By Their Fruits Ye Shall Know Them
I have a new article up at Discourse—actually an article I wrote some time ago, but it’s been sitting on the back burner because it’s not particularly time-sensitive. Yet it actually connects in a profound way to what’s going on right now.
But first, an update on what’s going on right now, and specifically the case of Kilmar Abrego Garcia.
I breathed a sigh of relief when the Supreme Court ruled in favor of Kilmar last week. But it turns out this was premature. At first, the Trump administration looked like it was trying to exploit the wiggle room in the Supreme Court’s vaguely worded decision. By now, though, they are just openly defying the courts, particularly in a meeting at the White House between Trump and El Salvadoran dictator Nayib Bukele. This is the point at which Trump could obviously have just demanded that Bukele send Kilmar back, with far more politeness than he showed Volodymyr Zelensky, and it would have been done. But when asked by reporters, both men contemptuously dismissed the whole notion.
Here is the most chilling detail.
“Homegrown criminals are next. Homegrowns are next. The homegrowns,” Trump told Bukele, confirming that he wants to deport [sic] American citizens, a move that would violate the Constitution and test the courts more than ever before. …
As he joked with the man who is notorious for the mass imprisonment of his own people, Trump told Bukele CECOT isn’t big enough to hold everyone he plans to deport.
“You gotta build about five more, Bukele. It’s not big enough,” Trump told Bukele as the Oval Office erupted in laughter.
I’ve watched the video from this meeting, and it’s that laughter that haunts me. The psychological hallmark of the Trump administration is a delight in cruelty.
Oh, and one quibble on terminology, because a lot of press reports like this are not being very careful. You cannot “deport” US citizens from their own country. Whatever you call the practice of shipping Americans to a foreign prison, it’s not deportation. Use more honest phrases like “human trafficking” or maybe just “the slave trade.”
I should also point out that even if Trump limits himself to only trafficking criminals who have been convicted in US courts—and I hope you are not so naïve as to think he would stop there—this is still unconstitutional because it violates the Eighth Amendment. The US government cannot send people to prisons whose practices are regarded in our system as “cruel and unusual punishment.”
As to what the courts can do about this open defiance by the executive, there are few options. No one has ever quite pushed our constitutional system this far. I want to propose one possible way to bring the executive to heel: a judicial strike. Judges can get together and decide that no business will go on in the federal courts until the administration complies with its rulings. There is no reason for the courts to continue to function and lend legitimacy to government actions if the executive treats them as purely ornamental.
I am not a lawyer or involved in any way in the judicial system, so I’d be interested to hear what my readers think of this idea. So far as I know, it has never been tried, but desperate times call for desperate measures—and figured fans of Atlas Shrugged would understand the logic behind it.
The significance of this case is now, somewhat belatedly, becoming widely recognized. See this bracing conclusion from Noah Smith, who I regard as a fairly accurate indicator of mainstream center-left opinion.
A few weeks ago I wrote a post asking when, exactly, we could conclude that America had become a dictatorship.
It seems clear that if Trump actually does have the ability to arbitrarily send any American to an overseas prison with zero due process and zero oversight by any court of law, then we do, in fact, live in a dictatorship.
As I’ve been pointing out, this overthrows more than a thousand years of the Anglo-American legal tradition. Habeas corpus, the rule that the government has to answer to the courts and justify a person’s imprisonment, was famously recognized in the Magna Carta in 1215 AD. But it is mentioned in even earlier documents, where it is treated as a pre-existing right that is merely being reaffirmed.
So the alleged defenders of “tradition” are busy tearing down our oldest and most essential traditions. That brings me to my new piece in Discourse.
Once Upon a Time in “The West”
I’ve written a number of articles in recent years about the decline of religion in America and the panicked fear that we will not be able to survive without religious faith. I addressed that a few months ago in a personal context. In the new follow-up, I address it on the civilization scale.
How can “Western Civilization” survive without religion?
Where some cannot imagine a personal alternative to religious belief, others cannot imagine a civilizational alternative. Hence the rise of “Culture War Christians,” right-leaning intellectuals who can’t necessarily bring themselves to affirm the truth of traditional religious beliefs on an intellectual level, but who argue that such beliefs are nonetheless necessary as an answer to various threats and challenges. This argument has become increasingly prominent among supposedly “heterodox” thinkers on the right—who are now becoming more and more orthodox in the original sense.
As a onetime classicist, this whole argument makes by brain want to implode. So I set out to give people a little education in the pre-Judeo-Christian roots of Western culture and of the very idea of “the West.”
The idea of “the West” as a distinct entity that is politically and culturally different from “the East” has a specific intellectual birthplace. It was first invoked by the Greek historian Herodotus. In his “Histories,” written about 430 B.C., he used this as a framework for the bloody conflicts in the fifth century between the independent Greek city-states and the Persian Empire. This contained the germ of the ideas that the West is rational while the East is superstitious, and that the West values freedom while the East accepts the yoke of despotism.
After a few more paragraphs of discussion of the legacy of pre-Christan Greek scientists and philosophers, I conclude:
So the whole origin of “the West”—as an idea and as a distinctive philosophy and way of life—came five centuries before Christ and before the Old Testament was widely known outside Israel, and it specifically began as a secular alternative to religious explanations and appeals to authority.
I go on to discuss the claim that we need Christianity to support political freedom and equality before the law. These institutions also have roots a half a millennium or more before Christ—and they were vigorously suppressed during the period of Christianity’s dominance. Hence my conclusion: “to claim that Christianity is the only or the primary foundation for Western civilization is to ignore much of the actual history of the West and much of the substance of the tradition these Culture War Christians claim they want to defend.”
We can debate this in highbrow terms, and I suggest you pass this article on, because I think I did a good job making this case.
But we can also just point to the results. We just elected the figurehead of a Christian nationalist movement that wants to revive religion as a basis for public life. And what did we get? We’ve gotten a series of threats to political freedom and freedom of speech and the destruction of a thousand years of Anglo-American legal protections.
There are a few good lines from the Bible that I like to keep in my back pocket and pull out on these occasions. In this case, the one I would invoke is: By their fruits ye shall know them.
The "judicial strike" idea is misconceived. The solution is not for judges to abandon their office. Instead, once a finding of contempt is made against the executive, the courts should refuse to hear from the executive in any case to which the executive is a party until the contempt is purged (i.e. the executive would not be permitted to initiate new proceedings or take any step in existing proceedings). The ability of other litigants to prosecute or defend their cases would not be affected.
Of course, we've discussed before on your podcast so this won't be new ground. However, it's a mistake to undersell the impact of Christianity in leavening the classical understanding of the idea of the West. The classical understanding left much to be desired in terms of its tolerance of a host of abusive practices toward the human person. This is where the Judeo-Christian understanding of the innate dignity of the individual comes in and "finishes" the theoretical underpinnings of the West. The church extended that work - imperfectly - across the actual geographic West. The Christian nationalist movement bears almost no resemblance to the Judeo-Christian infused West we're talking about here. In fact, it seems to have mostly abandoned the idea of innate human dignity unless we're talking about unborn children. In day-to-day practice, holding other people in contempt seems de rigeur which bears a lot in common with the pre-Christian understanding of the West.