The Religion of Humanitarianism

We shall start with a specific incident. A Roman Catholic couple in Massachusetts, Michael and Catherine “Kitty” Burke, applied to the state to become adoptive or foster parents in early 2022. After an interview, a social worker issued “approval with conditions, specifically around religion and LGBTQIA++ related issues.”, The couple report that their application was denied by the state Department of Children and Families. In later communication, the social worker wrote that “their faith is not supportive [of LGBTQ+ youth] and neither are they.” (insertion from reference) The couple has filed suit in federal district court asking for injunctive relief :

• declaring “that the First and Fourteenth Amendments to the United States Constitution require Defendants to cease discriminating against Plaintiffs and those who share Plaintiffs’ religious beliefs on the basis of their religious beliefs, exercise, and expression” (Prayer for Relief, p. 34, item (a));
• prohibiting the state from denying the Burke’s application “on the basis of their religious beliefs, speech, and exercise on the issues of marriage, human sexuality, and gender identity” (item (c));
• prohibiting the state from “construing and/or applying their policies to discriminate against prospective foster parents on the basis of their religious beliefs, speech, and exercise on the issues of marriage, human sexuality, and gender identity” (item (d));
• requiring the state to “expunge or amend the Burkes’ file so that it no longer reflects Defendants’ discriminatory statements, actions, and denial, and to take any further appropriate actions to prevent further harm from the discriminatory denial” (item (e)).

Link to legal document here.

This incident is an illustration of a larger issue: we have people in this country who want to establish humanitarianism as the state religion and marginalize those with non-conforming beliefs. Let’s walk through the details.

What Is a Religion?

A definition of religion that requires the worship of one or more supernatural beings is too narrow. William James gave a series of Gifford Lectures in Edinburgh in 1901-02 that were later published as The Varieties of Religious Experience. James’s “Religion of Healthy-Mindedness” does not require a supreme being at all, just a willful effort to overcome the “misery-habit”:

On the whole, one is struck by a psychological similarity between the mind-cure movement and the Lutheran and Wesleyan movements. To the believer in moralism and works, with his anxious query, “What shall I do to be saved?” Luther and Wesley replied: “You are saved now, if you would but believe it.” And the mind-curers come with precisely similar words of emancipation. They speak, it is true, to persons for whom the conception of salvation has lost its ancient theological meaning, but who labor nevertheless with the same eternal human difficulty. Things are wrong with them; and “What shall I do to be clear, right, sound, whole, well?” is the form of their question. And the answer is: “You are well, sound, and clear already, if you did but know it.” “The whole matter may be summed up in one sentence,” says one of the authors whom I have already quoted, “God is well, and so are you. You must awaken to the knowledge of your real being.”

— The Varieties of Religious Experience, Lectures IV and V.

What, then, are the identifying characteristics of a religion? Any religion requires:

• Faith in statements of belief that can never be proven or disproven;
• A morality informed by that faith.

Effective religions — those that are attractive to large and diverse populations — also offer:

• A sense of purpose and meaning for believers;
• A sense of what Thomas Sowell has called cosmic justice: at some point the books are balanced, the just are rewarded and the unjust are punished;
• A separation of good and evil;
• A set of criteria by which one can distinguish the righteous from the unrighteous;
• A coherent answer to the the theodicy question: why do bad things happen to good people?

Judaism, Christianity and Islam offer all of these. So did Marxist Communism. So did the religion of “the people” — where “the people” are not to be confused for any specific person or persons — that the Jacobins sought to establish during the French Revolution.

Typically, the central definition of good in the religion is out of direct communication with the ordinary believer. As the religion scales up, a priestly class forms to interpret the animating will. The role of the priestly class was a contentious issue in the Protestant Reformation. Buddhism attempted to avoid the formation of a priestly class by not having a creed that a priestly class could monopolize to interpret events. Nevertheless, it is very human for believers to want a priestly class who can validate their beliefs and tell them that they are doing it right.

Humanitarianism As a Religion

Humanitarianism has all the necessary features of a religion. Compare and contrast Christianity and humanitarianism:

	Christianity	Humanitarianism
Faith	in a trinitarian deity	in the perfection of humanity
Morality	yes	yes
Purpose	to earn one’s way into Heaven	to serve humanity
Justice	you’ll get your reward in heaven	must be achieved on earth
The Good	the will of God	human needs, which in practice are indistinguishable from human wants
Sin	putting one’s own will before the will of God	putting one’s own will before the General Will
Evil is found	within every person	only among those who will not get with the program
Theological Virtues	faith, hope, charity	faith, love, compassion

Christianity addresses theodicy with an entire branch of purpose-built theology. The net is that humans have free will and God must allow evil in order that humans will exercise free will, even though that will cause pain, suffering and unpleasant consequences to the innocent.

Humanitarianism seeks to prevent pain, suffering and unpleasant consequences to the innocent. This is a higher purpose goal than having people account for their behavior.

The Lord is slow to anger, abounding in love and forgiving sin and rebellion. Yet he does not leave the guilty unpunished; he punishes the children for the sin of the parents to the third and fourth generation.

— Numbers 14:17 (NIV)

Under humanitarianism, the above passage is morally monstrous. Humanitarianism can barely abide people being punished at all; it is intolerable that a child should be punished for the sins of ancestors.

As a matter of fact, the love or sympathy on which the romantic idealist puts so much emphasis is, … , a subrational parody of Christian charity.

— Irving Babbitt, Democracy and Leadership, p. 73

Humanity, which is the object of worship and definition of good for humanitarianism, is also a jealous object of worship and will tolerate no others before it.

Humanitarianism and Christianity in Opposition

Christianity and humanitarianism have opposing moral values that cannot be reconciled. This is a fundamental truth that must be understood to understand current events in America.

Woefully ignorant of sin and of the tragic dimensions of the human condition, [humanitarianism] reduces religion to a project of this-worldly amelioration. Free-floating compassion substitutes for charity, and a humanity conscious of its unity (and utter self-sufficiency) puts itself in the place of the visible and invisible Church.

— Daniel J. Mahoney, The Idol of Our Age: How the Religion of Humanity Subverts Christianity, p. 13.

We have a simmering Holy War going on between Christians and humanitarians. Calls for compromise are misguided and futile. Religions do not compromise with evil; they smite it root and branch.

Religion and the Constitution

The Framers were closer in time to the last series of holy wars, between Catholics and Protestants, that had devastated Europe. They were weary of holy wars and wrote the Establishment Clause of the First Amendment seeking to avoid these here.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

— First Amendment

Section 1 of the Fourteenth Amendment, commonly referred to as the Equal Protection Clause, establishes that citizens of the several states shall be entitled to the same rights in their relationship with the states as they have with respect to the federal government.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

— Fourteenth Amendment, Section 1

The First Amendment freedoms are among the privileges and immunities of citizens of the United States. Thus, the states are also constitutionally forbidden from establishing a state religion.

By enshrining the principles of humanitarian morality into their determination of the fitness of a couple to be a foster or an adoptive parent, and by excluding those whose beliefs do not conform to humanitarian standards, the Massachusetts Department of Children and Families has acted to establish humanitarianism as the state religion. The state has subjected the Burkes to a form of a Test Act declaring their fidelity to humanitarian principles over the principles of their faith.

The issue is not the Roman Catholicism of the Burkes; any practicing faith that conflicted with humanitarianism would be similarly at issue.

I also pray that the Burkes obtain the relief from the court they seek.

No, You’re a Socialist!

In the Florida 27th congressional district race, both candidates are calling each other a socialist. What’s going on here?

The incumbent, Republican María Elvira Salazar, ran an ad accusing her challenger, state Senator Annette Taddeo, of being a socialist. Local news reporters shot that claim down.

Acting on the principle that the best defense is a good offense, Sen. Taddeo counterattacked by accusing Rep. Salazar of promoting socialism. How is that?

• Salazar put her foot in it some time ago, appearing in a video interview with Fidel Castro where she praised him as a “revolutionary par excellance“.
• More importantly, Taddeo is seeking to link Republican initiatives to restrict abortion and ban books in the minds of district voters as socialism.

It may not be entirely accurate language, but it is not as outrageous as it might first appear. FL-27 has a significant presence of exiles from Cuba and Venezuela and their families. They came here looking for freedom, so socialist is a label that represents the opposite to them. Taddeo doesn’t have time to educate voters on fine distinctions; she wants to win an election this year.

Since I am not running for Congress, I do have the luxury of being more precise about definitions, as I have been in the past. The positions Taddeo is attacking are clearly not socialist, but they are highly authoritarian, particularly the drive to outlaw abortion. The Republican claims that any election their candidates fail to win is rigged are also authoritarian. Republican willingness to support Donald Trump in his poorly disguised power grab conducted over four years (no, not just in 2020) also has an unmistakable authoritarian smell.

It is the reasons behind, not the mere words in speeches, pronouncements and articles which we have to seek.
— Humphrey B. Neill, The Art of Contrary Thinking, p. 11.

So, yeah, it’s not accurate to call the Republicans socialist, but there is something definitely authoritarian going down. The Republicans are succeeding at making themselves the greater threat to our freedoms.

William Blackstone Meets Bill Cosby

William Blackstone (1723-1780) was an English judge and politician. His Commentaries on the Laws of England organized and documented the common law that we use in America. Blackstone is also remembered for Blackstone’s Ratio:

It is better that ten guilty persons escape, than that one innocent suffer.

Bill Cosby was an entertainer who was constantly present, on television and through comedy albums, while I was growing up. Cosby was convicted of three counts of indecent aggravated assault in September 2018. The case centered on Cosby’s conduct with one woman, who testified that Cosby drugged her and then raped her in 2004. A previous Montgomery County (PA) district attorney, Bruce Castor, promised not to prosecute Cosby. Cosby was later deposed in a civil trial, in which Cosby made self-incriminating statements.

The current Montgomery County district attorney, Kevin Steele, revoked the promise of Castor and prosecuted Cosby, using his statements to obtain a conviction.

This week, the Pennsylvania Supreme Court vacated the conviction. The court found that Steele was obligated to observe Castor’s promise not to prosecute Cosby, and that the use of the self-incriminating statements tainted his conviction.

Understandably, a lot of women who crossed Cosby’s path are upset about this outcome. As early as 2015, a group of 35 women discussed their encounters with Cosby, in which they claim he assaulted them. I am convinced by their stories and find them credible. However, I am not a court of law.

Nevertheless, the Pennsylvania Supreme Court acted properly. Former US attorney Harry Litman explains:

Rather, Justice David Wecht’s opinion for the Supreme Court turned on a violation of Cosby’s right not to incriminate himself. That’s being called a technicality, but it’s more than that — it’s a bedrock constitutional right.

Upholding that right even in the face of repulsive conduct is exactly what courts are supposed to do.

“Cosby’s freeing was correct as a matter of law. But it’s in no way a vindication.”, Washington Post, 30 Jun 2021.

The Cosby case is a painful application of Blackstone’s Ratio in real life. Applying Blackstone’s Ratio here, it means that it is better that ten sexual predators go unpunished than that one innocent person is convicted of rape.

Totalitarian governments take quite the opposite approach: it is better that ten innocent persons suffer than that one guilty person go unpunished. The Soviet Union and the Khmer Rouge in Cambodia all operated using this principle. Communist China still does. We don’t want that here.

A justice system is operated by people, and people make mistakes. What mistakes are the least worst? As I see it, having innocent persons convicted is worse than having guilty persons go free due to process problems. We will have mistakes both ways, but the bias should be toward not convicting, as Blackstone observed.

I regret the pain this causes to the women who are survivors of predatory encounters. It is unpleasant and messy. Yet, I am unwilling to throw Blackstone’s Ratio in the garbage.

Conservative Has No Meaning

What principles do I have in common with Donald Trump, Sarah Huckabee Sanders, Matthew Whitaker, Josh Hawley, Matt Gaetz and Lauren Boebert?

Absolutely none. No common ground whatsoever. Zilch. Zippo.

All the above named persons spoke at the 2021 Conservative Political Action Conference (CPAC).

• Matthew Whitaker has been openly critical of the principle of judicial review by the Supreme Court of the constitutionality of the actions of the legislature and executive branches, as established in Marbury v. Madison, and stated in 2013 that he believed states have the right to nullify federal laws. Also, let us not forget his pronouncement that “abuse of power is not a crime,” which, while strictly true, is irrelevant to the subject of impeachment.
• Josh Hawley served as Senate henchman to overturn the 2020 election. He wants you to know that he has no regrets.
• Matt Gaetz is little better than a hit man.
• Lauren Boebert is the other congresswoman (besides Marjorie Taylor Greene) who promotes the QAnon conspiracy theory.

And, towering over the whole shindig, the featured speaker and golden Moloch, Donald Trump. Here I was thinking that self-restraint was a cornerstone principle of conservatism. Trump has no discernable principles other than his own self-gratification.

Photo credit: Pittsburgh Post-Gazette.

This is what the Lord says:
“What fault did your ancestors find in me,
    that they strayed so far from me?
They followed worthless idols
    and became worthless themselves.”
— Jeremiah 1:5

I can find no principles that anyone who ever advanced conservative thought would recognize as conservative. Rule of law? No, they want to be ruled by the Great Leader, subject to his daily whims and vindictive impulses. Limited government? Not hardly; they have a king wannabee and high priests such as Whittaker and Sanders. Equal rights for all citizens? No chance; they want to take over the swamp, not to drain it. Under the leadership of Trump, Gaetz and Boebert, they are reviving the Know-Nothing Party (which also was rife with conspiracy beliefs).

The priests did not ask,
    ‘Where is the Lord?’
Those who deal with the law did not know me;
    the leaders rebelled against me.
The prophets prophesied by Baal,
    following worthless idols.
— Jeremiah 1:8

Rick Scott had some interesting remarks at CPAC:

There are plenty of people in Washington who were hoping that we can go back to regular order. Go back to where the Republican Party used to be. They want to retreat to a safe space.”

[Source: Fox News]

Scott’s position is that the Republican Party cannot go back to the condition it was in before 2015. He elaborated on this in an interview with Chris Wallace. When Wallace asked if the Republican Party is still the Donald Trump Party, Scott replied, “It’s the voters party. I mean, it always has been the voters party.”

Scott is correct that there is no going back to the pre-2015 Republican Party, which the grassroots hates. However, there is a missing dimension in Scott’s analysis: leadership.

There go the people. I must follow them, for I am their leader.
— Attributed to Alexandre Auguste Ledru-Rollin (1807-1874).

Giving in to the segment of voters who are most ignorant and prone to magical thinking is not leadership. Yes, there was a lot not to like about the former Republican establishment. Voters were dissatisfied, but that dissatisfaction can be channeled in a number of different ways. I can understand being dissatisfied; I cannot understand being so desperate as to give a con man the keys to the house.

Scott is currently the point person in the Republican Party leading the effort to retake Congress, so big talk is part of his job description. However, before getting to far ahead of himself, he might want to take a close look at Cobb County, Georgia. The county is a suburban county northwest of Atlanta; Marietta is the county seat. Cobb County used to be reliably Republican; in 2012, Mitt Romney carried the county with 55.25% of the vote. In the 2020 presidential election, Joe Biden won the county with 56.34% of the vote. Two months later, in the Senate runoff, Democratic challengers Jon Ossoff and Raphael Warnock both carried the county, with Ossoff scoring 56% of the vote and Warnock doing even better. Democrats have also won in important local offices. If Republicans cannot retain such suburban strongholds, their future in the Senate does not look promising.

I can now say with certainty that the term conservative has no remaining ideological meaning. It joins the term liberal, which has had no meaning for the past ninety years. They are just labels for office seekers. They are merely advertising words, no different in effect than the old General Motors trademark phrase, “The Mark of Excellence.”

“Long ago you broke off your yoke
    and tore off your bonds;
    you said, ‘I will not serve you!’
Indeed, on every high hill
    and under every spreading tree
    you lay down as a prostitute.”
— Jeremiah 2:20

These people can have the term conservative. When they are through with it, no one will want it. They will foul anything they touch.

Testing, Sensitivity, Specificity and Errors

There are already an abundance of material discussing decisions under uncertainty in general, medical testing specifically, and how to interpret results. This is a basic summary of the terms you will see and what they mean.

Many disciplines have encountered these issues in parallel as the disciplines developed. As the people worked in their silos, they developed their own jargon for the same phenomena (natch). I am going to use an example of a medical test, but similar considerations exist in data science, machine learning and social science methodology.

A provider performs a medical test on a subject, and it has a binary outcome: it predicts that the subject does or does not have the condition of interest. There is also an objective reality: the subject really does or does not have the condition of interest. The test attempts to pierce the veil of uncertainty around the objective reality, but tests will always have inaccuracies. We can build a matrix around the possible results for a single test:

Simple Results Matrix

We would like all the positive test results to be true positives, and all the negative test results to be true negatives. In the real world, we are not going to get that, so we have to be able to take a large number of test outcomes and analyze them.

We repeat this test over a number of subjects in a population, such as a sample of participants in a clinical trial. We get a stack of outcomes that we can aggregate and analyze statistically:

Aggregate Results Matrix

There are the customary tradeoffs between the confidence of a large sample size and the time and expense of gathering data as the sample size increases. In some social sciences, people just say that if your sample size is greater than 30, you’re good. Medical research is more rigorous than that; the peer review of a medical research finding can include discussion of how the researchers determined the sample size.

If you are into data science, you recognize the test as a kind of classifier, and you call this matrix a confusion matrix. In social sciences, a false positive is sometimes called a type I error and a false negative a type II error.

There are a number of names for these measures:

• Sensitivity is also known as true positive rate (TPR), recall, power or probability of detection;
• Specificity is also known as true negative rate (TNR) or selectivity;
• False positive rate is also known as fall-out or probability of false alarm;
• False negative rate is also known as miss rate.

It can be difficult to keep sensitivity and specificity straight:

• Sensitivity measures the ability to detect the positive cases.
• Specificity measures the ability to avoid flagging the negative cases.

Which is worse, false positives or false negatives? There is no uniform answer. It depends on a number of factors, including:

• Subject domain;
• Relative consequences of the two classes of errors;
• Other available risk mitigation strategies.

Consider the subject domain of criminal law. In the Anglo-American tradition, we believe:

Better that ten guilty persons escape, than that one innocent suffer.
— William Blackstone (1723-1780).

Mapping this to the matrix, there is an objective reality — did the defendant really do it? — and a test result — the court verdict. Blackstone’s Ratio says that it is better to have ten false negatives than one false positive in the domain of a criminal trial.

In medicine, there are risks either way. A false negative can cause you to think the patient is healthy when she is not. A false positive can cause you to attempt therapies that are ineffective or even harmful to the patient.

In public health, false positives cause you to overreact; false negatives cause you to fail to react. This punts the question to the next stop: is it better to react excessively or insufficiently to a public health threat? The health professionals have an instinctive preference to err on the side of excess caution. However, there are not the resources to be excessively cautious against all threats, so an excessive reaction to one threat may take resources away from defenses against several others.

There are calculations that attempt to account for both false positives and false negatives, but these always assert implicit weights to them.  For example, a common measure of accuracy of a test takes the sum of the true positive results and the true negative results and divides them by the total population. However, this implicitly gives equal weight to a false positive and a false negative, which may not be the trade-off you really want for the problem you have in mind.

Let’s imagine a disease that really occurs in 0.5% of the population. We pull a sample of 5,000 people to test; our sample also contains 23 persons who actually have the disease. The people performing the trial don’t know who has the disease among the sample population, nor do they know anything about the internal characteristics of the tests.

We have two tests we want to try on his population, test A and test B. The participants in the trial do not know that test B is actually worthless; it will never, under any circumstances, return a positive result.

Here are the results collected for the trial:

		Test A	Test B
Real Positives	23
Real Negatives	4,977
Test Positive		45	0
Test Negative		4,955	5,000
True Positives		21	0
True Negatives		4,953	4,977
False Positives		24	0
False Negatives		2	23
Sensitivity		91.30%	0.00%
Specificity		99.52%	100.00%
FP Rate		0.48%	0.00%
FN Rate		8.70%	100.00%
Accuracy		99.48%	99.54%

If you just look at accuracy, test B looks a little better than test A, even though test B is really useless.

Moral: beware of reducing comparative measures to a single number.

Emergency Powers

In an unfortunately memorable press conference Monday, “president” Donald Trump said, among other things, that he has “total” authority to order state governors to end shelter-in-place rules. Various journalists immediately jumped in to assert that Trump’s statement is untrue. Several journalists suddenly discovered the Tenth Amendment in an effort to refute Trump’s claim. All of a sudden, a renewed interest in the Tenth Amendment! Who’da thunk?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
— Tenth Amendment, ratified 1791.

The original three federal crimes, which were the only crimes delegated to the United States by the Constitution, were

• Piracy (via letters of marque and reprisal; Article I, Section 8, #11);
• Counterfeiting (Article I, Section 8, #6);
• Treason (Article III, Section 3).

Here, for comparison, is a list of current federal crimes. Yes, there are good public policy arguments for prohibiting larceny, insurance fraud, witness intimidation or product tampering. Nevertheless, where does the Constitution. even as amended, grant the federal government the power to police these activities?

Where is Trump’s claim coming from? We have traveled far from the original Constitution. While he may not be the pharaoh he is representing himself as, Trump is on firmer ground than you might believe from listening to cable news.

National Emergency (wee-woo)!

President Wilson was an original thought leader in granting himself emergency powers. After the US entered World War I, he nationalized every railroad in America; the government kept control until 1920. Wilson also declared a national emergency relating to available maritime capacity to restrict ownership of ships.

During the Wilson and Roosevelt presidencies, a major procedural development occurred in the exercise of emergency powers—use of a proclamation to declare a national emergency and thereby activate all standby statutory provisions delegating authority to the President during a national emergency.
— Congressional Research Service, “National Emergency Powers“, p. 5, updated 23 Mar 2020, retrieved 14 Apr 2020.

President Truman declared a national emergency in 1950 to fight the Korean War. The undeclared war never ended; an armistice was signed between the combatants in 1953. The national emergency also kept right on going, and was used to facilitate entry into the Vietnam War.

The Cold War, which was going on when both Trump and I grew up, was a perpetual state of emergency. It was the conflict that Orwell warned us about: a conflict that everyone feared bringing to resolution, lest we come to a nuclear exchange that ended it all. Both the powers of the presidency and the role of the president in the public imagination grew year after year. At any moment, we could be plunged into a national crisis.

Institutionalizing Emergency Government

This national emergency was still in force in 1976, when Congress passed the National Emergencies Act. This law ended previous national emergencies and formalized the process by which the President would declare national emergencies. I covered this act here. The net is that, since INS v. Chadha (1983), the ability of Congress to rein in a president under the Act has been substantially neutered.

Howard Ruff devoted an entire chapter of How to Prosper During the Coming Bad Years to the Act, writing in summary:

The only thing standing between us and a dictatorship is the good character of the President and the lack of a crisis severe enough that the public would stand still for it.
— Howard Ruff, How to Prosper During the Coming Bad Years (1978), p. 72.

I feel better already. How about you?

The Brennan Center for Justice has enumerated 123 statutory powers that a president can legally access by declaring a national emergency. Among these:

• The president may use the Public Health Service to such extent and in such manner as shall in their judgment promote the public interest.
• Procedures for providing notice to local government and prospective purchasers before purchase or sale of real property in urban areas by Administrator of General Services may be waived.
• President may temporarily appoint any qualified person to any officer grade in the Army, Navy, Air Force, or Marine Corps, but not to grades above major general or rear admiral.
• President may suspend statutory wage-rate requirements for public contracts (the report notes, “Recent invocations of this statute have been consistently controversial”).
• Secretary of Transportation may … if necessary to secure such vessels from damage or injury, or to prevent damage or injury to any U.S. harbor or waters, or to secure the observance of U.S. rights and obligations, take, by and with the consent of the President, full possession and control of such vessel and remove the officers and crew and all other persons not specially authorized by the Secretary to go or remain on board.
• Any officer or employee of the United States designated by the President may order the release of materials in the strategic raw materials stockpile for use, sale, or other disposition, if she determines that the release is required for purposes of the national defense.
• The president can prohibit or limit the export of any agricultural commodity.

But, as Ruff pointed out, there are greater risks than these. Executive Order 11490 (1969) was still available to the President. This order was superseded by Executive Order 12656 (1988). Under this latter order, the various federal departments and agencies are responsible for having ready plans for use in national emergencies to:

• “allocate resources among civilian and military claimants” (Section 203(4));
• allocate water (Sections 301(5) and 501(6)), seed, feed, fertilizer and farm equipment (Section 301(5));
• “regulate and control exports and imports” (Section 401(6));
• “mobilize the health industry and health resources for the provision of health, mental health and medical services in national security emergencies” (Section 801(1));
• “set priorities and allocate health, mental health, and medical services’ resources among civilian and military claimants” (Section 801(3));
• “ensure effective use of civilian workforce resources during national security emergencies” (Section 1201(1));
• create “plans and procedures for wage, salary and benefit cost stabilization” (Section 1502(2));
• “minimize reliance on direct controls of the monetary, credit and financial systems” (Section 1501(1)), which implicitly accepts the premise that such direct controls are authorized.

The creation of such plans are required before any emergency exists; every cabinet secretary has ongoing contingent planning responsibilities under Executive Order 12656. Even the Department of Education (Part 6) and the Tennessee Valley Authority (Part 24) have their duties. The intent is for the executive branch to be ready when the President breaks the glass and pushes the button. It is reasonable to expect that every serving President is at some level aware of the requirements under this order, as are the White House legal counsels.

Some Potentially Relevant Supreme Court Cases

Most of these cases do not reference emergency powers, but do reference extension of ordinary powers of the federal government. If the federal government has a power ordinarily, there doesn’t even need to be an emergency to enable the use of that power.

In Hammer v. Dagenhart, 247 US 251 (1918), the Supreme Court found, by a 5-4 majority, that Congress was denied the power to regulate production by the Tenth Amendment. This is considered superseded in black-letter law by United States v. Darby, 312 US 100 (1941), in which the Court unanimously ruled that Congress had such power under the Commerce Clause.

I must include A. L. A. Schechter Poultry Corporation v. United States, 295 US 495 (1936); not only did the Court find the federal government exceeded its power under the Commerce Clause, but it was the last time the Court ruled that Congress did not have the ability to delegate its powers to the executive branch as specified under the National Industrial Recovery Act of 1933. The final ruling was unanimous; there were two concurring opinions.

In Wickard v. Filburn, 317 US 111 (1942), the Supreme Court unanimously found that the federal government could regulate a farmer’s production of crops for his own use.

In Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952), the Supreme Court ruled, by a 6-3 majority, that the president did not have constitutional authority to seize and operate privately owned steel mills, acting in a national emergency. The Court further found that Congress did not impair its prerogatives in the future by having failed to act when previous presidents had encroached upon them, writing:

Even if it be true that other Presidents have taken possession of private business enterprises without congressional authority in order to settle labor disputes, Congress has not thereby lost its exclusive constitutional authority to make the laws necessary and proper to carry out all powers vested by the Constitution “in the Government of the United States, or any Department or Officer thereof.”

In Printz v. United States, 521 US 898 (1997), the Supreme Court ruled, by a 5-4 majority, upholding the principle that the federal government may not direct the actions of state legislatures.

In Bond v. United States, 564 US 211 (2011), the Supreme Court ruled that individual citizens can have standing to raise Tenth Amendment challenges to a federal law. The final ruling was unanimous; there were two concurring opinions.

The Current Public Health Emergency

On 13 Mar 2020, the President declared the COVID-19 pandemic to be a national emergency under the National Emergencies Act, retroactive to 1 Mar 2020. Thus, we are already in a condition of emergency, although the President can always broaden it. Some of those contingent plans made under Executive Order 12656 can be dusted off and implemented.

This brings us up to the present, where we have a difference of opinion on the extent to which the president can command the behavior of the governors of states. Clearly, the federal government, having the ability to coin money, has ample leverage over states, which do not. In 1974, the federal government withheld highway funds for states that did not reduce maximum highway speeds to 55 mph. In 1988, Wyoming gave in and become the last state to raise its drinking age to 21, a change that was also coerced by withholding federal highway funds from non-compliant states. There are plenty of back door approaches available to influence the behavior of states.

Still, we must remember that Trump didn’t become President to sneak around the back door. He likes to crash through your front door, take it off its hinges and defecate on your living room sofa. What are you gonna do about it?

See You in Court

What would the states do if Trump tried to throw around the weight he claims he has? Several would sue in federal district court, seeking injunctive relief. Sixteen states sued in federal court last year to block his use of emergency powers to build a border wall, claiming his actions were unconstitutional. That action, State of California et al. v. Trump et al., is still in the air.

Such a case could logically find its way to the Supreme Court. Then what? Oddly, the apocalypse some journalists were predicting last year might actually blow the other way. There have been hints from Justice Brent Kavanaugh that he is willing to join with Justice Neil Gorsuch in reconsidering the issues of excessive delegation of congressional power to the president for the first time since Schechter. Writing for Vox last November, Ian Millhiser stated, “.. Kavanaugh’s Paul opinion suggests that he would restrict federal power even more than Gorsuch would.” But sometime this year, a militant Kavanaugh taking aim at excessive delegation of congressional power could be just the friend we need.

The conflict would not just be a matter of reading the Constitution — would that it were. The various existing laws, executive orders and case law precedents would all come into play. It would really be a constitutional crisis. No one knows how it would play out.

So Where Is This Going?

Donald Trump is many things, but he is not a fool. If he takes over giving orders to the states, then he can’t evade responsibility for the consequences. If, for example, he were to order a state to end shelter-in-place orders too soon, and then COVID-19 cases overwhelm hospital capacity, his fingerprints will be all over the decision. He doesn’t want that.

That does not necessarily mean Trump accepts constitutional limits. One has to work through where he would be willing to put his chips.

.. the decision of the Supreme Court has fell still born, and they find they cannot coerce Georgia to yield to its mandate.
— President Andrew Jackson, writing in reference to Worcester v. Georgia, 31 US 515 (1832).

This is the source of the popular idea of Jackson having said, “John Marshall has made his decision; now let him enforce it!” I can’t find any reference supporting the claim that Jackson ever said that, but it remains in the popular imagination. Trump has a portrait of Jackson in the Oval Office, and it is easy to see how the probably apocryphal quote encapsulates an attitude which would be right up Trump’s alley.

Every incident in which Trump prevails against critics emboldens him to go further. He celebrated the failure of the impeachment attempt against him in February by removing Lt. Col. Vindman from the National Security Council and dismissing Gordon Sondland from his position as Ambassador to the European Union. In the past week, Trump took the opportunity to dismiss the Inspector General of the Intelligence Community, Michael Atkinson.

This is all to set the stage for future moves. It’s too early to put these ideas of presidential power to the test. Furthermore, Trump does not want to micromanage the governors on public health. He wants to establish, particularly in the minds of his supporters, that he has total authority. He’s holding off using it now, but he wants to establish in the minds of at least some Americans that he rightfully has the power and can use it later.

He would particularly want to use it if he thinks the 2020 general election is not going to go his way. He would not want to shoot this bullet too early, giving the states a chance to go to federal court and get injunctions. He would want to pull this one after about 15 Oct, suspending the election due to some emergency or another. Once 3 November comes and goes without an election, then we go into free fall down the calendar.

Zugzwang!

In the past week, I watched a BBC interview with Anders Tegnell, who is the Chief Epidemiologist in Sweden. He is taking his country on a different path, refusing to implement a lockdown to achieve social distancing in the face of the COVID-19 pandemic. The logical question is why he has decided this, and the BBC asked him that.

Tegnell pointed out that closing Sweden’s schools could force 20-25% of the workforce home to care for the children that are not at school. Then, assuming those workers are evenly distributed across all sectors, you would lose up to 25% of the health care workers, which he maintains Sweden cannot afford to lose. It’s an interesting counterargument. Tegnell does not argue that other countries ought to make the same choices he has for Sweden, but that each nation has to decide where to place its bets and live with the consequences.

Right now, as Andrew Cuomo often points out, there are three bottlenecks at play in COVID-19 medical response:

1. Supplies of personal protective equipment (PPE);
2. Staffing: the availability of health care workers at various skill levels;
3. Hospital intensive care unit (ICU) beds and ventilator equipment.

Based on study done in February 2020, it does not appear that Sweden has the surge capacity at the ICU level to handle a steep increase in COVID-19 patients. It is this kind of consideration that has made other countries, including most of the United States, implement shelter-in-place orders and minimize social contact across household units. All the same, losing 20-25% of your health care workers is also a substantial hit.

This is illustrative of a larger pattern that we will see over and over again during the coming year. Not only do we face multiple constraints, but they influence one another. Without adequate surge capacity, we have more patients in hospital with greater severity of illness. This exposes the health care workers to greater risk, which is amplified if we can’t provide them proper PPE. If we lose functioning health care workers to the disease, we further reduce hospital capacity, starting down a vicious cycle.

All this discussion has only considered immediate public health issues. The lockdown also has secondary consequences on physical and mental health. It fans out into the economy. We have experienced over 16 million new unemployment claims in the past three weeks. Having workers come off their employers books is particularly troubling, because there is no assurance they will have an employer to which to return. Even if the employer survives, management may not want to return to pre-crisis staffing levels.

Governments will find themselves in situations where all the choices are bad. In chess, such a situation is called zugzwang, a German word meaning move-compulsion. You have to make a move, but any move you make leaves you worse off. You can’t satisfy all the constraints.

Which is worse, to keep people moving around and let Grandma die, or shelter in place and let the economy die? Yes! Both alternatives are terrible. The scale of the perils makes it hard to get your mind around them and discuss them intelligently. Governor Cuomo said, “We’re not going to put a dollar figure on a human life.” But, as The Economist observed, when he said that, he just did assign a dollar figure: infinity.

Yet by brushing trade-offs aside, Mr Cuomo was in fact advocating a choice—one that does not begin to reckon with the litany of consequences among his wider community. It sounds hard-hearted but a dollar figure on life, or at least some way of thinking systematically, is precisely what leaders will need if they are to see their way through the harrowing months to come. As in that hospital ward, trade-offs are unavoidable.
— Leader, The Economist, 2 Apr 2020

Governor Cuomo is not alone in arguing against assigning a dollar value to a human life. I have met other adults over my lifetime who have expressed similar ideas. It is not a universally held belief, but it is quite common. Let’s restate this position as the preservation of human life is incommensurable with other policy objectives. This is an ethical position; acceptance of it, as Cuomo does, or rejection of it, as The Economist does, is informed by a person’s basic moral beliefs and the way that person makes decisions. Some American citizens accept the belief; others do not. The country belongs to all of us, and we must be able to come to a common decision how to go forward collectively. It’s a difficult circle to square, requiring political creativity.

People who become doctors and nurses tend to have strong preferences for the maintenance of life. They are going to provide recommendations that weight the risks of health care issues higher than the risks of economic consequences. The function of the executive is to consider the recommendations — and the biases — of the various experts and make sensible decisions.

If you do put a dollar figure on a human life, it should be a high dollar figure. Not only do individual lives matter, but, because we are a Western culture, we believe that human lives are means and not ends. We are very reluctant to call upon people to make sacrifice of themselves for corporate societal objectives.

These issues illustrate the immediate possibilities for getting into zugzwang on emergency response decisions. Additionally, there are all kinds of possible second-order effects as the dominoes fall. What if the virus runs wild in a rural area that is part of our food supply, and which is also a health care desert? According to NBC, there are 161 rural agricultural counties in the US with six ICU beds among them.

The COVID-19 crisis has economic effects on both supply and demand. The demand-side effects produce behaviors that are very similar to those of a classic financial crisis. No one knows what’s coming. People and firms who are directly affected, such as those in the restaurant, retail and travel businesses, can’t continue to spend. The rest of us want to stay liquid as a risk response, so we don’t want to spend. Liquidity means cash or dollar-denominated items readily convertible into cash. As we hang onto cash, the money multiplier shrinks and the economy seizes up.

The central bank can’t control the money multiplier. In normal times, the bank can influence it, but these are not normal times. The voice of the virus is louder than the voice of the central bank manipulating the federal funds rate, which my Intro Macroeconomics teacher used to call “the interest rate at which the Federal Reserve doesn’t loan to other banks” (Ah, the good old days). As economic activity crashes and actors increase liquidity, the money multiplier goes into free fall. Decision makers don’t care what the cost of capital for a project is; they don’t want to tie up cash so they defer the project. Lenders tighten up standards because the overall risk picture is worse. Return of capital, which can no longer be assumed at prior levels of confidence, becomes a higher priority than return on capital.

The Fed does control the monetary base, and it is an entirely responsible action to increase the monetary base to make up for the shrinking multiplier, acting as a brake on economic decline. If the Fed had done this in 1930, the Great Depression likely would never have become great.  But:

Begin with the end in mind.
— Stephen Covey (1932-2012)

We will come out of this pandemic. When we do, and economic activity resumes, how does the Fed work the monetary base back down? If the Fed does not do so, we will have a nosebleed inflation. Or worse, massive residual unemployment and a nosebleed inflation.

Treasury Secretary Steven Mnuchin at least appears to apprehend the importance of cash, which is much closer than accounting to real life. Many small businesses are under-capitalized; it is very hard to raise capital when you are starting a business. The common recommendation is for the business to have enough cash reserves to cover 3-6 months of expenses. Many business owners would simply laugh at that. A poll of 500 small business owners and operators in March found that over half of them could not keep the lights on for one month without cash coming in.

Households are no better off. While the often-repeated factoid, “Almost 40% of Americans can’t cover a $400 emergency expense,” is not accurate, the accurate statement is that, in 2018, only 61% of respondents said they could cover such an expense with cash on hand. Another 27% indicated they would have to either sell an asset or borrow to cover the expense, while the remaining 12% said they would have no resource available to meet the expense. And in 2018, the headline US unemployment rate was hovering around 4% and there were plenty of willing lenders available.

In a crisis, lead time is a critical resource. You need lead time to ramp up production of COVID-19 test capacity. You need lead time to stop making consumer goods and switch over to making medical devices. You need lead time to set up a financial assistance program and roll it out to the banking people who must implement it. To squander lead time is an act of criminal negligence.

A good plan violently executed now is better than a perfect plan executed next week.
— General George S. Patton

Even with the effects we can foresee, the picture is not pretty. The more we are forced into crisis-paced responses today, the less freedom of action we will have tomorrow. There are many ways to get into zugzwang. By definition, there are no good ways out.

The Future of Conservatism

No, that is not a contradiction in terms, but neither does any political idea have a birthright to remain relevant just because. In a world in which Donald Trump and even Barack Obama are described as conservative, what does the word even mean anymore?

There was some discussion of the future of conservatism in 2016, but not enough. The Claremont Institute, through americanmind.org, is continuing another conversation. Here are some links to get started:

• “Decisive Political Victory Is the Only Way to End This Cold Civil War” by Ryan P. Williams;
• “Why Conservatism Failed” by James Poulos;
• “Consensus as Surrender” by Dan McCarthy;
• “Understanding Conservative Populism” by Colin Dueck;
• “Populist Conservatism Is What the Country Needs” by Henry Olsen;
• “Nationalism Isn’t Populism” by F.H. Buckley;
• “Conservative Rationalism Has Failed” by Youram Hazony, with a Part 2;
• “Can Conservatism Be Conserved?” by Spencer Klavan;
• “We Can’t Re-Found the Right on Free Speech” by Brian A. Smith.

First, we have to get some agreement about what it is we are talking about.

Full Disclosure

I expect other people to disclose their points of view from which they write or opine, and I am prepared to reciprocate. I only consider conservatism worth fighting for if it uphold these principles:

1. Rule of law:
   1. The opposite being rule of man: rule by individuals in positions of power, making it up as they go;
   2. Judges who see themselves as lawgivers rather than law-interpreters exceed their authority under the rule of law.
2. Equal justice under the law:
   1. Only individuals can be moral agents;
   2. Social justice inevitably means individual injustice.
3. Personal liberty, both for your body and your wallet (so far, it’s looking kind of libertarian, right?).
4. The strong do not get to take all possible advantage of the weak, particularly when the weak are not weak through their own irresponsibility.
5. Self-restraint is central to moral life and essential to self-government.
6. First, do no harm.
7. Tradition is not divine law, but it encapsulates a lot of compressed wisdom and must be considered thoughtfully. Tom Wolfe predicted years ago that we would relearn that wisdom the hard way.
8. The people who produce must have first ethical place over the people who don’t:
   1. That includes all the people who produce, not just entrepreneurial heroes out of Ayn Rand novels;
   2. Business owners earn their profit, but all who produce can be treated with dignity and respect;
   3. Most Americans I have met do not object to helping those whom they believe truly deserve that help — but how does one sort those who can’t do better from those who won’t?

I agree with much of what Irving Babbitt wrote. Babbitt called for us to substitute an inner check for the outer check of dogma. But, for those who can’t or won’t put in the inner work to achieve that, better an outer check than no check at all on expansive self-aggrandizement.

If you’ve read this far and are asking, “How can you say all that and support Donald Trump?”, I can’t, and I don’t. Nevertheless, I understand how others can. I find nothing conservative about “President” Trump, and I have a hard time tolerating people making excuses for him. All the same, we have a substantial segment of the population that is fed up with having been bullied for years by people whose agendas they find morally wrong. Conservatives have supported Trump, and he them, owing to a time-honored truth: Politics makes strange bedfellows. Nevertheless, it is important to preserve one’s moorings.

CORA: Are we to be friends, then?
VIOLET: We are allies, my dear. Which can be a good deal more effective.
— Downton Abbey, season 1, episode 1

Justice and Rationality

If you have at least an undergraduate college degree, you probably saw Maslow’s Hierarchy of Needs more times than you could count. It was always presented slightly differently, but the key idea is still the same: after your needs for food, shelter and safety are sufficiently met, you turn your attention to higher needs. There is also a political hierarchy of needs. A high and powerful force in this hierarchy is the drive for justice. People will often defer some prosperity and security in order to achieve greater justice.

To understand the depraved reaction of so many Democrats to this nomination, perhaps we should understand the Supreme Court as anti-Kavanaugh Democrats understand it. At stake for them in this fight and many others in the age of Trump is a certain view of justice and the good life. They regard their political opponents as advocates of the bad life—or as Judiciary Committee member Cory Booker put it recently: defenders of Kavanaugh are “complicit in evil.”
— Ryan P. Williams

All the pox-on-both-your-houses talk about compromise and the evils of partisanship fails to understand that the roots of the conflict do not admit compromise. The meaning of justice is not a loaf you can divide in half; it is more like a baby. One side wants individual justice; the other wants social justice. One side will win this argument, and one side will go under. This is of historical significance, because if the social justice crowd wins the argument, the American experiment cannot survive.

.. with the present trend towards “social justice,” the time is rapidly approaching when everybody will be minding everybody else’s business.
— Irving Babbltt, Democracy and Leadership, p. 200.

The most influential theorist of political norms in the past century has been John Rawls. The back-of-the-business card summary of Rawls’ ideas is nobody deserves anything, and therefore justice calls for large-scale redistribution from those who have, irrespective of how they got, to those who do not.

There is a tendency for common sense to suppose that income and wealth, and the good things in life generally, should be distributed according to moral desert. Justice is happiness according to virtue. While it is recognized that this ideal can never be fully carried out, it is the appropriate conception of distributive justice, at least as a prima facie principle, and society should try to realize it as circumstances permit. Now justice as fairness rejects this conception. Such a principle would not be chosen in the original position.
— John Rawls, A Theory of Justice, sect 48.

This is completely corrosive of personal responsibility. I have cause to think that Rawls didn’t plan to go there; he didn’t think it all the way through. In an effort to hang on to personal responsibility, he tried to set up an artificial distinction between the capacities you obtained through the arbitrary sources of nature and nurture vs. your effort in making use of those capacities. But this is paper thin and easily demolished; is effort itself constrained by capacity that is also arbitrarily distributed?

We have to get to the bottom of whether justice is founded on virtue or fairness. If so, what are the virtues? You could argue that the selection of virtues is subjective and arbitrary, but so is any conception of fairness. Back to square one.

Unfettered reason cannot conserve anything.
— Yoram Hazony

Hazony is right. We are not going to start with a spark of pure thought and define a perfect society. That is what Progressives try to do; if we wanted that, we could go over to them and get the real thing. More importantly, the reason Progressives can’t do it is because the attempt is like anchoring a ship to itself: it has no moorings. Follow the chain of reasoning far enough, and eventually you have to have a grounding in beliefs. You can’t create a mathematics without postulates, and you can’t have a system of though without assertions stipulated by some faith. Even if you want to be Nietzsche, you have to base your assertion that God is dead on your faith; you can’t take His vital signs.

Inclusiveness

Hazony’s ideas have profound implications for both personal autonomy and the ability to build a broad coalition and achieve political goals.

.. many members of the new conservative coalition (especially those who don’t identify as conservative) reject the label because they hold views, and practice ways of life, which the historic conservatism of only a generation ago deemed deeply distasteful, even unconscionable. Weinstein and Boghossian are atheists. Murray, Doyle, and Straka are openly gay. White is transgendered, and Burchill and Bindel are lifelong feminists.
— Spencer Klavan

Klavan is calling for a big-tent conservatism. Others are skeptical, and believe that boundaries are the inevitable result of having principles:

This sort of conversation might explode any intellectual alliance. One might also ask: wouldn’t such a thing have to happen to create a politically viable coalition, anyway?
— Brian A. Smith

For example, following Hazony is going to make life uncomfortable for the atheists. Making Hazony’s ideas undiscussable is not an answer; that behavior leads not to a coalition, but to a gang seeking power for the sake of having it.

The mention of Burchill above is to Julie Burchill, whom I first encountered through the book The Boy Looked At Johnny, which she co-wrote with Tony Parsons in 1978. I found them to be complete polemicists; the same action could be ethically good or evil, depending on their opinion of the person taking the action. Has she cleaned up her act since then? If not, I don’t want to be in the same tent with her.

Principles or People?

This forces me to recall the charge Buckley made in 2016, that conservatives reveal an icicle lodged in our hearts, demonstrating “a perfect fidelity to right-wing principles and an indifference to people.” There is a lot of truth to that.

Asked if we consider principles or people more important, there is only one viable answer: “Yes!” People are important because politics is not a theory business; it is about people, it affects people and you must bring people along with you. Principles are important because they form your moral foundation. If you don’t believe principles are important, consider the current occupant of the White House, whose only consistent principles are his own enlargement.

Every time one acts inconsistently with principles, one pokes a hole in one’s own integrity. Eventually, it leads to having a moral foundation that looks like a Swiss cheese, and is about as structurally sound. Yet, neither can one be indifferent to people.

It is going to be a long process to hash this all out. For example, I support the minimum wage and believe that it is past due for a raise to keep up with inflation (although I also believe in phasing the change in over a number of years to let businesses adjust). I don’t want to hear, “How can you call yourself a conservative …” objections. If I had wanted to be subject to groupthink and police myself for thoughtcrime, I could go hang out with the Progressives. It would be a lot easier. We are going to have to get to a place where we can discuss these issues on their merits, without the ad hominem abuse. It is disconcerting to see people who call themselves conservatives demanding uncritical loyalty to Dear Leader.

The tension between principles and people is a difficult circle to square, but that is why we have intellect and judgment. We must make the effort to integrate principles and people into a meaningful political program.

 

Maladministration Or Abuse of Power?

Even before the presentations at the Senate week, Alan Dershowitz had been making the rounds, drawing a straight line between maladministration and abuse of power. It is important to understand the distinction.

Madison was right to object to maladministration, saying, “so vague a term will be equivalent to a tenure during pleasure of the Senate.” Democrats thought that G. W. Bush was practicing maladministration; after the 2006 elections, in which Democrats gained both houses of Congress, they could have impeached Bush for maladministration. Republicans took control of the House in 2010 and the Senate in 2014; they similarly could have impeached Obama for maladministration. If maladministration were grounds for impeachment, we would devolve into a parliamentary system, as Dershowitz correctly observes. Any President who lost the confidence of Congress would be out on her or his ear.

So we have to make a distinction between abuse of power and mere maladministration. The English Civil War established that abuse of power was not tolerable in our political life. It further separated us from politics on the European continent, where people often shrug and accept despotism. We were willing to do what many of the Europeans were not: fight for our rights.

If it were only my own particular case, I would have satisfied myself with the protestation I made the last time I was here, against the legality of the Court, and that a King cannot be tried by any superior jurisdiction on earth: but it is not my case alone, it is the freedom and the liberty of the people of England; and do you pretend what you will, I stand more for their liberties. For if power without law, may make laws, may alter the fundamental laws of the Kingdom, I do not know what subject he is in England that can be sure of his life, or any thing that he calls his own.
— Charles I at his trial for treason, January, 1649

Charles I always maintained that he was above the law, and only God could call a king to account. Parliament said otherwise, and he was beheaded on 30 Jan 1649.

There is a contract and a bargain made between the King and his people, and your oath is taken: and certainly, Sir, the bond is reciprocal; for as you are the liege lord, so they liege subjects … This we know, the one tie, the one bond, is the bond of protection that is due from the sovereign; the other is the bond of subjection that is due from the subject. Sir, if this bond be once broken, farewell sovereignty! … These things may not be denied, Sir … Whether you have been, as by your office you ought to be, a protector of England, or the destroyer of England, let all England judge, or all the world, that hath look’d upon it.
— Judge John Bradshaw, replying to Charles in his trial.

The story of Charles I was part of the English Constitution that preceded the American Revolution and formed the legitimate foundation for the rebellion. You can read Bradshaw’s rejoinder, substituting America for England and directing it at Parliament rather than the King. In the 1765 debate in the Virginia legislature over the Stamp Act, Patrick Henry referenced the experience of Charles I, which he expected all legislators would know and understand. While there was no verbatim record, his remarks have come down through history as:

Caesar had his Brutus, Charles his Cromwell and George the Third my profit by their examples. Sir, if this be treason, make the most of it.

It is manifestly clear that all of the Founders understood the meaning of the English Civil War and rejected the concept of a regal President who could declare “the law is in my mouth” and make it stick.

Amendment IX: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

We the People have strayed far from the ideals of the Constitution. We allowed the development of an imperial Presidency. We allowed the Ninth and Tenth Amendments to wither from disuse. We allowed Congress to delegate its powers to the Executive, or to independent agencies with no practical political accountability to anyone. We allowed a President and his court to intimidate the Supreme Court into going along with this back in the 1930s. This has been going on for decades, longer than most of us have been alive. We sold our birthright cheap to a strong person who promised to lead us out of one national emergency or another.

Now the chickens are coming home to roost. The façade only stood up as long as presidents were content to respect the norms of political conduct as they had evolved over the past century. Now we have one that manifestly does not; he told us so during the 2016 campaign.

The idea that abuse of power is not grounds for impeachment is ridiculous on its face. It does not deserve a serious refutation. Nevertheless, the distinction that Dershowitz raises, while he tries not to, is important. Abuse of power cannot be simply political conduct with which Congress disagrees. There has to be a meaningful standard that raises it from the politically controversial to the constitutionally mendacious. Where is that line to be drawn?

 

 

 

 

The Two-headed Iranian State

Jim Webb had served as a Marine Corps officer in Vietnam, then went on to become Secretary of the Navy and to precede Tim Kaine as Senator from Virginia. Webb has written an opinion piece in the Washington Post that is critical of the US approach to Iran.

How did it become acceptable to assassinate one of the top military officers of a country with whom we are not formally at war during a public visit to a third country that had no opposition to his presence? And what precedent has this assassination established on the acceptable conduct of nation-states toward military leaders of countries with which we might have strong disagreement short of actual war — or for their future actions toward our own people?
— Jim Webb, “When Did It Become Acceptable to Kill a Top Leader of a Country We Aren’t Even at War With?“, 9 Jan 2020.

I object to the connotations bundled into characterizing the killing of Soleimani as assassination, but let it ride for now.

Webb does not limit his criticism to the Trump administration. He views the act as consistent with the US approach to Iran going back at least to 2007. At that time, the Senate passed a non-binding resolution that called on the Bush administration to designate the Iranian Islamic Revolutionary Guard (IRG) as a terrorist organization.

I opposed this proposal based on the irrefutable fact that the organization was an inseparable arm of the Iranian government. The Revolutionary Guards are not independent actors like al-Qaeda and the Islamic State. They are part of the Iranian government’s formal military structure, with an estimated strength of more than 150,000 members. It is legally and logically impossible to define one part of a national government as an international terrorist organization without applying the term to that entire government.
— Jim Webb, loc. cit.

So were the Senators in 2007 acting like a bunch of bar-room patriots, agitating to do something about the IRG without committing resources or risking American blood? Possibly. However, Webb’s approach is unsatisfying because it does not recognize the reality of the means Iran uses to conduct its international policy.

Asymmetric Warfare

There are only two ways to fight the US: stupidly or asymmetrically.
— Lt. Gen. H. R. McMaster.

The United States has enormous military resources — not limitless, mind you, but enormous. Even though we have a volunteer army, we have vast amounts of material supporting that army. We expect to achieve our objectives with reduced casualty cost through the application of abundant firepower.

I intend no disrespect to the Iranian nation and its capabilities. Iran could, if it chose policy objectives that were consistent with this goal, be a respected regional power. Nevertheless, it is clear that Iran does not have the wealth to put an army in the field and square off against the United States in conventional battle. If Iran were to attempt this, it would transcend foolish.

War is a mere continuation of policy by other means.
— Clausewitz, On War.

All the same, Iran is a nation-state and its government has its own interests and strategic objectives. Some of these interests are contrary to those of other nations, including the US. The Iranians do not just give up on interests that other nations oppose, any more than we do. Iran has and will continue to assert its recourse to violent means to achieve its ends where the state deems such means to be necessary.

America’s post-World War II history has shown that low-intensity conflicts against insurgents and small powers are far more likely to occur, and can significantly damage U.S. interests, exact an outsized toll, and give future enemies a playbook from which to work.
— Benjamin Locks, “Bad Guys Know What Works: Asymmetric Warfare and the Third Offset“, 2015

So when another entity wants to get violent with the United States, how does it go about doing this without getting pulverized? It fights asymmetrically. It does not fight by “the rules”, because the larger and more well-resourced military force is optimized to win fighting by “the rules.”

What Exactly Is the Iranian Republican Guard?

The IRG must be understood in terms of asymmetric warfare. The existence of the IRG and the way the Iranian state uses it are not going to conform to “the rules.” The IRG exists to use principles of asymmetric warfare to further the foreign policy objectives of the Islamic Republic.

In the past, people would have described the IRG as “a state within a state”, much as Soviet experts have described the Cheka-OGPU-NKVD-MVD-KGB. I will go further, and describe the IRG as a parallel government to that of the formal civilian government of the Islamic Republic, with both answerable to the Ayatollah and the Guardian Council.

If we were to apply Webb’s definitions and methods of analysis, the IRG would give Iran all the options and constrain our responses, which is one of the goals of conducing asymmetric warfare. We would negotiate in good faith with the Iranian civil government, only to have the IRG either nullify our agreement outright or, as a non-participating party, refuse to be bound by any obligations under it. This is the time-honored tactic known as multiple bites of the apple. It is what happens when you go to buy a car, negotiate your best deal with the salesperson, and then s/he says she has to get it approved by the sales manager.

What would happen if the United States were to declare war on the IRG? It is at least worth considering as a thought experiment. The IRG has a share of the public wealth of Iran supporting it. The IRG is, as Webb observes, a part of the military structure of the Islamic Republic. It conducts its own business independently of the foreign service answerable to the Iranian civil government and the Majlis. So what if we were to say that, while we have no animus toward the Iranian people and their duly elected civil government, the IRG hates us and we are going to hate them back with the full force American arms can bring to bear?

There is so much chaos over who is in charge of Iranian foreign affairs that Foreign Minister Mohammad Javad Zarif tendered his resignation eleven months ago, only to have it rejected by the Supreme Leader. A major contributor to the chaos was Major General Quasem Soleimani, who was conducting his own foreign policy with, at the very least, the blessing of the Supreme Leader.

The current arrangement between the Supreme Leader, the civil government and the IRG works very well for the Ayatollah. There is no reason for us to play his game his way. The Iranian state is a two-headed beast; yes, it does follow that it has two faces. There is no reason for us to engage with a state using asymmetric methods in a conventional manner.