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Politicians and journalists love to talk about “norms.” It makes them sound responsible, which they frequently are not. It makes them sound normal, which they rarely are. It gives them room to maneuver. Laws are changed in public by legal and legislative arguments. You can watch it happen in real-time on C-SPAN if you can stay awake. Common law is often called “customary law.” It develops interpretations from precedents of custom. However, custom is an unwritten constitution of habits and assumptions. To understand custom, you need an anthropologist, not a lawyer.
The psychodrama of the first Trump term derived from anti-Trumpers’ confusion between the customary norms of law and the habitual norms of custom. There was and is no serious evidence that President-elect Donald Trump broke the law when he ran and won in 2016. However, it was undeniable that his mere presence in the race violated the managerial customs of Washington, D.C. That was central to his appeal. It remained central to his victory this year on Nov. 5.
Since 2016, voters across the West have chosen candidates who promise to close the distance between the “elites” and the people, the government and the governed. Our political class has grown accustomed to breaking both the norms and the laws of liberal democracy in full sight. There is no law forbidding an ex-president from remaining in D.C. after his term is over, but it was a custom — until former President Barack Obama broke it. There were laws forbidding Jeffrey Epstein from conducting a rampage of pederasty, spying, and corruption, but they didn’t seem to apply to him. They don’t apply now to his guests: not one of them has been prosecuted. There are also laws forbidding politicians from using the IRS or the Justice Department as a political weapon.
Be careful what you vote for. While an economic gulf has opened between the rich and the rest since the 1980s, the proximity between the government and the people has actually narrowed. Never before in human history has any government known so much about its subjects. The computer revolution has put spooks inside your phone and corporations inside your home:
“Alexa, tell Jeff Bezos which room I’m in, what I’m doing, and whom I’m doing it with.”
Liberal norms and the liberal constitutions that were based upon them assume that we draw a line between the public and the private. Most of us remain liberal in that classical sense. Trump chooses to eat the same cheeseburger in bed every night. T’ain’t nobody’s business if he does. Trump’s gastric self-harm activates no checks and balances. It’s his private problem if he doesn’t check where the ketchup sachet is or balance his Diet Coke on his lap. The American republic will survive a bout of dyspepsia.
Our surveillance-state government has erased the public-private line. This has happened before in liberal states, but only in wartime. The new system became law in the United States after the Patriot Act. Dissolving privacy was, however, the stated aim of the 20th-century totalitarians.
“Everything within the state, nothing outside the state, nothing against the state.”
That was Mussolini, not Jen Psaki. We take our totalitarianism soft, like our pillows and our waists.
Dissolving privacy is also a collateral cost of digitization. From the cuneiform tablet to the digital tablet, the government runs on bureaucracy, the collection and processing of information. Computers can gather and process so much of it that, as Karl Marx said, quantity has taken on a different quality. Patriot Act or not, it would have happened anyway. We got here more by technological accident than by political design.
We remain liberals on the public-private distinction, but the government is going, going, gone “postliberal.” This is far more important than the southern border, the deficit, or abortion laws. It goes to the broken heart of democracy. It explains why so many citizens reject the direction their government is taking them. It explains why, when the tribunes of populism enter the palace, they struggle to rule. A postliberal president still gets the glory, but the power is elsewhere, diversified into the cloud. As Edmund Burke might say, the hum of the server has replaced the glitter of the scepter.
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“Who Abandoned Liberalism First, the Populists or the Establishment?” Ross Douthat asked in a New York Times column on Nov. 1. It’s worth reading. Even more worthwhile are the studies in postliberalism that Douthat is responding to: Jacob Siegel’s “Learn This Term: ‘Whole of Society’” in the online magazine Tablet and Nathan Pinkoski’s “Actually Existing Postliberalism” in First Things. We cannot understand where we now are without thinking about this.
Siegel and Pinkoski argue that we are already in the postliberal age of soft totalitarianism. Douthat concludes that we aren’t there yet. I think they’re all correct. Like Christopher Caldwell in The Age of Entitlement, Siegel and Pinkoski describe how one form of government has been erected upon another. Douthat takes the view of the classically liberal, constitutional citizen. As creatures of custom, most of us still think like that. However, the government no longer works that way. The new normal has already abolished the old norms. We are all postliberal now.
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