A recent security comprimise of the theme we used to style our site has forced us to makes temporary changes that unfortunately left our site unstyled. As there is no regular management of this site, we are currently deciding how to move forward.
The Future of the Second Amendment Under an Originalist Supreme Court Majority
by Anthony P. Picadio
IN SCALIA’S WAKE, PART ONE
ABSTRACT
The landmark Supreme Court Heller case (2008) held (5-4), for the first time, that the Second Amendment protected an individual right to possess a firearm unconnected to service in a militia. Justice Scalia wrote the majority opinion and considered it his legacy originalist opinion. The holding was narrow – protecting only the right to possess a handgun in the home for self-defense. In the 13 years since Heller was decided, its narrow holding has never been extended by the Supreme Court. With three new avowed originalists on the Court (Gorsuch, Kavanaugh and Coney-Barrett) and with Justice Alito signaling that he will join them in an attempt to shape Scalia’s theory of interpretation, many observers expect the Court to soon expand the scope of Second Amendment protection beyond a handgun in the home. A new Second Amendment case was recently accepted by the Court and will be argued this coming October Term.
This article shows that even among originalists there is disagreement concerning the proper interpretation of legal texts, and, therefore, the result of any new Second Amendment case is not necessarily predictable. However, the three newest justices significantly increase the odds that eventually Second Amendment rights will be extended beyond the narrow holding of Heller. The article goes on to show that the application of three canons of interpretation from a 2012 book co-authored by Justice Scalia leads to the conclusion that Heller was wrongly decided.
ABOUT THE AUTHOR
Anthony P. Picadio, picadio@icloud.com, is a graduate of the University of Pittsburgh School of Law and an Allegheny County Member of the Pennsylvania Bar. He is a former Assistant Attorney General of Pennsylvania. He is a founder of the Pittsburgh firm Picadio Sneath Miller and Norton which, effective January 2018, was merged into the Pittsburgh firm Houston Harbaugh.
ABOUT THIS ARTICLE
In Scalia’s Wake: The Future of the Second Amendment Under an Originalist Supreme Court Majority first appeared the July 2021 edition of The Pennsylvania Bar Association Quarterly, volume XCII, no. 3, page 145 – 162.
—–
TABLE OF CONTENTS
I. INTRODUCTION
II. THE HELLER CASE
III. SCALIA’S LEGACY
IV. ORIGINALISM
A. Original Intent vs. Original Meaning
B. Textualism v. Originalism
C. “I Am Not a Strict Constructionist”
V. THE SECOND AMENDMENT POSITIONS OF THE THREE NEWEST JUSTICES
VI. THE CASE ON THE DOCKET: N.Y. STATE RIFLE AND PISTOL ASS’N. v. CORLETT
VII. CANONS OF INTERPRETATION
VIII. APPLYING THE CANONS
A. Canon 2: Supremacy of Text
B. Canon 26: Surplusage
C. Canon 34: Prefatory Materials
IX. FINAL THOUGHTS
X. ENDNOTES
—–
I. INTRODUCTION
Thirteen years after its landmark Heller[i] decision and after over 150 denials of petitions for certiorari in Second Amendment cases, the Supreme Court, on April 26, 2021, finally accepted an appeal of a Second Amendment case. The case is New York State Rifle & Pistol Association v. Corlett,[ii] which involves a Second Amendment challenge to New York’s concealed carry law. The law requires a demonstration of a special need in order to obtain a permit to carry a concealed weapon in public. Specifically, the challenged law requires a showing of “proper cause” to carry a concealed firearm. The case will be argued during the Court’s coming October Term.
A lot has happened during the thirteen years since Heller was decided. Most significantly, the makeup of the Court has changed dramatically. Anthony Kennedy, Ruth Bader Ginsburg and Justice Scalia, the author of the majority opinion in Heller, are gone, and in their places are three new justices, Gorsuch, Kavanaugh and Coney-Barrett, all avowed originalists. It is also significant that during the thirteen years since Heller, a substantial body of Second Amendment law has been developed in the lower federal courts, much of it supporting restrictions on the possession and use of guns, and much of it using originalist analysis to do so. Finally, there have been substantial additions to the literature, including a book co-authored by Justice Scalia, which raise legitimate questions about whether Heller was correctly decided.
These developments, and their ramifications, will be discussed in the following sections. But the starting point is Heller and the method of interpretation utilized by Justice Scalia in his majority opinion.
II. THE HELLER CASE
Justice Antonin Scalia
In 2008, the United States Supreme Court held for the first time in the 217 years since the Second Amendment was ratified, that the Amendment created an individual right to keep and bear arms unconnected to service in a militia.[iii] The case was District of Columbia v. Heller,[iv] and Justice Scalia wrote the Opinion for the five-Justice majority. The specific holding of Heller was a narrow one, which Justice Alito, in a subsequent case, stated this way: “In Heller we held that the Second Amendment protects the right to possess a handgun in the house for the purpose of self-defense.”[v]
In a 25,000-word opinion, Justice Scalia surveyed several hundred years of English and American law and concluded that the Second Amendment was understood by the founding generation to have incorporated a pre-existing right to possess a firearm in the home for self- defense.
Scalia considered Heller to be his “legacy opinion.” He said, “it is the best example of the technique of constitutional interpretation, which I favor, that is to say it is a good example of originalism.”[vi] It has been called “originalism’s high-water mark.”[vii]
Justice Scalia made it a point to limit the scope of Heller’s holding:
Like most rights, the right secured by the Second Amendment is not unlimited. . . . [It is] not a right to keep and carry any weapon whatsoever, in any manner whatsoever and for whatever purpose. . . . For example, the majority of the 19th century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.[viii]
He went on to say that nothing in the opinion should cast doubt “on longstanding prohibitions on the possessions of firearms by felons and the mentally ill, which in a footnote he said were presumptively valid. Scalia went on to say that “dangerous and unusual weapons,” such as “M-16 rifles and the like,” may be banned. Only those weapons “in common use” for lawful purposes are protected under his interpretation of the Second Amendment.[ix]
III. SCALIA’S LEGACY
Justice Scalia served on the Supreme Court from 1986 until he died in 2016. During this 30-year tenure, he served with 16 other justices. For the entire duration of his tenure, he fought for the recognition of his favored method of constitutional interpretation, originalism. In the halls, conference rooms, chambers, and courtroom of the Court, it proved to be a lonely fight.
In an interview he gave in 2013, he was asked whether he felt he was winning or losing the battle for constitutional interpretation. He answered:
I don’t know how much progress we’ve made on originalism. That’s to be seen. I do think originalism is more respectable than it was. But there’s still only two justices up here who are thorough going originalists.[x]
Justice Clarence Thomas
Of course, the second originalist was Justice Thomas, who seems to have come to his version of originalism on his own. When asked how he would compare his judicial philosophy to that of Justice Thomas, Scalia reportedly answered, “I am an originalist, but I am not a nut.”[xi] So, even in the small group of two originalists, Scalia felt somewhat alone. At the time of the interview, Scalia obviously did not consider the two relatively new conservative justices, Alito and Chief Justice Roberts, to be full-fledged originalists.
For his part, Justice Alito famously made a joke out of Scalia’s originalism when he said during oral argument in a case involving a prohibition of violent content in video games, “Well, I think what Justice Scalia wants to know is what James Madison thought about video games? Did he enjoy them?” The courtroom exploded in laughter.[xii] Not only did originalism fail to gain adherents on the Court, but, at least in this example, it became the butt of a joke.
Although Justice Scalia had little success in having originalism accepted among his colleagues on the Court, it was a much different matter in the country at large. Throughout his professional life, Scalia was relentless and passionate in presenting to the public his views on constitutional and statutory interpretation. Through literally hundreds of speeches at law schools, Federalist Society functions, and before a wide range of conservative religious, business and social groups, through his writings and through the publications of his judicial opinions, he became a rock star among conservative Republicans and religious groups. One author put it this way:
The barbed and often amusing nature of many of his public statements and the sheer nastiness that marked many of his judicial opinions made him a compelling public figure, while the political and social appeal of his personal views and judicial opinions made him the beloved judicial spokesman for the Republican Coalition.
As a result, Scalia became a true media celebrity a new kind of popularly known and nationally prominent justice.
* * *
He possessed a magnetic personality, theatrical instincts, a charming manner and quick wit, the poise of an experienced debater, self-assurance . . . and moral righteousness.[xiii]
He became an icon to conservative Republicans, the embodiment of the values that many of them passionately believed should be restored in America. He did not believe that the constitution created a right to an abortion;[xiv] he was opposed to what he called the “homosexual agenda” on the grounds that the founding generations wrote a constitution that did not protect or grant gay and lesbian rights;[xv] he opposed affirmative action on the grounds that the equal protection clause of the 14th Amendment prohibited discrimination on the basis of race – white or black – and did not permit discrimination against whites in order to remedy the effects of past discrimination against blacks.[xvi]
By the time Donald Trump was elected President in 2016, Scalia had had such an influence on Republicans that only a follower of his could be nominated by a Republican President and confirmed by a Republican senate. Any serious candidate for a Supreme Court appointment had to pay homage to Scalia and originalism to even get on a short list. It was as if Scalia himself were making the nominations and voting for confirmation. Neil Gorsuch, Brett Kavanaugh[xvii] and Amy Coney-Barrett each stated during their confirmation hearings and elsewhere that they were originalists. Kavanaugh had previously given a speech at Notre Dame Law School in which he said, “Justice Scalia was and remains a judicial hero and role model.” Coney-Barrett, a former Scalia law clerk, said during her confirmation hearing, that he formed her views and that she would follow Scalia’s originalism in constitutional interpretation.[xviii] Gorsuch’s embrace of originalism and textualism is well known and explained in his recent book.[xix] So, by taking his originalist cause to a greater audience than his fellow justices, Scalia succeeded in making originalism the dominant mode of constitutional interpretation among Supreme Court justices.
Counting Justice Thomas, there are now four avowed originalists. And most recently, Justice Alito has sent a strong signal that he too will henceforth join the originalists and make an effort to lead the others in shaping and applying Scalia’s thinking.[xx]
In a recent speech to the Federalist Society Alito said:
I will say that we have seen the emergence of what I believe are erroneous elaborations of Justice Scalia’s theories and I look forward to friendly and fruitful debate about where his thinking leads.
He acknowledged that Scalia’s methods of interpretation will now be dominant on the Court:
A lot of the debate about constitutional and statutory interpretation now takes place within the framework of, or at least using, the language of originalism and textualism.[xxi]
Alito has not heretofore been thought to be a convinced originalist, but rather one who considered a number of factors in his analysis. However, it now appears that he will try to be a force in shaping originalism and textualism in future cases. Now that we appear to have a majority of originalists on the Court, it is important to understand just what that means.
[iii] The Second Amendment provides: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” U.S. CONST. amend. 2.
[x] Jennifer Senior, “In Conversation: Antonin Scalia.” New York Magazine, October 4,2013.
[xi] Jeffery Toobin, The Nine: Inside the Secret World of the Supreme Court, Anchor Books N.Y. (September 2008 ed.) p. 120. This comment was no doubt meant in jest, but it does reflect true differences between these two originalists. For example, Thomas is thought to have less respect for precedent than Scalia.
The Future of the Second Amendment Under an Originalist Supreme Court Majority
by Anthony P. Picadio
IN SCALIA’S WAKE, PART THREE
VI. THE CASE ON THE DOCKET: N.Y. STATE RIFLE AND PISTOL ASS’N v. CORLETT
The case which the Court agreed to hear on April 26, 2021, involves a challenge to New York’s handgun licensing law. The precise issue the Court agreed to resolve is:
[W]hether the State’s denial of petitioner’s application for concealed-carry licenses for self-defense violated the Second Amendment.[i]
New York State’s handgun licensing law, which has been in place since 1913, requires someone who applies for a permit to demonstrate “proper cause” in order to obtain an unrestricted license to carry. New York courts have interpreted “proper cause” as requiring the applicant to demonstrate “a special need for self-protection” different from a general belief that a handgun might be useful for self-defense.
Justice Antonin Scalia
By narrowing the case before it to a concealed-carry case the Court reduced the odds of a victory for gun rights advocates.[ii] Justice Scalia, in his Heller majority opinion pointed out that the majority of 19th Century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.[iii] In his dissent in Heller II, Kavanaugh read the Scalia statement as saying that laws against concealed carry of guns were “constitutionally permissible.”[iv]
Justice Kavanaugh, it would seem, would have some difficulty in now deciding that the Second Amendment protects a right to carry concealed weapons in public. And the other originalists on the Court might find it difficult to reject Scalia’s implicit approval of laws banning the concealed carry of firearms in public.
In order to circumvent these apparent obstacles, the Petitioner/Appellant will no doubt argue that a state must permit some form of carry for self-defense outside the home; and since New York severely restricts both open and concealed-carry its entire permit system violates the Second Amendment.
Exactly this issue was raised in Peruta v. County of San Diego, which upheld California’s restrictive concealed-carry law which was virtually identical to New York’s law. In rejecting the “entire regulatory scheme” argument, the Peruta court said:
While Plaintiffs base their argument on the entirety of California’s statutory scheme, they allege only that they have sought permits to carry concealed weapons and they seek relief only against the policies requiring good cause for such permits.
* * *
Because Plaintiffs challenge only policies governing concealed carry, we reach only the question whether the Second Amendment protects, in any degree, the ability to carry concealed firearms in public.[v]
The Court went on to hold that there is no Second Amendment right for members of the general public to carry concealed firearms in public. The Supreme Court denied a petition for certiorari. Thomas wrote a dissenting opinion (in which Justice Gorsuch joined) saying:
The en banc court’s decision to limit its review to whether the Second Amendment protects the right to concealed carry was untenable.[vi]
But, that is exactly what the Supreme Court has now done in the case pending before it. How will the Court analyze the case before it, and how will it decide it.
The first question the Court has to decide is whether a right protected by the Second Amendment has been infringed. Having narrowed the issue to concealed-carry only, for the Court’s originalists this question will turn on an analysis of English and American Colonial law as it existed in the late 18th century. This is well-traveled ground. The 9th Cir. en banc case majority opinion, in which seven judges joined, and dissenting opinions, in which four judges joined, reviewed this history. These opinions and the original panel opinion reach different conclusions analyzing the same history.
A more exhaustive historical review was undertaken in the majority en banc opinion of the Ninth Circuit in Young v. Hawaii, in March 2021, which upheld Hawaii’s stringent restrictions on open carry.[vii] After an exhaustive review of the history of early English and American laws regarding carrying arms openly in public, the Young v. Hawaii en banc court held that the Second Amendment does not guarantee an unfettered, general right to openly carry a gun in public for individual self-defense. (The case was an 11-4 decision with two dissenting opinions reaching the opposite conclusion based on the same historical record reviewed by the majority). And as Justice Scalia pointed out in his Heller opinion, most 19th Century courts that considered the issue upheld bans on concealed carry.[viii]
The pending case before the Court, dealing as it does with the denial of a permit for concealed carry, presents the issue in a way that is most favorable to gun safety advocates. Hence, this may not be the case that extends Heller’s holding.
VII. CANONS OF INTERPRETATION
Justice Scalia never stopped developing and refining his philosophy of the interpretation of legal texts. The most recent, and, therefore, perhaps the most authoritative, exposition of his thinking is set forth in detail in his 2012 book READING LAW. In it, he seems to have dropped the word “originalism” altogether and now includes both constitutional and statutory interpretation together under the rubric “textualism,” which he calls the “Fair Reading” method:
The interpretive approach here is that of the fair reading: determining the application of a governing text to the given facts on the bases of how a reasonable reader, fully competent in the language would have understood the text at the time it was issued.[ix] [Emphasis added]
In order to facilitate this Fair Reading textualism, the book goes on to list and discuss a number of canons or principles of interpretation, thirty-seven of which are specifically applicable to all types of legal instruments including constitutions.[x]
In his forward to READING LAW, Judge Frank H. Easterbrook (7th Cir.) observes that the older a text is, the more likely it is that its interpretation will produce disagreement:
Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption understood these words. The older the text, the more distant that interpretive community from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably.[xi]
This is a rather amazing concession to the critics of originalism. The oldest document that the Court is ever called upon to interpret is the Constitution itself. In fact, the one example Easterbrook gives where historical reconstruction of a legal text produced disagreement among the justices is Heller. The fact that Scalia approved Judge Easterbrook’s comments and included them in the forward of his book suggests that in the four years between Heller and his book, he may have allowed some uncertainty to creep into his thinking about originalism.
Scalia readily concedes that the application of the principles and canons of interpretation contained in READING LAW to his earlier opinions could require a different outcome:
Your judicial author knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here – whether because of the demands of stare decisis or because wisdom has come late.[xii]
Most of the opinions Scalia has become known for are dissenting and concurring opinions which were not determinative of the outcome. His opinion in Heller, however, is a majority opinion which does not rely on staredecisis. The foregoing quote, therefore, provides a tempting invitation to revisit Heller and analyze it using the principles and Canons of Interpretation contained in READING LAW to see if they might change the result.
A reevaluation of Heller is also appropriate in light of the recent addition of three acknowledged Scalia disciples to the Court. At least one of them, Justice Neil Gorsuch, is a strong proponent of the use of Canons of Interpretation in analyzing the text of legal documents. (“Maybe the most prominent interpretive tools used by textualists are the so-called “Canons of Construction”).[xiii] Justice Gorsuch is a strong proponent of Scalia’s method of interpretation and has shown a high degree of intellectual honesty in scrupulously following the method, even where the result conflicts with his personal values and the values of Republican conservatism.[xiv]
Finally, given the publication of READING LAW and the new makeup of the Supreme Court, it seems appropriate to revisit Heller and apply the Canons of Interpretation to the text of the Second Amendment to determine whether its holding would be considered correct by a Justice Scalia in 2021.[xv]
This is not just an academic exercise. Heller left many open issues, the resolution of which will require both a textual and historical inquiry. Therefore, even if Heller stands, any analysis which sheds light on its holding or the history of the Second Amendment’s adoption may prove worthwhile.
VIII. APPLYING THE CANONS
A. Canon 2: Supremacy of Text
The Second Canon of Interpretation listed in READING LAW states:
The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.
Scalia and his co-author make it clear that this Canon is applicable to statements of purpose such as the first clause of the Second Amendment (“A well-regulated militia being necessary for the security of a free Sate;”). On page 33 of their book, they state: “[T]he purpose is to be gathered only from the text itself.” [Emphasis added]. On page 56, in the discussion of Canon 2, they restate it: “[T]he purpose . . . must be derived from the text, not from extrinsic sources. . . .” [Emphasis added].
In Heller, Justice Scalia severed the connection between service in a militia and the right to bear arms by simply designating the first clause of the Amendment as “prefatory” and the second clause as “operative.” According to Scalia, the prefatory clause had no operative effect but was merely a statement of purpose which was consistent with, but which did not limit the operative clause. “The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.”[xvi]
Here, the text itself was entirely disregarded in favor of Scalia’s supposition that the Amendment had more purposes than the one specified in the language of the text. In other words, he is going outside of the text to find an unexpressed purpose. This is in complete violation of Canon 2 as set forth in “Reading Law,” Scalia’s most recent book. The application of Canon 2 to the Second Amendment seriously undercuts Heller’s holding.
If Canon 2 is applied to the Second Amendment, it is difficult to see how Heller’s holding stands. At a minimum, application of the Canon should be used to avoid expanding Heller’s holding.
B. Canon 26: Surplusage
The next Canon to be considered is number 26 in READING LAW, which reads as follows:
26. Surplusage Canon. If possible, every word and every provision is to be given effect . . . None should be ignored. None should needlessly be given an interpretation that causes it . . . to have no consequence.
This is a long-standing principle of constitutional interpretation. See, Marbury v. Madison, where Chief Justice John Marshall wrote, “It cannot be presumed that any clause in the Constitution is intended to be without effect.”[xvii]
Under this Canon, the authors quote from United States v. Baker: “These words cannot be meaningless, else they would not have been used.” [xviii] When Justice Scalia, in his Heller opinion, said that the prefatory clause stated “a” purpose for the remainder of the Amendment, but not “the only” purpose, he rendered the prefatory clause entirely meaningless. He pulled an unstated purpose out of his interpretation of history as being not only controlling, but supreme, (“the prefatory clause does not suggest that preserving the militia was the only reason Americans valued this ancient right; most undoubtedly thought it was even more important for self-defense and hunting.” [Emphasis added].[xix] Scalia’s “more important” purpose is unwritten and does not appear anywhere in the text of the Second Amendment. Of course, he then went on to hold that the operative clause of the Second Amendment protects the right of an individual to own a handgun for self-defense purposes, unconnected to any service in a militia. Did he not essentially delete the purpose clause? The holding would have been exactly the same if the drafters had completely deleted the first clause. To paraphrase the quote from United States v. Baker, the fact that the drafters chose to use the words of the first clause indicates that its words cannot be meaningless. But meaningless they became under the majority opinion in Heller. As Justice Gorsuch said in Bostock, “Only the written word is the law . . . .”[xx] Yet, Scalia not only failed to apply what was written, he in fact erased what was written and applied what was not written. If this Canon is applied to the Second Amendment, Heller’s holding could not stand.
C. Canon 34: Prefatory Materials
Under Canon 34, the first or prefatory clause of the Second Amendment is a permissible indicator of the meaning of a following operative clause. Giving it such an effect would lead one to interpret the Amendment as connecting the right to keep and bear arms to service in a militia. Justice Scalia, however, said that the prefatory clause did not state the only purpose of the operative clause, that there were others. Let us examine this conclusion.
Justice Scalia undertook an extensive examination of the history, both in England and its American colonies, of gun use and regulation and concluded that there existed a right to possess arms for self-defense and hunting, which pre-existed the adoption of the Second Amendment. He then said that at the time the Second Amendment was adopted it was understood to have incorporated this pre-existing right. In the course of his historical survey, he pointed out that what he called “the first Militia Act”[xxi] required the states to limit membership in their militias to “each and every free able-bodied white male citizen” of the ages 18 to 45 years. At first blush, this racial limitation which applied to all states in the union appears odd, since the constitution contains no racial limitation on membership in militias or in the definition of citizenship. Free blacks voted in a majority of states, owned property and were permitted (and required) to participate in state militias and were permitted to own guns.[xxii] In the northern states, free blacks and former slaves had served in state militias during the Revolutionary War.[xxiii] So, why, all of a sudden, one year after the ratification of the Second Amendment, did it become a matter of national importance to limit enrollment in every state militia to whites only?
While that question is being considered, let’s move on to the situation in the slave states, specifically Virginia, the most important state at the time the Constitution was ratified.[xxiv] In 1640, a Virginia law was passed which imposed a total firearms ban on all “negroes, slaves and free.” A similar ban was enacted in 1710 (“An Act for Preventing Negroe Insurrections”). Unlike the northern states, which viewed their militias primarily as a defense against external threats, in Virginia and the other slave states, their all-white militias were viewed as protection against the powder keg of slavery. Slave insurrection was a constant fear in the slave states, and control over the all-white militias was of overriding importance. Patrick Henry, perhaps the most electrifying public speaker who ever walked the earth, and the most powerful political force in Virginia at the time, stood during the debate over constitutional ratification in 1788 and put one of his objections to ratification into these words:
The 10th section of the 1st article . . . says, that ‘no state shall engage in war unless actually invaded. . .’ If the country be invaded a state may go to war but cannot suppress insurrection. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress.[xxv] [Emphasis added]
The fear of a slave insurrection caused Virginia and other slave states to ban or greatly limit access to guns by free blacks for fear that they would pass them on to slaves. As Justice Scalia points out in Heller, Virginia rejected a proposal from Thomas Jefferson to include in its Declaration of Rights of 1776 a provision granting a limited right to arms to all “freemen.” (“No freeman shall ever be debarred the use of arms within his own lands or tenements.”) This proposal, which Scalia calls a “Second Amendment analogue,”[xxvi] was rejected in favor of a provision that mentioned arms only in connection with service in a militia:
13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state. . .”[xxvii]
The rejected Jefferson proposal is virtually identical to Scalia’s interpretation of the Second Amendment in Heller. Virginia’s rejection of the Jefferson proposal substantially undercuts Scalia’s conclusion that such a right (handgun in the home for self-defense) pre-existed the Second Amendment and was widely understood as having been incorporated into it. The most important state expressly rejected what Scalia said the Second Amendment was understood to mean at the time it was ratified.
James Madison served on the Committee which prepared Virginia’s Declaration of Rights, which rejected the Jefferson proposal.[xxviii] He was also a slave owner and an officer in his county’s militia. He knew the difference between granting a right to use arms to all freemen and limiting that right to members of an all-white militia. He took that knowledge with him when he became an important leader in Congress where he drafted the Second Amendment.
Madison considered many different proposals, including one from a group of Pennsylvania legislators promoting an amendment which would mirror the provision in Pennsylvania’s Constitution which says, “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.”[xxix]
He rejected this and other suggestions and chose instead language very similar to that of the Virginia provision connecting use of arms to service in a militia. Had he chosen instead the Pennsylvania model, the Second Amendment would have been in conflict with state laws, like Virginia’s, outlawing gun ownership and use by free blacks.[xxx]
This takes us back to the question: why did the Militia Act of 1792 prohibit free blacks in every state from enrolling in militias? The Act specified that every militia member was to arm himself with a musket or firelock, a bayonet and ammunition. If a state militia had been open to free blacks, the Militia Act would have required them to possess weapons.
With this background, Scalia’s idea that the Second Amendment was not understood as connecting gun ownership to service in a militia is not persuasive. His statement that another reason for the Second Amendment was to protect gun ownership/use for self-defense, is just wrong. To believe that, one would have to believe that James Madison, who sat on the Virginia committee which specifically rejected what Scalia called a Second Amendment analogue, and who was conscious of his state’s history of denying arms to free blacks, had a complete change of heart and drafted a Second Amendment which he knew would conflict with state laws such as Virginia’s.
The more likely conclusion is that Madison wrote the militia clause with the understanding that it would limit the interpretation of the operative clause and that was surely the understanding of those in the slave states which ratified the Second Amendment. Only by limiting the right to bear arms to members of all white militias could Madison ensure that guns would not be available to free blacks.[xxxi]
Justice Scalia’s interpretation of the Second Amendment in his Heller opinion, therefore, violates Canon 34 in Reading Law.
X. FINAL THOUGHTS
In many ways, Justice Scalia was an extraordinary individual: valedictorian and smartest kid in his high school class; valedictorian of his Georgetown University graduating class; an editor of the Harvard Law Review; a sparkling intellect; a strong and persuasive writer; and confirmed to the Supreme Court unanimously by the Senate.
Charming, witty, always with a twinkle in his eye, he welcomed into his close circle of friends his ideological adversaries. When it came to advocating for originalism and textualism, he was passionate, persistent, and unyielding. His theories are now the dominant theories of interpretation at the Supreme Court and throughout the lower federal courts. It is doubtful that any single individual since John Marshall has had such influence and made such a mark on our jurisprudence as he.
Yet, what has he wrought? Perhaps no area of the law reveals the shortcomings of his approach to constitutional interpretation as does Second Amendment jurisprudence. Touted by Scalia as a method to rid judicial decision-making of the influence of personal biases and preferences of judges, originalism has done just the opposite. It has given every judge called upon to interpret constitutional provision abundant opportunities to find support for a preconceived outcome in an intricate and remote historical record and in the nuances and inferences which a creative mind can find there. We now have numerous court of appeals cases with an originalist majority opinion reaching one conclusion and one or more originalist dissenting opinions reaching an opposite result based on the same historical record! Heller itself produced two distinctly opposing originalist interpretations of the Second Amendment based on the same historical record. One view received five votes (all conservative) and the other view received only four votes (all liberal). Originalism has definitely not given us a method of constitutional interpretation that is predictable and which removes the personal views and bias of judges from the decision-making process.
That is what originalism has not given us. What it has given us is heightened politicization. By attaching originalism in the public mind to desired conservative outcomes on abortion, affirmative action, gun rights and LGBTQ rights, Scalia politicized the judicial selection process to the point where only an avowed originalist has a chance to be nominated by a Republican President and confirmed by a Republican Senate for a seat on the Supreme Court. We now see ambitious conservative courts of appeals judges going out of their way to write dissenting or concurring opinions advertising their willingness to expand gun rights beyond Heller’s narrow holding. Certainly, politics in judicial selection did not start with Scalia; but his influence has made it worse.
Perhaps the most pernicious effect of originalism has been the politicization of history itself. We now have the situation where a one-vote majority Supreme Court opinion has decided our history. Does it no longer matter what history scholars say about the history of gun regulation in 18th Century England and early America? Does the concept of staredecisis foreclose consideration of further scholarly research? Just posing these questions shows how preposterous it is for a court to resolve, as a matter of law, disputed and contested historical issues. But the main point here is that these historical issues have become even more contested among historians since Heller and because of it. As shown in a recent compilation of scholarly historical research, history itself has become contested ground in the debate about the interpretation of the Second Amendment. The book, which is entitled A Right To Bear Arms?: The Contested Role of History in Contemporary Debates on the Second Amendment,[xxxii] shows that Scalia’s originalist Heller opinion has infected academia and created one big extended argument among scholars of differing philosophies and points of view. One can find among these articles support for whatever preconceived notions one might have on gun regulation. In reading through these articles, one is left with the feeling that historians themselves have become politicized by originalism. One can only hope that is not the case.
In the 13 years since Heller was decided, originalism has been extensively road-tested in numerous Second Amendment cases. The road-testing has demonstrated, rather clearly, that originalism does not yield predictable, neutral objective results as Justice Scalia contended it would. It does not remove the personal political and philosophical view of judges from judicial decision-making, which he claimed was its principal advantage. Finally, it has increased the level of politicization in our system of justice significantly beyond what it otherwise would have been. In short, originalism has failed its road test.
[i]NY State Rifle, supra note 2. (Part 1, note ii)
[ii] The petition for certiorari asked the Court to resolve this broader issue: “Whether the Second Amendment allows the government to prohibit ordinary law abiding citizens from carrying handguns outside the home for self-defense.”
[iii]Heller, supra note 1, at 626. (Part 1, note i)
[iv]Heller, II, supra note 38 at 1272. (Part 2, note xvii)
[v] Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc).
[vi] Puruta v. California, 137 S. Ct. 1995 (2017).
[viii] Some new scholarly research, published after Heller has concluded that English history does not support an unqualified right to carry arms in public. See, e.g., Priyz Satia, Who had Guns in Eighteenth Century Britain, published in A RIGHT TO BEAR ARMS?: THE CONTESTED ROLE OF HISTORY IN CONTEMPORARY DEBATES ON THE SECOND AMENDMENT (Jennifer Tucker et al. eds., Smithsonian Scholarly Press, Wash., D.C., 2019).
[ix] Scalia and Garner, supra note 26, pg. 33 (Part 2, note v)
[xiii] Gorsuch, supra note 19, at 130-136. (Part 1, note xix)
[xiv] See, e.g. Bostock v. Clayton County, supra note 29.
[xv] Forward to Reading Law by Frank H. Easterbrook: “[T]his book shows the sorts of interpretive issues that might cause the Justice Scalia of 2011 to disagree with the Justice Scalia of 2012.” Supra note 26, at XXV.
[xvi]Heller, supra note 1, at 599. (Part 1, note i)
[xxi] It was actually the second militia act passed on May 8, 1792, which limited the militia to white males. The first militia act passed on May 2,1792 did not.
[xxii]Robert J. Cottrol and Raymond T. Diamond, The Second Amendment: Toward an Afro-AmericanistReconsideration, 80 Georgetown Law Journal, 309, 331-332 (1991).
[xxiv] At the time Virginia included what are now the states of West Virginia and Kentucky and a portion of southwestern Pennsylvania. Four of the first five U.S. presidents were from Virginia.
[xxv] Henry’s opening speech to the Convention, “Speech Before Ratifying Convention,” teachingamericanhistory.org/library/document’Patrick-Henry-Virginia-ratifying-convention-Va. He had other objections to ratification.
[xxvi]Heller, supra note 1, at 603. (Part 1, note i)
[xxvii] Anthony P. Picadio, The Right to Bear Arms; A Disfavored Right, 90 Pennsylvania Bar Ass’n Q 16, 19-23 (2019); available online at transpartisanreview.org, February 2019.
[xxviii] Ralph Ketcham, James Madison, A Biography, (University Press of Virginia: Charlottesville and London) (7th ed.), pg. 71. Also on the committee were Patrick Henry and George Mason, both of whom were slave owners.
[xxx] At some point restrictions on gun ownership in Virginia by free blacks were loosened to permit those who owned a home to keep one gun in their house for self-defense, but only if they could obtain a permit from the county sheriff, which was revocable. See, Picadio, supra note 79, at pg. 20 and note 15.
[xxxi] At the time the Second Amendment was ratified, approximately 20,000 free blacks lived in Virginia according to the 1790 census.
Anthony P. Picadio, picadio@icloud.com, is a graduate of the University of Pittsburgh School of Law and an Allegheny County Member of the Pennsylvania Bar. He is a former Assistant Attorney General of Pennsylvania. He is a founder of the Pittsburgh firm Picadio Sneath Miller and Norton which, effective January 2018, was merged into the Pittsburgh firm Houston Harbaugh.
ABOUT THIS ARTICLE
In Scalia’s Wake: The Future of the Second Amendment Under an Originalist Supreme Court Majority first appeared the July 2021 edition of The Pennsylvania Bar Association Quarterly, volume XCII, no. 3, page 145 – 162.
The Future of the Second Amendment Under an Originalist Supreme Court Majority
by Anthony P. Picadio
IN SCALIA’S WAKE, PART TWO
IV. ORIGINALISM
A. Original Intent vs. Original Meaning
Robert Bork
Modern originalism, as a mode of constitutional interpretation, was first developed and seriously promoted by Robert Bork in the 1960s while he was on the faculty of Yale Law School. According to Bork, the only legitimate method of constitutional interpretation was to determine what the Founders intended the words of the Constitution to mean – the original intent.[i] He developed his idea of original intent as a reaction to the numerous liberal decisions of the Warren Court. Scalia, nine years Bork’s junior, became known in conservative political circles as also a proponent of originalism. But, as Scalia explained, he did not subscribe to Bork’s theory of originalism which was based on original intent. Rather, Scalia rejected the search for the original intent, which he considered to be elusive and an ultimately subjective unworkable standard. To Scalia, it was what the Founders said (in the text of the Constitution), not what they intended that provided the foundation of an objective, value neutral, method of analysis. Scalia called it “original public meaning”. What does the text say, and what were those words understood to mean at the time the Constitution was ratified? Ultimately, Scalia’s “original meaning” standard superseded (one may say defeated) Bork’s “original intent” standard. Thus, when originalists now interpret a constitutional provision, they are not looking for what the drafters intended, only what words the drafters used in the text and what those words were understood to mean at the time the text was adopted.
B. Textualism vs. Originalism
Originalism is the method Scalia promoted as his preferred way to interpret the Constitution. Textualism is usually used to describe Scalia’s method of interpreting statutes. It differs from originalism only with respect to the time period used in determining the text’s meaning. In originalism it is what the words were understood to mean at the time the Constitution (or a subsequent Amendment) was ratified. In the case of textualism, it is what the words mean today (or earlier if the statute is an old one). Both methods focus on the words and their meaning and do not consider extratextual factors such as expressions of intent, legislative history, consequences, desirability, or policy implications. What do the words say, and what are they understood to mean? In most cases there should be very little difference between textualism and originalism because most words used in the Constitution have the same meaning today as they had in the 18th Century.[ii]
More frequently it has been the textual component of originalism that was determinative for Scalia. What does the provision in question say or not say? Regarding abortion, Scalia argued that Roe v. Wade[iii] was wrongly decided because the Constitution does not mention abortion. In his view, “If the Constitution did not mention a subject, then the courts could not deal with it as a matter of constitutional law.”[iv]
There has been a recent tendency to treat both constitutional interpretation and statutory interpretation under the banner of textualism. Scalia, himself, did this in Reading Law: The Interpretation of Legal Texts, a book he co-authored, which was first published in 2012.[v] This article sometimes uses the two words interchangeably, but it should be clear from the context what is meant.
C. “I am not a Strict Constructionist”
Like people, words are known by the company they keep. Scalia always emphasized the importance of context in interpreting a legal text. “[S]ound interpretation requires paying attention to the whole law, not home in on isolated words . . . Context always matters.”[vi]
And, according to Scalia, once viewed in context, the words should not be strictly construed, but rather should be given a reasonable construction. Scalia put it this way:
Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist . . . . A text should not be construed strictly . . . it should be construed reasonably . . . The good textualist is not a literalist.[vii] [Emphasis added]
Justice Samuel Alito
The question of how strictly a good textualist should construe a legal text recently pitted Justice Gorsuch (strictly) against Justice Alito (flexibly). This case is interesting and important because it demonstrates that textualism/originalism does not necessarily produce a predictable outcome.
The case was Bostock v. Clayton County,[viii] which raised the question whether an employer who fires an employee for being transgender or gay violates Title VII of the 1964 Civil Rights Act, which prohibits, among other things, discrimination in employment based on “sex.” Justice Gorsuch, writing for the majority, held that it did. Here is what he said:
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. . . . But, the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.[ix] [Emphasis added]
Justice Gorsuch went on to say that when one is fired because of his sexual preferences or identification, one is being discriminated against on the basis of sex. Bostock demonstrates that Justice Gorsuch is a committed textualist, even when it leads him to a non-conservative conclusion.
Bostock was a 6-3 decision with Justices Alito, Thomas and Kavanaugh dissenting. Justice Alito wrote:
The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s Opinion is like a pirate ship. It sails under a textualist flag, but it represents a theory of statutory interpretation that Justice Scalia excoriated . . .[x]
Justice Kavanaugh, in his dissent, criticized the Gorsuch opinion for applying a literal meaning rather than the ordinary meaning, and quoted Scalia’s statement, “the good textualist is not a literalist.”[xi]
A second Gorsuch opinion showing how strictly he is inclined to stick to the literal text is Niz-Chavez v. Garland,[xii] a 2021 case that boiled down to the meaning of the word “a.” The statute in question required the government to send “a notice to appear” at a removal hearing in order to stop the running of the 10-year period of residency necessary for the immigrant to be permitted to contest their removal. Thus, if an immigrant gets a notice to appear after living in the U.S. for nine years and 11 months, their deportation cannot be challenged even if they later cross the 10-year threshold.
In this case, the government sent Niz-Chavez an incomplete notice, which omitted required information. Two months later, the omitted information was provided in a second notice. The government argued that since these two notices together provided all of the required information, the running of the 10-year period stopped, and Niz-Chavez could not contest his deportation. By a vote of 6-3, the Court rejected the government’s position. Justice Gorsuch wrote the majority opinion saying that the word “a” in the phrase “a notice to appear” meant that all of the required information had to be contained in “a” single notice. Justice Kavanaugh dissented, once again accusing Justice Gorsuch of being too literal (“ordinary meaning and literal meaning are two different things”).[xiii]
In this case, we see Gorsuch, Thomas and Coney-Barrett on the strict constructionist side and Kavanaugh and Alito arguing for a more flexible interpretation. The liberals on the Court (Sotomayor, Breyer and Kagan) joined in the Gorsuch opinion.
The various opinions in Bostock and Niz-Chavez demonstrate that different textualists can reach significantly different results depending upon how closely they stick to the written words. The Gorsuch opinions in these cases also show that he is likely to construe the words of the text being interpreted more strictly than his originalist colleagues, even where he reaches a non-conservative result. He may actually turn out to be a strict constructionist textualist.
V. THE SECOND AMENDMENT POSITIONS
OF THE THREE NEWEST JUSTICES
The three newest justices have each weighed in regarding their view of Heller. During his confirmation hearing, Gorsuch said that he considered Heller to be the law of the land.[xiv] He had previously said, in a 10th Circuit opinion, that the right recognized in Heller, “may not be infringed lightly.”[xv] As to how he might apply Heller in future cases, at his confirmation hearing he said the standard he would apply to regulations dealing with guns other than handguns is whether it’s a gun in common use for self-defense.” This “common use” standard is based on Scalia’s language in Heller and is a standard supported by the NRA, a member of which spent $1,000,000 for ads supporting Gorsuch’s confirmation.[xvi]
Well before his nomination, Justice Kavanaugh let the world know that he was a strong defender of gun rights. He sat on the D.C. Circuit panel that decided Heller II,[xvii] the case which considered the constitutionality of gun regulations adopted by the District of Columbia in response to the Supreme Court Heller decision. The three-judge panel upheld (2-1) D.C. regulations which require registration of handguns and which ban certain semi-automatic rifles and high-capacity magazines. Kavanaugh wrote a 52-page dissenting opinion saying that in his view the registration requirement and the semi-automatic rifle ban, were unconstitutional and that the ban on high-capacity magazines should be remanded to make a more complete record.
Now that Kavanaugh is on the High Court, perhaps the most significant aspect of his Heller II dissent is his rejection of the so-called intermediate scrutiny standard adopted by the majority. This standard involves a two-step approach in determining the constitutionality of gun laws. First, the court asks whether the regulation under review impinges on a right protected by the Second Amendment. If it does, then the court goes on to determine whether the regulation is substantially related to an important governmental objective. If it is, then it can be upheld. Kavanaugh rejected this approach saying, “I disagree with that approach. I read Heller and McDonald as setting forth a test based wholly on text, history, and tradition.”[xviii]
Under the Kavanaugh view, the nature and importance of the governmental interest involved is irrelevant and not to be considered. The positions he took in his dissenting opinion are not shared by any Court of Appeals that has considered the same issues, placing Kavanaugh about as far in the gun rights camp as one could go.
Like Justice Kavanaugh, Justice Coney-Barrett also wrote an opinion before her nomination which demonstrated her acceptance of Heller and her willingness to expand the Second Amendment beyond Heller’s language. In Kanter v. Barr,[xix] the Seventh Circuit upheld federal and state laws that prohibit a convicted felon from possessing a firearm. Coney-Barrett dissented saying that such a prohibition could constitutionally be applied only to those previously convicted of violent felonies or, in those cases of non-violent felons, where the government was able to prove that the individual defendant, if armed, was likely to be dangerous. She based her opinion on what she considered to be the history and tradition of excluding only “dangerous” individuals or classes of individuals from gun ownership and possession. In doing so, she went beyond the language of Heller regarding long-standing prohibitions on the possession of firearms by felons.[xx] Her view has not been accepted by any court, and on April 19, 2021, the Supreme Court denied three petitions by non-violent felons for certiorari in cases where a court of appeals had rejected her point of view.[xxi]
Under the “common use” standard embraced by Justice Gorsuch during his confirmation hearings, any firearm “in common use for self-defense purposes”[xxii] is within the protection of the Second Amendment. A future case challenging a ban on semi-automatic or assault weapons will present the Court with an opportunity to decide what it means for a gun to be in “common use” for self-defense purposes. Nationwide, only 30% of adults are gun owners. In other words, only 30% own any type of gun. Among the states there is a wide variation in gun ownership. In Montana, for example, 66.37% of adults own guns. In the lowest two states, (N.J. and Mass.), only 14.77% of adults are gun owners.[xxiii] The percentage owning semi-automatic assault rifles is necessarily much lower. If only, say, 10% of the adult population of a state possess assault weapons for purposes of self-defense, can it be said that they are in “common use” for such purposes? This question and others are questions which remain to be resolved by the new originalist majority on the Court.
Regarding Kavanaugh’s rejection of the two-step intermediate scrutiny standard adopted by the D.C. Circuit in Heller II, how is the full Court likely to rule on this issue? The intermediate scrutiny standard was adopted by the Third Circuit in United States v. Mazzarello[xxiv] and has been followed by at least nine other circuit courts.[xxv] Resolution of this issue can have far-reaching consequences on the ability of state and local governments to regulate possession and use of firearms within their respective jurisdictions. It is important to remember that the Kavanaugh position represents a point of view not yet adopted by any circuit court.
Regarding Justice Coney-Barrett, it appears from her dissent in Kanter v. Barr that she will place great emphasis on whether the type of regulation under review can be said to be of a type that is traditional and “long standing.” This point of view could call into question the validity of relatively recent laws barring semi-automatic assault rifles and high-capacity magazines. Since Justice Kavanaugh has already indicated that he would probably reverse such bans, and Justice Thomas probably would also, the constitutionality of such laws cannot now be assured. Justice Coney-Barrett, in her dissent in Kanter v. Barr, showed a willingness to expand Second Amendment rights beyond where any circuit court has yet gone, as has Justice Kavanaugh.
Regarding a ban on semi-automatic assault weapons, nine states plus the District of Columbia have already enacted such bans, almost all of which have been upheld by Courts of Appeals.[xxvi] At the present time there exists no split among the Circuits on bans of assault weapons. All courts of appeals which have considered such bans have upheld them.[xxvii]
Regarding the right to carry a gun in public, most states[xxviii] permit open carry of handguns, but many require a permit to do so. Concealed carry is more likely to be prohibited. The issue in some of the permit cases is whether, and to what extent, certain conditions or qualifications can be required in order to obtain a permit.[xxix] The Circuits are split on public carry restrictions. Judge Richard Posner of the Seventh Circuit Court of Appeals applied Heller and extended its narrow holding to protect an individual’s right to the concealed carry of firearms in public.[xxx] The D.C. Circuit held that the Second Amendment protects an individual’s right to carry common firearms beyond the home for self-defense.[xxxi] A number of Courts of Appeals have upheld prohibitions and restrictions on the public carry of firearms.[xxxii]
As a matter of pure textual analysis, the right to “bear” arms is and was understood to mean the right to “carry” arms. One does not carry arms in one’s home. Rather, one carries arms out of the home into public places. It is likely that at least five justices will interpret the words of the Second Amendment in this way and find that the prohibition or substantial restriction on the right to carry a handgun in public infringes on a protected right. The question is: will they do so in a concealed carry case? And, if so, will they apply intermediate scrutiny to determine that such infringement is nevertheless constitutionally permissible.
[i] Toobin, supra note 11, at 21-22. (Part 1, note xi)
[ii] Justice Gorsuch gives the example of how the word “let” means something much different today than it did when Shakespeare had Hamlet threaten to “make a ghost of him that lets me;” the word “let” meant” hinder” (as the term is still used in tennis today when the ball is hindered by the net). See Gorsuch, supra, note 19, at pg. 117. (Part 1, note xix)
[xiv] Johannes Paulson, “Gorsuch to Feinstein: Heller is the new law of the land,” Truth About Guns, March 21, 2017.
[xv] This statement implies that Gorsuch will permit infringement under certain circumstances. This may be a hint that he would apply intermediate scrutiny to determine whether an infringement is constitutionally permissible. US v. Gomes-Perez, 667 F3d 1136, 1145 (10 Cir. 2012).
[xvi] Mark Hensch, NRA Member makes $1 million ad buy to tout Gorsuch, The Hill, 3/13/2017, thehill.com.
[xvii] Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011)
[xx] In Heller, Scalia said, “Nothing in this opinion should . . . cast doubt on long-standing prohibitions on the possession of firearms by felons . . . .” 554 U.S. at 626.
[xxi] Holloway v. Garland, S. Ct. Docket 20-782; Folajtar v. Garland, S. Ct. Docket 20-812; Flick v. Garland, S. Ct. Docket 20-902.
[xxii] The quoted words are taken from Heller, supra note 1, at 628
[xxiii] Jessica Learish, “Gun Ownership by State,” CBS News, cbsnews.com, July 23, 2020, Reporting on April 1, 2020 Rand Corporation study ranking gun ownership.
[xxv] See cases collected and cited in Binderup v. Attorney General United States of America, 836 F.3d 336 (3rd Cir. 2016).
[xxvi] Seven courts of appeals have affirmed the constitutionality of laws that prohibit possession of assault weapons or large-capacity magazines. See, Wilson v. Cook Cty., 937 F.3d 1028 (7th Cir. 2019); Kolbe v. Hogen, 849 F.3d 114 (4th Cir. 2017) (en banc); N.Y. State Rifle and Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242 (2d Cir. 2015); Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015); Heller v. District of Columbia, 670 Fed.3d 1244 (D.C. Cir. 2011) (“Heller II”); Worman v. Healey, 922 F.3d 26 (1st Cir. 2019).
[xxvii] A federal district judge has recently struck down California’s ban on assault weapons. That decision will be appealed to the Ninth Circuit. Also, in Duncan v. Bacerra, No. 19-563-76 (August 14, 2020), a three judge panel of the Ninth Circuit Court of Appeals affirmed 2-1 the same district judge’s ruling striking down California’s ban on high capacity magazines. That case is now before the court en banc.
[xxviii] California, Florida, Illinois and Hawaii generally prohibit individuals from openly carrying firearms in public.
[xxix] For a complete history of public carry laws see, Young v. State of Hawaii, No. 12-17808 (9th Cir. March 24, 2021).
[xxx] Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).
[xxxi] Wrenn v. District of Columbia, 864 F.3d 933 (D.C. Cir. 2017).
[xxxii]See, Kachalsky v. City of Westchester, 701 F.3d 81 (2d Cir. 2012); Woolard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); Drake v. Fillco, 724 F.3d 426 (3d Cir. 2013); Peruta v. California, County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc) (concealed carry); Young v. Hawaii, No. 12-17808 (9th Cir., March 24, 2021) (en banc) (open carry).
Last week, The Fulcrum, a new democracy project from the Bridge Alliance, announced an upcoming expansion of their website and daily newsletter and, with it, a new transpartisan column, Beyond Right & Left, to be written by Fulcrum contributors Mark Gerzon and Chris Gates. We’re excited to witness The Fulcrum’s rapid growth and want to congratulate Mark and Chris for taking on the daunting task of writing about issues from a transpartisan perspective.
From everything we know about their plan, we think The Fulcrum, working with thought leaders like Mark and Chris, can only strengthen the transpartisan movement at a time when the mainstream political debate desperately needs new ideas, seeking new paths to bring people together and solve real problems.
The co-authors introduced their column in powerful terms:
Our column . . . will bring a passionately transpartisan perspective to the conversation. We use the word ‘transpartisan’ with full intentionality here. We hope to talk about issues in a way that explicitly transcends the old way our country thinks and talks about the issues of democracy and divides.
They are very clear about what they will NOT do:
We don’t intend to balance perspectives on the left with perspectives on the right, which is an often-used frame for a ‘bi-partisan’ conversation. Instead we hope to bring a fresh point of view that explicitly calls into question the old, and in our minds outdated, political spectrum of ‘Left-Center-Right’. While traditionalists can tie themselves into knots as they debate where they and their opponents stand on that divisive, one-dimensional map, our experience tells us that more and more people are rejecting that type of simplistic labeling. As former Senator Bill Bradley famously said, almost no one wakes up in the morning thinking about where their lives and points of view sit on that spectrum. Our experience bears that out.
Both Chris and Mark bring long and powerful experiences in initiatives to strengthen American democracy. Chris has led three national organizations, the National Civic League, Philanthropy for Active Civic Engagement, and the Sunlight Foundation. He has advised many nonprofits and foundations on issues related to democracy reform, and he has widely spoken about democratic theory and philanthropic practices.
As president of the Mediators Foundation, Mark has helped launch many bridge-building activities; and he has also written several books on ways to understand and address the growing polarization in American politics, including A House Divided: Six Belief Systems Struggling for America’s Soul and The Reunited States: How We Can Bridge the Partisan Divide.
The timing of their launch is fortuitous in relation to several activities we at The Transpartisan Review have recently initiated with new partners. The most important among them, we think, involves sharpening understanding of the role the transpartisan movement can play in the larger political arena.
We think the mainstream political debate has been so degraded that we need to expand our mission beyond the current arguments. We must include issues and interested parties that current politics ignores or marginalizes. We think these issues and parties, though hidden, may nevertheless be crucial to bring people together and solve problems that have shown themselves resistant to conventional reform. We especially look forward to opportunities for exchanging and debating ideas in ways that we expect will be unique and will, over time, attract new, interested parties to the transpartisan political movements taking shape locally, nationally, and globally.
A Comment on the Response to John Keslers’ May 3rd Article “How to Recover from The Great American Regression”
by A. Lawrence Chickering & James S. Turner
To our readers who contacted us about John Kesler’s article – Thank You:
The passionate responses we received, pro and con, responding to John Kesler’s article, ‘How to Recover from the Great American Regression’ (TTR, May 3, 2021), encourage us to think that we are on the right track. Among other issues, several of you who self-identify as ‘conservative’ simply asserted that ‘the article is not transpartisan’ – and therefore has no place in The Transpartisan Review. One self-identified progressive lauded the article, saying it is the best article on transpartisan he has ever read. The responses seemed to present their own positions as the ‘correct’ transpartisan position. In our conception, the spirit of Transpartisan is a process of openness that facilitates the engagement of different points of view, searching for a conceptual framework that integrates the best of them.
We believe that ‘Transpartisan’ is a deep, aspirational force that reveals (otherwise often concealed) potentialities from values that are not in conflict, but can be seen as complementary. These complementary values, we believe, are embraced by the vast majority of people interested in political expression. The search for this integration happens by bringing together the two, principal values – held separately on both the Right and the Left – which, when integrated, not only bring people together but solve problems that cannot be solved (and are not being solved) by partisans who focus on individual quadrants. This is true of most people in the political class, both Democrats and Republicans. The two ‘primal’ values held by most people are (in mythic terms) Order and Freedom, with each value understood somewhat differently by both the Left and the Right.
We are persuaded by evidence that the public political debate actually creates space for only about 30% of the constitutionally-defined political constituency — roughly 15% on the Left and 15% on the Right. That thirty percent controls 99 to 100% of all elected offices at every level of government. It is the disparity of 30% controlling nearly 100% of all elected offices that we believe lies close to the heart of our current political alienation and dysfunction. That disparity, we believe, creates the focus for Transpartisan understanding of and action in contemporary politics. We believe Kesler usefully addresses this situation from his perspective, which we think is important.
We published this article because John is a prominent self-identified Transpartisan in Utah, a state of intense intra-Right contention, with significant transpartisan policy formation. In the terms discussed above about ‘Transpartisan’, John is a Transpartisan because he is willing to talk and collaborate with individuals who take positions that are 180 degrees different from his own. One of our objectives is to promote dialogue among such self-identified Transpartisan actors.[i]
* * *
As we were reading your responses and reflecting about issues associated with the Trump Presidency that could be significant for a Transpartisan politics, we could not avoid thinking about how difficult it is to rescue concepts in a transition from one administration to the next. (It is true for any concept, but we are concerned here about concepts that may have significance for a transpartisan vision.)
Carrying concepts from one administration to another is difficult even when the administrations are from the same party. Although this happens infrequently, we have heard stories from President Bush’s succession of President Reagan about the successor branding its programs by changing the predecessor’s policies.
If sustaining successful concepts is difficult even for officials from the same party, it is much more difficult when the successor comes from the other party. And it is greaterstill when the predecessor is widely REVILED by the successor.
That most difficult problem is where we are at present, as Democrat Joe Biden succeeds Republican Donald Trump, who is almost indescribably loathed by Democrats.
We have chosen to concentrate here on an issue of enormous importance both for JUSTICE and we believe for promoting conflict in our politics. The issue has to do with the defection of large numbers of the white working class from the Democrats to the Republicans under Trump.
It is perhaps easiest to understand this issue through the lens provided by political philosopher Kenneth Minogue in The Liberal Mind, who associates the Left’s natural constituency with what he calls ‘suffering situations.’ ‘The point of suffering situations,’ Minogue wrote, ‘is that they convert politics into a crudely conceived moral battlefield. On one side we find oppressors, and on the other a class of victims. . . . Politics proceeds by stereotypes, and intellectually is a matter of hunting down the victims and the oppressors.’
We are selecting this issue for this Transpartisan Article to highlight a Trump position that we believe is important for understanding both the challenge of promoting EQUALITY in the current environment and the widespread alienation that major political constituencies now feel from the political system. It is no secret that Donald Trump inflamed their alienation, thus enormously increasing cultural conflict in the society.
Minogue’s perspective on ‘suffering’ is important for revealing how one particular issue embraced by Trump exposes a fatal weakness in Order-Left arguments for Equality. Trump found an issue so identified with the Left’s core value of Equality that his embrace of it as the centerpiece of a new populist politics became a major irritant driving many on the Left’s hatred of him. Rather than embracing the white working class as a long-time constituency of the Left, the mainstream Leftist impulse has been to attack the white working class as DEPLORABLES and RACISTS, who systematically oppress other ‘suffering’ groups defined by race, gender, sexual preference, etc.
The tension here is between two competing ‘suffering’ groups.
Berkeley sociologist Arlie Hochschild explored this tension in her book Strangers in Their Own Land: Anger and Mourning on the American Right (2016). Hochschild explores issues that reveal why it is so difficult for the Left to embrace a group that had always been strongly associated with the political Left and the Democratic Party — the white working class — but that became the heart of Trump’s political base.
Hochschild spent six years in Louisiana interviewing the subjects of her study and really getting to know them. Her initial purpose was to understand their strongly negative attitudes toward the government, especially on environment regulations that it seemed would clearly benefit them. The portrait that emerges tells a very different story about them than the ugly media stereotypes currently in vogue.
In a chapter called ‘The Deep Story’, she tells ‘the real story’, a story both deep and real expressed by feelings, removed from judgment and fact. Deep stories explore ‘the subjective prism’ through which each party sees the world. Everyone, she writes, has a deep story, and understanding all politics depends on it. (We suggest that the transpartisan impulse/imperative is drawn from the deep stories of individuals and that when they have the time, space, and resources to exchange their deep stories, their superficial political/partisan identities recede into the background [or disappear altogether].)
When she was doing her research, the Tea Party was a major political vehicle for conservatives, and Hochschild concentrated on understanding the Tea Party’s deep story. (Her Tea Party friends thought it fit their experience.) She uses the metaphor of waiting in line, leading up a hill. Just over the hill is the American Dream, which everyone seeks. Many behind her friends are ‘people of color – poor, young and old, mainly without college degrees.’
The American Dream is a dream of progress. In the past every generation has done better than their forbearers. But the ‘line is barely moving . . . Has the economy come to a strange standstill? . . . You haven’t gotten a raise in years, and there is no talk of one.’
Then the epiphany: ‘You see people cutting in line ahead of you! Who are they? Some are black through a variety of preferences. But then also ‘Women, immigrants, refugees, public sector workers – where will it end?’ She even mentions the brown pelican, almost made extinct but after the 2010 BP oil spill now provided clean fish to eat, clean water, oil-free marshes, etc. ‘The supervisor wants you to sympathize with the line cutters, but . . . it’s not fair. In fact, the president (Obama) and his wife are line cutters themselves.’
And here the coup de grace: ‘[A]nyone who criticizes America – well, they’re criticizing you. If you can no longer feel pride in the United States through its President, you’ll have to feel American in some new way – by banding with others who feel as strangers in their own land.’
Her powerful metaphor makes it clear why the Left has not embraced these ‘strangers’ as they did in the past: because the stranger’s ‘oppressors’, responsible for their ‘suffering’, are the Left! This deep story of the suffering white working class, laid off against all the other suffering segments of American (and global) society, was used to drive the Red Wave of 2020. That the Blue Wave played well at the Presidential level made the Red Wave constituency as crazy as the appropriation of the white working class by Trump made the Order Left.
We have touched on problems associated with overlapping and conflicting suffering groups, especially when some groups are chosen over others. Other problems and issues arise within groups designated as ‘suffering’, which involves conceptually stereotyping everyone in the group as suffering, including those born to privilege and those who have earned success.
The ultimate objective, surely, is to empower and encourage ‘sufferers’ to overcome adversity of all kinds, including history and culture, in efforts to succeed. Examples abound of programs that been very successful in accomplishing this.[ii] The alternative, which the current mainstream narrative currently and strongly advocates, is to disempower them by blaming ‘oppressors’ who are claimed to have all power over them.
Implicit in this view is that ‘sufferers’ can succeed only when their ‘oppressors’ (who, by definition, hate them) change. In this conception, recognizing and honoring success when earned is problematic if not impossible. When the theory of ‘systemic racism’ is rigorously followed, no exceptions can be acknowledged, and the (ugly) consequence is that claims of success are then often stigmatized as accomplished only by ‘Uncle Toms’.
The ultimate question here is how to create opportunities for marginalized people without these negative consequences. We will explore this larger issue based positively on AFFIRMATIONS focused on empowerment rather than on NEGATIONS focused on punishing mythical ‘oppressors’. We will explore how programs that are successful have used different approaches to accomplish this on different issues in future articles and TranspartisanNotes.
We believe that a movement weakens itself if it builds its identity through excommunication.
[i] We presented some of John Keslers’ transpartisan thinking in ‘Transpartisan Maturity in Utah Developing a National Transpartisan Constituency and Movement’, The Transpartisan Review, June 12, 2019. It might be interesting to compare the arguments in the two articles and see how their consistency (or lack of it) affects individual reactions to either. Such an exercise could help flesh out understanding of the full range of transpartisan possibilities and development.
“Not content with limiting voting rights, Republicans are threatening the integrity of vote counting itself.”
Transpartisan Note #145
by A. Lawrence Chickering and James S. Turner
We offer the Transpartisan Matrix as a descriptive, analytical, and energetic snapshot of contemporary American politics. In NYTimes writer Richard L. Hasen’s latest op-ed, Republicans Aren’t Done Messing With Elections, the author examines how he believes Republicans are putting politics before the people by manipulating the system which supports our fundamental right to have all our voices heard.
At the core of Mr. Hasen’s piece is an exploration of the “battle over voter suppression”. From Georgia to Nevada, Texas to Michigan, and many states in between, elected and appointed officials are being censured, stripped of authority, and forced from office by conservatives looking to suppress and control the votes and the voters in their states, he says:
“A new, more dangerous front has opened in the voting wars, and it’s going to be much harder to counteract than the now-familiar fight over voting rules. At stake is something I never expected to worry about in the United States: the integrity of the vote count. The danger of manipulated election results looms.”
Although it is unsettling the number of examples he shares, Mr. Hasen’s goal is not simply to jolt us with a wake-up call. He also offers concrete solutions that we believe suggest the transpartisan impulse or imperative at the core of American political activity.
“So what can be done? To begin with, every jurisdiction in the United States should be voting with systems that produce a paper ballot that can be recounted in the event of a disputed election. Having physical, tangible evidence of voters’ choices, rather than just records on electronic voting machines, is essential to both guard against actual manipulation and protect voter confidence in a fair vote count.”
Let us also note, Democrats who argued about fraud in the 2004 election as well as Republicans unhappy with the outcome of the 2020 election both call for paper ballots.
That’s not all. He goes on to highlight the importance of business and civic leaders speaking out; the need for Congress to fix the rules for counting Electoral College votes; the necessity of a nonpartisan (we would say transpartisan, agreed-upon solutions rather than split-the-difference compromises); administration of elections; and, most importantly, the imperative of meaningful support for the people counting the votes. Republicans are pushing bills through state legislature they say will build confidence in elections outcomes. Democrats says this legislation will suppress votes. Use our matrix to sort out the claims and see what you think.
“…we need a national effort to support those who will count votes fairly. Already we are seeing a flood of competent election administrators retiring from their often-thankless jobs, some after facing threats of violence during the 2020 vote count. Local election administrators need political cover and the equivalent of combat pay, along with adequate budget resources to run fair elections.”
He ends the article by making it clear that,
“…the time to act to prevent a democratic crisis is now. It may begin with lawsuits against new voter-suppression laws and nascent efforts to enshrine the right to vote in the Constitution. But it is also going to require a cross-partisan alliance of those committed to the rule of law — in and out of government — to ensure that our elections continue to reflect the will of the people.”
The Transpartisan Review reports on ideas, actions, and events that underscore the opportunity to find societal solutions by avoiding the all too common hyper-partisan and deadlock-threatening efforts often passed off as “politics” by our daily media. We point out that the current Democratic/Republican – Left/Right political duopoly made up of 30% of the US constitutional political constituency controls 99% of all the country’s elected offices.
The Transpartisan Review operates on the belief that a system which incorporates more than a left/right bias is needed to discover productive solutions to our societal and political issues. In a recent NYTimes op-ed, We See the Left. We See the Right. Can Anyone See the ‘Exhausted Majority’?, Thomas B. Edsall asks:
Does Joe Biden’s victory in 2020 represent the last gasp of an exhausted moderate tradition or does a potentially powerful center lie dormant in our embattled political system?
Mr. Edsall paints a compelling picture of the left/right polarization structured into US two party politics. We believe the data shows that polarization involves about 30% of the electorate roughly divided evenly between left and right activists. That leaves about 70% of the electorate with no place to go to either express their policy preferences or satisfy their sense of belonging. Rather than thinking of this 70% as the ‘Exhausted Majority’ we tend to think of it as the ‘Exasperated Core’ which has the positive attribute of including some red and some blue. In states as diverse on the red/blue-right/left continuum as Georgia, Texas, California, Utah, Michigan, New York, and Arizona intense political identity battles rage not only between the reds and blues but also within both the reds and blues.
How about where the 30% agree, especially with the 70%? Mr. Edsall shares one particular study:
“A Not So Divided America,” conducted by the Center on Policy Attitudes and the School of Public Policy at the University of Maryland for a centrist group, Voice of the People. It found that if you compare “the views of people who live in red Congressional districts or states to those of people who live in blue Congressional districts or states,” on “only 3.6 percent of the questions – 14 out of 388 – did a majority or plurality of those living in red congressional districts/states take a position opposed to that of a majority or plurality of those living in blue districts/states.”
We offer our Transpartisan Matrix – the horizontal right/left axis crossed by the vertical order/freedom axis – as one possible contribution to understanding and harnessing the energy of that Exasperated Core – like the core of a nuclear reactor – to focus on resolving our current problems and taking the next leap into a positive powerful future. Here is our Matrix:
We illustrate the shift from a continuum to a Matrix for analyzing current US politics by offering the idea of expanding the concept of a political compass to the broader idea of a political gyroscope. Let us know if the Matrix and/or the gyroscope helps to understand the information presented by Mr. Edsall.
(Image from Wikimedia and available CC BY-SA 3.0 from VIPSuperDave. Additional text, editing, and the gyroscope image by Andy Fluke.)
…and create the conditions necessary for a transpartisan future.
by John T. Kesler
Donald Trump demonstrated a genius for generating an American populist movement by supporting traditional conservative and religious values while also tapping into the fears and frustrations of many Americans together with being pro-business. In the process he transformed the Republican Party into being more populist than it has ever been. This populism emerged through Trump contaminated by a constellation of qualities that undermine a healthy democratic republic.
These virulent qualities are all consistent with contemporary neo-fascism. Common attributes of the highly diverse national manifestations of contemporary neo-fascism are contempt for democratic values and the rule of law, demagoguery, racism, incitements to mob violence, attacks on the press and the establishment, and exploitation of scapegoats1. Following are features of Trumpism which are each consistent with neo-fascism and are antithetical to a constitutional republic and our American traditions.
The Fascist Features of Trumpism
The Big Lie and Violence
President Donald Trump rallying the troops.
A central element of fascism is hostility to the peaceful transfer of power, which has been the hallmark of American democracy since John Adams succeeded George Washington as president. Just as he did when running against Hillary Clinton, during the recent campaign against Joe Biden, Trump repeatedly asserted that the only way he could lose would be if there were overwhelming voter fraud. In the months leading up to the November 2020 presidential election, he escalated claims of such fraud.
Party and elected Republican leaders overwhelmingly echoed this Big Lie, which was amplified by right leaning broadcasters and social media. Endlessly repeating The Big Lie that Germany’s defeat in World War I was falsified and, in any event, caused by the Jews, was famously utilized by Hitler in coming to power under the theme of making Germany great again. When Trump lost the election, he claimed that it was stolen, consistent with the groundwork he had laid so carefully. Once the post-election version of the Big Lie was asserted, Trump tried every means at hand to cement the Lie, including filing over 60 fruitless lawsuits challenging the election as well as making multiple efforts to persuade election officials and state legislators to illegally change election results – all without success.
It speaks to the strength and integrity of America’s leadership and institutions that all these efforts failed, because they were all based on lies. It is the consensus of both Republican and Democrat election officials across the nation and confirmed by the heads of the four US intelligence agencies and the US Department of Justice, that there was no significant corruption or fraud in the presidential election, confirming that Joe Biden won in a free and fair election.
To further assert that he had won, and that the Democrats had committed overwhelming election fraud, and, in an effort, to overturn the certification of Joe Biden as president, Trump marshalled his followers from across the nation to convene in Washington D.C. on January 6 to protest a “stolen election.” Once the crowd was assembled, Trump and his co-instigators incited them to engage in the tragic and seditious attack on the Capitol.
Even after this insurrection, most Republican congressmen challenged Biden’s certification as President, knowing full well that the claim of a fraudulent election was a Big Lie. Immediately following Joe Biden’s inauguration, most Republicans in America still believed the Big Lie. Even after the most bipartisan vote against Trump in the history of presidential Senate impeachment trials, most republicans still support Trump. He continues to assert the Big Lie.
Other Lies, Attacks on the Press and Media Manipulation
Is has been well documented that when he was president, Trump was a serial liar, repeatedly making misleading claims2. He would often assert that any reporting contrary to his own claims was “fake news,” another central Big Lie. Trump disparaged mainstream media and attacked reporters and media outlets who caught him in his lies. He was successful in casting doubt on the mainstream media, with many right leaning media outlets and social media spreading his false claims. He also used Twitter to directly sway millions of people with his lies. In this and so many other ways, he labeled and demonized others for doing what he was actually doing: constantly lying. Frankly, the real enemy was a projection of himself on his enemies. Yet he fooled half the country. Such lying and media manipulation are standard fascist practices.
Myths, Conspiracy Theories and Racial Resentments
Phoenix-resident and QAnon conspiracy theorist Jake Angeli, the “Q Shaman”.
Even before he became president, Trump gained notoriety in his rise to political prominence by repeatedly claiming that President Obama was not born in the United States, contrary to definitive evidence to the contrary. He has continued to promote or not disassociate himself from conspiracy theories that served his interests, such as QAnon, which labels Democrats and those in “the deep state” as evil pedophiles, drinking children’s blood and cannibalizing them. This is a revived version of the myth that the Nazis used about Jews drinking the blood of children.
Trump supports groups which are purveyors of the myths of the far right, particularly including those which reflect racial and cultural prejudice and resentments. For example, rather than condemning the Proud Boys, an all-male neo-fascist group, in a presidential debate with Joe Biden, he told them to “stand back and stand by.” In this and so many other ways, such as his failure to condemn the white supremacists’ role in their Unite the Right rally and riots in 2017 in Charlottesville, Virginia, Trump firmed up his support by far-right extremists. Eventually he called them all and his other supporters to step up and attack the Capitol. Fascism has always been grounded in pre-rational myths, conspiracy theories and racial and cultural resentments.
Dehumanizing, Demeaning and Scapegoating Others
After taking office, Trump called African countries “hell holes”; categorized Muslims as terrorists and banned travel from Muslim countries; labeled people coming across the Mexican border as rapists and murders; and separated immigrant children from their parents and put them in cages. Dehumanizing the “Other” is characteristic of fascist regimes.
As millions of Americans across the country and people globally protested following the murder of George Floyd, and the Black Lives Matter movement took hold, Trump alleged that this phenomenon amounted to leftist antifa and black violence from which he was going protect white America. This strategy successfully turned a broad-based call for racial respect and justice into a source of fear and suspicion for millions of people, scapegoating blacks who were leading the call for justice. Trump and many republican leaders were also effective in labeling democrats as anti-democracy socialists and communists. Although a small minority of democratic elected officials are socialists, they are representative of Western European democratic socialism which has for instance resulted in the European Nordic countries becoming some of the most stable and prosperous democracies and flourishing societies in the world. This insidious racist and scapegoating undercurrent of Trumpism is central to fascism.
Threatening Political Opponents
Trump’s behavior toward his political opponents is disrespectful, demeaning, and bullying. His outrageous performance in the first presidential debated against Joe Biden, was a demonstration of this. He labels those he considers political enemies – such as Barak Obama, Joe Biden, and Hillary Clinton – as criminals who should be imprisoned. Chants of “lock her up” aimed at Hillary Clinton that Trump encouraged at his rallies were not harmless, were not a joke. Just like the Big Lie about any election he might lose would be stolen, this horrendous lie – that his political opponents are, by definition, criminals – is deeply alarming and dangerous. We should realize that Trump means what he says in this regard. Criminalizing political opponents is typical of fascists and other totalitarian leaders.
Undermining the Law and American Institutions and Traditions
Robert F. Kennedy Department of Justice Building
Trump has shown little respect for the law or the traditions and institutions of American governance. For example, he frequently attempted to compromise the long-established independence of the Justice Department, which is intended to be solely in service of the American people. Under attorneys general Jeff Sessions and William Barr, and acting attorney general Jeffrey Rosen, Trump demanded that his interests contrary to the public interest be pursued including deflecting his own culpability in the Russia/Ukraine investigation and undermining results of the presidential election. If Trump had been re-elected, he certainly would have continued such egregious behavior.
Note how in the last days of his presidency, Trump inserted young incompetent loyalists in key positions in intelligence and defense positions, obviously with the intent of compromising those institutions. Trump’s undermining of the law and our institutions and attacking those he branded as the establishment, is classic behavior of fascist demagogues. Such behavior was a fulfillment of Steve Bannon’s “deconstructing” strategies.
Anti-Science, Anti-Rationality
During the COVID pandemic, public health professionals have been unanimous in urging that we all wear masks in public, socially distance, wash our hands, and avoid large gatherings. President Trump set the opposite example: disparaging the advice of epidemiologists and other health specialists, mocking people who wear masks, and organizing large, packed rallies and other gatherings which were “super spreader” events.
Covid-19 virus
Due in large part to Trump’s refusal to take medical science seriously or to lead on the federal level, the number of U.S. Covid-19 infections and deaths exploded in the United States. Because of his arrogant refusal to lead, he is responsible for tens of thousands of deaths that might have been averted, and he influenced untold numbers of Americans as a matter of political identification to selfishly expose others to the danger of severe illness and perhaps death. This disaster and much of the resulting economic instability were grounded in prejudice and the rejection of rationality, truth, and science – all characteristic of fascism.
All these anti-democracy fascist attributes permeate Trumpism, even as Trump enticed over seventy-four million Americans to vote for him in 2020. There are some excuses for the many millions of Americans who have been seduced by Trump’s gifts of narcissistic manipulation and the complicity of his political and media enablers. However, many Republican leaders, including most Republican members of Congress, with full knowledge of Trump’s lies and insidious fascist tactics, have promoted, or have been complicitly silent regarding these aspects of Trump leadership.
On all points, Trump qualifies as a neo-fascist leader, who has given birth to a massive American neo-fascist movement.
The Great American Regression
From the perspective of human development, these Trumpian fascist characteristics reflect lower cognitive and moral development than those which are consistent with the universal (“Modern”) principles upon which the United States Constitution is based. It is for this reason they are pathological in the public sector and in civil society and why each one of them undermines the American democratic republic (“American Republic”).
Healthy development from infancy to adulthood reflects emerging from being self-centered as a toddler, to group-centric or ethno-centric as a child and then world-centric as an adult. A normal toddler learns to say “No” and “Mine” as he/she is first developing a sense of identity. A self-centered adult narcissist, such as Trump, on the other hand is severely stunted, and is by definition a dangerous leader because every decision of a narcissists tend to be based primarily on what is best for optimizing their power and control. Learning to slowly identify with increasingly larger collectives, for example from families to friend groups to grade schools to middle schools to high schools to racial and ethnic identifications is necessary and healthy, but getting stuck in identifying solely with one’s group, school, race, ethnicity or even nation to the exclusion of the “Other”, is not sufficient for competent citizenship in the United States. The American educational enterprise has been committed to supporting not only academic learning on a Modern level but also supporting our youth in growing into responsible citizens which includes inculcating the Modern universal principles upon which the Constitution is based.
Healthy development from infancy to adulthood reflects emerging from being self-centered as a toddler, to group-centric or ethno-centric as a child and then world-centric as an adult.
A mature American citizen is world-centric in the sense that one feels obligated to support the universal principles of the United States Constitution which holds that all people are created equal and deserve equal access to freedom and justice. We have the duty as citizens to support and sustain these principles within the scope of our national boundaries. In addition, commitment to the universal nature of these principles which arises from this Modern level of maturity naturally prompts us to support freedom and justice for all people in the world. Trump did his best to abandon such global commitments as he also pursued a pathological sub-Modern, ethno-centric agenda at home where the “Other”, that is, those who are not white or Christian, are somehow less human and should be feared.
In this context we can see that America experienced an historic regression by submitting to the sub-Modern pathologies of a leader who systematically debased the American Republic. America almost succumbed a second time in November 2020 when Trump came close to winning the presidential election by utilizing all these neo-fascistic pathologies. If he had been elected president again, he would have undoubtedly further undermined our Republic. This is so historically significant and alarming, that it can appropriately be referred to as “The Great American Regression”.
Trump has led about half the Nation on a regressive trajectory which if successfully pursued over many years by Trump and/or others will likely lead to the American Republic being deeply and perhaps fatally compromised by primitive ethno-centric pathologies.
Why has the Great American Regression occurred?
There are several interconnected developmental factors which have led to America becoming vulnerable to destructive sub-Modern influences. First, American political institutions and political processes grounded in Modernist theory and 18th century realities have been increasingly dysfunctional and failing to meet the complex challenges of twenty first century realities. Most Americans are disappointed in our government institutions, and a significant percentage of the American citizenry feel particularly left behind and underserved. Those in control (i.e., the establishment – sometimes pejoratively referred to as the “deep state”) often appear that they are benefiting themselves at the expense of others. When there is a lack of trust, there is a tendency among those who feel most threatened to pull in the boundaries of their scope of concerns into a more constricted and self-protective mode, less aligned with Modern universal principles and more reflective of pre-Modern ethno-centric commitments.
Ele-dodo
Contributing to the dysfunctionality of Governmental institutions has been the phenomenon over the past few decades of Americans electing representatives who align with these more constricted concerns of their constituents. Such representatives tend to be fairly black and white in how they see the world and are not very inclined to work out solutions with those across the aisle. Those leaders have in turn controlled the narrative and amplified the polarization. Those who feel that there is something wrong with those who hold views other than their own and are unwilling to compromise to get things done are less cognitively and morally mature that than those who can see both sides of an issue, can stand in other’s shoes, and work out ways to get something accomplished. That is the essence of what leaders do in a successful democratic republic. In other words, Americans have increasingly been electing some of the least mature among us to be our leaders with both major political parties becoming even more ideological and polarized than the American citizenry which elected them. As dysfunctionality has increased and the nation has become even more polarized, a candidate such as Trump with exceptional manipulative skills and fascistic tendencies had an opportunity to exploit the situation and lead us into The Great American Regression.
As Trump intuitively understood, when people regress into an ethno-centric protective mode, this paradoxically creates a greater vulnerability to their being manipulated by those who play on their fears. They also tend to be more open to those influencers who traffic in sub-Modern conspiracies and racist narratives. In the process extremists, who have a more permanently ethno-centric center of gravity and who have previously been marginalized, become more acceptable and integrated into association with the more mainstream people and groups who have regressed to or otherwise support sub-Modern sensibilities. The certainty of the extremists and the simplicity of their cultic, mythic, racist, and conspiratorial worldviews are temping to those who are afraid and have a need for greater certainty in their lives. They are also susceptible to the purported strongman leader (a hallmark of sub-Modern societies) who will take charge on their behalf. Many others who may not have regressed in this way but nevertheless benefited from Trump’s policies, such as many who are culturally and religiously conservative, the wealthy, and/or in the business community have been willing to look the other way. Many of them have underestimated or simply do not care about the destructive impact of an unprincipled leader who would stop at nothing to gain power, stay in power, and regain power as long as he supports some of their key policy issues.
Most people who have developed beyond Modernism are in the first immature sub-stage of the next full stage of human development, which will be referred to as “Integral.3” Many of these early stage Integral individuals who are often referred to as pluralists or post-modernists (“Pluralists”) are progressives. Pluralists tend to lack the higher level integrating capacities, which manifest more fully in people who have developed into the full maturity of the Integral stage of development. As such they often sow distrust and even chaos. In contradiction to their own inclusive narrative, Pluralists are often patronizing and sometimes even hostile towards those who are Modern or traditional in orientation, which adds to the polarization and conflict.
In summary, from a developmental perspective America is in the middle of a perfect storm of disarray, disorientation, and vulnerability.
What can we do to overcome The Great American Regression?
It is important to remember that our American institutions and culture are grounded in Modernism and that most American adults have a Modern developmental center of gravity or higher. As such, a reasonably rapid recovery from this regressive sub-Modern moment is possible, and in the coming years we can move on to greater heights of national and global resilience and flourishing than we have ever attained. Following are five categories of proposals grounded in developmental perspectives, which could be pursued to help overcome the Great American Regression and lay the groundwork for such further transformation.
These proposals are by no means definitive or exhaustive, but from a developmental perspective, they are representative of what must be done to create and maintain the minimal conditions whereby a transpartisan future might even be possible.
First, we should bring greater clarity and coherence to how we describe sub-Modern political pathologies.
Clarifying such sub-Modern political pathologies from a developmental perspective and how they are undermining the American Republic could go a long way towards helping many people wake up and pull back from devastating pathological political commitments.
It would be advisable not to overuse the term “neo-fascism” in describing these Trumpist political pathologies even though they are collectively the essence of neo-fascism. The term “fascism” with its many sub-variations – such as neofascism – creates confusion and carries so much controversial baggage related to its ultra-violent mid-twentieth century origins. The worst actors in the political arena will endlessly whip up their supporters to deny that they are fascists and in Trumpian fashion label their opponents as fascists. In any event the point is not to count how many pathological sub-Modern qualities it takes to call people fascists. Rather it is critical for every American to appreciate that each one of these pathologies manifesting in the public square and the public sector is destructive to any constitutional democratic republic and should be called out and condemned.
It is critical for every American to appreciate that each one of these pathologies manifesting in the public square and the public sector is destructive to any constitutional democratic republic.
Each of them could be referred to as an “Anti-Republic Pathology.” (“ARP”). These ARPs can be grouped in four general categories: cognitive, cultural, institutional, and behavioral. Each of these four categories is set forth below together with three specific ARPs in each category. The categories and each of these ARPs are framed in a developmental context for better clarity, coherence, and interconnection.
Cognitive ARP
Underlying assumptions of our Modern constitutional republic are that citizens have the cognitive and moral maturity to govern themselves through fact based reason in the context of universal constitutional principles, and that they and their representatives can and should agree upon basic facts as a foundation for their deliberations on important societal matters. When these assumptions are systematically compromised by Anti-Republic Pathologies, a democratic republic is seriously compromised
At an ethno-centric level of development or state of regression, people will tend to accept as true what an authority figure tells them or what the mythical simplicity of a conspiracy theory suggests. Any adult who exhibits an even more primal self-centric orientation will promote any position as true which will serve their interests. Trump is clearly a self-centric narcissist leading a pathological ethno-centric political movement posturing as a world centric democratic alternative.
Lies
Constitutional democracies are not viable if most of us cannot agree on what the facts are on important issues due to ARP manipulations. One can only wonder how many people would have voted for Trump for President in 2020 if they had realized that the allegation of massive voter fraud was a Big Trump Lie and that overwhelmingly “fake news” was coming from mainstream media was for the most part another Big Trump Lie. It is nothing short of terrifying that tens of millions of Americans with Modern cognitive and moral capacities have been manipulated with lies and other ARP tactics into supporting the undermining of their own cherished republic.
Sub-Modern Narratives
Sub-Modern rationality is the source of mythical narratives and conspiracy theories, often racist in nature, which simply do not reflect reality. We need to realize that facts hardly ever matter to the relatively small percentage of adults who are deeply sub-Modern in their cognitive capacities and/or moral commitments. We just must accept that factor and do better at meeting their needs in the democratic process without allowing their ARP perspectives to dominate the public discourse as it did during the Trump presidency. It is important to remember how vulnerable many people are in a time of crisis and resulting personal regression to be seduced by sub-Modern narratives.
Anti-Science
Huge numbers of people being opposed to consensus conclusions of mainstream science such as the seriousness of the COVID pandemic and the personal behavior and strategies necessary to best combat it as well as denying the need for urgent action on climate change have enormous implications. An ARP strategy is to question and politicize the consensus conclusions of science rather than accepting them as a shared foundation for determining a way forward. Again, you already start with a small minority of adults who because of developmental challenges tend never to be persuaded by rational arguments, and a better job must be done of educating and persuading the rest. The repercussions of ARPs politicizing the pandemic so that millions of people have ignored the dangers have likely cost many tens of thousands of lives. The politicization of climate change through ARP strategies has put the future of mankind and life on earth at much greater risk.
Cultural ADP
Modernism represented a universalization of the Golden Rule where everyone should be treated as oneself through the exercise of Conscience, Civility, Care and Compassion – the universalization of the ultimate worth of each man, woman, and child. This generates the constitutional framing of the universalization of Freedom and Justice for all grounded in this dignity of all human beings. Less developed societies have always been grounded in the perspective of “Us” versus “Them” – the tribal or cultural or even national “in group” versus the “Other”. Constitutional republics like the United States endlessly struggle to move closer to the ideals of this universalization of the Golden Rule. The sub-Modern cultural outlook results in the dehumanization of the “Other” in the following three cultural Pathologies:
Racial and Cultural Discrimination
One might say that the “original sin” of America is that in a country grounded in Modern universal principles, it also accommodated the genocide of Native Americans and the slavery of Blacks. Even after the abolition of slavery, America has continued to allow systemic racial and cultural discrimination in all its forms. Fortunately, with the universal principles of the Constitution as an attractor, the “arc of justice” has moved ever so slowly in a very uneven trajectory toward the realization of the universal application of the Golden Rule as Martin Luther King taught. The pre-Modern ethno-centric core of Trumpism represents a powerful pushback against that trajectory.
Scapegoating
If we can dehumanize people who do not look like ourselves or perhaps do not have the same cultural background or faith, we can more easily blame them for our problems. It is the simple, pathological solution. In Nazi Germany, they scapegoated the Jews in this regard. Trump blamed for instance the “rapist” Latins trying to get into our country whom we needed to build a wall against and the Muslims that we should ban from traveling to our country. Trump has demanded that three Congresswomen of color should “go back to where they came from”. Trump and his ilk use the moniker of “AOC” (for congresswoman Alexandria Ocasio Cortez) as a rallying cry to oppose imagined communist conspiracies, putting her safety as risk. The ARP strategy of scapegoating amounts to taking the ethos of the school yard bully into the adult public arena, which will inevitably lead to tragic consequences if not stopped.
Other Dehumanization
Variations of dehumanizing others are endless, from mocking people with disabilities to men treating women as objects. It is critical to appreciate that the proper patriotism in the United States of America is the patriotism grounded in our Universal principles and sharing those principles with the world. The patriotism of a pathological ethno-centric culture is grounded in “us versus them”. Beware of Trump’s proposed Patriot Party or anything like it which would be based on an “us versus them” patriotism, which is a defilement of principled American patriotism. Beware of the aggressive “flag waivers,” who stand for us versus them. That is why the confederate flag fits so naturally in crowds of aggressive flag waivers including the mob that attacked the Capitol using flag poles as weapons and violently brought the Confederate flag into the Capitol building for the first time in our Nation’s history.
Institutional ARP
The Institutions and processes and traditions of the America republic are all dedicated to honoring and sustaining the universal principles of the American constitutional Republic, that is, designed to promote freedom and justice for all. Anything which undermines these institutions is an institutional Anti-Republic Pathology
Institutions
It is essential to an ARP movement to undermine the institutions which support universal and impartial principles. When government institutions are compromised, the survival of a constitutional democracy is in grave danger. In addition to Trump’s active campaign to undermine the integrity of the Justice Department mentioned above, among other things he made efforts to compromise the scientific independence and integrity of the CDC and any institution that oversaw the COVID pandemic; he hollowed out the State Department leadership; and he did seemingly everything in his power to compromise the intelligence agencies of the United States Government, which he subordinated to input and opinions from the Vladimir Putin.
Law
It was foundational to the framers of the United States Constitution that America must move beyond the ethno-centric monarchial traditions of the Old World where rulers and many in the ruling class acted at will above the law and imposed law on others without their consent. The United States Constitution stands perhaps first and foremost for the rule of law and due process in American society.
Gavel
Trump went out of his way to claim that the President is essentially monarchial and dictatorial; that he was above the law; and that there was nothing he could do for which he would be held accountable. He threatened and even attempted to get his political opponents incarcerated, acting as though they were outside the protection of the law. This is ARP at its most threatening which does not recognize that all of us are under the law and that the laws are continually tested in the courts to determine if they are constitutionally aligned. In this moment of The Great American Regression, the judicial branch has been the only branch of government that has not yet become deeply compromised. Even his own judicial appointments in the federal courts and the Supreme Court held firm to the rule of law. This speaks so profoundly to the integrity of the American legal system.
Traditions of American Democracy
There are mores and traditions which support the American Democratic Republic, often without the force of law, but they strengthen the cultural fabric of our republic. It is tragic when they are intentionally undermined and debased. There are so many examples of where Trump trampled on cherished American traditions. It was so dismal for instance to see him avoid visiting those severely injured in combat and not attending ceremonies honoring deceased soldiers, which he considered “suckers” for their sacrifices. The failure of Trump and his family to graciously welcome his presidential successor and his family to the White House or to attend the inauguration of President Biden because of his refusal to accept defeat or allow the peaceful transfer of power is a cause for profound sadness.
Behavioral ARP
The Founders were deeply concerned about unscrupulous, power hungry leaders. For instance, in first Federalist Paper Alexander Hamilton warned that “of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues and ending tyrants”. Authoritarian tyrants use all means including threats of violence and violence itself to achieve their ends. This is the history of pre-modern societies and failed republics. George Washington stunned the world and even many of his countrymen when he stepped away from personal aggrandizement at the end of his second term as president in honor of the principles of the Constitution as did every other president of the United States until Trump.
Authoritarianism
The sub-Modern leader tends to be authoritarian in his orientation. He wants to rule and control without limit, and in turn to the extent possible repress constitutionally proscribed checks and balances, which would restrain his lawlessness. People who have regressed into a self-protective mode often look for a strongman leader to defend their most precious ethno-centric concerns. Trump was as authoritarian as he could get away with, and clearly aspired to be like the authoritarian leaders he was so drawn to such as Vladimir Putin and Kim Jong-un. Those who have regressed to wanting a strongman leader, often do not perceive that a dominating leader who shows up, may be completely self-centric – such as Trump – who do not care much for the values of the ethno-centric constituency, manipulating them as needed by parroting their values.
Demagoguery
Demagoguery is defined as activities or practices of a leader which seek support by appealing to the emotions, passions, and prejudices of people rather than using rational argument4. That without question is the essence of Trumpism. Trump is particularly brilliant at compromising the Modern reasoning and moral capacities of people, who fall prey to his manipulation of their passions and prejudices.
Inciting and Using Violence
Inciting violence and using violence is a primal expression of ethnocentrism and the antithesis of the dynamics of a healthy democratic republic, which is governed by the rule of law, due process, and institutionalized procedures. A common theme for Trump was suggesting acts of violence against those he disliked such as members of the press or protestors against his ARP approaches. Using violence against peaceful Black Lives Matter protestors nearby the White House so that he could walk across a square with an entourage including the top American military leader and hold up a bible in front of a Church is a perfect example of how utterly wrong this is, not to speak of the historic January 6 coup attempt at the Capitol.
Second, promote, and use an Anti-Republic Pathology scale (“ARP Scale”)
We can assess the minimum worthiness of a political candidate or leader or group by informally adding up the number of Anti-Republic Pathologies which are reflected in their narratives, policies, and actions. This would be somewhat subjective, but it should be fairly evident which individuals, groups, and movements have a high score (“Political Pathology Score”) on the ARP Scale comprised of the 12 ARPs listed above. The higher the Political Pathology Score (“PPS”) the more dangerous the leader or group. For instance, Donald Trump scores 12 out of 12. The point is that any candidate or leader who scores significantly at all on the ARP Scale should be rejected out of hand.
Spencer Cox
In Utah where I reside, our Republican US Senator, Mitt Romney, and our newly elected Republican Governor, Spencer Cox, have probably close to a zero PPS. On the other hand, the newly elected Republican Utah Congressman for Utah’s 4th Congressional district, Burgess Owens, has supported and promoted many ARPs, while the PPS of the Democratic incumbent whom he defeated in the 2020 congressional election, Ben McAdams, would score close to 0. The Political Pathology Score of public leaders matters much more than if they are left or right leaning politically, because a person with a high PPS is fundamentally hostile to the very principles upon which the American Republic is based and should never be supported in holding an office of public trust.
Third, take dramatic steps to better ensure that there can be general agreement on the facts relating to important issues.
The threshold element in having a functioning democratic republic at all, is having general agreement on what the facts are. Trump proved that through constantly telling lies supported by political allies together with media organizations and social media enablers, tens of millions of people with a Modern or higher developmental center of gravity can be deceived as to the facts and manipulated into supporting Anti-Republic Pathologies which damage our American Republic. Following are two proposals
Establish permanent consensus fact commissions (CFCs) – one or more for national issues and one or more for state and local issues in each state. These CFCs would be comprised of respected and trusted people representing the political spectrum from the public sector and trusted diverse individuals from the non-profit, and private sectors. People who support Anti-Republic Pathologies would not be invited to be on a CFC. These CFCs should be well funded with competent support staff and full access to needed technical resources and expertise. The task of the CFCs would be to achieve a consensus statement of the relevant facts on important selected public policy issues. For instance, the consensus of mainstream scientists and/or competent researchers on a relevant issue would be accepted by a CFC. Consensus facts would then be the foundation for relevant public policy debate. CFCs could be supplemental bodies to already existing institutions such as the Center for Disease Control. The Trump administration did its best to undermine, corrupt and discredit the CDC because scientific truth and the CDC’s commitment to the protection of human lives were inconsistent with Trump’s political agenda of denying the massive proportions and danger of the COVID pandemic crisis.
Establish a high-level national commission to address how to prohibit media outlets and social media platforms from undermining truth in the public square on important public issues and to generate public policy recommendations and other consistent proposals. We should never forget that multiple media sources continually amplified lies and specious conspiracies that almost resulted in the toppling of the American Republic, and they are still at it. There is no area of public policy that has any greater urgency than getting our arms around the unrestricted deluge of disinformation on important matters. Even though there are sensitive First Amendment and other important legal considerations that must be addressed, America’s very survival as a constitutional republic may very well depend on prompt and successful action in this area.
Fourth, Education
There should be well-funded efforts to provide education as to the insidious nature of all the Anti-Republic Pathologies and their devastating impact on the American Republic. Each one of them undermines our American Republic, and the more of them that are at play, the more destructive the impact. Following are two proposals.
Educate the public. Most citizens who voted for Trump are thoughtful, principled people, as are most Americans. One must assume that the large majority of Trump voters would view Trump and his enablers very differently if they had a clearer sense of the insidious nature of the Anti-Republic Pathologies and that all the ARPs were and are being practiced by Trump and his political and media allies to deceive and manipulate millions of people. There should be educational programs to clarify the danger of ARPs promoted through public, private, and non-profit organizations, particularly including educational institutions and responsible media organizations.
Most citizens who voted for Trump are thoughtful, principled people, as are most Americans.
Educate our youth and young adults. One of the main reasons for establishing public education at the inception of the American Republic was that our children should be trained to become competent and responsible citizens. That element of public education has too often become minimized or eliminated in recent decades. It is time once again to raise up a new generation of competent and committed citizens with a significant part of that education highlighting the danger of the Anti-Republic Pathologies to the very survival of the American Republic. We should also include the importance of ethics across all educational disciplines to emphasize that all our personal, professional, and political activities have ethical implications for which each of us should be responsible5. In the context of character education and service learning we should also teach and inculcate consensus principles of virtuous behavior, especially the Golden Rule and the related qualities of Conscience, Civility, Care, and Compassion, which underlie the universal reciprocity principles of Freedom and Justice for all, as reflected in the United States Constitution and all state constitutions.
Fifth, support leaders who have positive attributes from a developmental perspective
Whether a candidate is left or the right leaning we should give priority to electing and supporting leaders for public office who are wise and mature in terms of virtuous character and leadership capacity. As James Madison noted in Federalist No. 57: “The aim of every political constitution is, or ought to be, first to obtain for rulers men [and of course now also women] who possess most wisdom to discern, and most virtue to pursue the common good of the society.” Following are two proposals.
Support leaders with mature virtuous character. Perhaps virtuous character – a traditionally conservative priority value – should be valued more than anything else in a public leader. There are many virtuous traits that could be highlighted but perhaps the most important is that a leader’s scope of loving care and concern extends to all people. Beyond that, in terms of moral maturity a profoundly morally mature person has a sense of care beyond all people to care and have a sense of stewardship for all living things. The most mature people will therefore be environmentalists as well as agents of universal compassion. It is critical to understand in a developmental sense that some people are profoundly virtuous, but their scope of care and concern is ethno-centric, limited to “Us” and not to the “Other” – hence not virtuous in a mature sense. Such pre-Modern virtue is not adequate for a leader who has a public stewardship. The disaster of Trumpism could have been predicted solely from the fact that Donald Trump is a person who has very few of what could be called virtuous character traits.
Whether a candidate is left or the right leaning we should give priority to electing and supporting leaders for public office who are wise and mature in terms of virtuous character and leadership capacity.
Support leaders with mature leadership capacity. From a developmental perspective, Modern leadership approaches and capacities reflect one stage of human development. Each higher stage of development among other things increases a person’s capacities to handle greater complexity and to deal well with greater diversity. For most public leadership positions, a person with mature Modern leadership qualities and capacities is ideal. However, the twenty first century world is extraordinarily complex and has moved beyond Modern capacities to handle it well, which is reflected in the dysfunctionality of American political and governmental systems. For public positions which have major responsibilities, such as state and federal executive and legislative positions, we should gravitate toward leaders with mature Integral capacities as they become increasingly present and available in the coming years.
Mature Integral capacities and resulting Mature Integral leadership are essentially the qualities of transpartisanship and transpartisan leadership, which reflect that the transpartisan movement developmentally represent the next step in the evolution of American and world civilization.
Transpartisan leaders have the capacity to work with complex systems, and to weave back together in a higher synthesis those things that Pluralists sometimes tend to deconstruct and frequently disparage. Perhaps even more important, the transpartisan leader not only sees the ultimate value of each human being but also connects with everyone where they are culturally and developmentally better than people at any prior stage of development. The transpartisan leader can weave together superior solutions in our highly diverse society that address the concerns of virtually everyone.
Transpartisan leaders can design processes and institutions which generate inclusive, collaborative, and higher quality approaches to policies and solutions. The evidence of their impact is becoming pervasive in the developed world. In every state in the Union there are new and creative, transpartisan informed approaches to democratic cultural, institutional and process transformation, which have been emerging over the past few decades6. The transpartisan seeds are planted, and amazing things will unfold in the coming years which reflect such transpartisan informed influences – if the American Republic does not collapse in the meantime.
Transpartisan leaders may be right or left leaning in terms of general emphasis, but they are deeply perceptive regarding the importance of all well held points of view across the political spectrum. They can see that some circumstances call for instance for greater conservative discipline and responsibility, and others call for more fully embracing liberal justice and compassion for the marginalized, or textured combinations of all sorts of variations of these orientations.
Transpartisan leaders who are using their skills in the political arena are still rare but are increasingly emerging in all dimensions of public service. One national liberal leader who manifests such capacities is US Transportation Secretary Peter Buttagieg. For instance, he has frequently appeared on Fox News with a disarming ability to communicate effectively and empathetically with conservatives. A new republican governor who shows similar qualities is Spencer Cox in Utah. He made national and international news during the 2020 campaign when he and his democratic rival for the governorship of Utah, did a joint announcement about the importance of being civil and mutually respectful when vigorously debating their policy differences. When Cox was Utah Lieutenant Governor, he and similarly transpartisan informed Democratic Mayor and later Utah Congressman, Ben McAdams, would engage and together model how to be inclusive, collaborative, synergistic and effective in getting things done for the public good and had fun doing it. Each of these Transpartisan Leaders is younger than 50, which is symptomatic of more people with these mature capacities arising in each new generation.
Sixth, let us begin with ourselves
To move forward in a healthy and productive way, each of us should begin by looking at ourselves and working to further develop the characteristics of mature, responsible citizenship, including a commitment to our own highest values and the nation’s universal principles and highest ideals. We should make this same commitment in all groups and communities of which we are a part. This includes each of us opposing all Anti-Republic Pathologies in civic and public arenas. We should all take advantage of the many programs and initiatives that are available to help us learn how to reach out to connect more meaningfully with those who are different than ourselves and in the process bridge and heal divides7. Many of us could learn and grow into integral or transpartisan capacities and leadership8, and all of us should support mature and virtuous leaders.
In Conclusion
George Floyd
It may seem to many that America is on the cusp of moving beyond its prime as a Nation and losing any semblance of American exceptionalism. However, America may be just broken open enough from the political and health crises of the past few years to allow new possibilities to emerge that might have otherwise been repressed. For instance, the murder of George Floyd in 2020 triggered a response among millions of people, particularly in the younger generations, that had not happened before on this scale, calling for greater commitment to overcoming systemic racism in America.
It may take a decade or more to sort out what might unfold from this moment of extraordinary national regression. Much long term damage has already been done. Trump and his ilk are moving ahead through utilizing all the dangerous Anti-Republic Pathologies with millions of Americans pledging their allegiance.
Paying attention to developmental considerations including the types of proposals set forth in this article will be critical to overcoming The Great American Regression and to achieving a next stage emergence of American transpartisan exceptionalism.
3In ego development theory there are two sub-stages in an integral “fourth person perspective” – 4.0 and 4.5 – and many fewer people who have achieved the latter sub-stage than the former. For instance, see the work of leading adult development researchers and scholars, Susanne Cooke Greuter, PhD through the Vertical Development Academy, www.verticledevelopment.com and Terri O’Fallon PhD through Stages International, www.stagesinternational.com. The qualities of the mature integral stage are consistent with transpartisan orientations, attitudes and capacities as further described in this article.
4Dictionary.com
5The importance of this perspective is reflected through the work of The Society for Ethics Across the Curriculum, www.seac-online.org
7There are a multitude of effective organizations that support people in learning how to communicate civilly and effectively across their differences, such as Living Room Conversations, www.livingroomconversations.org and networks of bridging organizations such as the Bridge Alliance, www.bridgealliance.us.
8The YOUnify initiative, which the author co-founded and chairs, includes both working on reducing polarization of all kinds as well as accelerating progress on solution to the key challenges to our time utilizing transpartisan informed strategies and leadership training, www.YOUnify.org. One of many “solutions labs” which YOUnify sponsors is dedicated to networking among and highlighting the work of individuals and organizations which are pursuing integral/transpartisan approaches to leadership, politics, and societal flourishing. Other organizations work with cohorts of people in supporting them in growing into integral/ transpartisan and beyond personal and leadership capacities such as, Pacific Integral, www.pacificintegral.com and Lower Lights School of Wisdom, www.lowerlightswisdom.org or support more generally the science based evolution of consciousness and society such as Integral Life, https://integrallife.com and the Institute for Cultural Evolution, www.culturalevolution.org.
ABOUT THE AUTHOR
John Kesler is a practicing attorney who received his law degree from Columbia University Law School. He is trained and certified in the Stages Model of human development, which builds on the theory of ego development first developed by Jane Loevinger. He is certified to evaluate the developmental center of gravity of adults and mentor them with regard to higher stages of adult development.
John has worked in the area of applying developmental consideration to societal issues for over 20 years and stresses the importance of integral and transpartisan approaches. He was a founding member of the politics section of the Integral Institute. John co-founded and currently chairs the YOUnify initiative, grounded in transpartisan perspective, which works on overcoming polarization of all sorts and making progress on the pressing issues of our time www.younify.org.
John also developed and teaches a meditation and life practice called integral polarity practice. IPP supports people in becoming more centered, fully integrated and prepared to continue to grow developmentally throughout their adult life and in applying their capacities and gifts in service of the greater good www.theippinstitute.com.
As a friend of the site and contributor, John has shared other pieces with us. The latest, Transpartisan Maturity In Utah, was a feature article in The Transpartisan Review, Issue #3.
In his April 22nd N.Y. Times op-ed, forebodingly titled The G.O.P. Is Getting Even Worse, self-described “conservative columnist” David Brooks says “those of us who had hoped America would calm down when we no longer had Donald Trump spewing poison from the Oval Office have been sadly disabused”.
The far too common vicious verbal attacks and radicalized rhetoric from the Trumpian right, Brooks explains, disguises an apparent issue at the core of the matter:
“It’s as if the Trump base felt some security when their man was at the top, and that’s now gone. Maybe Trump was the restraining force.”
In his article, Brooks shares numbers to back this idea up. His first example, provided to the NYTimes, comes from pollster Kristen Soltis Anderson:
“When asked in late January if politics is more about ‘enacting good public policy’ or ‘ensuring the survival of the country as we know it,’ 51 percent of Trump Republicans said survival; only 19 percent said policy.”
He also shares the even more telling results of an Economist-YouGov poll which “asked Americans which statement is closest to their view”:
“‘It’s a big, beautiful world, mostly full of good people, and we must find a way to embrace each other and not allow ourselves to become isolated’ or ‘Our lives are threatened by terrorists, criminals and illegal immigrants, and our priority should be to protect ourselves.’ Over 75 percent of Biden voters chose ‘a big, beautiful world.’ Two-thirds of Trump voters chose ‘our lives are threatened.’”
Adding “this level of catastrophism, nearly despair, has fed into an amped-up warrior mentality”. This is no silent, aggression-fueled anxiety exposed by pollsters:
“‘The decent know that they must become ruthless. They must become the stuff of nightmares,’ Jack Kerwick writes in the Trumpian magazine American Greatness. ‘The good man must spare not a moment to train, in both body and mind, to become the monster that he may need to become in order to slay the monsters that prey upon the vulnerable.’”
Unfortunately, this type of assessment from the radicalized right is far too common and predicates the ill-informed and emotional reactions they have to the societal and political change required for lasting solutions.
We at The Transpartisan Review believe that our Transpartisan Matrix can help sort out this overheated, media-emboldened, rhetorical combat displayed by the far right.
David Brooks is not so optimistic:
This is no longer just about Trump the man, it’s about how you are going to look at reality — as the muddle its always been, or as an apocalyptic hellscape. It’s about how you pursue change — through the conversation and compromise of politics, or through intimidations of macho display.
I can tell a story in which the Trumpians self-marginalize or exhaust themselves. Permanent catastrophism is hard. But apocalyptic pessimism has a tendency to deteriorate into nihilism, and people eventually turn to the strong man to salve the darkness and chaos inside themselves.
We operate on the belief that a system which incorporates more than the hyper-partisan left/right continuum, embracing instead a left/right, order/freedom, four quadrant Transpartisan Matrix, might help focus our energy on positive outcomes. Viewing events through the lens of this Matrix, we believe, offers an opportunity for the simmering anger taking place in widely divergent sectors of society to be harnessed to the possibility of discovering workable solutions to our societal and political issues. We see this Matrix as a more friendly, useable, and broader framework than relying solely on the left/right continuum to understand the natural, social-economic, and cultural forces shaping our daily political life and the unfolding national and global future.
Do you see our Matrix in Brooks’ conservative examination of the societal and political insecurity and apprehension demonstrated by conservative Trumpian Republicans?
Anthony P. Picadio, picadio@icloud.com, is a graduate of the University of Pittsburgh School of Law and an Allegheny County Member of the Pennsylvania Bar. He is a former Assistant Attorney General of Pennsylvania. He is a founder of the Pittsburgh firm Picadio Sneath Miller and Norton which, effective January 2018, was merged into the Pittsburgh firm Houston Harbaugh.
Anthony P. Picadio, picadio@icloud.com, is a graduate of the University of Pittsburgh School of Law and an Allegheny County Member of the Pennsylvania Bar. He is a former Assistant Attorney General of Pennsylvania. He is a founder of the Pittsburgh firm Picadio Sneath Miller and Norton which, effective January 2018, was merged into the Pittsburgh firm Houston Harbaugh.
,_seen_holding_a_Qanon_sign.jpg){kind=link}
