The United States Supreme Court in a Post-Modern Irrationalist Age

The political process in any free society is caught in a tension which is essential to human nature: on the one hand, there is the Enlightenment vision of voters and citizens as rational, knowing, deliberative agents, who set aside passion and emotion when making political or governmental decisions; on the other hand, there is the brute fact of human emotion and passion, which can be volatile, powerful, and changing.

This tension is certainly seen in the manner in which popular commentators write and speak about the U.S. Supreme Court.

People have criticized the USSC continuously over its more than two centuries of existence. But current criticism, both of the composition of the court and its institutional structure, differs from criticism of some previous eras. Current criticism is radical in nature, calling for either complete restructuring of the judiciary, or for its complete destruction. Current criticism is motivated by sentiment rather than by judicial reasoning, by waves of emotion rolling through society rather than by textual analysis.

Whether such commentators are praising or condemning a recent USSC decision, they flip readily back and forth between two opposing approaches: on the one side, demands for principled adherence to constitutional procedure; on the other side, pressure for the Court to conform to some alleged Zeitgeist, “arc of history,” or popular moral sentiment in the style of Rousseau’s General Will. Inconsistencies abound.

It is possible, however, to discern a heartening pattern of steady legal scholarship in the Court, as historian Jonathan Turley writes:

Regardless of the charges hurled against the Supreme Court by both the Right and the Left, what critics call partisanship is actually deep and good-faith jurisprudential differences on both ends of the Court. This was also the case when, for a period of many decades, the Court had a liberal majority.

Likewise, a media sphere of hyperpolitical and hyperpoliticized commentators project their own status onto the Court, claiming that it is divided, partisan, and politicized. This accusation ignores the collegiality and mutual respect among the justices and ignores the broad swaths of agreement and unanimity among the nine justices.

The reader will be aware of the friendship between Antonin Scalia and Ruth Bader Ginsburg.

The allegations of partisanship collapse under the weight of evidence. The justices who are allegedly “right-wing” or “pro-Trump” have often voted with their other colleagues against some Trump-backed measure. The justices who are allegedly “left-wing” or “anti-Trump” have often voted for some Trump-backed measure.

There are not two monolithic binary voting blocks within the court, as Jonathan Turley notes:

The attack on the Court as partisan is entirely disconnected from its actual voting record. It is a too-little-known fact that 44 percent of cases that come before the Supreme Court are decided unanimously. When you include nearly unanimous cases — those decided by 8–1 and 7–2 margins — that figure jumps to over 60 percent. It is also common for liberal and conservative justices to vote with colleagues on the opposite end of the ideological spectrum. In a case this year, for example, conservative Justices Thomas, Alito, and Kavanaugh joined liberal Justices Sotomayor and Jackson in the majority decision, while liberal Justice Kagan joined Chief Justice Roberts and Justice Barrett in the dissent.

Among the bits of primary-source evidence are statements by the justices themselves, as Jonathan Turley records:

Liberal justices from Stephen Breyer to Elena Kagan have refuted claims that today’s Court is a partisan institution.

The Court in 2026 is sometimes accused of being pro-Trump. Josh Gerstein echoe what the justices themselves have said about the matter:

Supreme Court Justice Elena Kagan is rejecting claims that the high court’s conservative majority is in President Donald Trump’s corner.

“I don't see this as a court that is just like, ‘We're just going to rubber stamp what the current administration does.’ You know, quite the opposite,” Kagan said to a judicial conference here Thursday. “I think that that is a bad rap.”

Kagan pointed to a series of Supreme Court decisions over the past year that have bitterly disappointed Trump

Commentators, legislators, and the staff of the executive branch have this in common: they are inclined to see the judicial branch in general, and the Supreme Court in particular, as an obstacle to be overcome. That is, in part, true, and it is, in part, by design.

The separation of powers, and the mechanisms of checks and balances, were designed to slow down governmental process, in order to avoid hasty actions. The structures of the Constitution are designed to prevent the runaway absolute imposition of any ideology, as Jonathan Turley explains:

For those on both ends of the political spectrum, judicial restraints on their favored policies can be frustrating or even infuriating.

It is worth noting the difference between “majoritarianism” and “majority rule” in the context of the USSC, and especially in light of Senator Warren’s demand that the Court bow to “widely held public opinion.”

Majority rule is a decision-making mechanism or procedural rule where an option, bill, or candidate wins if they receive more than half (>50%) of the votes cast. It is a standard tool of democratic governance and parliamentary procedure (such as Robert's Rules of Order) used to settle specific questions or elect representatives. Majority rule is a method of counting preferences, not an all-encompassing political ideology. A system can use majority rule for individual votes while still maintaining constitutional checks, bills of rights, and protections for minorities.

By contrast, majoritarianism espouses the hegemonic absolute rule of a numerically greater number.

Majoritarianism is a broader political philosophy or system which asserts that the numerical majority of a population (or a dominant ethnic, religious, or linguistic group) should hold primacy and unchecked decision-making power in society. It treats the majority's will as supreme, often seeking to minimize or eliminate institutional barriers — such as judicial review, supermajorities, or minority vetoes — that restrict what the majority can do. Majoritarianism is an ideology. Critics frequently describe extreme forms of majoritarianism as the “tyranny of the majority” or ochlocracy (mob rule), because it can run roughshod over individual liberties and minority rights.

The reader will note the affinity between majoritarianism and populism.

Jonathan Turley continues:

Those restraints often represent a firewall for natural rights.

Consider the attacks on free speech that came to a head during the Biden administration.

Senator Elizabeth Warren argued that the USSC has a duty to follow “widely held public opinion.” In her view, the Court must submit to any proposition which most citizens endorse. Warren’s view would erase the significance of positive law, including ironically the legislation which she herself has produced. Warren’s view would make the USSC, and eventually all of society, subservient to the changing passions of the mob, and to the agendas of those who are proficient at manipulating the mob.

At times, it is indeed the task of the USSC to adjudicate in harmony with “widely held public opinion,” but the harmony is coincidental. The Court sometimes rules in agreement with the public only because higher constitutional principles happen to congrue with a popular view.

At other times, it is the task of the Court to flatly oppose “widely held public opinion.” It does so not because it wishes to oppose the public, but because higher principles require it to do so.

Free speech cases are often paradigmatic, because the First Amendment’s protection of speech is often understood to be limited only by the clearest and most significant potential dangers or damages.

Jonathan Turley narrates one particular case:

Free speech as guaranteed in the First Amendment has been understood throughout our history, almost universally among Americans, as a bedrock principle essential to all our rights. Yet there was an aggressive campaign between 2020 and 2024 to curtail free speech on the Internet and elsewhere by labeling it “disinformation,” “misinformation,” “malinformation,” or “hate speech.” Those standing in defense of free speech were dismissed, in the words of one law professor’s book, as members of a “cult of the Constitution.” This campaign followed a trend in Europe, where speech is increasingly criminalized. But European laws never understood free speech as a natural right, and Europe’s courts have never aggressively protected it.

Here in the U.S., on the other hand, one of the greatest triumphs for free speech came in the Supreme Court’s 2023 decision in 303 Creative LLC v. Elenis, which held that Lorie Smith, a Christian website designer, could refuse to provide services for a same-sex marriage. Justice Gorsuch, writing for the majority, argued that “the framers designed the Free Speech Clause of the First Amendment to protect the ‘freedom to think as you will and to speak as you think.’ ... They did so because they saw the freedom of speech ‘both as an end and as a means’ ... an end because the freedom to think and speak is among our inalienable human rights.”

Had 303 Creative been decided in a different way, states and cities could compel or curtail speech according to whatever their leaders viewed as discriminatory elements under public accommodations laws. Instead, the Court adopted a bright-line rule that business owners could decline to create expressive products from cakes to websites. The counter-majoritarian function of the Court worked in the 303 Creative decision to protect natural rights. Regardless of whether it reflected the will of the Colorado majority, it upheld the right of free speech.

Natural law opposes majoritarianism because it urges that the sovereignty of the majority end when it transgresses against the human rights of the minority: majority rule allows the majority to legislate up to, but not beyond, the point of such transgression of human rights.

Blind rage is precisely that: blind. Rage rejects rationality. In the post-modern age of rage, which might be roughly characterized as the late twentieth and early twenty-first centuries, passion and emotion are privileged.

The constitutional judicial system in the United States, and indeed justice itself, is founded on what might be described as an Enlightenment view of human nature in the context of government and politics: man is a rational, knowing, deliberative agent. To be sure, human beings have powerful passions and emotions, but feeling and sentiment are to be muted in the process of legal reasoning.

Rage — uncontrolled anger — is destructive. Controlled anger lends itself to reasoned plans of action, which are ultimately more effective than rage’s blind destructiveness, as Jonathan Turley writes:

We are living in a time of rage. It is not the first such time in our country. Indeed, America was born in rage. It was rage that fueled the Boston Tea Party. It was righteous rage, but rage all the same. It is especially during such periods that the judiciary must stand in defense of our individual natural rights. It is also especially during such times that we must stand as a people to prevent extremists of any ideological bent from politicizing or destroying our constitutional judicial system.

The temptation — from both the right and the left — to attack the constitutional structure of the judicial branch in general, and to attack the institution of the Supreme Court in particular, must be resisted if a free society is to survive. There is already a mechanism for adjusting the USSC: the president will nominate, and the Senate will approve or not, future justices. Voters and citizens can shape the Court through their choice of candidates.

Attacking the judicial system is a short-sighted tactic. Those who employ it seem unaware that this same tactic will inevitably be redirected against them and against whichever goals they hope to realize.

The Development of Islamo-Socialism from 1953 to 2026: Yousef Rabhi, Zohran Mamdani, and Abdul El-Sayed

In October 1953, Bernard Lewis gave a speech in which he proposed “to see how far Islam and Communism are compatible.” This speech, printed as an article in International Affairs in 1954, considered how far “Islam predisposes those who have been brought up in it to accept or reject the Communist teaching.”

Lewis explored these thoughts in the context of the Cold War in its 1950s stage. He did not examine Communism as an abstract concept or set of concepts, but rather as the concrete reality of Soviet Socialism. The transition from Stalin to Khrushchev had indeed led to some detectable changes in policy and practice, but the core ideology and goals of Soviet Socialism remained unchanged.

Among those goals was the spread of Socialism throughout the world.

The Soviet Socialists were, in fact, actively engaged in attempting to introduce Socialism into majority-Muslim nations, not by starting a dramatic violent rebellion and overthrow of the governments in those lands, but rather by a more subtle and gradual approach. This diplomatic approach included economic assistance, military assistance, technical assistance, propaganda aimed at anti-colonial nationalism, support for local communist parties, educational exchanges, and cultural diplomacy.

Recipients of Soviet Socialist aid included Egypt, Syria, Afghanistan, and after 1958 Iraq. Socialist propaganda hoped to reframe anticolonialism and antiimperialism as opposition to market economies and opposition to property rights. The Soviets offered overt and covert support to Communist parties in Iran, Indonesia, Syria, and Iraq.

While these Soviet efforts led to improved diplomatic relations with some Islamic states, because of mutually beneficial arrangements, these efforts did not lead to a large-scale embrace of Soviet Socialism in Muslim-majority nations. In 1953 and 1954, however, this result was not yet known, and the non-Communist nations were concerned about the possibility of Islamic republics joining the Warsaw Pact nations.

On the one hand, the free world sought comfort in the notion that “Islam is after all a religion based on revelation, belief in which is clearly incompatible with Marxist ideology,” as Bernard Lewis phrases it. Anyone who has carefully studied Islam and carefully studied Marxism will agree that the two are irreconcilable. But that degree of study and analysis will be limited to a few lonely academic souls.

On the other hand, “in the present competition between the Western democracies and Soviet Communism for the support of the Islamic world,” there might be “factors or qualities” present “in Islamic tradition, or in the present state of Islamic society and opinion, which might prepare the intellectually and politically active groups to embrace Communist principles and methods of government, and the rest to accept them.”

Rather than compare and contrast Marxist-Leninist doctrine to Islamic theology, Lewis is asking whether, in the street-level reality of the majority-Muslim nations, there were significant numbers of people, and especially influential people, who might embrace Soviet Socialism, and whether the masses would be willing to follow them. He is arguing that it is not a theological or philosophical question, it is a social and political question.

The Soviet Socialist diplomatic outreach to Islamic nations included educational exchanges, in which Muslim students were invited to study at universities in the Soviet Union. The diplomacy also included cultural exhibitions, scientific exchanges, athletic competitions, and publications and radio broadcasts in Arabic, Persian, Turkish, Urdu, and Indonesian. Soviet diplomats also assured Islamic leaders that the Soviets respected religious freedom; the Soviets knew that the Muslim nations would not accept the absolute atheism demanded by doctrinaire Marxism. This put the Soviets in the awkward position of praising religious freedom abroad while imposing atheism domestically.

In the end, the Soviet Socialists formed some mutually advantageous alliances with Islamic republics, but there was no flowering of Socialism in the Muslim world in the 1950s.

By the time of the fall of the Soviet Union in 1991, the reader will imagine that the foreign policy experts in the free world were thankful that, despite some military and economic cooperation between a few Islamic nations and the Soviet Union, there had been no massive wave of revolutionary Soviet Socialism in those countries.

Although the West may well have felt a sense of relief in 1991, it would have been surprised and disappointed to learn that, 35 years later, phrases like ‘Islamo-Socialism,’ ‘Islamo-Marxism,’ and ‘Islamo-Communism’ would be used with increasing frequency to describe events, movements, and political leaders in the United States.

Although the Soviet Union is long gone, the ghost of Soviet Socialism is alive and well in Zohran Mamdani, Abdul El-Sayed, and Yousef Rabhi. Although only two of those three are currently official members of the Democratic Socialists of America (DSA), all three of them propose policies which are directly derived from Soviet Socialism: government owned housing, not as an emergency safety net, but as an ongoing way of life for a large percentage of the citizenry; government owned and operated grocery stores; free use of public transportation for everyone. (Of the three, the one who is not a member of the DSA has nonetheless spoken at and otherwise attended DSA events.)

One could cite many other examples of how policies advocated by Islamo-Socialists are echoes of Soviet Socialism’s policies. The three political leaders named above are not alone; they are merely the most famous of their type in the year 2026. Preceding years have featured others, and in 2026 there are many others as well. One can anticipate more of the same in 2027. (Although Yousef Rabhi does not label himself a Muslim, he has not expressed any critique of Islam; his father's family is Muslim, and one can reasonably assume that he has a familiarity with Islam.)

The notion of rephrasing 1950s Soviet policies in ways to make them palatable to Islamists of the 2020s almost seems like a comedy skit from Saturday Night Live.

An “Islamist” is not the same as a “Muslim” in twenty-first century usage. The current wave of Islamo-Socialism in the United States devotes effort to avoid appearing Islamist.

What is Islamo-Socialism? And what is it in contrast to other versions of Socialism? As noted above, one aspect of it is its presentation. It places less emphasis on the Marxist demand for atheism. It leans more heavily on the authoritarian nature of the state to impose whichever Socialist or Communist measures are being taken at the time.

Bernard Lewis identifies three features of Islam which the Socialists can leverage.

First, “the Communists are against the West and for that reason can at once count on important elements of support in the Islamic world.” What Lewis probably did not foresee, in 1953, was that this would not take place by means of Soviet propaganda efforts in Islamic nations, but rather that it would take place in the West itself — in NATO and EU countries — by means of ideologues who outlived the Soviet Union but remain attached to its doctrines.

Second, Lewis wondered if the Soviets could exploit “the present discontent of the Islamic World, and more specifically the social and economic discontent.” Again, while the Soviets of the 1950s failed to integrate the Islamic world into the Warsaw Pact, 70 years later, the doctrinaire Marxists in the West have been able to lure a substantial segment of Muslims into the Socialist camp.

Third, Lewis points out that a sweeping generalization about all Muslims is wrong. There is a particular segment of the Muslim world which will be drawn into Socialism, and there are other segments who will remain independent of it:

The center of danger is not the starving peasantry so often referred to, but rather the aspiring mechanics, who are the main recruits to the Communist cause. The peasantry are still, to a large extent, integrated in their traditional social units, and sustained by the loyalty and cohesion of the family and village group. It is the semi-skilled or un-skilled laborers who are uprooted from their tribal and village communities, deprived of the support of their usual system of social relationships and mutual aid, and placed in alien and unfamiliar surroundings. In the Communist cell the transplanted proletarian or mechanic may hope to find some substitute for his lost social armature, as well as encouragement in the ambitions and resentments that he acquires together with his new skills.

With a few adjustments in wording, this text by Bernard Lewis translates neatly into the twenty-first century. The “peasantry” and its “village communities” are the immigrants, who’ve settled in Europe or North America, and have a sense of “loyalty and cohesion” and “social relationships and mutual aid.” These people are sustained by “their traditional social units” and are not seeking a new sense of home among the political radicals of the far Left.

On the other hand, those Muslims who are suffering from a sense of dislocation, culturally, linguistically, and religiously, are attracted to Islamo-Socialism, because they have been “uprooted from their” communities and “deprived of the support” of those communities. Being culturally, socially, and psychologically dislocated, they find themselves “in alien and unfamiliar surroundings.” This could apply not only to immigrants, but also to the children of immigrants, and perhaps even to the grandchildren. Being distant, either emotionally or geographically, from family is another source of dislocation which makes individuals susceptible to the lures of Islamo-Socialism.

How does Islamo-Socialism cooperate or coordinate with its political allies? The DSA and other socialist-leaning groups in the United States include a wide smorgasbord of ethnicities, religions, and cultures. Consolidating such coalitions is an important part of twenty-first century electioneering in the United States (and perhaps in other countries as well).

One feature of postmodern and post-Marxist socialisms (note the plural) is the abandonment of the strictly economic definitions of the classes to be liberated. Socialism is to liberate not only those with little or no income, little or no capital, and low standards of living, but also those who are in any way oppressed — with the definition of ‘oppressed’ being large, malleable, and ever-changing.

The Islamo-Socialists can find common ground with the other socialists by identifying some people (their supporters) as oppressed, and labelling other people (their political opponents) as oppressors.

Another vocabulary item which connects Islamo-Socialists with the broader Marxist audience — and for the present purposes, the ambiguous borderlines between socialism, marxism, communism, leninism, and maoism may be ignored — is the phrase “seize the means of production.”

This is an orthodox Marxist phrase, and Zohran Mamdani is clearly documented as saying that one of the “issues that we firmly believe in” is the “end goal” was “seizing the means of production.” This phrase cements Mamdani’s place in the socialist camp. It also is a phrase that would have been, until very recently, unlikely to come out of the mouth of a self-identified Muslim.

The confusion and conflation of anti-Zionism with anti-Semitism is another bridge which links Islamo-Socialism to the broader far-Left community. On the one hand, there is opposition to particular actions and policies of the nation-state of Israel. On the other hand, there is a desire to discriminate against Jews around the globe. The refusal to distinguish between these two ideas allows for a connection between Islamo-socialism and DSA-type movements.

Any variant of socialism requires a reduction in personal freedom and political liberty: an ongoing diminution of property rights and free markets. Both socialism and Islam are quite comfortable with regulating both individuals and communities, as Bernard Lewis writes:

Many attempts have been made to show that Islam and democracy are identical-attempts usually based on a misunderstanding of Islam or democracy or both.

Lewis reviews the societies and civilization in which Islam has flourished. Almost none of them feature governments composed of freely-elected representatives. Almost none of them encourage individual expression or thought. Culturally, Islam has learned to feel at home in authoritarianism and in absolutism. Islam is therefore comfortable when socialism restricts property rights and regulates a previously free market. Lewis continues:

The political history of Islam is one of almost unrelieved autocracy. I say autocracy, not despotism, since the sovereign was bound by and subject to the Holy Law, and was accepted by the people as rightful ruler, maintaining and maintained by the authority of the Holy Law. But still, it was authoritarian, often arbitrary, sometimes tyrannical. There are no parliaments or representative assemblies of any kind, no councils or communes, no chambers of nobility or estates, no municipalities in the history of Islam; nothing but the sovereign power.

It appears clear that Islam will not in the near future articulate, embrace, and endorse the principles of Soviet Socialism; atheism and a few other cultural details are not palatable to Islam.

It also seems apparent that Islam is comfortable enough with Soviet Socialism, especially in its current DSA repackaging, to tolerate it, to coexist with it, to go along and get along with it.

Islam and Soviet Socialism are not entirely congruent, but they are in some ways similar and in some ways complementary, so that they can collaborate.

The Separation of Powers and the United States Constitution in the Late Twentieth and Early Twenty-First Centuries: Can It Be Revived?

Although no longer universally taught, the Constitution of the United States is still presented to students in at least some American schools, both public and private. Both formerly, when it was widely taught, or presently, when it has become optional in many curricula, the relatively simple concept of the “separation of powers” among the three branches of government, related to their ability to “check and balance” each other, was a central component in teaching about the Constitution.

The concept is simple: as the saying goes, simple but not easy.

It is not the fault of parents or teachers that inadequate education about the Constitution is often now given. Curriculum creators (textbook writers) and professors of education at the colleges and universities have planned and carried out the deliberate withholding of information. Instead of teaching the Constitution, a handful of slogans are instilled in the students, with the intent of persuading parents and students that something has been taught and learned.

Given this failure of the academic system, mainly at the primary and secondary levels, the general public is less able to identify when the government fails to abide by the Constitution’s rule, less able to know what to do to correct these failures, and less able to understand the harm wrought by the violation of the Constitutional system.

One specific violation of the system is that laws are being made by branches of the government other than the Congress. If the task of the legislative branch is to legislate, then it is a violation not only of reason and justice, but also of the Constitution, when some other, or any other, office legislates. An effort is made to camouflage this violation inasmuch as the laws so made are not called ‘laws’ but rather ‘regulations, rules, procedures, rulings’ etc., and the unconstitutional process of making them is not called ‘legislation’ but rather ‘oversight, regulation, court orders’ etc.

Some scholars have sought to justify this violation of the Constitution by arguing that Congress has delegated its law-making activity when, e.g., it funds an agency or an executive department which then issues regulations, rulings, procedures, etc.

As historian Philip Hamburger points out, the Constitution expressly forbids Congress from delegating the power of legislation:

The United States Constitution expressly bars the delegation of legislative power. This may sound odd, given that the opposite is so commonly asserted by scholars and so routinely accepted by the courts. But read the Constitution. The Constitution’s very first substantive words are, “All legislative Powers herein granted shall be vested in a Congress of the United States.” The word “all” was not placed there by accident. The Framers understood that delegation had been a problem in English constitutional history, and the word “all” was placed there precisely to bar it.

The Constitution was directly and specifically responding to historical situations in which the legislative branch had delegated its power to legislate; the result was another step on the road to tyranny. The crime of the legislative branch delegating its power is distinct from the crime of some other branch of government taking that power. In either situation, however, injustice and human suffering are the necessary results.

Constitutionally, the legislative branch cannot delegate this power; when it does, it ceases to be a constitutional legislature, as historian John Marini notes:

It is true that constitutional assemblies cannot be bureaucratized, because deliberation and general lawmaking remain their fundamental political purpose.

The first generations of constitutional scholars assumed that if Congress delegated its power to legislate, it would lose all its power. “What” earlier historians “did not foresee is that Congress could surrender its lawmaking power, delegating that power to the bureaucracy, and still maintain its authority over the bureaucracy.” Congress, having in fact illegitimately delegated, retains significant power, i.e., the political power over the agencies which legislate. But Congress has given away its direct power over, and its responsibility for, the content of legislation.

One name given to laws made not by the legislative branch is ‘administrative’ law, i.e., illegitimate law, which hides behind any word except ‘law’ — i.e., ‘regulation, requirement, directive, procedure, guideline’ etc.

Congress still has power, but not its legitimate power. It holds a form of illegitimate power, as John Marini writes:

It is in this way — by reorganizing itself to be not a legislative, but an administrative oversight body — that Congress established itself as a major player in the politics of the administrative state.

Many harms arise from the delegation of Congress’s peculiar constitutional role. As a natural consequence to laws made in violation of the Constitution, the enforcement of those laws, and the judging of them, is also in violation of the Constitution. Thus ‘administrative law’ begets an ‘administrative court’ system, and even what are essentially ‘administrative’ police. Again, these will be hidden behind other names, to disguise the violation of constitutional principles.

Those who face trial in an administrative ‘hearing’ do not receive due process and their rights are not respected — the rights which they would have were they to be tried in a court which is part of the judicial branch. Philip Hamburger explains:

Administrative adjudication evades almost all of the procedural rights guaranteed under the Constitution. It subjects Americans to adjudication without real judges, without juries, without grand juries, without full protection against self-incrimination, and so forth.

It is not accidental that ‘administrative courts’ ignore the rights which a citizen normally has in a constitutional trial and violate due process, because it was with that intent that the administrative courts were created. The formation of ‘courts’ and ‘hearings’ within departments of the executive branch and within congressional agencies was a successful effort to evade proper judicial procedure, by evading the judicial branch itself.

Phrases like “an ICC ruling” or “an ICC finding” describe the result of an essentially judicial process, but one not carried out by the judicial branch. For example, the New York Times wrote about “an Interstate Commerce Commission finding of last April that a merger of the Great Northern, the Northern Pacific and the Chicago, Burlington Quincy Railroads is in the public interest” (November 21, 1968). What is that but a verdict? Yet nobody but the judicial branch is constitutionally authorized to issue a verdict.

Philip Hamburger reports:

Administrative courts substitute inquisitorial process for the due process of law — and that’s not just an abstract accusation; much early administrative procedure appears to have been modelled on civilian-derived inquisitorial process. Administrative adjudication thus becomes an open avenue for evasion of the Bill of Rights.

Congress has delegated its legislative power, and thus abandoned its legitimate constitutional role. Why would a body surrender its proper power? Perhaps to obtain an improper power. Congress is now less concerned with passing laws, and more concerned with conducting ‘investigations’ and having ‘trials’ and ‘hearings’ of various kinds.

Congress has not only violated the Constitution, it has inverted it, as John Marini explains:

Congress has become a major player in the administrative state precisely by surrendering its constitutional purpose and ceasing to defend limited government. As a result, the administrative state has grown dramatically since 1965, and it only continues to defend and expand its turf. Political opposition occasionally arises in the White House or in Congress, but thus far with little effect.

In violating the separation of powers between the three branches of government and hindering the proper ‘check and balance’ system, Congress has not only violated the Constitution and reason, but also thwarted the nation’s desire for justice, freedom, peace, and prosperity.

Bull Connor: A Career of Opposition to Civil Rights

The name of Bull Connor is familiar to anyone who’s learned about the struggle for civil rights in the United States in the 1950s and 1960s. His legal name was Theophilus Eugene Connor, but the nickname “Bull” was given to him early in life, and it stuck. He was born in 1897.

After a brief career in radio, he found success in politics. “In a race for a seat in the Alabama Legislature,” writes the New York Times, “Mr. Connor won handily in the Democratic primary.”

“In 1934, Connor entered the Democratic primary race for a seat in the Alabama House of Representatives,” writes historian James Baggett, and “Connor served in the legislature from 1935 to 1937, and introduced and championed bills, such as poll tax reform.” His party’s majority in the legislature used the “poll tax” to deter African-Americans from voting.

His career proceeded as he was elected to be Birmingham’s commissioner of public safety, a position he held from 1936 to 1952, and again from 1956 to 1963. It was during his time in this office that he ordered the use of firehoses against peaceful demonstrators in May 1963. This iconic moment cemented Bull Connor’s name and reputation in the mind of the public. He also authorized the use of dogs against the demonstrators.

In addition to his role in the Birmingham city government, he was involved in national politics. He was a delegate to the Democratic National Convention several times: sources are unclear about exactly how many times he attended the convention, and which times he was a delegate, as compared to which times he served in other roles at the convention.

Given the conflicting sources, it is clear that he was elected as a delegate to the convention at least four times, and possibly as many as seven times. It is clear that he was a delegate at the convention in 1948 and 1956.

Records are not complete, but indicate his presence at the convention in 1940, 1944, 1960, 1964, and 1968, in addition to the 1948 and 1956 conventions, whether as a delegate or in some other capacity.

Between national conventions, Bull Connor was a member of the Democratic National Committee between 1960 and 1963. Evidence suggests that he was present at meetings as a non-member guest at times before and after his actual membership in the Democratic National Committee

“Connor served as a delegate to four Democratic National Conventions (1948, 1956, 1964, and 1968),” writes historian James Baggett. “At the 1948 convention, he helped lead a walkout by” a group of “delegates in protest of Pres. Harry S. Truman’s civil rights policies.”

Truman’s famous Executive Order 9981 ordered the desegregation of the military, although the order was carefully worded in a way such that it did not create the change it seemed to demand. Still, it was abhorrent to large numbers of Democrats, who refused to vote for Truman. Truman won the 1948 election anyway.

Bull Connor remained influential in the party, so much so that he outperformed nine other candidates in the primary election for governor. The eventual candidate outperformed him. “In 1950, Connor ran unsuccessfully for governor and then returned to his work as a commissioner.” He held the commissioner office and was reelected several times. After a brief hiatus, “he was voted back onto the commission in 1957. In 1960, Connor was elected Alabama’s Democratic National Committeeman, and” in “1962 he ran another unsuccessful campaign for governor.”

Historians will note the inaccuracies, ambiguities, and incompletenesses in the various source documents. It should not be so difficult to determine when and how often an individual was an official party delegate to a convention!

It is noteworthy that even after the iconic images of dogs and fire hoses being used without provocation against peaceful demonstrators, Bull Connor retained a powerful base of support within his party, being nominated for various elected public offices, and holding leadership roles inside the party.

By the mid 1960s, he had retired from politics, and died in 1973.

How Ronald Reagan Became a Policy Wonk

From the time that Ronald Reagan announced his candidacy in November 1979, observers noted that he when he was speaking in unscripted situations, like press conferences or debates, he was able to quickly articulate lines of reasoning, show a familiarity with a variety of topics and situations, and nimbly explain and apply a variety of concepts.

Those who were competing against Reagan admitted that he could speak with ease even in improvised situations. This was clear, despite an effort by some of his opponents to paint him either as a shallow Hollywood movie star or as an incompetent grandfather. Reagan was able to discuss policy at a fairly sophisticated level without focused preparation. He retrieved facts and concepts on the fly from his memory.

How did Reagan become so well versed?

It happened during a four-and-a-half year period, during which Reagan was not in office and was not seeking any office. He spent that time writing and speaking, and most importantly, preparing his own texts for these written and spoken engagements.

He wrote the texts for more than one thousand three-minute radio speeches. They were broadcast daily, Monday through Friday, from early 1975 until late 1979. He also wrote newspaper columns. Like any content creator, he was actively seeking new material. He read in large quantities, from daily newspapers to centuries-old classics. He was continually on the lookout for new ideas, new facts, and new perspectives on old ideas and on old facts. As historian Kiron Skinner said, “Reagan really was doing his own work.”

In the course of researching and writing, Reagan became familiar with dozens of policy topics, and with multiple interpretations of each of those topics. His grasp on the issues was both broader and deeper than many of his competitors when he ran in the 1980 election.

“The scripts deal with every issue of the day, from stagflation to Soviet duplicity,” writes Peter Robinson. “We now know that he produced more original writing than any president since Woodrow Wilson.”

Among broadcasters, Reagan’s radio audience was considered to be among the largest, explains Kiron Skinner:

So, in January 1975, he steps down as governor of California, and three days later he’s writing radio essays, giving radio broadcasts five days a week, three minutes a day, to about 20 million listeners. He did this before talk-radio, when no one else in the country was doing what he was doing. He had a bigger listening audience probably than any politician in the United States, including the president, and no one in the establishment — the liberal establishment — paid attention. He was on more than 300 radio stations across the country, nationally syndicated. He would go into a studio in Hollywood and record 15 [broadcasts] at a time, covering three weeks at a time, and with doing only one recording, never making a mistake, having written most of them by hand. He delivered more than a thousand in the late 70s, and when he competed in the 1980 Republican primary, his challengers said that everywhere they went the audience knew Reagan’s message and they knew him. Well, [the reason] was the radio essays that he’d been giving all of those years.

By the time Reagan began his daily radio speeches in 1975, he’d already been governor of California and a Hollywood actor. He already had experience as a radio broadcaster, a job which he held from 1932 to 1936.

He was already an accomplished public speaker by 1975. The additional years on the radio only made him better. He preferred speaking to writing, because he understood better how to connect with his audience using his voice instead of his pen, as Kiron Skinner notes:

He also wrote a nationally syndicated weekly newspaper column with King Syndicate, but he really focused on radio, because he understood the medium, having been a sportscaster in Iowa after college.

Approximately 600, or a few more, of his original radio scripts have survived. They are almost all handwritten. Reagan would give the handwritten copies to a secretary to be typed. They offer insights into both the methods and the circumstances of their composition.

More than his immediate predecessors — Johnson, Nixon, Ford, and Carter — Reagan had polished skills in public speaking, and an instinct for broadcast media, both radio and television.

He had an amazing audience. He was talking to Americans, he was receiving letters back, refining his message, honing his skills, developing arguments, so that by 1980, when he was running against Jimmy Carter, he was functioning as a one-man think-tank. The radio essays [covered] every issue. He wrote most of them entirely by himself. He was writing them on planes, from the back of cars. He was even citing his sources in the margins of the handwritten drafts.

Although Reagan certainly earned his nickname — ‘The Great Communicator’ — that was only half the story. The other half was his vast mental library of issues and policies, and his ability to deftly explain, apply, critique, or support them. In the vocabulary of a much later era, he was The Great Content Generator.

Reagan’s Foreign Policy: The Origins of “Peace Through Strength”

Which role did treaties play in Reagan’s conceptualization of foreign policy? How did Reagan orchestrate a peaceful ending to the Cold War, avoiding direct military conflict between the United States and the USSR?

The Ronald Reagan Presidential Library in California houses millions of pages of documents from Reagan’s time as president. He was in office from January 1981 to January 1989. The library also contains some materials from the times before and after his terms in office.

Dr. Kiron Skinner, a professor and researcher, was granted access to some of the documents which are not normally available to the public. She spent several years reading thousands of pages, wrote books and articles fueled by that reading, and has become known as a scholar specializing in, among other topics, Reagan’s presidency.

In a 2012 interview, which was subsequently transcribed for print, she noted that “Reagan was deeply influenced by” a book written by Laurence Beilenson and titled The Treaty Trap. Beilenson argues that in the long run, treaties have little value or effect, although in the short run, they can be useful as two or more nations grope and fumble their way toward an equilibrium.

Reagan was not averse to signing treaties, but he had no illusions that these treaties by themselves would create a stable equilibrium in global diplomacy or institute a new world order. He signed significant treaties, including the Intermediate-Range Nuclear Forces Treaty (INF) in 1987, the Threshold Test Ban Treaty (TTBT) in 1988, the Peaceful Nuclear Explosions Treaty (PNET) in 1988, the Montreal Protocol in 1987, and the U.S.-Canada Free Trade Agreement in 1988.

Two of those treaties, the TTBT and the PNET, were already negotiated and signed by previous presidents, but Reagan re-negotiated them, adding verification protocols.

In addition to signing those treaties, he negotiated and drafted the Strategic Arms Reduction Treaty (START I), the Conventional Armed Forces in Europe Treaty (CFE), and the Chemical Weapons Convention (CWC), all three of which would be signed by subsequent presidents.

But Reagan did not view these treaties as creating a stable equilibrium between the United States and the USSR. Instead, he saw them as milestones or timing tactics toward such an equilibrium. Ultimately economic and military realities, not words on paper, would create an equilibrium and thereby peace.

This understanding of the nature of treaties marked a difference between the U.S. foreign policy in the 1970s and the U.S. foreign policy in the 1980s, as Kiron Skinner writes:

An attorney named Laurence Beilenson found that every treaty that has been signed throughout world history has been violated. That really influenced Reagan because he felt that treaties were not the goal; [rather] the objective should be to transform the international system by the strength of the United States as the predominant power in the world. He had a very different view than the prevailing view in the 1970s, the period of détente when, under Nixon and Kissinger, the United States accepted the Soviet Union and believed that the Cold War was an enduring bipolar system that would last ad infinitum. Reagan didn’t feel that way. He didn’t feel that treaties — that is, signing treaties codifying the Soviet status in the world — was something the U.S. ought to be doing. The principle behind [his thinking] was right: treaties aren’t the way to get countries to change.

Because Reagan saw the economic and military realities as primary to shaping international cooperation and the global balance of power, and treaties as secondary, he used the phrase “peace through strength” to describe his policy. The phrase had previously been used for decades both in Britain and in the United States, but is now mostly associated with Reagan’s policies.

Reagan conceptualized this policy with four major points. First, that the USSR drew most or all of its leverage from its military occupation of eastern Europe and was otherwise rather weak; second, that the Soviet economy was weak, and the U.S. could topple it by placing competitive stress on it; third, that the U.S. economy was strong enough to place massive stress on the Soviet economy; fourth, that the U.S. citizenry would accept a massive military buildup if it understood that the buildup was not intended to start a war, but rather to avoid one.

The goal of “peace through strength” was a peaceful end to the Cold War brought about by causing the Soviet economy to collapse, as Kiron Skinner said:

When he talked about peace through strength he meant four very theoretical hypotheses: One was that the full force of legitimacy of the Soviet Union in the Cold War was the Red Army’s occupation of Eastern Europe. Pull the Red Army out, and the countries would go their own way. That’s really what happened after 1989.

Second, that the Soviet economy was so weak that it could not sustain a technology race with the United States. [Reagan] was saying this in the 1970s, and [it was] heresy. No one believed it. Many, including some in our intelligence community, felt the Soviet Union could go on for decades.

Third, [Reagan] argued that the American economy was so strong that it could sustain a technology race with the Soviets and recover even if there was some deficit spending.

And then, finally, Reagan argued that the American public was prepared for peace through strength. It was prepared for massive peacetime rearmament — if, in fact, leaders would explain that rearmament was part of a strategy for a very different goal, which was mutual cooperation on our terms.

That, basically, I think, captures Reagan’s view of the Cold War and how it should be fought, and that’s what he meant by peace through strength. It was very clear what Ronald Reagan was saying. And no one else was saying it. He said it in the 70s and implemented it in the 1980s.

Reagan had a vision for what the world could, should, and would be after the end of the Cold War. This future would be based not on merely defeating the Soviet Socialists, but on changing Russia into a freedom-oriented nation: a “liberal” nation in the strict sense of the word. This freedom would be personal, economic, and political.

A Russia thus transformed could be a partner among the western European nations, the U.S., Canada, and the other countries which made up what was loosely called the “free world.” Reagan did not wish to subjugate Russia, but rather to make Russia into a teammate, as Kiron Skinner phrased it:

He wanted to get to a very different world. He wanted a world in which there was mutual cooperation between the United States and the Soviet Union — he just defined mutual cooperation quite differently, which was the Soviets abdicating power and joining the West in a community of free states.

Reagan’s terms in office ended too early for him to be a part of shaping the post Cold War era, but he had this vision for it. He also envisioned a nuclear-free world. He reckoned that, after the collapse of the Soviet Union, it would be a next logical step to completely disassemble the world’s nuclear arsenals. In the late 1980s, only the U.S. and the USSR had large nuclear stockpiles. Other nation-states had only small caches.

Determiners of Black Social Success

The sociological and demographic patterns of African-American society from the 1860s to the present provide data for complex narrative. The achievements made by Blacks in the United States after the end of slavery are impressive. Those achievements were made in the face of significant obstacles.

Robert Leon Woodson describes the advances of African-Americans over the course of their first century of freedom:

The core of the black community in the hundred years between the end of the Civil War and the War on Poverty was the family, a belief in God and business formation. Up until 1965, the marriage rate for blacks was over 80 percent. In fact, during the Great Depression, the black marriage rate was higher than that of whites. In the first 50 years after the Emancipation Proclamation, black Americans accumulated a personal wealth of $700 million. They owned over 40,000 businesses, 40,000 churches and 937,000 farms. The literacy rate climbed from five to 70 percent.

Woodson focuses on the connection between family structures, education, and economic success. In 2005 he wrote:

Out-of-wedlock births dramatically increased, particularly in the black community. In 1962, 85 percent of all black families had a man and a woman raising a family. Today, about only 47 percent of homes have a married man and woman raising children.

Since Woodson wrote those words in 2005, the situation has not improved.

Children born to unmarried parents are more likely to underperform educationally, be unemployed or underemployed as adults, abuse substances, and commit crimes than children born to intact families. Woodson points out that anti-poverty policies have unwittingly incentivized unmarried parents, and disincentivized marriage.

In the 1950s, when civil rights were finally being realized on a large scale, Blacks in the United States had statistics which compared favorably with Whites in terms of unemployment, literacy, and intact nuclear families. In some cases, Blacks even outperformed Whites by these measures. Yet within a few decades, these advances would be undone.

The improvements were on a large scale. Robert Leon Woodson notes the 57% decline in poverty rates among Blacks:

From 1940 to 1970 the poverty rate dropped from 87 to 30 percent — a reduction of two-thirds.

Yet since 1970, the poverty rate has stagnated. Federal anti-poverty policies have unintentionally undermined the stability of the family and undermined Black entrepreneurship. The programs collectively known as the “War on Poverty” became a “War for Poverty.”