The Sovereign Court

It’s quite common to encounter in everyday conversation, liberal or moderate (see: liberals now with even fewer balls) exasperation over “political gridlock.” The implied cause of said gridlock being the regressive fascist’s (see: Republican’s?) obstruction of the political process by their unending campaign to stymie the righteous progressive crusade to poz America’s neghole even more than it already is. But is gridlock not the political process in a democratic society such as America?

Democracy is celebrated by liberals as the most egalitarian form of political organization and yet, under their effeminate breaths, they curse it for its ineffectiveness and the schizophrenic outcomes of its decision making process. In their frustration, liberals find an unlikely ally in the form of Carl Schmitt who notes: “When parliament is confronted with the question ‘Christ or Barabbas?’, it adjourns and appoints an investigative committee.” But a little disorder and inefficiency can be tolerated as it allows liberals to frame themselves as the persecuted underdogs because they don’t get exactly what they want, when they want it.

There are millions of voices, some little, some big, whispering in poor, old Washington’s ear. Telling him to go right, left, up, down and yet somehow, miraculously, Washington only stumbles to the left despite this alleged gridlock. As Mencius Moldbug observed: “Cthulhu may swim slowly. But he only swims left. Isn’t that interesting?” It sure is, Uncle Moldbug. It seems as though there exists some HOV lane where some unknown person or institution is bypassing the gridlock, travelling left with America tied up and blindfolded in the trunk. Is Shlomo behind the wheel? Or is it those pesky Calvinists? Alright — let’s get serious for a second, kiddos. The answer is: it’s complicated. There are numerous tentacles of the Cathedral which act as informal institutions of the State and use this clout to advance progressivism — all of which have been discussed at length by those not late to the game like myself; however, I intend to discuss formal institutions in American democracy which work towards the same ends.

There does exist one democratic institution which has consistently advanced progressivism in America and is not beholden to the electorate, or anyone for that matter… wait… in a democratic society, the electorate is the alleged sovereign hence the concept of popular sovereignty — an absurd idea according to Schmitt who maintains that “the sovereign is who decides the exception,” that is, whoever has the power to suspend the law and decide the exception in an emergency case. The electorate is subject to the law and does not have the power to decide the exception; the sovereign is the precondition of the law itself so the people cannot be the sovereign. So who decides the exception?

I’ll let Moldbug take it from here:

In the American regime, the Supreme Court is sovereign by Schmitt’s definition. We have a complex system of laws, which are not formal code but in some ways aspire to be; above it, we have a judiciary system that can decide arbitrary exceptions to those laws. Pure rule of law, Schmitt tells us, is always and everywhere an illusion.

The American Founding Fathers intended to limit the power of the executive branch by decentralizing its sovereignty, scattering it among the judicial and legislative branches, but, as Moldbug observes, sovereignty is conserved — power cannot be destroyed, only transferred. Whether it be a single person or institution, there will always exist a sovereign, a “somebody that answers to nobody.” In medieval England, the Sovereign’s authority diminished with the Magna Carta, and Parliament’s authority expanded because Parliament did not simply limit the powers of the Sovereign, it absorbed them. It is in the nature of power to expand, to take action in such a way as to secure its power, and the formal separation of powers which was established to limit power, has historically done exactly the opposite. This is ReactionaryFuture‘s bread and butter (emphasis mine):

Whenever republicanism and imperium in imperio are introduced into the political system, the system either slowly expands to flood everything with politics (as in the case of feudalism’s collapse) or the process is rapid and dramatic (Soviet Russia, Republican France.) Either way, the ultimate result is the exact opposite of the aim of checks and balances — Politics everywhere. We are so far down the road that government has begun to legislate who can use the toilet, and where.

In the past, people knew who the boot which pressed down on their necks belonged to because de facto and de jure power overlapped. But the state of affairs is a bit fuzzy in America, and that is because American democracy and its separation of powers obfuscates true sovereignty. On this, Bertrand de Jouvenel notes:

Formerly it (Power) could be seen, manifest in the person of the king, who did not disclaim being the master he was, and in whom human passions were discernible. Now, masked in anonymity, it claims to have no existence of its own, and to be but the impersonal and passionless instrument of the general will. But that is clearly a fiction.

It’s common for Americans and non-Americans alike to mistake our executive branch as the true sovereign, yet if we are to accept Schmitt’s definition of sovereignty, it’s clear that the true sovereign is not subject to the law but is the precondition to it and decides the exception, as many impeached presidents would tell you. Supreme Court justices are appointed by the President and confirmed by the Senate Judiciary Committee however there exists no discernible check on the Court’s decisions. Hell, even the Court itself admits it’s the American Sovereign as late Justice Scalia’s scathing indictment of his fellow justices in his Obergefell dissent notes:

This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

So, the Court is the de facto sovereign. The question remains: what does it do with this power? The Court, after all, does not have the power to declare wars, but they can end one particular kind of war: culture war. According to Robert Bork, the Court “…is the single most powerful force shaping our culture.” After all, abortion became legal in America not by legislation but by the Court’s landmark decision in Roe v. Wade, and recently gay marriage was legalized in the Obergefell v. Hodges decision. These decisions, and arguably most decisions on culture war issues, share a common philosophical underpinning: radical individualism.

There are many, many cases that can be discussed to explicate this point, however, I will focus on just one particular case because it is quite Alt. Right-related. The Bowers v. Hardwick decision upheld the constitutionality of sodomy laws, yet, as we shall see, the dissent is par for the course for the Court’s adjudication on matters of individual rights and would ultimately triumph in Lawrence v. Texas, which would overrule the former decision making sodomy legal. Justice Blackmun’s dissent which was ghostwritten by (((Pamela Karlan))) states: “The concept of privacy embodies the ‘moral fact that a person belongs to himself, and not others nor to society as a whole.’” To which Chief Justice Burger responds: “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

The Court’s philosophical beliefs on the nature of individualism can be expressed as the idea that the individual is the irreducible, atomic unit of society and that the protection of individual or natural rights is the highest good a society can aim to, and this necessarily creates the conditions for a “permanent social revolution” against the past because any constraints placed on the individual that would inhibit these inalienable rights must be abolished for the sake of progress. What is good is simply what the individual desires and what is evil is that which inhibits those desires.

Richard Weaver was correct when he proclaimed “Ideas have consequences.” This (mistaken) notion of individualism has corrupted everything it has touched, from Hobbes, Locke, and Rousseau’s theory of the social contract to libertarianism, political philosophy post-Hobbes has not been able to loose itself from this falsehood. This is the idea that gave birth to America. The Bill of Rights, the Declaration of Independence and the Constitution are the fruits of the Enlightenment, so the continual expansion of individual rights and liberties was made inevitable the moment they were signed. Opponents of gay marriage and abortion never stood a chance. As Gregory Hood mournfully noted: “…America — the land that progressed straight to decadence, without an interval of civilization.”

This is why, despite the fact that the ideological composition of the Court varies, the leftward trajectory of its decisions persists. The “conservative” judicial interpretation of the Constitution, Scalia and Thomas’ originalism, has failed to act as a bulwark against progressive judicial victories because, being a document of Enlightenment philosophy, the Constitution is infected with vague language regarding rights and liberty which are based on a false conception of individuality — not to mention a healthy dose of imperium in imperio.

As I have previously argued, the State expands as civil society weakens — that is, when individuals are independent of each other, they become dependent on the State. In this light, the Court’s incessant backing of the individual against society diminishes the intermediate associations, which serve as a buffer between the individual and the State, and thus expands State power invariably; all of which takes place under the pretension of democratic legitimacy. The Court, after all, uses previous decisions as precedents for current ones, which ensures that the individualistic, egalitarian trajectory of the Court’s decisions will endure and the extended powers of the State will not retract as power always seeks ways to justify and expand itself.

I hope that I have at least begun to make the point that we will not defeat progressives by voting them out of office or stacking the Court. Populist reform does not go far enough, it does not pull the weed out by the root. Rather than reform, an NRx-style reboot is, as I am now convinced, the only possible measure that can restore sane and effective governance. Annulling the Constitution, retiring all government employees, implementing formalism and eliminating imperium in imperio by restoring undivided sovereignty is imperative.

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Christopher Grant

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