By: Angelo M. Codevilla
September 27, 2016
The Claremont Review

Over the past half century, the Reagan years notwithstanding, our ruling class’s changing preferences and habits have transformed public and private life in America. As John Marini shows in his essay, “Donald Trump and the American Crisis,” this has resulted in citizens morphing into either this class’s “stakeholders” or its subjects. And, as Publius Decius Mus argues, “America and the West” now are so firmly “on a trajectory toward something very bad” that it is no longer reasonable to hope that “all human outcomes are still possible,” by which he means restoration of the public and private practices that made the American republic. In fact, the 2016 election is sealing the United States’s transition from that republic to some kind of empire.

Electing either Hillary Clinton or Donald Trump cannot change that trajectory. Because each candidate represents constituencies hostile to republicanism, each in its own way, these individuals are not what this election is about. This election is about whether the Democratic Party, the ruling class’s enforcer, will impose its tastes more strongly and arbitrarily than ever, or whether constituencies opposed to that rule will get some ill-defined chance to strike back. Regardless of the election’s outcome, the republic established by America’s Founders is probably gone. But since the Democratic Party’s constituencies differ radically from their opponents’, and since the character of imperial governance depends inherently on the emperor, the election’s result will make a big difference in our lives.

Many Enemies, Few Friends

The overriding question of 2016 has been how eager the American people are to reject the bipartisan class that has ruled this country contrary to its majority’s convictions. Turned out, eager enough to throw out the baby with the dirty bathwater. The ruling class’s united front in response to the 2008 financial crisis had ignited the Tea Party’s call for adherence to the Constitution, and led to elections that gave control of both houses of Congress to the Republican Party. But as Republicans became full partners in the ruling class’s headlong rush in what most considered disastrous directions, Americans lost faith in the Constitution’s power to restrain the wrecking of their way of life.
From the primary season’s outset, the Democratic Party’s candidates promised even more radical “transformations.” When, rarely, they have been asked what gives them the right to do such things they have acted as if the only answer were Nancy Pelosi’s reply to whether the Constitution allows the government to force us into Obamacare: “Are you kidding? Are you kidding?”

On the Republican side, 17 hopefuls promised much, without dealing with the primordial fact that, in today’s America, those in power basically do what they please. Executive orders, phone calls, and the right judge mean a lot more than laws. They even trump state referenda. Over the past half-century, presidents have ruled not by enforcing laws but increasingly through agencies that write their own rules, interpret them, and punish unaccountably—the administrative state. As for the Supreme Court, the American people have seen it invent rights where there were none—e.g., abortion—while trammeling ones that had been the republic’s spine, such as the free exercise of religion and freedom of speech. The Court taught Americans that the word “public” can mean “private” (Kelo v. City of New London), that “penalty” can mean “tax” (King v. Burwell), and that holding an opinion contrary to its own can only be due to an “irrational animus” (Obergefell v. Hodges).

What goes by the name “constitutional law” has been eclipsing the U.S. Constitution for a long time. But when the 1964 Civil Rights Act substituted a wholly open-ended mandate to oppose “discrimination” for any and all fundamental rights, it became the little law that ate the Constitution. Now, because the Act pretended that the commerce clause trumps the freedom of persons to associate or not with whomever they wish, and is being taken to mean that it trumps the free exercise of religion as well, bakers and photographers are forced to take part in homosexual weddings. A commission in the Commonwealth of Massachusetts reported that even a church may be forced to operate its bathrooms according to gender self-identification because it “could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.” California came very close to mandating that Catholic schools admit homosexual and transgender students or close down. The Justice Department is studying how to prosecute on-line transactions such as vacation home rental site Airbnb, Inc., that fall afoul of its evolving anti-discrimination standards.

This arbitrary power, whose rabid guard-dog growls and barks: “Racist! Sexist! Homophobic!” has transformed our lives by removing restraints on government. The American Bar Association’s new professional guidelines expose lawyers to penalties for insufficient political correctness. Performing abortions or at least training to perform them may be imposed as a requirement for licensing doctors, nurses, and hospitals that offer services to the general public.

Addressing what it would take to reestablish the primacy of fundamental rights would have required Republican candidates to reset the Civil Rights movement on sound constitutional roots. Surprised they didn’t do it?

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