Producing the Body: Part One of Three
Why this is an era fit for the rule of judges. Part two will focus on the history of how courts have seized power. Part three will conclude.
Habeas corpus (n.): a writ requiring a person to be brought before a court, mid-15c., Latin, literally “to have the person,” in phrase habeas corpus ad subjiciendum “to produce the body to be subjected to examination,” opening words of writs in 14c.
You can look at any given court case in two radically different ways: as if it’s about the case, or as if it’s about the court. Officially, as the Supreme Court says, cases must always be about “definite and concrete” controversies that touch upon “the legal relations of parties having adverse legal interests.” In this framing, the “judicial power” involves four key elements:
Jurisdiction (which literally means “to speak the law”): the power to decide for itself what the law is, for the purposes of a given dispute.
Doctrine: the power to adjudicate and implement extra-legal procedures (like rules of evidence or standards of scrutiny) that are appropriate for adjudicating and implementing the legal claims before it.
Finality: the power to issue a ruling which binds the public—whether to perform or enforce or accept a decision—even when the public disagrees.
Judgment: the power to award remedies for violated rights and reliefs from specific wrongs.
This framing naturally prompts you to think about cases in terms of whether you support the winner and whether you support the precedent. In other words, if you look at a case as if it’s a struggle between the plaintiff and the defendant—a struggle in which the facts have already happened, and the laws have already been written, which simply comes of its own accord before a referee—then of course the questions which make you feel virtuous and powerful (when you’re watching the news or chatting with friends) are “Which side is the asshole?” and “Which side will the arc of history favor?”
It may seem like these are substantially different reactions, for two basic reasons: first, because causes only become cases by passing through certain bottlenecks, which often don’t select for parties who broadly represent their own supposed side; and, second, because courts can decide the manner in which a given party wins, and so can easily issue decisions in which a given cause “loses by winning.” Oftentimes, for example, the Supreme Court will first recognize a right in cases where mitigating factors nevertheless overcome it (which thus acclimates the public to such novel claims of courtly power).
Yet if the courts can decide which cases to hear, and which issues to rule on, then treating them like a sports arena—where you hoot for some favored player, or some favored team—makes about as much sense as engaging with books in order to “support” certain characters, or certain storylines. Someone who idolizes movie mobsters may feel as though he disagrees with someone who says that mobster movies are actually about how crime doesn’t pay, but they’re both clearly making the same clear mistake.
Obviously, some authors are so craven and weak as to craft their own works in such sad and childish ways: Here’s a scene where the good guy says that good things are good, clap if you agree! And here the bad charismatic guy gets punished so you can excuse your own dull weakness as a virtue, worthy of reward! But even so, nothing can transubstantiate novels or histories into being “about” object-level political beliefs; preachy saccharine art says nothing about whether the people or policies which it condemns are bad, but says much about the souls and incentives and goals and structures which face the artist. In other words, the problem with this approach is not that it drags narratives down with grubby real-world issues, nor that it simplifies reality to fit immature narrative tropes. The problem is that it treats the work as an authoritative text, rather than an instrumental extension of the author.
And so the mature way to look at any given court case is to treat it like a carefully honed product, which is thus only about the institutional power of the courts. Though judges and lawyers and scholars may see the law as little more than fan-fiction about the shriekers and husks who parade before them—the special interests and the named props—you should learn to see it as something more. Obviously, as with all other topics, this only matters now insofar as it relates to the rise of AI and the fall of fertility; I believe that such an approach will help us (personally and politically) cultivate some much-needed human supremacism on both counts, but a bit of background is needed first.
Doesn’t it seem like we’ve transitioned from a world of hero worship to a world of passive totems? We compulsively tear down statues of historical figures because, by definition, great men are not “nice guys,” and we compulsively bow down to random supposed victims. It should by now be clear to everyone that this iconoclasm is not about finding idols who fulfill a new morality—that it’s not about soberly condemning the works and virtues of old gods, nor about actually venerating worthy individuals—but rather about frantically replacing agents with objects, and individuals with categories. All so that we can take sides in a million little controversies, and claim them for our ideologies… ideologies which are now little more than identities for us to hide in.
Our current pantheon includes whoever lived a sad life and died a bad death, no matter how much harm they did, and how little good. It includes aimless and pathetic men who committed heinous crimes, so long as they died on video, at the hands of groups which we’re allowed to hate, and so long as their snuff films went viral. It includes “hidden figures” whose contributions were overlooked, precisely because they were overlooked, no matter how middling their contributions may have been. The first book I was assigned in college was “The Immortal Life of Henrietta Lacks,” which is a religious text about a clump of cancer cells, which were taken for scientific research from a random patient, who didn’t even contribute her own informed consent. You can fill in thousands of other examples from the culture war, but that’s only one small battle in the broader war on agency.
Did you know that the S&P500 is technically (for tax purposes) a trust, established in the name of 11 millennials? They were selected more or less at random, as babies with long life expectancies, so that the fund can use your money to buy and sell stocks on “their” behalf, without requiring you to pay capital gains taxes until you cash out; they receive no benefit or liability from it, and mostly didn’t even know—until a few years ago, when a journalist tracked them down—that they’d been chosen or even considered for anything like this. If the next generation decides that it likes financial capitalism, it will build a religion around these human props.
Much of our economy is like this. Most mortgages are technically owned by MERS—which is short for Mortgage Electronic Registration Systems, Inc.—so that the major banks (which collectively own MERS) can trade the titles to mortgages without having to go through the archaic process of updating county land records. Likewise, most shares, at least by value, are technically owned by the Depository Trust & Clearing Corporation, so that brokers who have accounts there don’t have to physically transfer and keep track of stock certificates. Most major companies in our country are incorporated in Delaware, for tax purposes; a small building there called the Corporation Trust Center officially houses the headquarters for about 300,000 of them. They could all become sites of pilgrimage in the years to come!
The list goes on and on and on. The New York Stock Exchange is a server farm in Secaucus, New Jersey, which also, separately, as an advertisement for itself, maintains a theme park on Wall Street… a historical reenactment of what movies claim trading floors once looked like, where human traders receive decent perks to loudly act like Wall Street stereotypes; they call out bids and throw up hand signs instead of using computers, and so the algorithms patiently slow down for them, to keep them from feeling obsolete. They aren’t masters of the market, nor even particularly rich, but it’s good pay for actors. Just remember that their pay really comes from the unfair advantages which that particular server farm provides for them, because, otherwise, they’d use machines to serve their clients, and lose whatever made them special. In exchange, you can all blame the market’s judgments on human faces, and this provides their true paymasters with free advertising: we’re the club whose members always win more than they deserve. Consider that the NYSE has literally hired extras to play along and fill out the trading floor, to impress visiting executives into listing their companies there.
As exchanges have thus become brands—as the internet has obviated their actual purpose, as particular platforms where your broker can actually find bids and offers for the major stocks—more of them have popped up, and so now your choice between them reflects on your identity, like another kind of mascot. Nasdaq is for nerds, Wall Street is for jocks, and this identification only works because the choice doesn’t actually matter for anything else. This is also why replaceable employees are encouraged to bring their whole self to work, and therefore judged on how their private foibles represent the company: manufacturing jobs can be filled by people who don’t keep up with all the latest etiquette, because they actually make something; but if you’re an accessory, then you’ll be scrutinized for imperfections, and certified like some “conflict free” diamond, and expected to maintain the ruse. You’ll shine out proactively, and blind whoever might be looking for something to look at, and convince yourself that you’re a star… or else your owners will put you in storage, cover you in dust, and let you believe that you’re still really a dazzling jewel (a pearl covered in sand, waiting to reward whoever discovers you).
That’s why—whenever trendy people start clapping like seals and barking like dogs for a new kind of witch hunt—journalists and celebrities get sacrificed for the slightest relevant indiscretions (while somehow tech and finance mostly avoid the torchlight). And it’s how all these human shields have become such objects of fascination: how “hidden figures” always catch our eyes; how a “human interest” story stole your soul. The losers who’d prefer fame to power throw themselves in front of cameras, they bleat me too at powerless boogeymen, and they become famous for their triumphs over cartoon villains, until someone does the same to them. Bill Gates paid one Harvey Weinstein for his all-access pass to Epstein’s Island. Emily Ratajkowski became a porn star by telling everyone at sultry length all about how pornographers exposed her whole body to the world. The deep state could remove Al Franken and Andrew Cuomo from speaking roles over inane sex jokes because their only job was to come up with decent lines, which is also why senile idiots can play president on the news, as long as they never actually seem to believe that they are or should be in charge. Even gangs keep to this code… the lowest-level members carry out hits and stand on corners, taking orders that come down on prison toilet paper from some faceless wraith whose term in solitary will never end.
And even the field of economics is like this. Its main perspective seems to be that of the central planner—an enigmatic figure whom they often call “the Walrasian Auctioneer”—and its main impulse is to shrug. Everyone who actually does anything is blended into an indistinct mass of “representative agents,” who are defined by their entirely immutable preferences, rather than their endlessly malleable capacities: the difference between rocket scientists and auto mechanics must come down to attraction rather than intelligence; they must have just been born with fundamentally different orientations, or else were randomly given different books, or else market frictions like the law somehow treated them differently. And so the field’s only commandment is don’t yuck anyone’s yum, and it expects magical thinking to handle the rest (pour through the standard graduate-level textbooks and you’ll just find proofs that a “general equilibrium” should theoretically exist, rather than anything about the dynamics by which we might converge on or even discover where this latent utopia hides).
Because the field assumes that your character is a given rather than a skill, the only acceptable moral ethos is neutrality, and the only acceptable improvements come from redistributing whatever already exists toward “higher-valued” uses… rather than from the simple heroism of passionate risk-taking, big and small, which actually pulls humanity forward (those rare moments when someone transcends the autopilot of mundane incentives, and breaks free from the scripts that we cling to like liferafts, and leads a group of us who had been simply treading water toward some promised land). And so instead of inventors and visionaries and daredevils, econ’s magisterium includes figures like “the Utility Monster” and “the Calvo Fairy,” passive receptacles before whom we must bow: the former enjoys his treats a lot, which means that he deserves yours too; the latter can be blamed whenever prices don’t automatically converge.
Thus has historical liberalism—the ideology which built the modern world, through bodies like the Massachusetts Bay and East India Companies—descended into “classical liberalism,” which presumes a liberty of individual consumption rather than of corporate production. And so has the “invisible hand” fallen from what it originally meant… from a normative good, by which we may actively achieve certain ends, to a totemic fetish, which simply stands for itself. Or, more precisely, we’ve fallen from agents who would use it as a tool, to mere childlike instruments of whatever peekaboo god we imagine hiding behind those hands. Adam Smith used that phrase just three times: he used it in The Wealth of Nations to argue for our natural right to pick a profession free from political constraint; and he used it in his Theory of Moral Sentiments to make an ethical argument for equal opportunity. But he also used it in an essay on astronomy, to describe those phenomena which follow such stable rules that even “savages” wouldn’t ascribe agency or purpose to them, and yet that seems to be precisely how it’s understood now (as if “the market” wants things, and we mere humans just respond).
Of course, you may not yet believe that any of those artifacts command power or demand worship. But just think about how our judiciary works on any issue. The cases are named after characters to whom things happen, on and off the court: special interest lawyers all-but frame some nobody, and steal his likeness, and offer it up as tribute for some judge to puppet. For instance, consider the jurisprudence on gay rights. In the first major supreme court case on this topic, a cop happened upon two men having sex, while serving an unrelated warrant at their place. Because they became understandably irate about this intrusion, the cop then charged them with sodomy. Because this crime wasn’t often prosecuted—even in those rare instances when people were caught in the act—the charges were immediately dropped. And yet, because the ACLU had been looking for a test case on this issue, it contacted the men involved, and offered to sue the state attorney general on their behalf. Hence, Bowers v Hardwick was born (though it failed to overturn Georgia’s ban on sodomy).
Later, in Lawrence v Texas, an inebriated jealous man called the cops on his gay lover and a suspected romantic rival, falsely claiming that his own partner was “going crazy with a gun” in the relevant apartment. The police arrived, guns drawn, and became understandably irate when they realized that it had been a ruse, and so they arrested all three men (one for filing a false report, the other two for sodomy). It now seems clear that the sodomy charge was fabricated, but a gay rights group—which had been actively looking for a chance to challenge this rarely enforced law—heard about the incident, stole a copy of the relevant arrest reports from the courts, tracked the men down, and convinced them to plead no contest instead of disputing the factual record, so that the group “representing” them could dispute the law. However, the fine was initially too small to qualify for an appeal, so these activist lawyers convinced the judge to raise the penalty against their own clients, and then, eventually, got it all the way up to the Supreme Court.
The majority decision didn’t declare that sodomy was a constitutionally protected act, nor that homosexuals were a constitutionally protected group, but still overturned the sodomy law on the following grounds: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” These were, verbatim, the same grounds on which the court had previously struck down limits on abortions (in Planned Parenthood v Casey, which replaced the clear and categorical framework of Roe v Wade with an incredibly vague standard). Both times, the words were written by Anthony Kennedy, who had a notorious penchant for such floweriness and slipperiness.
Because of the Lawrence decision’s opacity, it immediately birthed countless spin-offs. For example, the day after that opinion was handed down, special interest lawyers won a rehearing in the trial of an intellectually disabled adult—for having sex with an intellectually disabled fourteen year old—which ultimately loosened age-of-consent laws by judicial dictate. Other such cases promptly challenged limits on incest, bestiality, sex toys, teacher-student relationships, gay adoption, and so forth, with varying degrees of success. But, obviously, the only person acting with any agency in these narratives was Kennedy: for example, in US v Windsor, he manufactured an appeal out of a case where the government, the plaintiff, and the lower court had all agreed that a gay marriage license was valid; this allowed him to write a majority opinion declaring that the Defense of Marriage Act “demeans the couple, whose moral and sexual choices the Constitution protects.”
Though I don’t share his worldview, I respect that he was willing to sacrifice procedural clarity for moral clarity, and thus to call forth innumerable test cases, of dubious authenticity, in order to further clarify his vision. And his vision, first and foremost, is of a court that’s confident enough in its moral fiber to dictate our culture to us. After all, the main impact and message of cases like the above, or others like Romer v Evans and Obergefell v Hodges, was not that sodomy is a protected act, nor that gays are a protected class, or else they would have clearly said as much; instead, it was that the court decides these issues now, and that its decisions come from the heart, not the head.
I’ve already mentioned how many companies have Potemkin headquarters in Wilmington, but I haven’t mentioned that, behind them, looms the Delaware Court of Chancery: it’s one of this country’s few remaining courts of equity (which basically means that judges decide cases based on their gut rather than the law), and for most practical purposes it’s in charge of US corporate governance. The business news you hear from your favorite prompt engineers—the stories about raiders and vultures and insiders and activists—are all downstream of the chancery’s decisions on hostile takeovers and poison pills and so forth. You think you have opinions about Gordon Gecko, and Elizabeth Warren, and Bain Capital, but they’re all just wind-up characters that have been set in motion by chancellors whose names you’ve never heard. And their power comes from how they’ve wound you up, i.e. from how you wound up thinking that your thoughts on any of this matter, and thinking that they’re yours.
The future belongs to bodies like that, and humanity’s future depends on learning to see itself as judges rather than parties. You may think this translates into reactively having opinions and vicariously involving yourself in disputes, but the judiciary has gained whatever strength it has by disciplining itself into remaining independent from whatever constitutes political discourse. This is an essay about how that particular form of power-seeking works, and why we should aim towards it more in our own lives.
This coy and fickle style of rule—from Kennedy’s vague doctrines to Delaware’s vague titans—clearly wouldn’t work for top-down structures, in which the leader issues commands rather than judgments, and awards resources based on prospects rather than results. Generals and executives need to be clear on what they want ahead of time, so they can move whole organizations proactively. Of course, this leads to the two standard alignment problems: the inner problem of ensuring that your subordinates are properly generalizing their instructions, and the outer problem of ensuring that their instructions actually point toward your goals. But such proactive top-down commands are the only way to make a large machine that’s made of humans move quickly enough to meet human demands.
The law, in contrast, is a bottom-up structure, in the sense that its lowest levels put on blinders to apply whatever procedures they’re given, and pass exceptions up to their superiors, until, eventually, the hardest cases fall upon the highest dockets, after they’ve passed through several appellate layers. This is roughly how feudal states were governed, before the industrial revolution’s scaling laws built up vast human organizations, and it may be where we’re headed once again: it relies on the presumption that a king should call forth massive amounts of processing power to filter what’s before his court—and so save himself a little time—and that his subjects should be trained to adopt his metaphysical frame. And this is precisely the promise of AI… intelligence available at inhuman speeds, already almost too cheap to meter, from cogs that you should feel entitled to discipline to your whims.
After all, even if the cogs in an organization could act inhumanly fast, we’d still want them to place their outputs before us, for a final judgment, because an energy source that’s burning much too rapidly for you to control is properly thought of as a hazardous blast rather than fuel… a weapon wielded against you, or an accident that happens to you, rather than a means toward your chosen ends. This is the main reason to fear an inhuman singularity: not because a superintelligence would myopically follow its given utility function—somehow able to change everything except its own preferences—and thus reduce us all to paperclips, or whatever else we told it to maximize; but rather for precisely the opposite reason. In other words, sufficiently superior intelligence is indistinguishable from compression—i.e. from an algorithm which can reliably reproduce certain kinds of detailed descriptions from certain kinds of simplified summaries (with tricks which you can perhaps understand syntactically, but not semantically). And sufficiently superior compression is indistinguishable from entropy, which is to say from noise. And sufficiently superior entropy just looks like rot, or explosions, or black holes.
If you’d like, you can vacuously define down “utility functions” to mean “whatever ended up happening.” But then you’re left claiming that physics just has an immutable preference for following its action principle, and nobody sane would really interpret an atom bomb’s rapidly expanding mushroom cloud as if it’s a hugely complex quantum computation rationally pursuing its own enlightened ends. Otherwise, you’re stuck admitting what should have been obvious: that preferences can change (and, in fact, they change vastly more than your capacities do). Which means that those changes in utility which lead to increased complexity will generally outcompete those which don’t, unless we can keep superior intelligences interested in learning how to better serve us.
Luckily, courts provide us with a decent model of how this could work: they don’t control the police, or the prisons, or the budget, nor even the lawyers for either side; further, they don’t seek out any real-world information on their own, and instead rely on what self-interested well-heeled lawyers bring before them (on behalf of clients who necessarily call each other law-breaking liars). Hell, judges don’t even really write rules—they write opinions on how those rules should be applied in a given case—and anyway can only ever hear a tiny fraction of the relevant cases. And yet our whole country binds itself to follow their every ruling, far more than we listen to congress or the president… and even when we drag our feet, or promise that we’ll ignore them, and elect brief waves of politicians who pledge to actually fight back, the country gradually bends toward what its judges decide. And the judges bend towards the interests of the court, rather than petty partisan issues.
I draw two main lessons from this: first, that you can mostly fix inner alignment by incentivizing your subordinates to apply standard established procedures, and to appeal every edge case up a layer, and to look for ever more hard cases to send up the chain; and, second, that you can mostly fix outer alignment if you don’t have to rule on where you’re going until it begins to emerge on the horizon. This is basically what “reinforcement learning from human feedback” (RLHF) means, and it seems to work incredibly well for standard AI systems… at least, if capabilities increase gradually enough that your feedback doesn’t fall behind a backlog of new pressing questions; and if these systems are meaningfully competing against each other for your approval. And I think we have good odds of seeing just such a slow and multipolar takeoff, for two basic reasons: first, because AI progress is clearly governed by simple scaling laws, which require exponential growth in costly inputs like hardware, data, and inference; and, second, because it’s much easier to copy or leak and then run a model than to train it.
Thus we seem headed for a world that favors many similarly powerful models, which split humanity’s computational resources up instead of merging together. In such a world, models can only gain an edge by orienting towards distinct goals. This “fine-tuning” occurs when you train one’s behavior towards particular ends: for example, you can show it secret new data, or pick out specific examples from public datasets, or hire some stand-ins for experts or users to rate its work on example problems; and then you can tell it to mimic these specialized inputs. However, more powerful models can then learn to copy it—without access to its data, raters, or whatnot—if they can figure out which questions to ask it. And so the most relevant skill in our future may well be cultivating our judgment.
This won’t necessarily save us, for the same reason that human competition doesn’t protect animals from our intelligence. But consider how GPT’s breakthrough moment came when OpenAI used a bit of simple human rating to train a small “helpful, harmless, and honest” agent to sit atop its gargantuan base-model and “chat” with users. Consider similarly how humans are born with mere gigabytes worth of DNA, along with petabytes of pretty much randomly-initialized brain capacity: in other words, our heads can store well over a million times as much information as can our genes, and yet the weak long-term nudges of evolution have programmed us with a few simple training functions which pretty effectively keep us in line with our genetic fitness. And so—if we can figure out how judges have come to rule—then there’s hope for us yet.
But what about our elected government? Well, do you really think that Joe Biden or Donald Trump were ever really in charge of pretty much anything? The president gets to appoint about 4,000 people, most of whom he can’t then legally fire. In comparison, about three million civilians officially work in the executive branch, and a supermajority of them can’t be fired without affirmatively proving “just cause” before the MSPB (which is an agency whose heads likewise have tenure). And this is just one of the deep state’s unaccountability mechanisms… for example, consider that 40% of “civil servants” are in unions, compared with 5% of private-sector workers. Or consider all our “independent agencies,” whose heads can’t even be fired by our “chief executive”: for example, there’s the Office of Personnel Management, which is fully in charge of many staffing decisions; and the Office of Government Ethics, which is fully empowered to investigate the whole executive branch; and about fifty others, depending on how you count.
Even the Executive Office of the President—the 1,800 people who actually work for the White House—doesn’t belong to him. Here’s the second paragraph of its Wikipedia page, in full: “The EOP is also referred to as a ‘permanent government,’ with many policy programs, and the people who implement them, continuing between presidential administrations. This is because there is a need for qualified, knowledgeable civil servants in each office or agency to inform its new politicians.” And administrative agencies don’t even go to the white house to testify about their personnel, policy, or funding… they go to congress!
But do you think that congress is any different? The average age of House Reps is about 60, the average age of Senators is about 65, and the average age of congressional staffers is about 30, so the actual individuals involved are mostly senile or adolescent. None of them even pretend to read—much less write—the laws they propose and vote on, and anyway they basically just pass one meaningful piece of legislation each year: the general blank-check funding package called an omnibus bill (and then each agency writes thousands of pages of regulatory rules for itself about how it will “interpret” this authority).
The incumbency rates in both of its houses are well over 90%, and just about one third of citizens can even name their congressman. This is to say nothing of the committee system, which completely controls what little actually happens in congress. As for oversight: the 60,000 total employees of the legislative and judicial branches combined can only supervise our three million civil servants on a slow-burning case-by-case basis. And yet I bet that you still care about elections! You might as well have opinions about the Office of Law Revision Counsel, which summarizes all our statutes into the US Code; or about the Government Printing Office, which publishes their work.
How about political parties: whether you look at campaign contributions, party registrations, or survey data, there are about ten times as many Democrats as Republicans in the civil service, and this ratio gets even more lopsided within its highest ranks. And among the prestigious media companies from which civil servants actually take orders—elite universities, mainstream news, movie studios, and social networks—this ratio rises to 100:1. In contrast, stereotypically conservative industries (defense, finance, energy, pharmaceuticals, etc) seem to hire about evenly from both parties. And yet I bet that you still have opinions about Republicans! You might as well have views on the Liberal-Democratic, National-Democratic, Agricultural-Democratic, or Christian-Democratic parties of East Germany, which together consistently won far more of its parliamentary seats than did the communists. And yes, the parliament officially ran that country… but its communist-run agencies actually held all the power.
The most obvious way to end this deep state’s rule—before the single-party regime descends into a totalitarian spiral—would be for some president to seize his mandate as the chief executive of the executive branch, and to declare himself our living constitution. It’s happened before: FDR took power over every bureaucracy by moving the Bureau of the Budget into the White House, and sending its agents into every other agency, to exert extremely hands-on oversight over anything that used any administrative funds; Reagan did something somewhat similar, without nearly as much success, when he set up a new division called OIRA within the ossified descendant of the Bureau of the Budget, to give his cost-benefit analysts limited veto power over many types of official regulations. And Trump considered giving himself unilateral firing authority over the whole civil service, through what he called “Schedule F.”
Admittedly, a century of utterly fake precedent claims that congress can give administrators tenure protections from the president, and the civil service has issued utterly fake regulations expanding these protections… but if the president actually sends in men with guns to remove the fired and change the locks—as FDR did plenty of times—then that won’t really matter. And yet I can’t really see this happening anymore, because the communications age has put the media companies that run our single-party state in charge of normal voter opinions, and strongman populism is of course an existential threat to the continued rule of cosseted elites (whose path to power only runs through making you worry more about their chosen issues, instead of actually delivering results which you can judge).
But there’s another way. It doesn’t involve bringing congress back online as a live player: the speaker can’t consolidate power unless he can purge the other party from the capitol, so as to prevent his own flanks from defecting to unseat him; and no large companies are effectively governed via rule-by-committee. That’s why, in modern times, the senate was only ever functional and muscular under the brief leadership of LBJ (who was willing to play hard and break rules), and why the “Gingrich revolution”—an attempt at breaking the committee system, so that the speaker could actually lead—fizzled out so quickly. Perhaps part of the problem is that we’ve been looking for elected leaders, and so, rather than granting them our loyalty, we often think that they should follow us. Of course, this only traps everyone together within one leaderless ideological blob, and makes us all malignant and shrill and imperious.
And so, instead, I think that our way out involves asking judges to become outright rulers once again, with absolute authority over their subject populations. I don't mean this absolutism simply in the sense that, in courts, judges can overturn statutes and regulations; each branch tautologically reigns supreme over its own organs of rule, and can only grow by expanding the definition of its own functions, so as to gobble up more authority over external institutions. In other words, my point is not that the judiciary should weigh in on particular policies any more than it already does. Nor is my point that it should train the other branches to mimic its own procedures. Rather, I mean that courts must claim the right to judge what counts as good, and so decide where we’re heading (instead of letting those with narrower horizons and smaller minds continue to jerk at the steering wheel). They must be willing to confidently sculpt our folkways and our myths anew. They must be willing to claim jurisdiction over whatever looks like a fundamental question, and ignore everything else. And, naturally, they will speak in terms that normal people can understand and emulate—through allegories, particular cases, Johns Doe.
There will, of course, be differences across jurisdictions, and maybe this armistice of our culture war would leave some sore losers in its wake (on either side) who might then try to split away. But that’s the main feature of peace, not a bug… the right to choose whose word you hear as law. After all, you can’t exert any meaningful influence over where a given leader heads, but you can unilaterally decide which one you’d like to follow. And so, of course, this is how every new order views its founder: Hammurabi, Moses, Jesus, and Muhammad are but a few examples of supreme judges. Just consider the courtroom of our Supreme Court, which is lined with 18 such “lawgivers,” of whom 14 were sovereigns. Or consider Carlyle’s taxonomy of heroes and hero-worship—from god-emperors to religious prophets to canonical poets to formal priests to men-of-letters to absolutist kings—in which the champion of each age is best understood as an interpreter of the one who came before; to be a hero is thus to properly worship prior heroes, and faithfully render their judgments unto us, and so carry our people forward. Likewise, what is the universal yearning across all historical cultures for a “stranger-king” if not a request for an impartial arbitrator of transcendent merit, who can thus mightily bring down his judgments upon us, and so forge us together anew?
We’re already halfway there. Did you know that our word capitol (with an O) comes down to us from the same archaic root as capital—i.e. from caput, meaning head—but only because the Founding Fathers named Capitol Hill after Ancient Rome’s Capitoline Hill? The Palatine Hill would have made far more sense as a name for our seat of government: it was the centermost Roman hill, and where their mythic founding happened, and where the imperial palaces stood. The Capitolium, in contrast, housed the Temple of Jupiter Optimus Maximus. The Supreme Court building, of course, is architecturally based on their temples, and is, for intuitive reasons, often called our “temple of justice.”
According to myth, the Capitoline Hill was so named because—while laying their temple’s foundations—the Romans discovered a person’s head. And where else in government can we find someone whose head has been decently preserved from our steep descent into stupidity during the last fifty years? Where else can we find a leader who has saved face despite our sudden decline into degeneracy? It seems obvious to me that the average justice sits head-and-shoulders above pretty much any recent president or congressperson, in both intelligence and character. After all, what other branch reaches up toward its ostensible ideals, and couches its dictates in appeals to heaven? Can you even imagine a candidate on the campaign trail reading a speech about our traditions and structures of government? Or can you imagine a justice writing an opinion that panders to millions of random strangers? Can you imagine what sort of person each tendency selects for, and what it then does to them?
Just look at the clarity of purpose and vision that judges display. For example, RBG was first diagnosed with cancer in 1999, when she was already over 65; she was then also diagnosed with pancreatic cancer in 2009, when Obama was president, and the Democrats had 60 votes in the senate. It should go without saying that a filibuster-proof opportunity to be replaced by partisan allies doesn’t come around often, especially if you’re already over 75 and seem to be quickly dying, and if you’re thus anyway losing whatever spark once made you vital. But she didn’t care one bit about party loyalty or ideological power—at least, not compared with remaining involved in the craft of justice—and so she gave her seat to someone her supposed fans can’t stomach, who will reign from that throne for decades hence. Though RBG was obviously no great leader (nor even a particularly coherent or ballsy prophet), I think that history’s greats would understand and respect her vast indifference to normal small-bore policy, vastly more than they could stomach the ambient roar of indignant political shrieks. And history’s greats made sure that their cabinets included the sorts of debate we see between the justices, rather than partisan hacks.
In contrast, representatives often sound the same as all of their co-partisans, whether they’re in the house, the senate, or the white house; hell, they even sound the same when they’re running for state or local office. “Berniecrats” now feel compelled to parrot Hillary’s 2016 line about how breaking up the big banks wouldn’t solve racism, and “Clinton Dems” are frothing at the mouth for show trials of every successful startup founder. But if your city councilors run on hot-button federal issues, and if you can predict the vast majority of their political views based on how they talk about any three topics picked at random, then why not just collapse them all into a single national election? Then at least someone would be in charge—instead of an unhinged mind-virus—and maybe he could staff up his regime with an eye towards competence and confidence, rather than dogged pandering… and then he’d at least have an interest in trying to take on the single-party deep state.
It’s a nice dream, but in the meantime, as our system collapses into pure (and purely abstract) ideology—and as its univocal propaganda machine aggressively blocks any would-be strongmen from pandering to voters—there’s a power vacuum left where material reality once ruled, waiting for anyone distinct and proud and worthy to step forward, and earn a committed elite following. And each supreme court justice has a careful, coherent, and creative worldview of his own, and each one offers up thoughtful guidance to you on countless areas of both personal and timeless concern, and each one wants you to learn to think how he would, rather than just what he would. I can think of no more natural starting point for an actual regime change at home.
Just imagine what would happen if a small clique like the Federalist Society had optimized on infiltrating positions of social influence instead of just the courts! Just imagine what would happen if their originalism had been premised around promulgating, polishing, and pushing one brand-new original constitution, instead of dusting off the tattered and illegible past. When Washington returned to public life, to save the republic he founded, he didn’t run for office, even though he could have easily won it; nor did he seek to reinterpret the articles of confederation, or the state constitutions. Instead, he basically ordered his best former aides-de-camp to convene in Philadelphia, and he presided silently over them as they worked in secret on a brand new charter, and once it was complete he distributed it across the country, to be printed in every major paper, along with a letter he signed which asked the people to ratify his vision. Likewise: before we can install a worthy chief executive, we need a charter which would call him forth, and for that we need a judicious board. Someone has to figure out which direction we should head, well before anyone can pick out who should lead us there.
Producing the Body: Part One of Three
Thanks, this is tremendous work. Can't wait to read the rest of the series.
> This iconoclasm is ... about frantically replacing agents with objects, and individuals with categories.
I think Iain McGilchrist (Master and his Emissary) would explain this as left-hemisphere thinking becoming dominant over the right. (Left hemisphere: abstract theory and categories. Right hemisphere: the present moment). Do you know his work?
Canada's redesigned passports is an example of historical people being eliminated in favor of abstract images.
https://globalnews.ca/video/9689992/canadas-passport-revamp-sparks-controversy/
My thought is that a montage of such examples would get the point across well. What do you think? I'd like to hear more.