The Fascist Legal Theories of the Conservative Revolution

by Edward Spannaus

Printed in The American Almanac, September 25, l997.

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EIR editor Edward Spannaus addressed the Schiller Institute/ICLC conference on Sept. 3. An edited version of his speech follows.
I have been asked to speak about the legal ``theories,'' or the theory of government, of the Conservative Revolution gang. They don't really have a sophisticated outlook of how human beings should govern themselves; their simplistic theory of government can be summed up in two notions:

  1. decentralization and privatization: take power away from the government; and

  2. ``law & order,'' i.e. let the government get ``tough on crime.'' Get tough by enacting ``three strikes and you're out'' legislation for repeat offenders, abolish parole, set up prisoner chain gangs, such as has been done in Alabama, eliminate amenities for prisoners, etc.

Sounds contradictory?

They say we have too much government, but, we don't have enough government....

They say that the government can't be trusted to deliver a letter, run a post office, run a railroad, or even to run a sanitation system.

They say: The government can't be trusted to pick up the garbage, yet it can be trusted to run a bigger and more powerful criminal justice system. You can't trust the government to deliver a letter, but you can trust it with your life (well, not yours--they always figure it will be someone else, usually someone with a darker tone of skin, and someone a lot poorer than they are).

They think the government can be trusted to run a fair court system, to arrest people properly; put them on trial, and kill them--without making a mistake.

But, the government can't be trusted to run a sewer or water system; that should be privatized. But it can be trusted to decide who should live or die.

Most of the idiots in the Conservative Revolution in the United States don't even see the paradox, or they don't care about it. They're just following a script.

But follow the trail of the Conservative Revolution script-writers, back to London, and you'll find that there, the present-day authors of the Conservative Revolution, do understand it, and they even boast about it.

As Peregrine Worthsthorne wrote in the London Telegraph last July 23, ``A Police State Beats a Welfare State'': ``Given that the state won't be able to afford security for `our people' from the cradle to the grave, all but a small minority of hopeless cases will have no choice but to fend for themselves. This is how it is going to be. Life for many of `our people' in the late 20th and 21st century is going to be nasty, brutish, and even short.... In revolutionary times, the only form of security for property and the bourgeoisie comes, not from think tanks, but from tanks proper....''

Now, you might say, this has been going on for a long time. Conservatives have always been for decentralization, for states' rights, for law and order. What's new?

Well, you are right: It is old stuff. A lot older than you might think. They are old ideas, but conveyed today with a new urgency and immediacy--because of the imminence of the financial collapse. Newt Gingrich may dress up his ideas in ``futurist'' wrappings, but they are old, old ideas.

How old? For 200 years, Great Britain has been trying to break up the United States, to shatter our federal union into pieces, be in two pieces (Civil War), three pieces, or nine pieces, as in the Nine Nations of North America scheme, or into the individual states, be it 13, or now 50.

Our national slogan is E Pluribus Unum, or, ``From Many, One.'' Theirs should be: ``From One, Many.''

How old? For the past 600 years, the European oligarchy, centered in Venice, and then having moved north to England and Holland, has been waging war against the principle of the Council of Florence, against the Commonwealth conception of state as LaRouche described it yesterday, against the idea that the purpose of the state is to nurture and foster those qualities that set man apart from the beast, the faculty of creative intelligence, the image of God after which man is created.

Oligarchy vs. The Republic

You can go back 2,500 years, for that long, it has been the oligarchy's policy to utilize forms of the state which preserve their power, by efforts to immobilize and degrade the population, keeping it in a condition of actual slavery, or moral and intellectual slavery. This is what Schiller showed in his 1789 essay, ``The Legislation of Lycurgus and Solon.'' in which he gave us a timeless presentation of the two models of government--oligarchic and republican.

Schiller writes that Lycurgus, in founding his Spartan state, ``worked against the highest purpose of humanity, in that ... he held the minds of the Spartans fast at the level where he had found them, and hemmed in progress for all eternity.'' Industry was banned, science neglected. ``The business of all its citizens together, was to maintain what they possessed, and to remain as they were, not to obtain anything new, not to rise to a higher level.''

But, in contrast to this, says Schiller, ``the progress of mind should be the purpose of the state.''

That was the issue in the drafting and creating of the U.S. Constitution. John Locke's ``Life, liberty and property,'' was rejected, in favor of the Leibnizian idea of ``life, liberty and the pursuit of happiness.''

James Wilson of Pennsylvania said it in almost exactly the same terms as Schiller did two years later. At the 1787 Constitutional Convention, during the debate over a property qualification for electors, Wilson's remarks are reported as follows: ``he could not agree that property was the sole or the primary object of Government & society. The cultivation & improvement of the human mind was the most noble object.''

In 1791, Alexander Hamilton argued for the superiority of manufacturing over agriculture in his Report on the Subject of Manufactures: ``To cherish and stimulate the activity of the human mind, by multiplying the objects of enterprise, is not among the least considerable of the expedients, by which the wealth of a nation may be promoted.''

Hamilton's reports on credit, on manufactures, and on the national bank--submitted during the first Washington administration--laid the foundation for what became known as ``the American System of Political Economy.''

The American System

The three pillars of the American system were 1) a national bank, 2) internal improvements of infrastructure (energy, water development, schools, hospitals, transport, communications, etc.), and 3) a system of tariffs to protect the development of industry.

This is what the British have been trying to destroy for the past 200 years. Lord William Rees-Mogg and Peregrine Worsthorne are only the latest variants on this ugly theme.

After the Revolution, the new nation was barely a nation, existing under the Articles of Confederation in which the nationl government could not tax without the agreement of nine of the 13 states. Very much like the Conservative Revolution proposal for ``super-majorities,'' where three-fifths of the Congress would be required for any tax increase.

In fact, if you take almost any proposal out of the Gingrich Contract With America, you'll find it's been tried before. A couple of years ago here, I gave a presentation on the Confederate Constitution of 1861. This was before the Conservative Revolution takeover of Congress in last November's elections, but the same gang of scoundrels who provide the anti-American platform of the Conservative Revolution, were already pushing the Confederate Constitution.

Llewellyn Rockwell, the president of the Ludwig von Mises Institute (Jeff talked about von Mises and the Austrian School, a teacher of von Hayek) was already promoting the Confederate Constutition in a Richmond Times-Dispatch article headlined ``The Southern Solution.'' He wrote: ``With all the Washington, D.C. scandals, ideas for government reform are as common as fire ants in Georgia, and about as helpful. But I have a suggestion for real progress: bring the U.S. Constituion up to Confederate standards.''

Rockwell attacks the ``general welfare'' clause in the U.S. Constitution as ``an open door for government intervention,'' and he compares the two preambles.''

Notice the difference:

Whereas the U.S. Constitution begins by declaring, ``We the People of the United States, in Order to form a more perfect Union,'' the Constitution of the Confederate States of America takes a fundamentally opposite approach: ``We the people of the Confederate States, each state acting in its sovereign and independent character, in order to form a permanent federal government|....''

What else does the Conservative Revolution crowd like about the Confederate Constituion? A recent edition of the newsletter of the von Mises Institute, The Free Market, opens by arguing that the way to solve the problem of special interests using the democratic process for their own benefit, is to remedy this with the Confederate Constitution. It affirms strong support to free trade and opposition to protectionism. One could as well say: It affirms strong support for British imperialism, and opposition to the American System which built this country into what it is today.

What do they like about it?

  • the elimination of the ``general welfare'' clause, from both the Preamble and from Article I (the powers of Congress, to tax for the general welfare);

  • the prohibition of protective tariffs;

  • the prohibition of government-financed internal improvements;

  • the line-item veto and other provisions restricting the power of Congress with respect to revenue. The Confederate Constitution had provisions that Congress could not make any open-ended appropriations; any appropriation had to be for a specified time and a specified amount, i.e. no entitlements.

The Supreme Court

Speaking of Confederates, we've had a Confederate heading the U.S. Supreme Court for some time.

Throughout the 1980s and up until recently, Chief Justice William Rehnquist has been pushing a juridical version of the Conservative Revolution agenda, most obvious in his attacks on the power of the federal government to do good, his promotion of states' rights at every opportunity, and--what we know best--his destruction of constitutional rights in criminal proceedings, so that the states (and even the federal courts) were allowed, even encouraged, to ride roughshod over the constitutional rights of defendants.

At every opportunity, Rehnquist sides with the enemies of the Constitution and the Republic; he, more than any other single individual in the United States today, is reponsible for the police-state conditions that pervade our criminal justice system, and operates hand-in-hand with the permanent bureaucracy in the Department of Justice.

Even Rehnquist and his gang took heart from last November's election results. You remember the old saying, ``the Supreme Court follows the election returns''?

Well, in the Supreme Court term that ended in June, the Supreme Court gave signs that they were considering joining Gingrich and Gramm in their campaign to dismantle the federal government and ``roll back the welfare state.''

The case was called U.S. v. Lopez. The formal holding of the case was that the court invalidated a federal law barring guns near schools, holding that the statute was not a proper exercise of federal power under the Constitution's provision of power to the Congress to regulate interstate commerce. Well and good.

But, in giving their interpretation of the commerce clause, some of the justices went on to propose that we should go back to the years before 1937, when the Supreme Court routinely struck down any exercise of economic power by the federal government.

Let's listen to what Llewellyn Rockwell of the von Mises Institute had to say about this:

``The Supreme Court has suddenly and thrillingly rediscovered the plain meaning of the Constitution.... Since 1937, after Franklin D. Roosevelt's villainous court-packing scheme, the Supreme Court has rubber-stamped statist legislation and justified nearly all of it under the Commerce Clause.

``The result has been a dreadful erosion of property rights, economic freedom, states' rights, and the liberties of the people. More than any other legal perversion, the misuse of the Commerce Clause has fueled government power and hobbled the economy. It is the basis of everything from public housing to disabilities regulations to farm subsidies.

``With last week's decision in U.S. vs. Lopez, this 58-year distortion appears to have come to an end'' (Llewellyn Rockwell, Jr., Washington Times, May 3, 1995).

In striking down the school gun statute, Rehnquist didn't just say that it was an improper exercise of power by Congress under the commerce clause. It is clear from the opinion written by Rehnquist--and much more so in Clarence Thomas's concurring opinion--they wanted to use this case to get a foot in the door to pry open the whole question of federal economic power--which was thought to have been settled in the 1930s, in FDR's second term, after the Supreme Court earlier had invalidated nearly all of Roosevelt's economic measures which were attempting to deal with the collapse of production.

Clarence Thomas suggested--in language not heard in a long time--that current law is an ``innovation of the 20th century,'' and he proposed that ``the Court's dramatic departure in the 1930s from a century and a half of precedent'' was a ``wrong turn.''

After all, if Newt Gingrich and his gang of glassy-eyed freshmen can march on Capitol Hill threatening to roll back the so-called welfare state, the New Deal, and everything since the days of Herbert Hoover, why should the Supreme Court be left behind?

Fortunately, with the recent Clinton appointees, Rhenquist's majority is no longer guaranteed, the way it was for many years. The court has given signs that is is pulling back, if ever so slightly, from some of the worst police-state rulings of the 1980s Rehnquist court.

Four weeks later after that commerce clause decision, with a switch of one vote, the same court threw out one of the favorite rallying themes of the Conservative Revolution crowd: terms limits. The ruling itself--in which Rehnquist was, happily, in a minority--showed that term limits had been rejected by the Framers of the Constitution, and that the framers intended that the specific qualifications put in the Constitution were not to be added to, or supplemented, by the states. The ruling actually showed, about as well as one could expect from a modern Supreme Court justice, that this is not just a technical question, but that it bears on the fundamental question of the nature of the Union. The majority ruling argued--again, in terms not heard in the Supreme Court for a long time, that the national government--they actually called it that, not the federal government, but the national government--derives its power from the people of the United States as a whole, not merely from the states, or even from the people of the states as such, but from the people of the Union as a whole.

The Battle Is On

That ruling was a kick in the teeth to the Conservative Revolution, states' rights crowd: It shows that the battle is on. These kinds of rulings reflect that we are in turbulent times.

The battle is going to get a lot tougher.

To get the best understanding of where Gingrich and Gramm and that crowd are going, you don't want to ask them. Ask their masters. You don't ask a puppet why he it is doing what it is doing. It you see something dancing on the end of a string, follow the string. As you come toward the top of the string, you will find that the string-pullers do have public spokesmen.

The most forthright publicists for the oligarchy's efforts to destroy the United States as a republic, and to replace it with a fragmented, fascist dictatorship, are Lord William Rees-Mogg and Peregrine Worsthorne. Not accidentally, they also happen to be among the most forthright publicists for the campaign to detroy the Presidency of the United States and its occupant, Bill Clinton.

On May 21, a few months before his ``Police State'' column, Sir Peregrine Worsthorne, writing in the London Sunday Telegraph, demanded a ``form of authoritarian politics'' that would allow for ``cruel belt-tightening [and] bitter medicines to be forced down the throats of body politics.''

(For Worsthorne, advocacy of dictatorship runs in the family. His stepfather, the late Sir Montagu Norman, was the Bank of England chief who was instrumental in installing Adolf Hitler in power in Germany.)

Worsthorne's May 21 piece took the form of a dialogue with Rees-Mogg. This one was entitled ``The Right-Wing Path to Oppression.'' In it, Worsthorne favorably cited Rees-Mogg's recent articles advocating giant cuts in public expenditure and radical moves to roll back the state--and he praised Newt Gingrich for pushing these same policies in the United States.

But Worsthorne criticized Rees-Mogg--for not explicitly admitting that such measures would require an ``authoritarian'' regime.

Worsthorne said:

``People who argue--and some of the wisest in the land, like William Rees-Mogg, most convincingly do--that the only future for this country, and for the Western world as a whole, is to take a veritable axe to the social services ... never seem to spell out ... the political price, in terms of loss of freedom, that might have to be paid for such economic realism. For while it is certainly true that rigorous and sometimes cruel belt-tightening--particularly for the relatively defenseless--will be required ... it is also true that today's democratic body politics are unlikely to be able to swallow such bitter medicine without a desperate struggle. Just how desperate, nobody can be sure.

``But the possibility cannot be ruled out that the bitter medicines will have to be forced down the throat of body politics.

``Those who argue that the politics of the next decades, truly `modern' politics, must not flinch from taking an axe to the welfare state, should also, if they are honest, go on to warn that these truly modern politics may also have to take an axe to many of our democratic freedoms.''

We determined very quickly that Worsthorne's support for dictatorship reflects the debates going on in the upper echelons of the Club of the Isles. We found that the Mont Pelerin types are actively discussing what they think to be the central ``paradox'' of current times--what they refer to as the ``dilemma of democracy'': that radical measures to ``roll back the state'' and destroy vital state-supported infrastructure projects and social services, will require authoritarian means to implement.

After the publication of this piece by Worsthorne, one of our colleagues in Europe discussed it with one of the chief Mont Pelerin Society ideologues.

He asserted,

``This is a well-known argument. Democracies foster weaker governments, and there is no majority for measures to roll back the state. This introduces the paradox, of needing some kind of strong government, precisely to roll back the state.

``We have definitely been discussing this idea, in recent times, in the Mont Pelerin Society.... It is the problem of the `dilemma of democracy.'|''

He went on:
``We have to find a way to have an authoritarianism, which keeps out of economic life, and sticks to the classical role of the state, for protection and security, and nothing else.''

(This is the real meaning of the ``paradox'' we discussed at the beginning--that is, you need one to do the other, you need to police state to enforce the destruction of the ``welfare state.'')

This Mt. Pelerinite insisted that accelerating global financial disintegration would force this to happen.

``What has to be figured out, is how to roll back the state by an authoritarian regime. I don't see any of our western societies, in their current form, having the will to do this. Probably only a deep crisis will make it possible. Without a crisis, there is no will.... It is well-known amongst us, that the system we have lived under in past decades is disintegrating. We are all living over our means. We will go into crisis.''

Commenting on the weakness and lack of will in western governments as they are currently constituted, this Mont Pelerinite also insisted that these ``authoritarian measures'' would have to be preceded by ``drastic regionalization and decentralization.''

As an example, he praised the ``states' rights''-secessionism offensive in the United States, remarking that ``the United States was once conceived as a confederation of sovereign states.''


This takes us up to what Rees-Mogg wrote just a couple of days ago.

This is the same theme, in a slight variant on the ``futurist'' Tofflerite themes which Rees-Mogg loves so well. In an article headlined ``The End of Nations,'' he predicts the end of the sovereign nation-state, and the disintegration of much of Europe, Canada, China, and India, which he says will all go the way of the Soviet Union.

``The United States may or may not hold together,'' he writes, ``the tax system and bureaucracy are atrocious, but the entrepreneurial skills and technology remain very impressive.

``Yet the most successful country of all will have no geographical location.'' This is what he calls ``cybercountry'' the replacement for the nation-state:

``The monolithic 20th-century nation-state has been built on the ability, developed in two world wars, to tax, and spend up to half the national income for state purposes, basically war and welfare. The communications of 2025 will have long since taken many, and perhaps most, of these taxable transactions into cyberspace. That is a country with no taxes, the greatest tax haven of them all, Bermuda in the sky with diamonds.''

How will it work?
``The bright people, the so-called cognitive elite, will deal with each other on the networks of cyberspace, outside the existing jurisdictions....''

The ``cognitive elite'' again. This takes us to our discussion at the last conference, where Jeff Steinberg discussed another Rees-Mogg column, published last Jan. 5 and entitled ``It's the Elite Who Matter,''--and Dennis Speed's discussion here of Charles Murray's ``cognitive elite'' (see page 8).

Here, Rees-Mogg calls for phasing out universal public education, as no longer required for an emerging ``information'' society, in which 95 percent of the population would be ruled by an ``elite class'' of 5 percent, and in which Britain would reign supreme by its capabilities in ``finances'' and ``tax havens.'' Indeed, such a neo-feudalist society would require dictatorial forms of rule, to crush the opposition that would inevitably erupt.

This is the face of fascism today--to relegate 95 percent of the population to the scrap heap, just as in days of old. And it they don't want to jump into the scrap heap--or the rock pile--make 'em.

As you've heard from this panel, it's not necessarily going to look at first like the old-style fascism; but it's going to do the same old thing, but in Newt, futuristic wrappings. But it is an age-old battle, a 200-year-old battle, a 600-year battle, a 2,500-year-old battle, which we have to win, for once and for all.

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The preceding article is a rough version of the article that appeared in The American Almanac. It is made available here with the permission of The New Federalist Newspaper. Any use of, or quotations from, this article must attribute them to The New Federalist, and The American Almanac.

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