’s not something we look for in a commander- in-chief. If the president started saying that he kind of thinks ISIS has the better argument and that we should be aiding it every way we can, I can imagine some people wanting to impeach him. That’s because, as Andy has written many times, impeachment is ultimately about remedying a breach of trust with the American people.
Let’s stay on that for a second. Let’s imagine the president—and I don’t mean Trump, but any president—announced shortly after being elected that he had actually been a secret Muslim all along. Would that be impeachable? Yes. Should he be impeached for it? Well, that’s a subject for debate. There’s nothing illegal about or wrong with being a Muslim. Lying about it is a problem, but maybe he or she had a good reason. If the newly elected president were a truly radical Muslim with sympathies for terror groups—again, nothing illegal there—I suspect that president would be and should be impeached. But if this president were just a peaceful and patriotic Muslim (like the majority of American Muslims are), I think the case for impeachment is much, much weaker. Why not just wait and see what the president does and let the voters render their verdict in four years?
Now imagine it’s not 2020 but 1920 or even 1820. My hunch is that this wouldn’t even be up for debate. Articles of impeachment would fly out of Congress like an angry cat out of a clothes dryer. Forget being a Muslim. Imagine it’s the 1850s, during the height of the Know Nothing era, and a newly sworn-in president revealed that he was a Catholic. Hearings on whether someone could be president and loyal to the Pope in Rome would start the next morning.
Again, there’s nothing illegal about being Catholic (sorry Jimmy Blaine). And while it might say something unpleasant about America that people would want to impeach a president for being Catholic (or, back then, secretly mixed-race), there’s nothing stopping Congress from impeaching a president for any damned thing it wants, including violations of cultural norms or moral taboos.
This is one of the things that always bothered me about the Clinton impeachment. Because we treat the law as a kind of secular theology, the Lewinsky scandal was contorted into a perfectly legalistic affair. Whether or not Clinton should have been impeached is a complicated argument with pros and cons on each side. But the idea that his conduct in the Oval Office—while perfectly legal—wasn’t impeachable always struck me as absurd. (Judge Bork agreed with me, by the way.)
One of the funny things about how people have changed in the last two decades is that back then, religious conservatives were adamant about this point and feminists were outraged by it. Now, if we had a replay of the same fact pattern, in the wake of Trump and #MeToo, the arguments would also surely be completely reversed.
Liberalism in Theory and Practice
So what does this have to do with the rolling bar fight on the right about liberalism and nationalism (or post-liberalism or Catholic Integralism or whatever)?
In the latest issue of National Affairs, Daniel Burns has a terrific essay cutting through a lot of the noise in this debate. He points out that one of the reasons it’s so frustrating is that both sides are largely talking past each other. He writes:
Many good-faith misunderstandings within these debates can be traced to an ambiguity in the term "liberalism." It refers, on the one hand, to a set of political practices, and on the other hand, to a political theory that purports to explain those practices. Defenders of liberalism are thinking first and foremost about liberal political practice, which they (almost all) defend by drawing selectively on liberal theory. Critics of liberalism are thinking first and foremost about liberal political theory, which they (almost all) attack by pointing selectively to liberal practice.
These attacks and these defenses share a common error. Both accept liberal theory's false claim to be the authoritative interpreter of liberal practice. The critics of liberalism are right to see liberal theory as fatally flawed: It cannot explain the workings of any real human society. But precisely because it is so flawed, liberal theory also cannot explain the weaknesses of our own liberal societies.
Burns makes a crucial distinction that is at the heart of my book, but he manages to distill it perhaps better than I did. Liberal theory as articulated by Locke, Kant, Mills, et al. is a very different thing from liberalism as a cultural phenomenon. We live in a liberal society—rule of law, private property, equal rights, etc.—but many of our rules and institutions can find no support in liberal theory.
“For example,” Burns writes, “federalism as Americans know it has no place in liberal theory. Liberal theory demands the strict sovereignty of the entire (unitary) populace. No one has ever shown how to reconcile this demand with a partially sovereign national union under a government of enumerated powers, where the remainder of sovereignty is reserved to 50 subordinate communities whose governments have no jurisdiction over one another.” He adds that “a federal government of enumerated powers is an American innovation at odds with Locke's whole view of government.” And he’s right.
More relevant to the discussion above, he also notes that:
Liberal theory also demands strict government neutrality in religious matters. Precisely zero liberal countries have ever followed this demand or even made a consistent effort to do so. Many liberal countries have formally established national religions. The rest have not needed any formal establishment to have their laws visibly shaped by their citizens' widely shared religious views.
In Suicide of the West, I argue that Locke and all the ideas we tend to associate with him (the “Lockean Revolution”) was a lagging indicator rather than a starter’s pistol. Liberalism was an emergent property that emanated out of specific—very weird—English culture. This doesn’t mean those ideas weren’t important. They were vital in validating, rationalizing, and ultimately expanding liberal principles even further. But without a liberal culture to support it, liberal theory has no power. It’s the same with the Constitution. The only power the Constitution has is derived entirely from the public’s investment of authority in it. If, by magic or hypnosis, all Americans woke up tomorrow morning hating the Constitution, they wouldn’t need to repeal it. We’d all just ignore it. Politicians would violate its principles with abandon and, because no voters complained, there would be no penalty.
This points to the weird contradictions in the nationalism vs. liberalism debate. The nationalists, like devotees of the liberal theory they detest, want (at least rhetorically) to treat the whole country as a singular polity where no one, anywhere, has a right to live wrong. With the partial exception of Patrick Deneen, whose book is better than its summarizers often realize, arguments for federalism, localism, and the sovereignty of private businesses and institutions seem to fall by the wayside. Meanwhile, the advocates of liberalism often invoke the importance of federalism, localism, etc., which have little or no support in liberal theory.
David French is a classical liberal. But he’s also a conservative. The same goes for me. And there are important, often healthy, tensions between the two. That’s why I’ve long argued that conservatism is more than merely classical liberalism, but a conservatism that doesn’t conserve classical liberalism isn’t worth conserving.
But I need to update that argument. Because what also needs to be conserved isn’t just classical liberalism as a theoretical construct (as flawed as it may be), but also liberal culture, which is more than just liberal theory.
I don’t think Trump’s crazy tweets and other rhetorical attacks on various norms and institutions are impeachable, any more than I thought George W. Bush’s admission that he was signing a law even though he believed it was unconstitutional in parts was impeachable. But I would rather live in a country where there was a robust discussion about whether impeachment was warranted.
Again, put Trump aside. The way we talk about impeachment as a purely legalistic mechanism reflects the way we’ve lost a certain amount of cultural confidence and cohesion. Some of that loss isn’t necessarily bad. I wouldn’t want to live in a country where we impeached someone solely because of faith or ancestry. But I do want to live in a country where we hold our leaders to standards greater than mere technical fidelity to the law.
Various & Sundry
Canine Update: I’m out of town and pressed for time. But the dogs are doing great. They’re having a weekend sleepover at Kirsten’s house who they love dearly. In fact, Zoë is even letting Pippa chase her again. Still I expect I’ll get a lot of this when I get home.
My Sunday appearance on Fox News Sunday
And now, the weird stuff.