April 7, 2018


The Guy Who Wrote The Book On The Deep State Wishes Trumpworld Would Shut Up About The Deep State (Joseph Bernstein, 4/05/18, BuzzFeed News)

From "fake news" to "bad faith," the Trump administration and its boosters have proven fantastically adept at expropriating the slogans of the political zeitgeist and redefining them with brutal partisan efficiency. And for the past 15 months, Lofgren has had a front-row seat to one such refurbishment, as the bipartisan phenomenon he carefully documented became, as he put it in an email to BuzzFeed News, the "ultimate 'dog ate my homework' excuse" for "the Trump regime and its pinhead allies." The transformation has been so thorough, it's left Lofgren wondering if it's possible to make a broad critique of power within America in 2018 without it being turned into a propagandistic caricature by the far right.

Though Lofgren's "Deep State," which he first described in a widely read 2014 essay for the website of longtime PBS host Bill Moyers, is influential, it bears little resemblance to the all-powerful cabal that the contemporary far-right has conjured. A former Fulbright scholar who studied contemporary European history, Lofgren spent 16 years as a senior analyst on the House and Senate budget committees, developing an expertise in the way the government pays for national security.

In that 2014 essay, after several appearances on Moyers' show, Lofgren gave his "Anatomy of the Deep State" thusly:

"...a hybrid entity of public and private institutions ruling the country according to consistent patterns in season and out, connected to, but only intermittently controlled by, the visible state whose leaders we choose. My analysis of this phenomenon is not an exposé of a secret, conspiratorial cabal; the state within a state is hiding mostly in plain sight, and its operators mainly act in the light of day."

That, according to Lofgren, is why Congress could seem hopelessly divided and deadlocked on President Obama's budget or political appointments, but offer no real sustained objection across either party to efforts to "liquidate American citizens without due processes, detain prisoners indefinitely without charge, conduct dragnet surveillance on the American people without judicial warrant" and intervene in Libya.

The critique found a supporter in Moyers. "He added to the long and legitimate and losing argument that we're being governed by the military-industrial complex," Moyers told BuzzFeed News.

Of course, we do have a Deep State that resists mere democratic pressures, but it is inherent in the structure of the Republic and, for obvious reasons, one of the main bulwarks is insulated from political vicissitudes and electoral spasms:

Separation of Power: To make a more perfect union, don't look to the Founding Fathers. (William Hogeland, Lapham Quarterly)

Yet in lauding Federalist 78, resistance to Trump stumbles into divots, even potholes, in the landscape of an American civics on which any effective resistance would have to rely. The anti-Trump intelligentsia is reading Hamilton's essay out of historical and political contexts, the founders' and ours. Confusion begins in misconstruing the essay's purpose. Hamilton was writing neither a meditation on judiciaries nor a guide to ours. While generations of judges have treated The Federalist as scholarship, precedent, even transcendent truth, the essays are works of persuasion, cranked out in hopes of convincing the delegates of New York to support ratification of the proposed Constitution. There was no federal judiciary when Hamilton wrote essay 78, no high or low courts, no specified number of Supreme Court justices, no federal case law, nothing but a few sentences stating that such a system should exist and--the kicker--making it independent of the other two branches. Hamilton's goal in 78 was to demolish recently published arguments on the dangers of making the judiciary independent. He wanted to get the Constitution ratified, with the judicial branch a covalent part of government.

Context for that effort involves Hamilton's and his colleagues' perception that in judicial independence lay a mechanism not for promoting democracy but for the reverse: checking what seemed to be potential dangers posed by the lower house of the proposed national legislature. Hamilton's persistent concern was to defeat what he and others of his class called the "leveling" impulse: efforts by lower orders to equalize society economically by undermining the value of property and investment, and thus, went the prevailing line of elite thought, destroying liberty itself. Where modern liberal thinking tends to equate freedom with a high degree of social equality, to Adams, Hamilton, Washington, Madison, and others, equality already seemed, in 1789, to be shattering traditional norms, devaluing elite holdings, and paving the way for the despotism that, in their reading of history, inevitably follows from attacks on property. The 1780s had seen populist agitation for debt relief, price controls, progressive taxation, access to credit, and the abolition of property qualifications for the voting franchise. Under pressure from working-class populists, state legislatures had been passing monetary laws that gave advantage to debtors, artisans, small farmers, and laborers. In Pennsylvania, there had even been talk of capping by law the amount of property anyone could own. A desire to put an end to what elites saw as state-legislative abuse of that kind spurred the formation of a national government. Such abuse must certainly be prevented from infecting the proposed national legislature. Hence the pitch for judicial independence that Hamilton made in Federalist 78.

Making the judiciary so powerful was bound to be scary. Whig liberty types, reacting in the Harrington mode, feared any power that might defeat representation, traditionally the legal means of resisting sovereign encroachment on rights. What if a federal judge, for example, appointed for life by the executive, were to set aside a law passed by Congress on the basis that it was somehow "unconstitutional"? That scenario brought on nightmares of classic tyranny. These same men, however, were the elites of New York--that's why Hamilton was addressing them. As creditors of their poorer neighbors, they harbored a fear of the leveling instinct as great as their fear of authoritarianism. Such a fear was bolstered ideologically by their certainty that the former always leads to the latter anyway. Republican gentlemen of the founding generation loved the tradition of representation. They hated the democratic results of representation going on in some of the states. Hence their bind.
Hamilton offered a way out. Federalist 78 is characteristic of his brilliance not as a theoretician--he could take the most abstruse theory in a single bite and chew it any way he liked--but as a master of building paths to usher readers inevitably toward his conclusions. The historian Peter Charles Hoffer, reading Hamilton's essays on the judiciary as an adroit walking-in of the novel power of judges to set aside laws, shows how the founder widely considered the least politic was capable here of concealment, cushioning, and timely revealing for maximum effect. The essay is marked by classic Hamiltonian tactics, by no means consistent with the notion prevailing among liberal admirers today, that the essay offers protection for hard-won democratic progress now under threat.

The central argument in 78 begins with an insistence that the might of an independent judiciary, supposedly so scary, is chimerical. The judicial branch won't really be equal to the other two, Hamilton assures his readers; unlike Congress, it can't create laws, and it has to rely on the presidency to enforce rulings. If the branch can become fearsome only in collaboration with another branch, all the more reason for separating it. A court this weak can never make itself superior to the legislature. Having tiptoed up to the land mine--the court's controversial power to set aside legislative acts--Hamilton tells his readers there's nothing to see there. He conjures a hypothetical scenario in which Congress passes an act undermining due process of law itself: an ex post facto law or bill of attainder, old legal tricks of arbitrary power loathed axiomatically by readers of the liberty literature. Who but the federal courts, Hamilton asks, would be in a position to push Congress back within constitutional bounds? Such a role would in no way set the court above Congress: "The power of the people"--the Constitution itself--"is superior to both." So even in instances where this weakling court must flex its muscles, it can act only as an intermediary.

Hamilton has deftly dispelled fears. His judiciary is gasping for life in those areas where readers would be hypersensitive to arbitrary power and no more than an intermediary whenever invigorated temporarily for the sole purpose of preserving constitutionality. He now dangles before his audience certain potencies that he says have nothing to do with constitutionality. He notes, first, that an independent judiciary would stifle "legislative encroachments." His audience would read that term as referring to legislation benefiting debtors, artisans, and poor farmers at the expense of property.

Employing the favored language of his class for describing social agitation, Hamilton asserts that an independent judiciary will mitigate:

those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

By dangerous innovations and serious oppressions he means populist fiscal laws; by the minor party he means the well-propertied. And he casts this judicial power to keep a stirred-up people down as the gift that keeps on giving. A legislature whose populist laws are repeatedly voided, Hamilton predicts, will give up even trying to pass them. That's a vision the elites of New York could get behind. Hamilton reminds them that all virtuous, disinterested, considerate people--them--are aware of the deleterious effects on stability and virtue of the bad spirit irresponsibly aroused by demagogues in an otherwise reasonable people. An independent judiciary can obstruct that spirit--elites called it both "the mob" and "the democracy"--and even crush it altogether via the rule of law.

Everybody knows, at least on reflection, that Hamilton, Adams, and their colleagues weren't democrats and egalitarians. The question is why today's embattled liberalism, seeking protection for essential American institutions promoting equality and democracy, lauds Hamilton's arguments for the legal suppression of equality and democracy. Just technically, most of 78 is immaterial at best to liberal hope and success. Blocking the attempted Muslim ban and the rescinding of DACA rely on a judicial power to check not Congress but the executive; in 78, Hamilton, a promoter of executive strength, only barely alludes to that power. Expanding equality came about in the twentieth century through the federal courts' power to set aside oppressive state laws. In 78, Hamilton didn't mention that power, referring only to potential excesses of Congress.

It is the conservatism of the Founding that enables us to defend the Republic from the progressivism of a Donald or a Bernie.
Posted by at April 7, 2018 6:35 AM