Carl Eric Scott urges those of us on the pro-Trump right to “grapple with real anti-Trump arguments,” and he points specifically to this, by Peter Spiliakos. Not one to duck a challenge, herewith my grapple.

Spiliakos, a columnist at National Review and First Things, begins with the common charge that Trump’s comments on libel law indicate a wish to abuse power. I admit that Trump’s comments had once also troubled me, and I have said so. But then I was pointed to scholarly work on the Founders’ understanding of the just principles of libel law and am no longer so sure. This isn’t the place to work the issue out. Suffice to say for now, I’ve moved from #NeverTrump on the libel question to “maybe.” At a minimum, the anti-Trump case on libel is “not proved,” while the charge that his position is a window into his dark soul seems overblown.

Spiliakos then makes great hay (not for the first time) of Trump’s claim that as president he would implement stop-and-frisk policies known to reduce crime. Spiliakos does not seem to object to the policy itself. I assume that, like me, he would prefer a president who vocally supports effective policing that saves the lives of people of all races, to an incumbent and a Democratic nominee who routinely slander the police and the justice system in ways that excuse and encourage violence.

But Spiliakos is less upset by Obama’s and Hillary’s reckless rhetoric than he is by Trump’s misstatement of presidential powers. According to Spiliakos, this shows Trump’s ignorance of the machinery of government and is more evidence of a wish to abuse power. Now, I’m sure the former is at least somewhat true: Trump’s technical understanding of the machinery of government is inferior to that of most (if not all) of his 2016 opponents.

Trump, however, seems to understand the bigger picture better than any of those opponents—and a fortiori better than Spiliakos. In another piece, Spiliakos disputes my claim that this election is about a reassertion of the rule of the people or continued rule of the few. It’s worth noting the imprecision of his language because it points to a deeper source of his confusion. He quotes me out-of-context as saying that the election is about the “many” or the few. Actually, I used that dichotomy not to describe America in 2016 but to characterize an argument of ancient political philosophy, according to which the core elements of politics are the many, the few, and sometimes a one. Most of the time, only one of these rules, without (much) input from the others. But all such unmixed rule is inferior to a mixture of participation by all which utilizes the strengths, and mitigates the flaws, of each.

“The Many” and “the People”

The American regime—which is larger than the Constitution—as originally designed and implemented attempts to build on this insight. The social compact encompasses the whole people—many, few and even sometimes a preeminent one (Washington)—and binds them not to simple rule of the many but to a government that responds to majority will while respecting minority rights. The Constitution is the formal apparatus that implements the social compact but is not itself that compact, much less the regime, and even less the nation.

Elementary civics, you might say, but Spiliakos apparently needs a refresher. He writes: “In 2012, Obama was elected with 51 percent of the popular vote. Trump, even if he wins, is likely to get a smaller share of the vote. Would Trump’s 49 percent represent the many, where Obama’s 51 percent represented the few?”

Spiliakos surely does not mean to echo Obama’s vulgar majoritarianism: “I won.” He means instead that I have framed the election’s stakes incorrectly. But that points back to his original mischaracterization: My change from “many” (Aristotle) to “people” (America) was intended to make a point. “The people” are not coterminous with “the many.” I am as opposed as any good Aristotelian to the unmixed rule of the demos. I am also opposed, like any good Lockean-Madisonian, to the co-option of the machinery of government by the few.

This is (part of) what I meant about the stakes, and all of what I meant by “the few.” America is now and for some time has been functionally, if not formally, an oligarchy. It doesn’t matter which party wins the White House by 51 percent. The government always does the same things.

That’s because majority opinion doesn’t matter. (Certain minority rights still do, but only certain ones—another discussion for another time.) Sometimes elected representatives (of both parties) themselves thwart the will of the people. Sometimes they prefer to let the courts and bureaucracy take the heat. Either way, on the really big questions—immigration, trade, war, and others—the ruling class gets what it wants.

Constitutionalism vs. Conservative Fecklessness

The problem is (at least) twofold: the majority are not allowed to exercise their just guidance of the nation’s direction (which is just when their will does not contravene minority rights). And the whole people are not allowed to decide political questions politically; those questions are decided administratively.

Spiliakos finds particularly outrageous my assertion that Trump mounted the “first serious national-political defense of the Constitution in a generation.” I understand his umbrage, in that my claim certainly sounds outrageous. But he does not appear to have fully grappled with the reasoning I provided. So I will try again.

First, credit where credit is owed. Spiliakos spends the first half of that other essay (the one in which he calls me a “coward” and a “barbarian”) saying some sensible things about conservative constitutional fetishism. (He also says some silly things, such as taking Alan Keyes seriously as a presidential candidate and praising Rick Perry for running on the 10th Amendment.) He observes, correctly, that conservative Constitution talk has lately served to paper over broader conservative fecklessness. For all their ostentatious Constitution worship, conservatives have defended the actual Constitution about as effectively as they’ve furthered the interests of the working and middle classes. I’m with Spiliakos to that point. Though I note that here is another conservative who claims to see how Republicans and conservatives have failed their heartland base, but who can’t bring himself to credit Trump with correctly identifying that base’s just complaints, or with forcing a formerly indifferent Party to begin to address them.

Spiliakos pivots from criticizing conservatives for talking too much about the Constitution to blaming Trump for not talking about it enough. That lack of chatter Spiliakos attributes to “indifferen[ce].” Perhaps—if what is meant is that Trump is simply less knowledgeable about and interested in Constitutional history and interpretation than (say) Ted Cruz. But what John Marini has shown is that Cruzian conservative constitutionalism does not grasp its own essential foundation. That foundation is, again, the social compact, of which the Constitution is a necessary but derivative instrument.

Now Pay Close Attention

What I am about to say, Trump may not understand. But he is acting as if he does, which is good enough for me, because no one else is. Before the Constitution can be the legal document that all the conservatives think it is, it must first be understood and accepted as a political document. Its political import is prior in time and prior in nature to its legal power. And its political power depends on the respect and recognition of all parties to the compact—many, few, and one—of the whole people’s sovereign right to participate in their own rule. That compact has been progressively (pun intended) undermined to exclude the people from said participation.

And in the process, even the Constitution’s secondary, merely legal purpose has been degraded. The branches of government do not function as the Constitution directs they must. The rights supposedly guaranteed in the text are either ignored, denied or selectively enforced. In actual practice today, the Constitution is merely an instrument used to confer legitimacy on the administrative state and on whatever the political branches want to do. Which means, in practice, the executive, since the legislative does not want to do anything other than get reelected and dream about higher office. The Supreme Court says it’s “constitutional”? Even required by the Constitution? Then it is, full stop. We’ve resigned, if not our whole government, then the last word on the biggest questions into the hands of that eminent tribunal.

The fix for this is not Cruzian constitutionalism. Absent a revival of the Constitution’s core political purpose, that is bound to fail. The fix (if there is a fix) is a reassertion of the social compact that returns to the people a real measure of participation in their own rule. There will still be elections, winners and losers, minorities and majorities, 51s and 49s. But it will be the whole people, deciding among themselves what to do, ruling themselves politically, not administratively, with a faux-constitutional gloss.

“Demagogue,” Rightly Understood

Back in that first piece, Spiliakos calls Trump a “demagogue.” Strictly speaking, a demagogue is a politician who seeks to arouse the demos against the few. Since democracy literally means “rule of the demos,” and democracy is today widely praised as the only just form of government, it’s hard to see how this is a bad thing. But Spiliakos clearly is following modern usage, in which it is held to be very bad indeed.

Why? One reason is that speaking up for the people threatens administrative, managerial rule. If this is what a demagogue is in 2016, then …

But Spiliakos appears to mean: a leader who rouses raw passion for wicked ends. That’s not the Trump I see. I think he is rousing a salutary political spiritedness in a people that rightly feels it has little or no say in its own government, and who can plainly see that their government not only does not serve their interests but often actively sells them out. If we’re simply going to rule out any popular—and, I stress, electoral—revolt against bad government as illegitimate demagoguery, then we really have resigned our government into the hands of that eminent tribunal, and to the administrative state which it currently serves as a handmaiden.

Trump says “no.” On this at least, I’m with Trump.

“Speedy Conservative Recovery” When?

None of the rest of Spiliakos’s objections caused me to think twice. He blows out of proportion one of Trump’s offhand comments about Angela Merkel to make a comparison to Kim Jong Un (!?), while dismissing Trump’s forceful rejection of Merkel’s immigration disaster. Meanwhile, Hillary still says Merkel is the leader she admires most, including the immigration disaster, and promises to do the same to the US. Spiliakos concedes that Trump might be better than Hillary but overlooks this highly terrifying—and clarifying—concrete example.

Like so many on the right, Spiliakos talks himself into some magical thinking:

If Clinton wins, her center-right opponents will be united in opposition, and will be able to continue (begin?) the contentious process of building an alternative message and agenda. Clinton will begin her presidency as an unpopular and distrusted figure who takes office more than seven years into a recovery that has most people feeling dissatisfied. Clinton will be able to do a great deal of harm in four years, but there will exist the potential for a speedy conservative recovery that could undo some of that harm.

Read that again. Maybe three times to really let it sink in. He really says “speedy conservative recovery.” On what exactly does he base that hope? The bang-up job conservatism did in opposing Barack Obama? All the victories Republicans secured after their blowout victories in 2010 and 2014?

Note also the wistful speculation that this “speedy conservative recovery” may be able to undo “some” of the “great deal of harm” that a third Clinton term would inflict. That’s before we even get to Obama’s harm. Another “speedy conservative recovery” such as this, and we are done for.

Spiliakos continues that “some”—that would be me—argue that, “because of demographic change, this our ‘last chance’ to stop the Left.” What I actually said was that it’s our last chance to stop administrative state consolidation that would give the managerial class permanent control of the government—at least, for as long as this next stage in America’s development could last. Much of the flavor of that control—and surely all of the cultural and regulatory elements—will be leftist. Others will serve to perpetuate oligarchical rule, which is not leftist by any definition I typically use. But the current oligarchs find it useful to ally with the left and even to profess leftist beliefs, which is one reason why they defer to the left on cultural matters.

However, it’s fine if you want to call that hair-splitting. I did say that a Clinton victory would spell the end of the constitutional republic, would make it impossible (or so unlikely as to be nearly impossible) for the people to reassert the social compact in the manner described above.

Decius the Optimist

Spiliakos counters that if I’m right, it’s already too late: the demographics are already baked into the cake. Maybe. First, let me just say that I’m not used to being the optimist in debates like this and I thank Spiliakos for giving me the opening.

I’m not convinced it is too late. A central conservative dream for a generation has been to find a way to overcome the Democrats’ divisive identity politics by unifying those receptive among all races around some vision of conservatism we can share. The right has failed miserably so far because we try to sell conservative ideas on the terms the left sets for us. Yes, America is racist. Our solution? Enterprise zones! Trump has broken this mold by reversing it. His “right” half is unafraid to be called “racist’ for not following the left’s rules, even as his “left” half sells an economic message that most “conservatives” find appalling but that the working classes seem to like.

It may work, it may not—either as a matter of electoral politics or as policy. But if it does, Trump’s trade, globalization and immigration agenda offers a better prospect of actually realizing the dream of a multiracial Republican Party, united around a core economic patriotism, than anything any Republican has offered since Reagan.

Whereas, if Hillary wins, this possibility expires. The minority population will shoot up by millions, at least. Then the Democrats, aided by administrative state social engineering—Section 8, refugee resettlement, etc.—will work to steer those future Democratic voters into purple states which their presence will tip blue. No Republican would ever win the White House again, except maybe a Schwarzenegger-Bloomberg once a generation or so. And what difference would that make?

Spiliakos takes for granted that Trump will betray his supporters and enact some kind of amnesty. I don’t. Perhaps I am naïve. If it happens, I will be the first to say he told me so. Even so, I do not think the consequence would be what Spiliakos predicts:

[T]he opportunists and the party apparatchiks will stick with President Mister Trump and tell us that we are traitors, and that we will get even worse judges, amnesties, and guest-worker programs with the Democrats.

Some might say that, but no betrayed supporter will be cowed or fooled. Trump would instantly destroy himself and his administration with such an action, and become the lamest lame duck of any president in history. Sure, he’d still get to live in the big house, but he already has a lot of big houses. A failure from inexperience rather than perfidy is much more likely—a fear I cannot dismiss. But I do say, again, that a choice between certain doom and possible failure is no choice at all.

This is just a doozy:

The downside risk of Trump is not just that we get the worst of Trump. It is that we get the worst of Trump followed by a president from a radicalizing Democratic party—and probably another overwhelmingly Democratic Congress. Then, you shall see national transformation.

Stop Trump now so that we don’t have to face a liberal Democrat in four years! (Has Spiliakos noticed that, if Trump loses, in four years the incumbent will be a liberal Democrat?) As for stopping the Democrats now, oh no—that’s too radical. They’re not so bad. Yet. But in another four, look out! Has any political party, or its affiliated intellectuals, ever openly advocated their own side’s defeat and the other side’s victory?

Ready for Reconciliation—or a Reckoning

Spiliakos says that a Trump win will bring about a conservative civil war. Is he paying attention? The war has already started. There’s a much greater chance to bring it to a speedy end if Trump wins. Personally, I would advise a Trump administration (not that anyone’s listening) to make use of suspect men. Or at least some of them, the lukewarm anti-Trumpers. First, such an administration is simply going to need people and there aren’t enough gung-ho Trump Republicans to staff it. Second, there’s a lot of policy expertise among the conservative and Republican elite, however suspect their practical judgment and political effectiveness has recently been. Third, embracing the lukewarm would be the quickest and most effective way to reunify the Party, and President Trump could do so from a position of strength.

On the other hand, if Trump loses, we conservatives are going to have to keep fighting about everything: personnel, politics, policy, philosophy, all of it. The conservative intellectual movement is already over. The Republican Party still exists and is, mercifully, no longer the party-of-(tired)-ideas that its intellectuals so long insisted it be. It now has a chance to be transformed into a vehicle for conservative substance—people, places, institutions. A new intellectual movement could inform that, but first we have to have the argument, to get rid of the bad blood.

Spiliakos ends with a call for reconciliation. I’m for that in certain cases—as many as possible. As many as realistically possible. But the truth is that the argument is going to open up divisions. Many have already left the Party over national security. Others are insisting that they should stay and kick the rest of us out. There are going to be irreconcilable differences over war, trade, immigration and much else.

And then there’s the non-trivial matter of forgiving, if not forgetting, those ostensibly in our party who will have, or will be seen to have, worked to ensure the victory of the other. Personally, I might be capable of reconciliation in more than a few instances. Not everyone will be. Spiliakos should be more realistic about that.