Letters Blogatory

The Blog of International Judicial Assistance
By Ted Folkman

Some Political Thoughts

President Trump holding a bible

It’s time for a political post, so if you are one of the Letters Blogatory readers who likes coverage of cases of the day but has sent me very polite and reasonable emails asking for less politics, avert your eyes. Read on for two political ideas that are on my mind.

First: with all the upheavals of the past few years, what politics should we be aiming for? What would a just society be like in the United States? To me the answer today is more or less the same as it has been for a long time, though people can dicker about the details: a just political society is one that recognizes fundamental civil rights and liberties for everyone and that distributes social goods in the way that we would all agree is right if we had to agree on the rules without knowing in advance the social and economic circumstances we would be born into, whether we would be healthy or prone to illness, and so forth. A just society, in other words, is a fair society. We know what justice is, we just have never really managed to put it into practice. It’s important to say this because this kind of theory of justice, which is one of the many varieties of liberalism, is under attack from the right, of course, but also from the left.

Second: what would the founders say about our current predicament? I think I know what they would say. Put in modern language, it would be something like this: “You had a good run. All republics fail when the citizenry no longer has the civic virtue that made a republic possible in the first place.” The founders were not utopians. They set up a form of government that was meant to channel and restrain our worse impulses and to mix monarchical, aristocratic, and democratic elements in a way that made good sense to those who had read Polybius, Livy, and Machiavelli but might make less sense to the typical American, or even the typical American with what passes for an elite education in 2020. People talk a lot about how badly we are doing with basic high school civics education, but I think that how we educate our elites, what we choose to teach and not to teach, is probably more consequential and more concerning. And the gross inequality we can all see is particularly dangerous because the benefits of great wealth today do not seem to come with the societal obligations that high social station ought to carry. Maybe it is no wonder that we are in real trouble.

Ted Folkman

4 responses to “Some Political Thoughts”

  1. Steve Skulnik

    Ted,

    The founders would have seen George Floyd as chattel. This country was built largely by people stolen from Africa and enslaved. Spike Lee calls this “original sin.” With respect, the founders had nothing to teach us about the problems we face. The founders created them.

    Steve

    Reply
    1. Ted Folkman

      Well, of course you’re right that the founders, like nearly all Europeans and European colonists in the eighteenth century, had terrible views on race. On the other hand, I disagree entirely with the view that the founders have nothing to teach us. As a general matter, I don’t ever want to say that we can only learn from the morally enlightened, because that means throwing out the past and its wisdom wholesale and because there’s no doubt that in a couple of centuries many views that are accepted today will be seen as flagrantly wrong. Focusing more specifically on the founders, my point really is that they were readers of history in a way that we aren’t, and there is a lot of wisdom (in my view) in their caution about too much direct democracy and in their view that the health of a republic depends on the virtue and education of the citizenry.

      Reply
  2. Antonio Fiorentino Di Stefano

    I agree the picture of Pres.Trump holding the Bible is very worrisome. It remind me of a time in history when the church in Rome asserted its supremacy in crowning kings. Europeans have settled that issue. We have not even began. We have turned a very human political event 233 years ago into a quasi religious revelation.We are at the same stage in our population function as Rome hemmed in by the pressures of the Goths it valued only as labor and slaves, little knowing that the numbers would soon change.

    Reply
    1. Ted Folkman

      I love Roman analogies and there are many to choose from! The soldiers in Washington made me think of Caesar coming to Rome with his army. Anyway, I agree with you that the Constitution is in a sense frozen in time. But I would make three points. First, the thought that we could do better today, in our political climate and with our leaders, is risible. Second, the extent to which our understanding of the written constitution is frozen in time is not just a product of our constitution’s age, but of the tools our legal elites now use to interpret it. Third, we have an unwritten constitution of norms and traditions, and frankly it’s our unwritten constitution that is in greater danger from Trump than our written constitution. For example: the constitution allows for a large standing army even though one would have been anathema to the founders, but the unwritten constitution certainly doesn’t allow the regular army, under federal control, to quell protests in American cities, nor does it allow the awful things we have seen in Washington and elsewhere over the past few days, the lead-up to the Trump bible photo op being a great example.

      Reply

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