The Meaninglessness of the Rule of Law


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?


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


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


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.

The Mathematics of Political Decline


Benjamin Netanyahu: The Jewish Viktor Orban

A dreadful piece of legislation making its way through the Israeli Knesset sheds light not only on the Jewish state’s lurch to the right, but on the constitutional breakdown here in the United States.

Known as the Jewish Nation-State Bill, its purpose is to do away with the old rigmarole about Israel as simultaneously a Jewish and democratic state and shifts the balance decidedly in favor of the former.  Apologists say the bill will change little since the UN declared Israel to be a Jewish state  back in 1947, Israel’s own declaration of independence said the same thing a year later, while the entire world has routinely employed the phrase ever since.  So what does it matter if, instead of a “Jewish state,” Israel is now a “Jewish State” with a capital “S”?  What’s the big deal?

But, of course, it’s a very big deal.  An Israeli journalist named Lahav Harkov explained why – in back-handed way, of course – in an article in Commentary in 2013.  “For Israel to thrive uniquely as a Jewish democracy,” he wrote, “its institutions and laws must ensure that its democratic nature is never brought into irresolvable conflict with its Jewish identity.”  But democracy can’t help but conflict with Judaism, the basis of “Jewish identity” (whatever that may be), for the simple reason that two ideologies are mutually incompatible.  Political democracy was new and revolutionary when it burst upon the world in 1789 because it wrested sovereignty away from the church and crown and vested it with the people instead.  Various liberals, pluralists, pragmatists, etc., have tried to blur the difference ever since.  But the fact remains that there can be only one person, group, or entity in charge, either God or the people but never both.

It’s as simple as that.  So when Harkov says that democracy must never interfere with Jewish identity, what he’s really saying is that democracy must be pared back so that Judaism remains undisturbed.  This becane crystal clear when he went on to discuss an explosive Israeli Supreme Court ruling in the year 2000 declaring that an Israeli Arab couple named Adel and Iman Kaadan had a democratic right to purchase a home in a Jewish settlement, this despite the fact that the settlement is located on land owned by the Jewish National Fund, which, as a matter of deep principle, refuses to sell or lease to non-Jews.  Most people, and certainly most Americans, would regard the court’s decision as a ” no-brainer,” as they say.  After all, what could be more elementary than a citizen’s right to live wherever he or she pleases regardless of race, religion, or ethnicity?  But Harkov, out of devotion to Zionist national purity, sees it as a threat because it “erode[s] Israel’s Jewish nature in the name of preserving its democratic one.”

So there’s no question that the proposed new law will rein in democracy and tip Israel even further in the direction of ethno-religious authoritarianism à la Viktor Orban’s Hungary or Jaraslaw Kaszynski’s Poland.

But why now?  What is it about the make-up of the Israeli state that propels it in such a direction after seventy years of muddling through?

Demographics provides at least part of the answer.  After peaking at around eighty-nine percent in the late 1950s, the Jewish share of the Israeli population has edged downward ever since – to 85.5 percent in 1970, to 83.8 percent in 1980, to 81.6 percent in 1990, and, finally, to 75.3 percent as of early 2013.[1]  But the Six Day War in 1967 complicated matters by bringing millions of Palestinians under Israeli sway.  Inside “greater Israel,” the area from the Jordan to the Mediterranean that includes Gaza and the West Bank, Jews are now in the minority according to various estimates or will be shortly.

The result is nothing less than a sea change.  Back when Jews were 89 percent of the population, the concept of ethnos and demos overlapped so completely that it was easy to pretend that they were essentially the same.  Israeli society looked democratic, acted democratic, and even felt democratic, so it was easy to overlook the fact that one person in nine was a second-class citizen.  But now, with Jews slipping into an outright minority, the two concepts are pulling apart.  Instead of a demos, Jews are fast turning into a herrenvolk, a master race, ruling over a subordinate population of Palestinians and various other groups.

Ironies abound.  The Israeli position has never been more secure.  Palestinians are exhausted and defeated, the entire Muslim world is in disarray, while the economic gap between Israel and is neighbors has never been wider.  With twice as many scientists and engineers per capita as the US or Japan (as Perry Anderson noted a few years ago in the New Left Review), the Israeli economy has never been more dynamic.  One would think, therefore, that it could afford to be magnanimous.  But the numbers dictate otherwise.  They force it in a direction of a dark and brooding nationalism that is increasingly punitive and authoritarian.

But what of the US? What do the numbers tell us here?

The magic number as far as America is concerned is 4.4. That’s the percentage of the United States that lives in the thirteen least populous states, the minimum required to veto any constitutional amendment.  Like the Jewish share of the Israeli population, it, too, is on the decline.  In 1790, the equivalent figure was 9.8 percent, in 1860 it was 5.5, while by 2030 it is projected to fall to 4.0.  If we take these numbers and multiply them by the number of years the constitutional order has been in existence, then we can come up with something like a numerical index showing how much “we the people” have lost control over their political structure.  By the Civil War, for instance, Americans had lost 44 percent of their power over a system that was now past its seventieth birthday, while by 2018 they have lost another eleven points with regard to one that is well into its third century.

The more powerful, ornate, and all-embracing the constitutional order grows, the more democratic control shrinks to zero.  Despite the enormous constitutional restrictions imposed by the founders, “we the people” still had some sense in 1860 that they were still in charge.  They had created the Constitution in order to further their own interests, and now they were prepared to act independently to remove a slaveholder dictatorship that was increasingly intolerable.  The upshot was a revolutionary explosion that was both democratic and extra-constitutional.  The people suspended the Constitution in order to destroy the slaveholder elite and then, once the job was done, re-imposed it on a subjugated South after implementing significant structural changes.

Now, however, all memory of popular sovereignty has been expunged, with the result that “we the people” are lost in a legal-constitutional maze with no idea how to get out.  Nothing works.  Congress is paralyzed and corrupt, the popular will has been disregarded in two of the last five presidential elections, while the judiciary increasingly leans toward a concept of “original intent” that is designed to tighten constitutional restrictions even more.  Economic polarization is shooting through the roof, mortality rates are rising, while a 1914 moment is playing out in the Middle East as Donald Trump prepares to engage Russia and Iran in a regional war over unproven allegations of poison-gas use in the suburbs of Damascus.

Yet the people can do nothing other than fasten their seat belts as a decrepit ruling class careens toward destruction.  For those who don’t remember their history, this is what a pre-revolutionary moment looks like.  If I was a member of the American ruling class, I’d be very worried about where all this chaos is heading.  But, fortunately, I’m not.

[1]Statistical Abstract of Israel 2012,Central Bureau of Statistics, Table 2.2.  See also Sergio DellaPergola, “Demographic Timebomb? People Power and the Future of Israel as a Jewish State,” Middle East Program, Woodrow Wilson Center, February 14, 2013.


Are More Elections A Good Thing?


Sorry, Tip, all politics are NOT local.

The Nation recently posted an article on its website by Marshall Ganz, an ex-union official turned Harvard sociologist, that was interesting for all the wrong reasons.  Entitled “How to Organize to Win,” its subject was the upcoming midterm elections.  Here is its key argument:

“Hope has begun to focus on November 6, 2018, when we can return to the polls to choose occupants of 435 House and 33 Senate seats, 36 governors, mayors of 23 of our largest cities, and 6,066 state legislators.  Pundits speculate on whether this vote will deliver a verdict on the Trump presidency and, if so, what that verdict will be.  Democrats hope for a blue wave and Republicans hope their tax cut will turn into votes.  However, the real question that we need to ask ourselves now is about how we can organize ourselves to win.  We have a choice: Do we invest millions of dollars in dueling algorithms, polls, and advertising that leave nothing behind after Election Day?  Or do we invest in organizing millions of people to rebuild our power in city, state, and nation?”

What’s intriguing about this is the way Ganz assumes what needs to be proven, i.e. that myriad political contests are a positive good or at the very least a fact of life, and that all Americans need to do to turn their society around is turn out in sufficient numbers in a sufficient number of contests.  Commitment and enthusiasm — those are the essential requirements.  America’s super-baroque political structure goes unquestioned, meanwhile, as does the issue of why America needs all those thousands of legislators in the first place.  But for anyone with a sense of history, this is more than a bit curious.  After all, the Declaration of Independence, the document that gave birth to the United States, blamed George III for “erect[ing] a multitude of new offices, and sen[ding] hither swarms of officers to harass our people and eat out their substance.”  If swarms of officials were bad then, why are they uncontroversial now?

In fact, the swarm is even worse than most people imagine.  All told, the US has more than 90,000 governmental units at the federal, state, and local level along with more than half a million elected officials.  If all those politicians provided America with far-sighted and intelligent leadership, all that duplication and waste might be tolerable.  But they don’t, needless to say.  Each political contest is more parochial than the next, every debate is more fragmented, while every last candidate is trained the art of prevarication and double talk.  The result is parochialism raised to the nth degree.

This is not democracy.  To the contrary, it’s a kind of electoral mob rule, something the Founders strove strenuously to avoid but wound up encouraging regardless.  Candidates who go through the school of bourgeois American politics undergo stringent training in how to avoid thinking, analyzing, or anything else that might get in the way of one-upping one’s opponent.  Rather than broadening one’s outlook to include the whole of society, the idea is to screen all that out so as to focus on the task at hand.  Check out Marco Rubio, Adam Schiff, or Democratic Senator Mark Warner of Virginia the next time they crop up on CNN.  They are all products of the same rigorous process, one that teaches that all politics are local and that prevarication, double talk, and disciplined mindlessness are the key to success.

Instead of concentrating political energy on the problem at hand, namely America’s deepening political crisis, the effect is to divert it into a swamp of pettiness.  Because all this frenetic activity takes place within what is considered to be an unchanging constitutional structure, it serves to insulate the structure itself from scrutiny.  The roof is leaking, the beams are sagging, and the entire building is in danger of collapsed.  But everyone’s too busy squabbling over some neighborhood issue to notice.

The Constitution doesn’t just permit such myopia but enforces it.  The problem of who is responsible for society at large is one the Founders ultimately fudged.  The Preamble implies that “we the people” are in charge since they have the ability to “ordain and establish” new constitutions in order to restructure society in their own long-term interest.  This would seem to be the textbook definition of popular sovereignty.  But the Preamble  fails to mention the obvious fact that the people were not only instituting new government but overthrowing an old one in the process, i.e. the 1781 Articles of Confederation.  Even better, they did so contrary to the existing law of the land since the Articles said that any constitutional change must be approved by all thirteen states whereas the Constitution said it would be ratified when approved by just nine.  It was like telling a cop when he pulls you over for speeding that it doesn’t matter because you’ve decided to change the speed limit.  By acting illegally, the people declared their status as the source of law rather than its subject.  The people were on top and the Constitution was below, even if the drafters were reluctant to spell out the relationship in too much detail.

But then they muddied the waters even more by installing a fiendishly difficult constitutional amending clause – one requiring approval by two-thirds of each house plus three-fourths of the states to change so much as a comma – in Article V.  The effect was to cripple the people’s ability to modify a document made in their name.  Rather than above the law, they were now back below it.  Popular sovereignty was stillborn.  Americans established a swarm of offices to create the illusion of democracy and then cursed and grumbled whenever the constitutional structure careened out of control, which it did quite frequently.  But there was nothing they could do because the Founders neglected to provide them with the necessary controls.

This is the American predicament in a nutshell, no matter how much liberals like Ganz pretend otherwise.  After nearly a decade of what the Marxist economist Michael Roberts calls “the great recession,” political structures are buckling under the strain – the EU, the UK thanks to Brexit, and so on.  But the US is buckling worst of all.  The political culture is exhausted, economic polarization is shooting through the roof, while a 240-year-old political structure is grossly at odds with the needs of modern society.  It wasn’t the people who voted Trump into office, but the Electoral College.  But the college is unchangeable for the simple reason that by doubling or tripling the clout of under-populated states in presidential elections, it insures that they will block anything by way of a constitutional fix aimed at removing their special advantage.  So liberals focus their ire on Russia, Cambridge Analytica, or some other villain du jour, anyone and anything, that is, except a yellowing piece of parchment ensconced in the National Archives that is known as the US Constitution.

The “real question,” Ganz goes on, is “how we can organize ourselves to win.”  But what does winning mean when the political system is in a free-fall?  “Do we invest millions of dollars,” he continues, “in dueling algorithms, polls, and advertising that leave nothing behind after Election Day?  Or do we invest in organizing millions of people to rebuild our power in city, state, and nation?”  But how do you rebuild power that never existed in the first place other than in the most ephemeral sense?  How does one construct democracy without a stringent analysis of how the current system has gone wrong?

Ganz’s prescription is incorrect.  More voters turning out in more elections will not cure a thing.  Indeed, it will only add to the cacophony.  America’s working people need to take their society in hand, not just bits and pieces of it in countless state and local political contests, but the whole thing from the Constitution on up.  Until they do, the crisis can only intensify.


Trump vs. the liberal war machine


Trump: Not confrontational enough for the Democratic “resistance”

America, it’s often said, has a two-party system.  But it’s not true.  In fact, it has a zero-party system for the simple reason that the Republicans and Democrats are not political parties in any proper sense of the term.  A political party is a group of citizens who band together to fight for a common political program.  Whether your goal is socialism, free marijuana on demand, or free markets, the point is to win others over to your perspective and ultimately take over the government.  But the Dems and GOP are not citizens’ associations.  One can’t march down to one’s local Democratic Party office, take out a membership, pay dues and then participate in weekly or monthly meetings to plan activities and debate party policy.  These are things that a Green or Social Democrat can do in Germany or a Laborite in the UK, but not a Republican or Democrat in the US.  Indeed, if you ask an elected official to point you to the nearest meeting of the Republican or Democratic rank-and-file, he’ll look at you as if you were speaking Greek.  There is no meeting.  The concept doesn’t exist.

The upshot is millions of people saying millions of different things, but with zero freedom to organize debate along more coherent lines.  Argument is vociferous but de-ideologized thanks to the absence of anything resembling a party structure.  But this is not to say that it’s entirely formless.  To the contrary, order is imposed from without by capitalism and its political-constitutional apparatus.  If the system wants war, the great American herd of independent minds will move to a pro-war position.  Instead of debating war itself, debate will be limited to which pseudo-party is the more dutifully militaristic.  We are, say the Dems.  No, we are, says the GOP.  When voters go to the polls, they’re thus free to choose between competing militarists who may disagree on a few particulars but otherwise adhere to the same fundamental point of view.

All of which is a roundabout way of discussing a fire-breathing editorial that ran in last Friday’s New York Times.  Entitled, “Finally, Trump Has Something Bad to Say About Russia,” it was a comment on the White House’s decision, under congressional prodding, to impose sanctions on nineteen Russian individuals and five Russian organizations “for spreading disinformation and propaganda” during the 2016 presidential election.  It coyly suggested that “Mr. Trump, for reasons that have never been made completely clear, has until now resisted a congressional mandate that he expand the penalties.”  But the Times knows perfectly well what those (alleged) reasons are since, along with the rest of the corporate press, it has spent the last year and a half shouting from the rooftops that he’s a puppet who can’t resist Russian aggression because he’s basically on the Kremlin’s side.  But while the sanctions were nonetheless a good start, the editorial went on, they “need to go further, subjecting Mr. Putin’s wealthy cronies and their families to sanctions like travel bans and asset freezes that would put even more pressure on the Russian leader.”  It concluded:

“Mr. Putin, an authoritarian leader who is expected to be re-elected easily to another six-year term on Sunday, has paid little or no price for his aggressions, including annexing Crimea, destabilizing other parts of Ukraine and enabling President Bashar al-Assad’s regime in Syria.  He won’t stop until he knows that the United States will stand up to him and work with its allies to impose stronger financial and diplomatic measures to rein him in.”

So Trump’s problem is that he isn’t confrontational enough and therefore isn’t taking the measures necessary to put a stop to Putin’s misdeeds, which include opposing a US-backed, Nazi-led coup in the Ukraine, saying yes to the Crimea’s overwhelmingly Russian population when it sought Russian protection against American-sponsored anarchy, and helping the Syrian government resist a takeover by ISIS and Al Qaeda, both heavily armed by the US and its Arab gulf allies.  (For more on the US and Saudi origins of ISIS’s weaponry, see a recent report by a Swiss and EU-funded group known as Conflict Armament Research, which I wrote about in Consortiumnews.)  What Trump should do to roll back such aggression is not specified.  But clearly it involves ratcheting up the bellicosity to who-knows-where.

Pause for a moment to let this sink in.  Trump is a reactionary blowhard who has threatened to incinerate North Korea, who maintains a growing military presence in Syria, who has cheered on an invasion by Turkey, and who has armed neo-Nazis with sophisticated anti-tank weapons against pro-Russian forces in the eastern Ukraine.  Yet according to the Times, he isn’t confrontational enough.  Democrats are attacking him from the right, the entire corporate press is joining in the chorus, while congressional Republicans wring their hands nervously on the sidelines.  Of all the idiotic things that Trump said on the campaign trail, his bourgeois opponents have managed to zero in on the one thing that made a modicum of sense, i.e. the need to lower tensions with Russia and put off the campaign to depose Syria’s Bashar al-Assad.  After more than a year of chaotic debate, the choice has thus come down to a demagogue who engages in sword-rattling against a growing number of targets and a liberal war party that wants even more.  If you want to know what democratic breakdown is like, look no farther.  It’s right there under your nose.