“The discontent Trump used to propel himself to the White House has always been present on the American right. When Sen. Joseph McCarthy (R–Wis.) began his crusade against “the hidden Communists in America and their liberal Democratic protectors,” for example, he found support in the Republican Party and in the few conservative publications that existed at the time—The American Mercury, Human Events, even the libertarian-leaning Freeman. As McCarthy’s accusations multiplied and “became more outrageous, more galling, and more disconnected from reality,” Continetti writes, conservatives such as William F. Buckley Jr. still backed his crusade. There are similarities in the way Sen. Robert A. Taft (R–Ohio) responded to McCarthy’s conspiracy theories and the way Sen. Mitch McConnell (R–Ky.) has responded to Trump’s. While McCarthy ultimately undermined himself by launching outrageous accusations against President Dwight D. Eisenhower, Continetti demonstrates just how long conservatives have been tempted to follow aggressive demagogues while they lambaste liberals.
Traditionally, conservative elites have tried to channel populist sentiments into a respectable and successful movement. No one had to grapple with this question more than Buckley, the founder of National Review. The usual conservative narrative says that Buckley legitimized conservatism by being a gatekeeper: In keeping the conspiracism of the John Birch Society and the radical individualism of Ayn Rand at arm’s length, he made it less likely that conservatives would be labeled extremists. In the case of the John Birch Society, Buckley wrote a 5,000-word essay, “The Question of Robert Welch,” that condemned the group’s founder, arguing that “the best thing Mr. Welch could do to serve the cause of anticommunism in the United States would be to resign.” Buckley’s purges are often held up as a great success, but the reality is that Welch did not resign and the John Birch Society continued to have influence.
While Buckley initially aligned his magazine with segregationists in the South, a choice that has marred the movement’s reputation ever since, he was resolute in opposing Alabama Gov. George Wallace’s particular brand of populism. Wallace, of course, was a strident proponent of segregation in the 1960s. During his second run for president, on a third-party ticket in 1968, the candidate turned heavily to anti-elitist rhetoric. “As he began to attack the federal government and its know-it-all politicians and bureaucrats,” Continetti writes, “his support among conservatives grew.” Buckley called Wallace “Mr. Evil,” “a dangerous man,” and a “great phony.” He was also taken aback by the “uncouthness that seems to account for his general popularity.”
Other conservatives joined the denunciations. Wallace’s conservative fans, National Review founding senior editor Frank Meyer wrote, need to recognize that “there are other dangers to conservatism and to the civilization conservatives are defending than the liberal Establishment, and that to fight liberalism without guarding against these dangers runs the risk of ending in a situation as bad as or worse as our present one.” In modern parlance: Don’t back a man like Wallace to own the libs.”‘
“Deeply ingrained in the Constitution genius are checks and balances. The president can veto legislation; Congress can override a veto. The Courts can invalidate an act of Congress or the president. And the executive and legislative branches enjoy checks against the judiciary.
The Constitution called for the establishment of a Supreme Court and lower federal courts. It left it to Congress and the president to decide just what shape the judiciary would take. They did so in the Judiciary Act of 1789, which created district courts, circuit (or appellate) courts, and a six-member Supreme Court. Over the years, Congress, with the president’s approval, has increased and decreased the number of justices on the Supreme Court, created and changed the jurisdiction of district and circuit courts, and adjusted the number of federal judges.
By now, it’s well-known that Congress can change the size, and thus the composition, of the Supreme Court by simple legislation. Court-packing, as it’s been called since 1937, when President Franklin Roosevelt unsuccessfully attempted to circumvent a hostile court by expanding its membership, is a deeply controversial practice.
Critically, but less widely understood, the Constitution also grants Congress the power to strip the Supreme Court of its jurisdiction over specific matters. Article III, Section 2 reads: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
At least one founder was clear about the intent of Section 2. Hamilton wrote, “From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.”
Defenders of judicial review appropriately point to Federalist 78 as evidence that Hamilton believed the Constitution contained an implicit power of judicial review. But he also believed that Congress could adjust the court’s jurisdiction.
In practice, so few instances exist of jurisdictional stripping that its meaning and scope are open to debate. But it has happened. In the late 1860s, federal authorities jailed William McCardle, a newspaper editor, under provisions of the 1867 Military Reconstruction Act. McCardle sued for his freedom, citing the Habeas Corpus Act of 1867. Congress denied the justices jurisdiction in the matter, and the court conceded that it was powerless to act.
Writing several decades later, Justice Felix Frankfurter, an FDR appointee, noted that “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.” Chief Justice Warren Burger, whom President Richard Nixon placed on the bench, agreed, writing that Congress could pass simple legislation “limiting or prohibiting judicial review of its directives.”
No less than the executive and legislative branches, the judiciary — particularly, the Supreme Court — is limited in just how much power it can exert. But only if Congress and the president exercise their right to check its power.”
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“A world in which a highly partisan and increasingly unpopular Supreme Court found its jurisdiction routinely boxed out by Congress is hardly a recipe for political stability. With every change of control, a new Congress and president could overturn precedent and lock the court out of its intended role as a constitutional arbiter. Moreover, there would likely be widespread confusion over just what might happen, were Congress to strip the court of its jurisdiction over, say, the state legislative doctrine. Would it then be left to lower courts to adjudicate cases? And what if they disagreed?
John Marshall, the chief justice who first asserted the power of judicial review, was “notably cautious in dealing with cases that might excite Republican or popular sensibilities,” noted historian Charles Sellers. He sought consensus among the associate justices, Federalists and Republicans alike, operated with “restraint” (Sellers) and led with “lax, lounging manners” (Thomas Jefferson) rather than cutting partisanship. He did so because he understood that the court was a new institution, and were it to lose popular support, the powers it claimed for itself would become either unenforceable, or subject to congressional restraint.
Ultimately, it is the responsibility and prerogative of the executive and legislative branches to encourage greater restraint and humility on the part of the judiciary.
Judicial review is well-rooted in American political tradition. But so are checks and balances. To save the Supreme Court from itself, Congress might first have to shrink it.”
“One strange thing about Watergate, the scandal that led Richard Nixon to resign as president, is that 50 years later we still don’t know who ordered the core crime or why.
This was the crime: On June 17, 1972, a squad of five bagmen, all with at least past connections to the CIA, broke into the offices of the Democratic National Committee (DNC) in the Watergate office building. They were supervised by James McCord, director of security for Nixon’s reelection committee.”
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“The most obvious and common speculation is that the burglars were trying to steal political intelligence from DNC chair Larry O’Brien for the Nixon campaign’s benefit. But anyone knowledgeable about how presidential campaigns work would know that any political intelligence worth stealing had already moved to the headquarters of Democratic nominee George McGovern. The party’s national headquarters doesn’t have much to do at that point except to put on the convention, and O’Brien had already moved to Miami to take charge of that. His office in the Watergate was vacant and ghostly.
Besides, the burglars were caught bugging the telephone not of O’Brien but of a minor party official named Spencer Oliver, a man whose duties kept him out on the road most of the time and away from his phone—a fact that has engendered some fascinatingly strange speculation”
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“Five decades later, despite 30,000 pages of declassified FBI investigative reports, 16,091 pages of Senate hearing transcripts, 740 pages of White House tape transcriptions, and scores of histories of the scandal and memoirs by its participants, we still know more about the cover-up than we do about the break-in.”
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“The most interesting information to emerge from the Watergate investigation, and certainly the most legally actionable, came not from journalists via Felt-like leaks but from other parts of the FBI and, indirectly, from the Senate’s investigation, which stumbled onto the fact that Nixon had a secret taping system that picked up most of his conversations with his most intimate advisers.
While the media gabbled about what kind of paranoid loon would do such a thing, every president going back to Franklin Roosevelt had taped at least some of his conversations. Nixon had actually disconnected the White House recording equipment when he entered office. He relented in 1971, evidently thinking tapes would help him write memoirs of what he expected to be an epic presidency. Instead, he sealed his own doom, creating 3,432 hours of tape that turned what otherwise would have been uncorroborated he-said/he-said conversations into smoking guns.
The tapes also yielded no end of fascinating insights into the president’s positions on everything from Catholicism (“You know what happened to the popes? They were layin’ the nuns”) to Northern California sociology (“The upper class in San Francisco…is the most faggy goddamned thing you could ever imagine….I can’t shake hands with anybody from San Francisco”).”
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“Reconsidering those events and the mysteries still surrounding them can help us see government for what it really is: not a holy calling besmirched by a uniquely sinister Richard Nixon, but a generally lowly site of struggle for personal and institutional power. The bad guys may not always get away with their crimes, but the government is so thick with secrecy and omerta that we can’t always be sure we know what they are up to—not at the time, and not even 50 years later.”
“By spring 1862, Lincoln and members of Congress took decisive steps to enact the U.S. federal government’s first general emancipation of enslaved people in the only district, without a state legislature, where they had direct power to do so. Championed by Lincoln and Senator Henry Wilson of Massachusetts, the proposal to end slavery in the nation’s capital was passed by decisive majorities in the House and Senate, before being signed into law by Lincoln on April 16.
In many ways, the District of Columbia Emancipation Act achieved in miniature what would later take place on an epic national scale during the great Emancipation that rolled across the Southern states from March to December 1865 — especially in its troubling execution, which would continue to hinder racial progress in decades and centuries to come.”
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“In D.C.’s emancipation, enslavers were paid significant compensation for their “lost property” in enslaved African-American people. The freed Black people not only received no reparations, but also experienced ongoing governmental neglect and exclusions. This racist process of emancipation led to policy choices that would ensure that the disadvantages of slavery would continue to be passed down, not ended, after slavery’s end.”
“Wilson’s position was beyond outlandish. He believed that the presence of just one American should immunize a reserve military vessel of a belligerent power under orders to attack enemy submarines and carrying military contraband through a war zone. It was a nonsensical claim, understandable only as policy calculated to allow Washington to enter the war on behalf of the Allies. To make such a position the cause for war was murderous partisanship.”
“Noting that “the Constitution makes no reference to abortion,” Alito argues that “no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” Although “that provision has been held to guarantee some rights that are not mentioned in the Constitution,” he says, “any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.'” Alito concludes that “the right to an abortion does not fall within this category.”
That analysis falls short in at least two crucial ways.
First, Alito fails to grapple with the argument that the right to terminate a pregnancy can be understood as a subset of the right to bodily integrity. As the legal scholar Sheldon Gelman detailed in a 1994 Minnesota Law Review article, the right to bodily integrity can be traced back to the Magna Carta. That makes it one of the many rights “retained by the people” (in the words of the Ninth Amendment) that were imported into the Constitution from English law. That right, in other words, is “deeply rooted” in American history and tradition.
Second, Alito’s draft opinion distorts the relevant legal history and thus misstates the historical pedigree of abortion rights. “When the United States was founded and for many subsequent decades, Americans relied on the English common law,” explains an amicus brief that the American Historical Association and the Organization of American Historians filed in Dobbs. “The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called ‘quickening,’ which could occur as late as the 25th week of pregnancy.”
A survey of founding-era legal authorities confirms this view. William Blackstone’s widely read Commentaries on the Laws of England, first published in 1765, noted that life “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” Under the common law, Blackstone explained, legal penalties for abortion applied only “if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb.” That means abortion was legal in the early stages of pregnancy under the common law.
Blackstone’s writings had an important influence on America’s founding generation. In his 1790 Of the Natural Rights of Individuals, for example, James Wilson, a driving force at the Constitutional Convention in Philadelphia and a leading voice for ratification at Pennsylvania’s convention, repeated Blackstone’s gloss. “In the contemplation of law,” Wilson wrote, “life begins when the infant is first able to stir in the womb.”
At the time of the founding, no American state had the lawful power to prohibit abortion before quickening because the states adhered to the common law as described by Blackstone and Wilson. We might call this the original understanding of the states’ regulatory powers. That original understanding contradicts Alito’s assertion that abortion rights—at least during the early stages of pregnancy—lack deep roots in American history.”
“Unlike most accounts of the American conservative movement, Matthew Continetti’s The Right begins in the 1920s, when two Republican presidents returned the country to normalcy after World War I. The ideals of that era’s Republicans were not so different from those espoused by former President Donald Trump today: They believed in cutting taxes, restricting immigration, and protecting American industry through tariffs. But there was one fundamental difference: Presidents Warren Harding and Calvin Coolidge rejected the populism of their age. They aimed to preserve American institutions. Trump is more like William Jennings Bryan, riding the coattails of discontent. He represents a time, Continetti argues, when an increasingly apocalyptic conservative movement “no longer viewed core American institutions as worth defending.””
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“Traditionally, conservative elites have tried to channel populist sentiments into a respectable and successful movement. No one had to grapple with this question more than Buckley, the founder of National Review. The usual conservative narrative says that Buckley legitimized conservatism by being a gatekeeper: In keeping the conspiracism of the John Birch Society and the radical individualism of Ayn Rand at arm’s length, he made it less likely that conservatives would be labeled extremists. In the case of the John Birch Society, Buckley wrote a 5,000-word essay, “The Question of Robert Welch,” that condemned the group’s founder, arguing that “the best thing Mr. Welch could do to serve the cause of anticommunism in the United States would be to resign.” Buckley’s purges are often held up as a great success, but the reality is that Welch did not resign and the John Birch Society continued to have influence.”
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“Continetti’s major contribution comes in explaining how conservatism has changed since the end of the Cold War. Here he details the conflict between neoconservatives, such as Bill Kristol, and paleoconservatives, such as Pat Buchanan. With their dedication to the culture war and their opposition to foreign intervention and immigration, the paleoconservatives presaged Trump’s electoral success in 2016.
The paleocons lost the political battles of the 1990s and 2000s. But the War on Terror ultimately discredited the neoconservatives, opening the door for populist discontent to capture the Republican Party. The first manifestation of this was the Tea Party movement. While Continetti draws a straight line from this to Trump’s election, in reality the Tea Party encompassed several strands of conservatism (all populist in nature) with conflicting conceptions of what 21st century conservatism should entail. Sens. Rand Paul of Kentucky, Marco Rubio of Florida, and Ted Cruz of Texas all rode the Tea Party wave to victory in 2010–12, and all had very different visions for the future of the nation—and very different visions from Trump’s. Nonetheless, the anti-establishment politics that emerged in the wake of the Iraq War and the 2008 financial crisis ultimately brought Trump to power.
It was during this time, from 2010 to 2016, that Continetti believes “the populist American Right [became] less interested in preserving institutions than in tearing them down.” One could hardly think of a better instrument for that purpose than Trump. Trump condemned illegal immigration and trade with China, announced “support for a ban on Muslim entry into the United States,” and recalibrated “American politics along the axis of national identity.” Many conservatives initially condemned him, and National Review even released a special issue titled “Against Trump.” One of its contributors called the candidate “a philosophically unmoored political opportunist who would trash the broad conservative ideological consensus within the GOP in favor of a free-floating populism with strong-man overtones.” Nonetheless, Trump won.”