The Midterms: Trump Emerges Bloodied but Unbowed

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The Orange One: Legitimacy Enhanced

Democrats went into midterms hoping for a clear-cut repudiation of Donald Trump and all he stands for, but what they’ve wound up with instead is a muddle.  They captured the House, but gained less than half as many seats as Republicans did in 2010.  They lost ground in the Senate, showed distinct weakness in the crucial battleground states of Florida and Ohio, and were no more than spottily successful outside of the affluent suburbs.  New Deal progressives are increasingly a party of Brahmin liberals cut off from the “deplorable” masses below.

Trump thus emerged from the ordeal bloodied but unbowed.  To be sure, one-party rule is kaput, which means that he can say goodbye to his more extreme legislative proposals.  But it’s unclear how much Trump really wanted to build that wall along the Mexican border in the first place as opposed to using it as a slogan to pump up anti-Latino racism and xenophobia.  He’ll still have a free hand in foreign policy and in environmental and business de-regulation and will be able to use his enhanced majority in the Senate to intensify the GOP’s march of destruction through the judiciary.  Once Ruth Ginzburg steps down, now all but certain thanks to her failing health, he’ll be able to cap it off by nominating yet another Federalist Society pick for the Supreme Court.  The legal structure as a whole will lurch even farther to the right, forcing Democrats to wage a battle that is ever more uphill.

Not a pretty picture, is it?  All this occurs amid a political structure that is growing increasingly undemocratic and illiberal.  State population projections issued by the University of Virginia’s Weldon Cooper Center for Public Service indicate that US population as a whole will grow some 17.6 percent by the year 2040 and that the demographic gap between individual states will continue to widen.  Where the ratio between the most and least populous state, i.e. California and Wyoming, now stands at 68 to one, it will reach a whopping 79 to one over the same period.  Where a majority of Americans now live in ten states, better than 52 percent will live in just nine, i.e. California, Texas, Florida, New York, Pennsylvania, Georgia, Illinois, North Carolina, and Ohio.  Where California currently has more people than the 21 smallest states combined, in a little over two decades it will have more than 22.

The implications are ominous.  Where the Senate now allows the minority to outvote the majority by four to one, by 2040 it will allow it to do so by an even greater margin – 4.55 to one to be exact.  Where today a Senate majority can be gleaned from states representing just 18.7% of the population, by 2040 it will be obtainable from states representing just 17.4.  Given the disproportionate clout enjoyed by white rural states such as Montana, Wyoming, and the Dakotas, the upper chamber can only grow more racist, rightwing, and anti-urban, which means that the judiciary will as well.  Since rightwing judges are rarely troubled by gerrymandering, voter suppression, and the like, we can expect such trends to proceed apace, rendering the House more unrepresentative as well.  The same goes for the Electoral College.  Currently, Wyoming residents have 3.72 times more clout in presidential elections that Californians.  But by 2040, the smallest state – by this point Vermont – will have roughly 4.25 times as much.  Stolen elections à la 2000 and 2016 will grow more likely rather than less.

Inequities like these were no big deal at the time the US Constitution was created.  The Republic of Geneva limited voting to just 1,500 male residents, the Dutch Republic was ruled by a governing council in which seven provinces were equally represented despite immense population differences, while the Venetian Republic was a baroque masterpiece consisting of a citizen assembly, a grand council, a minor council, a “council of ten,” a senate, a doge, and a cabinet-like collegio.  All supposedly served as checks and balances on one another, although the arrangement didn’t stop a few hundred nobles from effectively running the show.  The US Constitution represented a significant improvement in its day.  But it has since served as a kind of historical conveyor belt for the transport of eighteenth-century political values to the twenty-first

And now it’s all going into reverse as the imbalances mount.  The Polyannas at Jacobin Magazine may think that that “things are slowly – but surely – moving our way,” but in fact they’re doing the opposite.  The result is not only “a growing crisis of legitimacy for the US political system,” to quote Paul Krugman in the Times, but one that is effectively unfixable for the simple reason that the founders neglected to include a toolkit that is up to the job.  To be sure, Article V establishes a mechanism for changing the Constitution.  But by requiring amendments to be approved by two-thirds of each house plus three-fourths of the states, it allows thirteen states representing as little as 4.4 percent of the population to veto any reform sought by the remainder.  A structural overhaul is thus out of the question even though common sense tells us that it is long overdue.  Indeed, by 2040 when the same number falls to just 4.2 percent according to the UVA projections, it will be even more impossible.  Instead of a more perfect union, Americans will be saddled with one that’s more corrupt, more undemocratic, and more dysfunctional. Rather than “secur[ing] the blessings of liberty to ourselves and our posterity,” the constitutional machinery will destroy them.

Conceivably, Democrats could respond by telling Americans the plain unvarnished truth about what needs to be done.  But for a thousand and one reasons they won’t.  As creatures of the constitutional system, they’re no more capable of altering its essential parameters than a guppy is capable of changing the fishbowl he lives in.  Rather than challenging the larger system, they’ll now doubt accept it as a fait accompli and internalize its increasingly rightwing logic.  In fact, this is what they’ve already done with their reactionary a campaign against Moscow.  Their only answer to the bad xenophobia of Trump, apparently, is a “good” xenophobia that targets Russia instead of brown people from the south.  This is what the two-party system amounts to in the age of Trumpism, i.e. a neck-and-neck race to authoritarinism.  Not good, as the Orange One would say.

Hold the Presses: The Senate Is Undemocratic!

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Young fogey Ezra Klein: unable to look the problem full in the face.

In the wake of the Brett Kavanaugh affair, a number of news outlets have discovered that the body that confirmed him, i.e.  the US Senate, is less than a model of democracy.  Due to growing state population discrepancies, declared Lawrence O’Donnell on MSNBC, “the votes of New Yorkers and Californians [are] worth less everyday in the United States compared to the votes of people in the Dakotas.”  At the New York Times, David Leonhardt described the Senate as “affirmative action for white people” and calculated that it gives whites 35 percent more political clout than blacks and 85 percent more than Hispanics.  Over at the Atlantic, Parker Richards noted that the fifty senators who voted for Kavanaugh represent just 44 percent of the US population, adding: “those who want abolition and those who want more modest, but nonetheless significant, changes agree: The Senate is increasingly unrepresentative of the American populace.”

How incendiary.  Then there is Ezra Klein, whose essay at Vox.com, “The Rigging of American Politics,” is even more sweeping.  “Since 2000,” he writes, “fully 40 percent of presidential elections have been won by the loser of the popular vote.  Republicans control the US Senate despite winning fewer votes than Democrats, and it’s understood that House Democrats need to beat Republicans by as much as 7 or 8 points in the popular vote to hold a majority in the chamber.  Next year, it’s possible that Republicans will control the presidency and both chambers of Congress despite having received fewer votes for the White House in 2016 and for the House and Senate in 2018.”

Yes, it really is a horror show.  “Kavanaugh now serves on a Supreme Court,” Klein goes on, “where four of the nine justices were nominated by a president who lost the popular vote in his initial run for office.”  Having gained control of the executive branch, the House, and the Senate, the minority dictatorship has thus moved on to the judiciary, which it will now use to deepen and extend its rule.  The result, Klein writes, is a growing crisis of legitimacy in which “we the people” no longer believe that the system is right, fair, and representative.  “This is the feeling that is draining out of the American political system,” he says, “and as bad as it is now, it can, and likely will, get much, much worse.”

Quite right: the longer this farce goes on, the more demoralized Americans will become.  But what’s notable about Klein’s 3,200-word article is the way it can barely bring itself to mention the real problem, which, of course, is the dysfunctional amending clause in Article V.  All Klein can say is that the “Constitution is devilishly difficult to amend” and that “the pace of amendments is slowing as we move further from the date of ratification” – hardly adequate given that the Article V effectively rules out meaningful constitutional reform by allowing just thirteen states representing as little as 4.4 percent of the population to veto any and all change.  This is why frustration is mounting to such dangerous levels: because the Constitution is essentially unfixable under anything like present circumstances and “we the people” are therefore destined to writhe ever more hopelessly in its grip.

This inability to look the problem full in the face explains why Klein’s rhetoric grows murkier and murkier the longer he goes on.  “America is not, and never has been, a democracy,” he says before complaining that it falls short of democratic norms.  “We do not judge our constitution, we venerate it,” he adds.  He worries that “there’s little clarity on the principles we believe should undergird America’s political system” and wonders whether “our true belief is not that our system of governance is performing so well that it should be immune to change, but that we are performing so poorly that we do not trust ourselves to change it.”  Then comes the following peroration:

The problem right now is we don’t all agree the rules are fair, but the depth of that disagreement has made it impossible to imagine agreeing to other rules, either.  And since we haven’t even tried to agree to the principles that are meant to guide our rules, every question, in every case, comes down to the raw exercise of power.  Perhaps the only way out of this mess is for the stakes to be raised, for Democrats to respond to Republican provocations and an increasingly tilted playing field by striking back and pushing the system to a breaking point.  Perhaps then a compromise will come clear to both sides.  But that’s a treacherous path to walk in a country that already feels near fracture.

All of which is quite misleading.  If Americans venerate the Constitution, it’s not because they’re worshipful or religious but because Article V places it so far beyond their reach that they have no choice other than to acquiesce.  If the system lacks clarity, it’s because they don’t know how to fix it and thus dispel the constitutional fog.  It’s not that they don’t trust themselves to make long-overdue reforms.  It’s that they lack the power and therefore don’t know how to begin.

As for “the depth of that disagreement [that] has made it impossible to imagine agreeing to other rules,” in fact it’s not at all impossible – it’s just seems that way.  For the moment, an obsolete political system cripples effective decision-making.  But it’s not impossible to imagine a different system in which all it would take is a 51-percent majority to cast aside old rules and superstitions so that “we the people” can address their problems in something like the clear light of day.  Agreement under such conditions might actually prove quite easy.

The problem is really simple — so simple, in fact, that people like Klein tend to look away.  The issue is that Article V and the Preamble are mutually contradictory.  One says that “we the people” are all-powerful and hence fully capable of tossing out old constitutions and instituting new ones in their place in order to establish justice, insure domestic tranquility, and do all the other things that popular sovereignty requires.  The other says the opposite, i.e. that the Constitution is not an instrument of democratic self-government, but a totem before which the people must bow and scrape.  Just as a house divided itself cannot stand, a people that can’t figure out whether they’re over the Constitution or under it is one that will grow increasingly paralyzed the more sclerotic the system grows and the more problems pile up.

The structure is collapsing, yet Americans don’t know what to do because the founders neglected to include a repair kit along with a user’s manual.  But what they don’t realize is that the founders didn’t include a repair kit because they couldn’t: being mere mortals, they had no way of anticipating the problems that would arise.  Hence, what they fail to realize is that they must come up with their own repair kit to deal with such difficulties and that casting off the dead weight of eighteenth-century constitutionalism is the first step to doing so.

This doesn’t means operating within the Constitution according to its various rules and precepts, but stepping outside it, which is nothing less than a revolutionary act.  But this is why bourgeois liberals like Klein are unable to grasp the problem in full – because doing so would mean opening the door to more change than they’re willing to admit.  “Be practical, demand the impossible” – so radicals declared in Paris in 1968.  But present circumstances have turned that dictum on its head.  Because change is impossible, people feel they have no choice but to stick with the status quo no matter how impractical it grows.

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.