The Great Kavanaugh Freakout

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Christine Blasey Ford: Gaps and contradictions

Democrats have spent the last two years blaming Russia for Hillary Clinton’s defeat.  Now they’re blaming Republican Senator Susan Collins of Maine for the Kavanaugh debacle.  But it’s not going to work.  Once again, the only people Democrats have to blame are themselves.

Admittedly, they faced an uphill battle thanks to a confirmation process heavily weighted in favor of the executive branch.   Citing Alexander Hamilton in her epic speech last Friday, Collins laid out the conventional thinking concerning the constitutional phrase “advice and consent”: since “the president has broad discretion to consider a nominee’s philosophy … my duty as a senator is to focus on the nominee’s qualifications as long as that nominee’s philosophy is within the mainstream of judicial though.”  Assuming that his or her politics are not too outré, the only question is whether the nominee is morally and professionally fit.

This left Democrats with precious little to hold on to.  They tried to prove that Kavanaugh’s judicial philosophy was indeed beyond the mainstream by arguing that he’d strike down Obamacare and Roe v. Wade if given the chance.  But how could they be sure when, like every Supreme Court nominee before him, he refused to say how he’d vote one way or the other for fear of being “Borked”?  What evidence could they come up with to the contrary?  How could they respond to all those legal eminences arguing that he was the best candidate in years?  In a Times op-ed that he’ll no doubt regret for the rest of his life, a very liberal and very smart Yale law professor named Akhil Reed Amar described the nominee as nothing less than stellar:

The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move.  Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.”  In picking Judge Kavanaugh, he has done just that.

Conceivably, Democrats could have held Kavanaugh’s feet to the fire by exploring his role in approving the use of torture as a member of George W. Bush’s White House staff.  But since they’ve never shown the moral courage on that score before, how could they do so now?

That left the question of moral competence.  This is where liberals took a bad situation and made it worse.  In bringing in Christine Blasey Ford, they didn’t understand that it would not be enough for her to be good witness.  Since it was bound to be a matter of “he said, she said,” rather, she’d have to be a great one whose story would be so convincing as to reduce Kavanaugh to a mass of Queeg-like twitches and tics.

She didn’t.  Kavanaugh’s rebuttal turned out to be unexpectedly strong, while, as one would expect with a 36-year-old account, Ford’s version turned out to be riddled with gaps and contradictions.  How could she be “a hundred percent certain” that Kavanaugh had attacked her when she was just fifteen but uncertain about so much else: where the attack occurred, how she had gotten there, who had driven her the half-dozen miles home, and so on?  Why didn’t a good friend who was also at the party telephone to ask why she had left so suddenly?  Why didn’t any of the four people who were allegedly present corroborate her account?  A sworn statement by an ex-boyfriend with whom she lived for a half-dozen years was especially damaging.  Ford said she had taken a polygraph to substantiate her charges.  But where she testified that she had never advised anyone else on how to take such a test, her ex said that she had coached a roommate who was applying for jobs with the FBI and the US Attorney’s office.  “Dr. Ford explained in detail what to expect, how polygraphs worked and helped [her] become familiar and less nervous about the exam,” he said.  “Dr. Ford was able to help because of her background in psychology.”

Where Ford said she suffers from claustrophobia and a fear of flying, the boyfriend also said she lived in a 500-square-foot home in California and that the two of them had flown around Hawaii, “including one time in a propeller plane.”  As University of California psychologist Elizabeth Loftus, who got her start exploring “recovered memory” in child-abuse cases, explains in an excellent TED talk:

If I’ve learned anything from these decades of working on these problems, it’s this: just because somebody tells you something and they say it with confidence, just because they say it with lots of detail, just because they express emotion when they say it, it doesn’t mean that it really happened.  We can’t reliably distinguish true memories from false memories – we need independent corroboration.

But then something strange happened.  The Democratic Party’s #MeToo wing stepped in and announced that such evidence was irrelevant because an accusation of sexual assault was enough in and of itself.  Protesters invaded Capitol Hill with signs reading, “We believe all survivors.”  They wrote “Believe Women” on their hands and chanted, “We believe women,” while pumping their fists.  “If their stories are credible, as Dr. Ford’s story is,” said Democratic Senator Mazie Hirono of Hawaii, “they need to be believed.”  According to Democratic Senator Kirsten Gillibrand of New York, sexual assault victims were shocked that anyone would question Ford at all.  Watching her testify, Gillibrand said, “they saw men in power who were believing other men in power over women who suffered gravely.  They saw that disbelief and dismissiveness of women and they felt disbelieved and dismissed themselves.”  To doubt was to be part of the patriarchy.

This is not just nonsense, but undemocratic nonsense.  Democracy is not some faith-based doctrine, but one resting on reason and evidence.  As anyone who has taken part in a union-organizing drive can attest, you can’t just ask a worker to sign up and then call him fascist if he balks. To the contrary, you’ve got to argue and explain why a union is important, listen very carefully to his counter-arguments, and then respond accordingly.  Not only doesn’t emotional blackmail work in such instances, it’s invariably counterproductive.  Ford supporters who stamped their feet, crying believe, believe, believe, were thus counterproductive as well.  By implying that corroboration is irrelevant and that questioning is immoral, they insulted the intelligence of those wavering in between and fairly pushed them into the arms of the GOP.

“I have been alarmed and disturbed … by some who have suggested that unless Judge Kavanaugh’s nomination is rejected, the senate is somehow condoning sexual assault,” Collins declared on Oct. 5.  Democrats hate and despise her for saying this, but she was right: that’s just what Hirono and Gillibrand implied.

The desperation of the Democrats is understandable.  They’ve won the popular vote in six out of the last presidential elections and hence can argue that they’re more popular, or at least less despised, than the GOP.  Yet they’re victims of a super-antiquated Constitution that locks them into a minoritarian ghetto.  With an Electoral College that triples the clout of rural white states like Wyoming, Montana, and the Dakotas, a senate that allows the 54 percent of the country that lives in just ten states to be outvoted four to one by the remainder, and an increasingly unrepresentative House due to rampant gerrymandering, they’re victims of a political structure that more and more favors the GOP.  They were therefore frantic to prevent the sole remaining semi-liberal institution in Washington to come under the Republican dictatorship.  But as members of an outrageously undemocratic senate, they couldn’t help stoking a liberal-feminist #MeToo movement that is just as authoritarian as anything produced by the GOP.

They made fools of themselves in the process while doing nothing to stop the general rush to the right.  If anything, they added to it.  The Kavanaugh debacle proves yet again that the  crisis of American democracy is nothing if not bipartisan.

The #MeToo-ing of Brett Kavanaugh: Why Americans Find It Easier to Talk about Sex than Politics

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Brett Kavanaugh

Until Christine Blasey Ford stepped forward with her story of near-rape at the hands of a couple of drunken preppies, the Brett Kavanaugh confirmation saga seemed to be shaping up as a classic Washington farce in which Democrats go through the motions of opposing a rightwing Supreme Court pick while doing as little as possible to actually stop it.

Now that the Ford saga has busted it wide open, it’s still a farce, but a rollicking high-octane farce that is impossible to resist whether we like it or not.

Given Kavanaugh’s strongly-worded denial, it remains a question of her word against his.  But all sides are now piling on.  Mark Judge, a conservative writer and journalist who took part in the alleged assault, did his old pal no favor by declaring, “It’s just absolutely nuts.  I never saw Brett act that way.”  He added in an email a day later: “I have no recollection of any of the events described in today’s Post article or attributed to her letter.”  The trouble is that Judge is the author of a 1997 memoir entitled, “Wasted: Tales of a Gen-X Drunk,” in which he brags about how many times in high school he wound up unconscious on the floor.  Once “I had the first beer,” he says, “I found it impossible to stop until I was completely annihilated.”  The fact that he has no recollection of an assault is meaningless since there’s much about his school days that he doesn’t recall.

There’s also the fact that Judge seems to be a rightwing creep who thinks that “women should be struck regularly, like gongs” (as he put it in his high-school yearbook, quoting Noel Coward); who writes that Barack Obama is a wimp who lives in “abject terror” of his wife; who equivocates about the morality of rape, and who is given to wayward thoughts about black people and gays.  (Check out Shane Ryan’s article in Paste Magazine for all the sordid details.)  The fact that Kavanaugh would hang out with someone like this does not bode well for the GOP.  The other side has meanwhile trumpeted the news that students describe Ford, a research psychologist at Palo Alto University, in ratemyprofessors.com as scary and unprofessional – until, that is, it turned out the comments were about a different professor at a different university.  Now conservatives have taken it back while desperately searching for other ways to poke holes in her story.

Exciting, isn’t it?  Can’t you feel the adrenaline rushing through your veins the way it did back in the days of Anita Hill?  For the next few weeks, it looks like we’ll be condemned to spend our free time arguing about sexual violence and how to combat it, about the relationship between teenage misdeeds and adult behavior, and so on.  Resistance will be futile.  We’ll be drawn in whether we like it or not.

But as important as such topics are, consider what we won’t be discussing, e.g. how an unelected Supreme Court has come to loom so large in American political life or why such a powerful body should be exempt from democratic oversight.  Other things we won’t talk about include:

  • The fact that Kavanaugh, currently in his early fifties, could remain on the bench well into the 2050s or even longer thanks to medical advances. Society will be transformed, yet Kavanaugh will go on mumbling about the eternal wisdom of the Founders as if everything had remained the same.
  • The question of whether judicial interpretation can’t help but weaken as the decades wear on.  The more the Framers retreat into a mythic past, the more irrelevant they become in terms of modern society.  Rather than asking what the Constitution means, the question Americans should be asking themselves is whether such an exhausted tradition still retains any meaning at all.
  • The issue, finally, of whether excluding the masses from decision making strengthens democracy or undermines it.  If Americans are really concerned about the decline of democracy, the question is to consider is whether the answer is not to narrow it,  but to broaden it all the more.

But not only will such topics go undiscussed, they’ll wind up ever more sidelined as more “pressing” matters intrude.  It’s a fascinating example of how the political structure steers the “national conversation” away from the political and towards the sexual and personal by making it easier to talk about one than the other.

Take Dianne Feinstein, the senior Democrat on the Senate Judiciary Committee.  In addition to bringing up Ford, she could conceivably raise questions about the wisdom of lifetime judicial appointments.  If representatives only serve two years and senators six, why on earth should Supreme Court justices serve for decades on end?  But if she complains that the Supreme Court is undemocratic, then someone will complain that a monstrously unrepresentative Senate is undemocratic as well, and her authority will vanish.  She doesn’t dare mention the absurdity of giving California the same clout as Wyoming even though its population is nearly seventy times greater because that would suggest that the Constitution is also absurd, words she cannot begin to utter about a document that, in accordance with Article VI, she has sworn to obey and uphold.  She can’t call for reform of the principle of equal state representation because she knows that Article V makes it impossible.

So she finds it more profitable to keep quiet.  One could accuse her of participating in a great conspiracy to bury such questions forever and ever except that, as she sees it, she agreed to play by certain rules when she entered politics, and thus can’t imagine changing them at this late date without going back on her word.

Similarly, she can’t encourage debate about the difficulties of constitutional interpretation for fear of opening a Pandora’s box that could lead to the undoing of decisions like Roe v. Wade.  Her only recourse, she figures, is to preserve America’s pre-modern political structure in the hope that Democrats will one day claw their way back on top and make the ancient machinery do their bidding instead.

The important questions are thus put off while everyone talks about sex instead.  “I am stunned that this is happening again,” Barbara Boxer, a former Democratic senator from California and a veteran of the Anita Hill wars, told the Times.  “But it is not surprising because our culture has not completely dealt with inequality between men and women.”

Yes, but what about the inequality between Californians and Wyoming residents?  This is something that American culture has unable to deal with at all.

 

Obama versus the New York Times

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Obama at Urbana-Champaign

Barack Obama’s September 7 speech at Urbana-Champaign has gotten a lot of attention due to its anti-Trump rhetoric.   But one comment has gone largely ignored:

And, by the way, the claim that everything will turn out OK because there are people inside the White House who secretly aren’t following the president’s orders, that is not a check.  I’m being serious here.  That’s not how our democracy’s supposed to work.  These people aren’t elected.  They’re not accountable.  They’re not doing us a service by actively promoting ninety percent of the crazy stuff that’s coming out of this White House and then saying, don’t worry, we’re preventing the other ten percent.  That’s not how things are supposed to work.  This is not normal.  These are extraordinary times.  And they’re dangerous times.

These people aren’t elected.  They’re not accountable.  They’re not doing us a service….  What is this but an attack on the New York Times for publishing an anonymous op-ed by “a senior official in the Trump administration” claiming that Trump appointees are working behind the scenes to block his “more misguided impulses”?

“Although he was elected as a Republican,” the op-ed declares, “the president shows little affinity for ideals long espoused by conservatives: free minds, free markets and free people.”  Instead of confronting Russia, it complains that the president has balked at expelling alleged Russian spies and has opposed sanctions designed to counter to Moscow’s “malign behavior.”  But never fear, “his national security team knew better – such actions had to be taken, to hold Moscow accountable.”  So top officials have rammed them through regardless.  “This isn’t the work of the so-called deep state,” the piece went on. “It’s the work of the steady state.”

This was all quite extraordinary.  Last year, the Times said the notion of a deep state was a lie that Trump made up “to deflect perceived criticism by attacking the legitimacy of the critic.” Now it turns out that a deep-seated anti-administration conspiracy does exist and the Times couldn’t be happier.  In a follow-up editorial, the paper accused Trump of acting unconstitutionally by daring to get upset.  “Finger-pointing, name-calling, wild accusations, cries of treason – it was an unsettling display, not simply of Mr. Trump’s emotional fragility and poor impulse control, but also of his failure to understand the nature of the office he holds, the government he leads and the democracy he has sworn to serve.”

But what’s wrong with letting loose at those trying to do his administration in?  Wouldn’t Obama do the same if self-appointed guardians of the status quo blocked his most important initiatives?  How about Bernie Sanders — wouldn’t he do the same?  Steve Bannon may have exaggerated when he accused the Times of encouraging a coup d’état, but only slightly.  Tanks may not be ringing the White House.  But what the anonymous op-ed describes is essentially a slow-motion putsch in which the permanent national-security apparatus jams up the machinery from within.  These are indeed dangerous times, just as Obama says.

What’s ironic, of course, is that while no one elected such people, it’s not clear who elected Donald Trump.  Certainly, the people didn’t; rather, he slipped into office by virtue of an obscure body known as the Electoral College, the American equivalent of the Vatican’s College of Cardinals, which overrode the popular vote for the second time in less than two decades.  This is a frankly undemocratic body that triples the clout of depopulated rural states like Wyoming and the Dakotas in presidential elections at the expense of the teeming giants like California and New York.  The Times could have called for repeal on the grounds that it violates the principle of one person-one vote.  But it can’t for the simple reason that it’s impossible.  Thanks to the three-fourths provision in Article V – which says that any amendment must be approved not only by two-thirds of each house of Congress but three-fourths of the states – thirteen states representing as little as 4.4 percent of the population can veto any constitutional reform in perpetuity.  Since rural states can be counted on to use every constitutional trick in the book to protect their special advantage, reform is out of the question from the start.

Conceivably, the Times could admit that America’s decrepit constitutional structure is beyond repair.  But since this would pitch it into terra incognita, it has opted instead for a kind of double denial.  On one hand, it ignores the problem posed by the Electoral College, thereby misleading its readers as to the true nature of America’s constitutional crisis.  On the other, it has placed the blame solely on Trump, who is supposedly wrecking American democracy single-handedly.  It’s not the fault of the Constitution, you see, but of a single aberrant individual who somehow snuck into the Oval Office and is now laying the country waste.

It’s convenient since the effect is to get the Constitution off the hook along with establishment pillars like the Times itself.  The upshot is a nonstop campaign to demonize Trump as the be-all and end-all of America’s sorrows plus an even stranger attempt to portray Vladimir Putin, the man who supposedly put him in office, as an all-powerful puppeteer straight out of the Protocols of the Elders of Zion.  It’s an interesting example of how a bourgeois institution, unable to deal constructively with the problems pressing down upon, responds by retreating ever more deeply into the occult.

In constitutional terms, the effect is to intensify the crisis by promoting plots and conspiracies at home while encouraging military confrontation with a nuclear power abroad.  Republicans and Democrats are both constitutional in the sense that both are products of America’s hyper-attenuated pre-modern structure.  Hence, as this column has repeatedly argued, both are equally complicit in its collapse.

 

The Meaninglessness of the Rule of Law

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Friedrich Hayek:  It’s his world.  We only live in it.

“Rule of law” is the slogan of the day.  Back in 2004, a legal academic named Brian Tamanaha observed that the phrase was on the lips of everyone from George W. Bush to an Afghan warlord named Abdul Rashid Dostum.  Since then it has only gotten worse.  By the early 1990s, the term was cropping up in the New York Times an average of eighty times a year, while, by the late 90s, it was appearing 300 times or more.  By 2007-10, the rate was up to 400.  It hit 599 in 2016, 547 in 2017, and 413 so far in 2018, with half the year still to go.

Yet no one even knows what it even means.  To be sure, rule of law (henceforth RoL) seems to imply something about consistency, transparency, and the importance of avoiding anything suggestive of arbitrary one-man rule.  But beyond that, it’s anybody’s guess, which is why Tamanaha describes it as “exceedingly elusive.”[1]

But it’s worst than that — not just elusive but downright meaningless.  The reason is clear.  Despite nearly endless liberal evasion and pettifoggery, law is best understood in simple, straight-forward terms as an instrument of the sovereign, something that he, she, or it employs to structure society in a way that is conducive to its rule.  If “we the people” want to remain in charge, in other words, then they must continually democratize society in order to deepen and extend their rule.  Otherwise, popular sovereignty will collapse, giving way to chaos and dictatorship.

But the important thing about an instrument is that it’s lifeless and inert without a real-live human being to put it to use.  Hence, rule of law is no more logical than rule of hammers, shovels, or pitchforks.  This was a point made by Thomas Hobbes, the great seventeenth-century theoretician of sovereignty who, thankfully, lies outside the Anglo-American liberal tradition.  As one of his modern interpreter puts it:

A rule is inherently powerless; it only takes on life it is interpreted, applied, and enforced by individuals.  That set of human beings that has final say over what the rules are, how they should be applied, and how they should be enforced has ultimate control over what these rules actually are.  So human beings control the rules, and not vice versa.[2]

Rather than RoL, the only thing that makes sense is rule by whoever is behind the law, whether it’s an absolute monarch, a sovereign people, or the international proletariat (which is the only thing a demos can mean in modern context).  RoL has thus become a kind of meaningless incantation, a phrase that otherwise ruthless politicians utter to make themselves seem respectable.

But why now?  Why is the term so popular?  What is the meaning of such meaninglessness?

Here’s a quick stab at an answer.  RoL is fundamentally an anti-democratic concept.  Friedrich Hayek, who popularized the term in The Road to Serfdom, used it to describe a type of bourgeois state that limits itself “to fixing rules determining the conditions under which the available resources may be used, leaving to the individuals the decision for what ends they are to be used.”[3]  As with baseball or football, the idea is to lay down the rules once and for all and then get out of the way so that others can play.

But since no one would want to play baseball if the rules are constantly in flux, the point  according to Hayek’s schema is to tamper with them as little as possible so that the game can continue uninterrupted.  People may pivot and change on a personal level.  But on a collective level, they must avoid any such temptation.  The result is a conservative utopia in which consistency is a virtue and change a vice.  The people may still rule in some attenuated sense.  But their duty is to keep their hands off society so that self-regulating markets can flourish.

Thus, RoL can be seen as part of the great anti-democratic counterrevolution that began in the mid-1970s when Margaret Thatcher supposedly interrupted a milquetoast centrist at a Tory Party conference by fishing a volume of Hayek out of her handbag and slamming it on the table.  “This is what we believe,” she proclaimed.  The sacred market was now in control.

Except that it’s more complicated than that.  Like other revolutions, the Hayekian version has wound up consuming its own children.  Where de-regulation was all the rage in the mid-70s, what we’ve seen since, ironically, is a kind of regulatory mania in which great international structures like NAFTA, the World Trade Organization, and the eurozone have arisen in order to superintend free trade.  Somehow, more regulation is needed so that de-regulation can work its miracles.  When you toss in some of the other international regulatory structures that have taken shape since the 1970s, e.g. the war on drugs and the war on terrorism, then it’s clear that while the international arena is more law-bound than ever, it’s also more irrational, inconsistent, and opaque.  No one knows who’s a terrorist and who isn’t, why a bomb carried by hand onto a crowded bus is worse than a missile fired by a remote-controlled drone, or why certain mind-altering substances are forbidden and others are not.  All that we know is that there’s no point protesting because it’s all beyond democratic control.  Entire continents are in ruins.  Yet all citizens can do is keep their heads down in the hope that they don’t wind up among the 65 million people now classified as stateless refugees.

Instead of a system in which the people are sovereign, the upshot is one in which no one is truly sovereign and irrationality are thus given free rein.  But the goal is still unchanged, i.e. to reduce democracy to the vanishing point and neutralize the working class.  Not only is the legal structure exempt from democratic control, but democratic control has become all but unthinkable.

It’s fascinating that five years prior to The Road to Serfdom, Hayek sketched out the basic outlines of the European Union in a little-known article in the New Commonwealth Quarterly in September 1939.  Entitled “The Economic Conditions of Interstate Federalism,” it said that the goal was to limit the nation-state by encasing it in a larger free-trade zone whose governing board would be limited as well.  Thanks to the transfer of economic power from the nation-state to some sort of supra-national union, Hayek declared, “trade unions, cartels, or professional associations will lose their monopolistic position,” while “much of the interference with economic life to which we have become accustomed will be altogether impracticable.”  Socialism would become impracticable as well since neither the federation nor the individual nation-states would have sufficient power to put it into effect.

Hence, the answer to workers’ revolution was not firing squads and concentration camps, but a supra-national federal order that would nip it in the bud.  Hitler was not too ruthless, it seems, but not ruthless enough.  “[T]he abrogation of national sovereignties and the creation of an effective international order of law,” Hayek concluded, “is a necessary complement and the logical consummation of the liberal program … if the price we have to pay for an international democratic government is the restriction of the power and scope of government, it is surely not too high a price, and all those who genuinely believe in democracy ought to be prepared to pay it.”

Radical shrinkage was the key to democracy’s survival.  It was the prewar version of destroying a village in order to save.  It’s fascinating how the broad outlines of the postwar order began taking shape just as the tanks were beginning to roll – and how, with the EU crumbling and the US in an advanced constitutional crisis, the Hayekian concept of the Rule of Law is now being trotted out in support of a post-Hayekian order that is rapidly breaking down.

[1]Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory(Cambridge: Cambridge Univ. Press, 2004), 3.

[2]Jean Hampton, ibid., 48.

[3]F.A. Hayek, The Road to Serfdom(Chicago: Univ. of Chicago Press, 2007), 113.

Is the President Above the Law?

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Is the president above the law?

This is the question of the day given Donald Trump’s recent tweet that he has “the absolute right” to pardon himself in the event Robert Mueller charges him with obstruction, collusion, or other such crime.  According to the New York Times, this is yet more evidence that Trump “confuses the role and powers of the president with those of a king.”  But is it really so cut-and-dried?

Thanks to America’s complex and contradictory political structure, it isn’t.  Under the British constitution, to which the US is often compared, “her majesty’s government” is indeed above the law in the sense that it is the source of law rather than the object.  If the House of Commons decrees that everyone must wear plaid on Sundays, it would not be unconstitutional for the simple reason that the “crown-in-parliament,” i.e. the union of the crown, lords, and commons, is the highest authority in the land and hence there is no supreme court or other such body to contradict it.  Britain’s unwritten constitution gives Parliament a perfect right to make a fool of itself if it so pleases, and no governmental authority is empowered to say otherwise.

Things are not so clear here in the US where Congress makes a fool of itself on a daily basis and no one seems to care.  Unlike Britain, no one is in charge in the US for the simple reason that America’s founders rejected the concept of sovereignty in toto.  Thus, while the Constitution might seem to be the final authority, Article V says that “we the people” can change it, which suggests that it’s the citizenry that’s really on top.  But since the Constitution at the same time severely curtails the people’s amending power, the people are not fully in control either.  During the glory days of the Warren court, liberals considered it an article of faith that the Supreme Court was the highest authority since its job is to interpret what the Constitution says.  But Lincoln successfully defied the Supreme Court in Ex parte Merryman (1861) by suspending a Confederate sympathizer’s right of habeas corpus while FDR threatened to undermine it by packing it with liberal appointees.  Congress would seem to be on top since it can impeach a president and a Supreme Court justice to boot.  But impeachment is so arduous and ineffectual that congressional supremacy is similarly a mirage.

No one’s on top.  So the real question is not whether Trump has an absolute right to pardon himself, but whether anyone has the constitutional power to stop him.  The answer is no.  The Supreme Court can’t act without backing from Congress, and Congress won’t act because Republicans can be counted on under anything like current circumstances to stop impeachment in its tracks.  We the people can punish Trump by voting him out of office except that the Electoral College, thanks to mounting disparities in state populations, shows an increasing tendency to substitute its judgment for that of the population at large.

Thus, the president is not above the law or under it, but somehow in between.  This is a dangerous ambiguity that the people should clear up as quickly as possible in the interests of democratic self-government.  But since the Constitution effectively declares itself to be unchangeable – remember, Article V allows just thirteen states representing as little as 4.4 percent of the population to veto any amendment – the people are constitutionally prevented from putting their own house in order.  The problem is therefore unfixable.  While the Times rages and fumes, Trump tweets happily away as a consequence, confident that he can do as he likes without anyone getting in his way.

If the president defies the law and no one is empowered to stop him, is it really unconstitutional?  Put another way, does a fatally flawed Constitution not only allow, but fairly invite the president to behave in a way that is increasingly dictatorial?

The answer for once is unambiguous: yes.

Americans Want an End to Gun Violence, but the Constitution Says No

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Lori Alhadeff: The Constitution killed her daughter

The Parkland, Florida, high school massacre, which claimed 17 lives in February, is by now fast fading from popular consciousness.  The same goes for the Sutherland Springs, Texas, church shooting last November, which claimed 26 lives; the Las Vegas massacre a month earlier, which claimed 58; the Pulse nightclub shooting in Orlando, Florida, which claimed 49, and so on.  All are disappearing down the memory hole as Americans, faced with congressional paralysis and a gridlocked political system, figure that there is nothing they can do except sit quietly until the next atrocity occurs.  If a single three-year-old chokes on a plastic toy, congressmen will fall all over themselves in the rush to introduce remedial legislation.  But when a troubled 19-year-old walks into a school and blows away a dozen or more teenagers and adults, all they can do is offer “thoughts and prayers” and then scurry away from the news cameras as fast as their feet will carry them.

Why is reform easy in one instance and all but impossible in another?  This was the subject of a New York Times news analysis on Monday, which summed up the answer in just three letters: NRA.  As reporter Clyde Haberman wrote, “Efforts at the federal level to reduce the mayhem have gone nowhere for many years, to a large extent because of the power of the National Rifle Association.”  Even though it looked for a while that things might be different after Parkland, the moment passed as gun lobbyists dug in their heels and politicians launched into their usual double-talk.  “Once again,” says Haberman, “the NRA and its fundamentalist interpretation of the Second Amendment prevailed.”

The problem thus boils down to a single lobbying group and the twisted reading of the Constitution that it foists on Congress and the courts.  The solution therefore seems to be simple.  Defeat the NRA, and all the rest of the craziness – the shootings, the gun nuts, the weird conspiracy theorists going on about “crisis actors” and the like – will go down with it.

But it’s not quite so easy.  What the Times forgets is that lobbies don’t grow on their own.  If they’re big and powerful, it’s not just because they’ve signed up lots of members and thrown lots of money around Washington, but because they speak to the needs of the larger capitalist structure.  If the National Association of Realtors, to cite a no-less-powerful super-lobby, strikes fear in Washington, it’s not only because it has thousands of members ready to dial their congressman the moment their interests are threatened.  To the contrary, it’s because Congress has made individual homeownership a national priority since the New Deal and, as a result, has encouraged the growth of a vast real-estate market and all that goes with it.  It encouraged the NAR and other such groups to grow big and powerful so as to serve the industry and provide friendly forces on Capitol Hill with political support.

The same goes for the NRA.  It, too, is a product of the larger structure.  As formidable as 1.1 million fired-up members may be, the real source of its strength lies with the constitutional structure, in particular the Second Amendment, which, contrary to the Times, the group understands all too well.

The Second Amendment is a fascinating problem, which is why I find myself returning to it every decade or so (examples here, here, and here).  For years, its meaning appeared to be settled.  Since it begins by declaring that “a well-regulated militia … [is] necessary to the security of a free state,” it seemed clear that the right to bear arms existed only for the purpose of advancing such a goal.  Given that state militias have been federalized since 1903, the result was a constitutional plank guaranteeing every citizen the right to enlist in his or her local National Guard, no more and nor less.  The idea that it gave ordinary people the right to stockpile assault rifles or machine-guns was nonsense.  As the ACLU declared in 1980, “the right to bear arms is a collective one existing only in the collective population of each state for the purpose of maintaining an effective state militia.”

So it seemed.  But when scholars took another look beginning in the 1980s, a different view took shape.  Significantly, it was not conservatives who led the charge, but liberals and leftists for whom the ACLU interpretation seemed all too pat.  One was a civil-rights activist turned anti-poverty lawyer named Don B. Kates Jr., who published a path-blazing article in the Michigan Law Review in 1983.  Another was a constitutional scholar at the University of Texas Law School named Sanford Levinson, whose article, “The Embarrassing Second Amendment,” published in the Yale Law Journal in 1989, triggered a mini-academic revolution.

What they found, simply, is that the amendment was the product of a different age and hence was not easily reconciled with the needs of modern society.  Since there was no police force in the 1700s and no standing army other than one forced on the colonists by the British, “patriots” regarded it as an article of faith that it was up to ordinary citizens to maintain public safety and provide for the common defense.  Instead of a professional military force, the right to bear arms thus applied to “[t]hewhole body of able-bodied male citizens declared by law as being subject to call to military service,” to quote the Federalist Nathaniel Webster.  Citizens who were armed and free were the ultimate protection not only against foreign invasion, but against tyranny arising from within.  As a long political tradition maintained, the only people who could protect freedom were the people themselves – provided they were armed.

This was the ideology put to the test in 1775 when roughly a thousand armed colonists converged on some 700 British regulars in the Battle of Lexington and Concord, picking the Redcoats off one by one as they straggled back to Boston. Although Washington understood that Americans needed a regular army of their own, the concept of a popular militia welling up from below continued to occupy a hallowed place in patriotic mythology.  As Madison put it a few years later in the Federalist Papers, European tyrannies were “afraid to trust the people with arms” whereas Americans possessed “the advantage of being armed … over the people of almost every other nation.”  James Monroe wrote that “the right to keep and bear arms” was one of the basic “human rights” that should be constitutionally enshrined, while Patrick Henry declared that “[t]he great object is that every man be armed.”  After ratifying the Constitution in June 1788, New Hampshire called for a bill of rights specifying that “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.”  So did New York and Rhode Island along with a substantial portion of the Pennsylvania ratification convention.  In all, five state conventions called for constitutionalizing a right to bear arms compared to only four that demanded the same protection for freedom of assembly and only three that called for a constitutional guarantee of the right of free speech.

Clearly, no issue touched Americans more deeply than the people’s right to bear arms, not as part of an official army or militia, but informally and on their own.  This is what one would expect of what was still a revolutionary republic.  What the Times sees as a “fundamentalist interpretation of the Second Amendment” is in fact far more nuanced than the ahistorical nonsensea put forth by the ACLU.

But the implications are themselves revolutionary. If the amendment still bears the stamp of the 18thcentury, then there’s no way of smoothing out its rough edges so that it fits comfortably into the 21st.  Either the amendment says what the NRA says it does — which it in fact does, more or less — or it needs to be updated.  This is a very simple task.  Or, rather, it would be a simple task were it not for an amending clause in Article V that is just as dysfunctional as anything else the document has to offer.  The amendment needs to be fixed yet can’t be because the founders neglected to include a proper toolkit enabling Americans to do the job.

But the problem goes even deeper.  The Second Amendment is the only amendment with what might be called a preamble, which is to say the first thirteen words declaring “a well-regulated militia” to be “necessary to the security of a free state.”  As such, it can be seen as a kind of mini-constitution in its own right.  But where the larger Constitution outlines a more or less conventional view of representative government, the smaller constitution within suggests something different, i.e. a bottom-up republic in which people do not elect congressmen to govern for them, but govern themselves, locally and organically, on their own.  As Levinson observed in the Yale Law Journal:

[J]ust as ordinary citizens should participate actively in governmental decision-making, through offering their own deliberative insights, rather than be confined to casting ballots once every two or four years for those very few individuals who will actually make the decisions, so should ordinary citizens participate in the process of law enforcement and defense of liberty rather than rely on professionalized peacekeepers, whether we call them standing armies or police.

It’s a question of participation versus representation, of local versus centralized control, of government by us and people like us as opposed to distant strangers who may be very different.  It’s hardly surprising, consequently, that the second constitution has emerged as a rallying point for Patrick Buchanan’s “pitchfork brigades,” rural folk and small-town dwellers outraged that government in faraway Washington has, in their view, fallen into the hands of racial minorities, feminists, gays, and the urban masses in general.  The Second Amendment thus incorporates a pre-modern concept of freedom that was prevalent in 18th-century America, a concept of freedom from democracy rather than something achieved through it.

When the NRA says it’s “freedom’s safest place,” this is what it means.  So which concept of government do today’s Americans favor – local or national?  The answer is, almost by definition, the latter.  Yet it doesn’t matter because a pre-modern Constitution favors the former. While Americans support stricter gun control by a margin of 68 to 25 according to the latest poll, the governing structure says otherwise.  No matter how many high school students demonstrate in the streets, no matter how many mothers like Lori Alhadeff – whose 14-year-old daughter Alyssa was among the Parkland victims – cry out in anguish for “action, we need it now, these kids need action now,” action is something they won’t get.  This is not because politicians are corrupt, cowardly, or mealy-mouthed – although they are all those things and more – but because the constitutional structure says no.

Instead of government of, by, and for the people, the result is a dictatorship by a dead document that is increasingly at odds with the population it claims to serve.  This is the problem that the Times can’t bring itself to face, which is why it wants us to believe that responsibility lies solely with the NRA.  It’s determined to shut its eyes and those of its readers too.

Authoritarianism with a Liberal Face

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Napoleon III: The model for Donald Trump?

Jon Elster, a professor of social sciences at Columbia, has an essay comparing Donald Trump to Napoleon III in a new collection, Can It Happen Here? Authoritarianism in America (HarperCollins), edited by Cass R. Sunstein.  Elster’s point is a little murky, but essentially it seems to be that Trump and Louis Napoleon, who ruled France from 1848 to 1870, are autocrats cut from the same “narcissistic and megalomaniac” cloth.  I said something similar in December 2015 when Jacobin magazine polled some of its contributors as to whether Trump could be defined as a fascist, properly speaking.  I said he couldn’t and described him instead as a “Bonapartist – a tough leader who positions himself above the fray and simultaneously attacks enemies from the Left and the Right.”  I predicted that he would “do better against Clinton than most people assume by attacking her for backing the invasion of Iraq and for now calling for a Syrian no-fly zone.”  If he made it into the White House, I added, he’d “function as a classic authoritarian, blustering and bullying and maybe imposing a state of emergency if conditions get hairy enough.  But all this would establish him as a precursor to fascism rather than the genuine article.”

This wasn’t half-bad considering how few commentators took Trump seriously at the time.  But in other ways it was off the mark.  Essentially, I expected Trump to follow the standard model of a strong man who outmaneuvers traditional conservatives while prevailing over a weak and divided liberal opposition.  But that isn’t how things have turned out.  The liberal state has fought back much more vigorously than I expected, to the point where it’s now Trump – beset by scandal, pursued by prosecutors and journalists – who’s on the ropes.  But rather than defeating Bonapartism, all liberals have succeeded in doing is ushering it in through the back door.

The result – authoritarianism with a liberal face – is the real surprise of the Age of Trump.  Where once it was a Tea Party-driven GOP that kept leftists awake at night, now it’s anti-Trump Democrats.  In their zeal to drive Trump out of office, liberals have launched an anti-Russian scare campaign that is pumping up tensions to ever more dangerous levels; promoted a drive to censor the internet, and are doing their utmost to marginalize critics of US policy in Syria, the Ukraine, and beyond.

They’ve also used the FBI, CIA, and NSA in ways that harken back to the bad old days of J. Edgar Hoover.  This is a point that Jack Goldsmith, a Harvard law professor, makes in another essay in the Sunstein collection.  Goldsmith is an interesting character.  He headed the Office of Legal Counsel under Bush II but clashed with higher-ups over torture and was a participant in the famous March 2004 hospital-room stand-off when a critically-ill Attorney-General John Ashcroft said no to White House demands that he approve stepped-up domestic spying.  Goldsmith resigned a few months later, and the experience clearly left him hyper-sensitive to the problem of intelligence agencies slipping the leash.

Hence his alarm at what the “intelligence community” is now up to.  Since Trump’s election, unknown intelligence agents have leaked NSA wiretaps showing that incoming National Security Adviser Michael Flynn lied about discussing US sanctions with Russian Ambassador Sergey Kislyak, information that was then used to drive Flynn out after just 24 days in office.  “Deep State” operatives leaked communication intercepts of Russian officials discussing potentially derogatory information about Trump and top campaign aides; of Russian officials claiming that they could use Flynn to influence Trump; of Kislyak informing Moscow that he discussed campaign-related issues with then-Senator Jeff Sessions; and of Kislyak discussing Jared Kushner’s efforts to establish secure back-channel communications with Moscow.

All of which, Goldsmith says, is unprecedented: “These leaks probably mark the first time ever that the content of foreign intelligence intercepts aimed at foreign agents that swept up US-person information was leaked.  They clearly aimed to damage US persons – ones who happen to also be senior US government officials.”  The upshot has been “a return to the Hoover-era FBI’s use of secretly collected information to sabotage elected officials with adverse political interests.”

It’s as if Watergate and the 1975 Church Committee had never happened.  Liberals would be up in arms if the administration had done this.  But since the intelligence agencies have done so in order to undermine Trump, they’re jubilant. As one especially addlepated columnist put it in the vehemently anti-Trump Vanity Fair: “…if the Deep State can rid us of the blighted presidency of Donald Trump, all I can say is ‘Go, State, go.’”

If ever there was a way of whistling on the way to the concentration camp, this is it.  Another dirty trick, one that Goldsmith doesn’t discuss, is the famous Christopher Steele dossier, the document that singlehandedly turned “golden showers” into a household term.  No matter what the Washington Post, the New York Times, or the New Yorker might say, the dossier is a feeble concoction that would never pass any real journalist’s smell test.  The urination episode is absurd on any number of grounds, not least of which is the fact that Trump, just as he says, is a well-known “germaphobe” who is unlikely to take part in any such activities.  (If you don’t believe it, check out Erik Hedegaard’s hilarious 2011 Rolling Stone interview in which the then-reality-TV star goes on about the merits of Purell versus other hand sanitizers.)  The famous “pee tape” is dubious since, if it really existed, the Kremlin would have undoubtedly used it by now in response to Trump’s decision to slap on additional sanctions, expel Russian diplomats in the wake of the Skripal affair, sell anti-tank missiles to the Ukraine, or bomb Russia’s ally, Bashar al-Assad.  Presumably, Trump would have hesitated blackmail was a real concern.  But he hasn’t.  The only thing that seems to concern him is Democrats taunting him for being soft on Russia.

The dossier also says that “TRUMP has declined various sweetener real estate deals offered him in Russia in order to further the Kremlin’s cultivation of him,” but then adds a few pages later: “Finally, regarding TRUMP’s claimed minimal investment profile in Russia, a separate source with direct knowledge said this had not been for want of trying.  TRUMP’s previous efforts had included exploring the real estate sector in St Petersburg as well as Moscow but in the end TRUMP had had to settle for the use of extensive sexual services there from local prostitutes rather than business success.”  It says that Trump lawyer Michael Cohen met with Russian operatives in Prague in mid-2016, yet Cohen denies ever setting foot in the Czech capital and has even allowed Buzzfeedto examine his passport to prove it.

Indeed, the dossier is so weightless that even Steele is walking away from it.  He has reportedly downgraded the “truthiness” of the golden-showers incident to just fifty-fifty while, in papers filed in response to a libel suit in London, he now maintains that the dossier “did not represent (and did not purport to represent) verified facts, but were raw intelligence which had identified a range of allegations that warranted investigation given their potential national security implications.”

The golden-showers incident may be true or may not.  Yet according to a 15,000-word article by staff writer Jane Mayer in last month’s New Yorker, an ex-aide tried use the dossier to persuade Republican super-hawk John McCain to force Trump to step down before even taking the oath of office.  FBI Director James Comey may have been up to something similar when he confronted Trump with the golden-showers episode in a one-on-one meeting at Trump Tower.  Comey has never adequately explained that meeting, which occurred just two weeks prior to inauguration.  In a memo he wrote shortly after, he said he wanted Trump to know that “media like CNN had them [i.e. the sixteen memos comprising the dossier] and were looking for a news hook.”  Yet word of the meeting, which quickly leaked, provided CNN with precisely the hook it need to publish the first news story about the dossier.  Comey said he didn’t tell Trump that the Clinton campaign had commissioned the dossier because “[i]t wasn’t necessary for my goal, which was to alert him that we had this information.”  But Trump would have seen the dossier in a very different light if he had known that it was nothing more than “oppo research.”

A phony intelligence report that Democrats paid for and have since used ever since to harass Trump at every turn?  Not even Nixon could have come up with something so audacious.  Yet not only does the press fail to protest, but it cheers the Dems on.  Forty years of post-Watergate reform are going up in smoke – not because of Trump but because of his liberal opponents.

Pace Elster, Bonapartism is not a Trump-only affair.  To the contrary, it’s fully bipartisan, with the Democrats, if anything, taking the lead.  Plainly, the party underwent a phase change during the 2016 election when the Democratic mainstream came under attack from both Bernie Sanders and Trump.  The combined one-two punch sent the Hillaryites careening off into an authoritarianism that has only intensified in the months since.  The  system is breaking down, just as it broke down in France beginning in 1848.