Clause 61: The Pushback Blog

Because ideas have consequences

Posts Tagged ‘Constitution

Did Donald Trump Obstruct Justice?

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We had a fun argument earlier this week on CNN between Jeffrey Toobin and Alan Dershowitz over whether or not Donald Trump obstructed justice by his conduct toward former FBI director James Comey. You can see it here (4:43).

Toobin claimed that Trump obstructed justice:

  • That the alleged request by Trump to Comey to lay off investigating former National Security Advisor Michael Flynn would have constituted obstruction of justice;
  • That Trump’s firing of Comey was obstruction of justice.

Dershowitz disagreed. He argued that Trump had the constitutional options to order Comey directly to cease investigating Flynn or even to grant Flynn an executive pardon. Dershowitz cited the example of Caspar Weinberger, who had served as Secretary of Defense for Ronald Reagan and who had been indicted by Independent Counsel Lawrence Walsh in 1992, accusing Weinberger of perjury and obstruction of justice during the Iran-Contra Affair. President George H. W. Bush pardoned Weinberger before these charges could be tried.

Dershowitz did not argue that Trump should get a free pass, just that his behavior was within his authority under the Constitution and did not constitute a crime. During the interview, Dershowitz said, “Impeachment is political. There is no judicial review of impeachment. You can impeach a president for jaywalking.”

I have to agree with Dershowitz, not just because of his reputation as a constitutional law scholar. Where does the FBI appear on the constitutional org chart? It is within the Justice Department, part of the Executive branch. The FBI is not an independent agency — does anybody really want it to be? (Anybody remember J. Edgar Hoover?)

As such, the FBI director serves at the pleasure of the president, who has the constitutional authority to dismiss the director for any reason, or no reason at all. This is not to say that there will be no political consequences for the president. Lyndon Johnson wanted to dismiss Hoover, but drew back from the political consequences [see Halberstam, The Best and the Brightest, p. 529]. Trump went ahead and fired Comey, and he can live with the political consequences of having done so.

Abuse of political power is a perfectly good reason to impeach a president. Congress also has less extreme options at its disposal, such as cutting funding for the president’s programs and either refusing or delaying consideration of the president’s legislative agenda.

Criminalizing political behavior you don’t like is a bad road to go down. It would represent another step toward being a banana republic with no bananas.

In this case, it is political spinelessness that causes people to seek some artificial objective standard — never mind that it is not applicable. If you don’t like the man’s politics, come out and say so. Seek political means to counteract them.

And if you’re in journalism, and you are concerned that you can’t object to someone’s politics and still appear unbiased, you’re absolutely right. You have to choose your course and live with the consequences no less than a politician has to.

Written by srojak

June 10, 2017 at 3:06 pm

Personal Loyalty in Government

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CBS News estimates that about one-fifth of the country is solidly behind President Trump. Of this subset of the population, they report that 55% “believe government and law enforcement officials should take an oath of loyalty to the Constitution and president,” as opposed to pledging loyalty to the Constitution alone. Given an adult population of 209 million, by my reckoning, that would be 23 million adult Americans holding this belief. I find this deeply disturbing.

There are about 4,000 politically appointed positions in the administration. Those in the executive branch serve at the pleasure of the president.  Although he can dismiss them at any time, there can be political consequences for doing so. Managing a federal department is not the same as managing a family business. The removal of a highly respected senior staffer can demoralize those who had been working for her, unless there are reasons the survivors can respect and these reasons are communicated well.

A requirement of personal loyalty to an individual President would take the political appointees in the direction of a Führerprinzip, in that it would communicate that the will of the executive takes priority over the appointee’s concepts of right and wrong. Furthermore, the door swings both ways; an executive politically hostile to your interests as a citizen could also demand such loyalty from political appointees.

Attention, 23 million Americans: rethink this idea immediately. It would represent a significant further step to make politics “a civil war by other means,” and we are far along on that path already. The Constitution was designed to prevent a majority from running roughshod over a minority. It deserves the highest loyalty of those who serve in government.

Written by srojak

May 23, 2017 at 5:10 am

Overtime Sudden Death

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This spring, while you weren’t looking, President Obama ordered the Department of Labor to revise the regulations governing overtime pay. Specifically, for an employee to be exempt from requirements to be paid overtime (often called an exempt employee), three tests are applied:

  1. Salary basis test: The employee must be paid a predetermined and fixed salary that cannot be reduced due to variations in the quality or quantity of work the employee performs. Hourly employees and workers being paid piece rates cannot be exempt.
  2. Salary level test: The employee must be paid at least a minimum amount specified by regulation. As of this writing, that amount is $23,660/year, last revised in 2004.
  3. Duties test: The employee must have duties that are primarily executive, administrative or professional.

The centerpiece of the change was a revision of the salary level test, bringing the threshold salary up to $47,446/year. These rules were to take effect on 1 Dec 2016.

I don’t have a problem with labor law in general or with revision of the salary level test in particular. I invite those readers who disagree to read a special section of this post I have included at the end to discuss the history of labor law.

It would have been better to have a multi-year incremental ramp. Businesspeople can handle predictable change much better than sudden change.

However, there was a significant process problem. Obama clearly believed that he could not obtain the consent of Congress. Being of superior intellect and wrapped in righteousness, Obama went ahead and issued a Presidential Memorandum — basically an executive order — directing the Department of Labor to go forward with the changes.

Obama may well have been right in his supposition. It’s irrelevant, because Congress is the entity empowered by the Constitution to make law. Consider, by way of analogy, if I were to say, “I would have asked you for money to feed the homeless children, but I knew you would never agree. So I took one of your checks and forged your signature.” Whatever my supposedly higher purpose would have been, my action would still not be acceptable.

Since those opposing the changes did not get the opportunity to have their views represented in Congress, they went to court. This week, a federal judge in Texas issued a nationwide injunction blocking implementation of the new rules. In his ruling, the judge found that the Department of Labor exceeded its authority under existing law and ignored the intent of Congress.

I find it particularly noteworthy that the primary plaintiff in the case is the State of Nevada, itself a government entity. The case raises challenges to the ability of the federal government to restrict the employment practices of state governments on Tenth Amendment grounds, although the judge did not accept this reasoning.

The proposed changes also include a mechanism to automatically update the salary level threshold every three years based on statistical data. The court found that there was no provision in existing law to implement this. Therefore, absent the expression of the will of Congress, the Executive exceeded its authority.

This decision is only a stay; the final fate of the change in law remains to be decided. However, one of the tests that the court applied was: Does the plaintiffs case have substantial likelihood of success on its merits? The court found that it did.

Special Bonus Media Question

This issue first arose in May 2016, when Obama issued his Presidential Memorandum. How much have you heard about this, before or after the court decision of this week, from the media outlets you frequent?

The Origins of Labor Law

One hundred years ago, there were few labor laws. Employers enjoyed concentrated negotiating power and could dictate almost any terms. There were widespread abuses, including:

  • Failure to pay employees on time;
  • Payment of wages in company scrip, which could either be redeemed at the company store for goods at arbitrary prices or exchanged at a discount for currency;
  • Implementation of arbitrary deductions from pay;
  • Failure to disclose deductions from pay.

“Well, if you don’t like it, don’t work for that employer.” This is a shallow and cavalier brush-off that ignores the disparity in bargaining power.

The Anglo-American legal tradition has not accepted such a principle. Here is an illustrative case in black-letter law. A railroad required its employees to sign contracts relieving the railroad of responsibility for the negligence of other employees (as the organization itself acts through the agency of employees, including managers and executives). The state supreme court rejected the notion that the employer could escape from responsibility in this manner:

And it may be questionable whether it is in their power to denude themselves of such responsibility by a stipulation in advance. But we prefer to rest our decision upon the broader ground .of considerations of public policy. The law requires the master to furnish his servant with a reasonably safe place to work in, and with sound and suitable tools and appliances to do his work. If he can supply an unsafe machine, or defective instruments, and then excuse himself against the consequences of his own negligence by the terms of his contract with his servant, he is enabled to evade a most salutary rule.

In the English case above cited it is said this is not against public policy, because it does not affect all society, but only the interest of the employed. But surely the state has an interest in the lives and limbs of all its citizens. Laborers for hire constitute a numerous and meritorious class in every community. And it is for the welfare of society that their employers shall not be permitted, under the guise of enforcing contract rights, to abdicate their duties to them. The consequence would be that every railroad company and every owner of a factory, mill or mine, would make it a condition, precedent to the employment of labor, that the laborer should release all right of action for injuries sustained in the course of the service, whether by the employer’s negligence or otherwise. The natural tendency of this would be to relax the employer’s carefulness in those matters of which he has the ordering and control, such as the supplying of machinery and materials, and thus increase the perils of occupations which are hazardous, even when well managed. And the final outcome would be to fill the country with disabled men and paupers, whose support would become a charge upon the counties or upon public charity.
— Little Rock & Fort Smith Ry. Co. v. Eubanks, 3 S.W. 808 (1886).

The spirit of this ruling cannot be ascribed to progressivism, as it predates progressivism. It was written in a time when judges were unwilling to rewrite the law. It stands as a historical marker, attesting that our legal tradition has never accepted an interpretation of laissez-faire that grants market participants with concentrated negotiating power free rein to impose whatever terms they choose on market participants with diffuse negotiating power.

Labor law originated in response to real abuses in the employment market. Abuses still occur, even with the laws in place. For example, I recall a software company in the nineties that would put salaried employees on a 36-hour week every time the owner got in a cash flow bind. That is not how being salaried is supposed to work. The employees may have made a calculated decision that enduring this was better than being laid off, but it is not OK. Tolerating this puts the competitor, who may also be in a cash flow bind, under unwarranted pressure to do likewise.

It is obvious to anyone giving this a moment’s though that employers can and do classify employees as salaried in the expectation that they will be working at least forty hours a week and that the employers wish to avoid paying overtime to these employees by making this classification. It is reasonable for the law to implement defenses to such reclassification practices, which are simply to evade compliance.

 

 

 

Written by srojak

November 25, 2016 at 11:06 am

US Constitiution 1.1

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In 1979, Theodore Lowi released the second edition of his book The End of Liberalism: The Second Republic of the United States. Lowi teaches at Cornell and would be characterized as a liberal; for example, he advocates government planning. However, he is also a proponent of the rule of law. The evolution of the political processes away from law and representative government toward bargaining and interest-group government began to trouble him by the time he wrote the first edition of the book ten years earlier.

Where contemporaries saw government departure from formalism as pragmatic, Lowi saw it as corrupt. Where reality deviates from formalism, we find arbitrariness, influence-peddling and injustice. He wrote the best defense of political idealism I have seen:

The gap between form and reality gives rise to cynicism, for informality means that some will escape their fate better than others. There has, as a consequence, always been cynicism toward public institutions in the United States, and this, too, is a good thing, since a little cynicism is the parent of healthy sophistication. However, when the informal is elevated to a positive virtue, and when the gap between the formal and the informal grows wider, and when the hard-won access of individuals and groups becomes a share of official authority, cynicism unavoidably curdles into distrust. Legitimacy can be defined as the distance between form and reality. How much spread can a democratic system tolerate and remain both democratic and legitimate?
The End of Liberalism, p. 297.

Although he did not use the term, the mechanisms that Lowi describes are that of corporatism: public-private partnerships in rule-making and governance. Although Lowi did not name it, he described it well enough:

The state grows, but the opportunities for sponsorship and privilege grow proportionately. Power goes up, but in the form of personal plunder rather than public choice. If would not be accurate to evaluate this model as “socialism for the rich and capitalism for the poor,” because many thousands of low-income persons and groups have provided within the system. The more accurate characterization might be “socialism for the organized, capitalism for the unorganized.”
Ibid, pp. 278-9.

For the second edition, Lowi reverse engineered a new constitution for the government from actual practice, in an attempt to highlight the spread between form and reality.

There ought to be a national presence in every aspect of the lives of American citizens. National power is no longer a necessary evil; it is a positive virtue.

Article I. It is the primary purpose of this national government to provide domestic tranquility by reducing risk. This risk may be physical or it may be fiscal. In order to fulfill this sacred obligation, the national government shall be deemed to have sufficient power to eliminate threats from the environment through regulation, and to eliminate threats from economic uncertainty through insurance.

Article II. The separation of powers to the contrary notwithstanding, the center of this national government is the presidency. Said office is authorized to use any powers, real or imagined, to set our nation to rights by making any rules or regulations the president deems appropriate; the president may subdelegate this authority to any other official or agency. The right to make all such rules and regulations is based upon the assumption in this constitution that the office of the presidency embodies the will of the real majority of the American nation.

Article III. Congress exists, but only as a consensual body. Congress possesses all legislative authority, but should limit itself to the delegation of broad grants of unstructured authority to the president. Congress must take care never to draft a careful and precise statute because this would interfere with the judgment of the president and his professional and full-time administrators.

Article IV. There exists a separate administrative branch composed of persons whose right to govern is based upon two principles: (1) the delegation of power flowing from Congress, and (2) the authority inherent in professional training and promotion through an administrative hierarchy. Congress and the courts may provide for administrative procedures and have the power to review agencies for their observance of these procedures; but in no instance should Congress or the courts attempt to displace the judgment of the administrators with their own.

Article V. The judicial branch is responsible for two functions:
1. To preserve the procedural rights of citizens before all federal courts, state and local courts and administrative agencies, and
2. To apply the Fourteenth Amendment of the 1787 Constitution as a natural-law defense of all substantive and procedural rights.
The appellate courts shall exercise vigorous judicial review of all state and local government and court decisions, but in no instance shall the courts review the constitutionality of Congress’ grants of authority to the president or to the federal administrative agencies.

Article VI. The public interest shall be defined by the satisfaction of the voters in their constituencies. The test of the public interest is re-election.

Article VII. Article VI to the contrary notwithstanding, actual policymaking will not come from voter preferences or congressional enactments but from a process of tripartite bargaining between the specialized administrators, relevant members of Congress and the representatives of self-selected organized interests.

How did he do? How closely did he bring the form of his constitution to matches what actually happens?

Written by srojak

October 15, 2016 at 2:48 pm

The Informed Celebrity Test

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There are many celebrities who appear to be confused. They think that they have a pulpit to pronounce on economics and politics because their celebrity status gives them access, whether or not they actually have any backing for their opinions.

Celebrities do not have a monopoly on being ill-informed. However, they have an ability to be heard that ordinary private citizens do not enjoy. They have a ready platform to get their message out and attempt to influence others. This platform is not available to the rest of us.

To compensate for the access advantages a celebrity has over any other citizen, I offer this simple test for celebrities to take before they tell the rest of us how we ought to vote. The positions taken are not as important as the support offered for them.

  1. The Department of Labor has announced changes to the regulations under the Fair Labor Standards Act (FLSA), to go into effect on 1 December 2016. Specifically, the earnings limit for salaried employees who must be paid overtime will be raised to $47,476/year, with an automatic adjustment every three years (at this writing, the limit is $23,660/year).
    1. Should a salaried employee receive overtime? Why or why not?
    2. What is the principle that guides your answer to the previous question?
    3. Under what constitutional authority is this change to the law being made?
    4. What are two regulations regarding labor and wages that the original FLSA, passed in 1938, established?
    5. Name two employer practices relating to wage payments for adult workers that used to occur before the 1930s and caused people to want federal labor law.
    6. The same change sets the income level of a “highly compensated employee” at $134,004/year, which is obtained by finding the 90th percentile of full-time salaried workers across the nation. What multiple of that number did you make last year?
  2. The Citizens United v. Federal Election Commission case [558 U.S. 310] involves the regulation of political activity by organizations.
    1. The case was appealed when a lower court declined to provide injunctive relief to Citizens United. What was the Federal Election Commission doing that Citizens United sought an injunction to stop?
    2. What was the majority finding of the court?
    3. In the dissent authored by Justice Stevens, what differences between a corporation and a human person did he identify?
    4. Where do you put the boundary between free speech and “electioneering communication”? Does it matter who is doing the speaking? Explain.
    5. How does Congress direct and control the actions of the Federal Election Commission, including assertion of accountability by commissioners for their actions?
  3. The Kelo v. City of New London case [545 U.S. 469] involved a particular use of eminent domain by the City of New London, CT.
    1. What was the twist on eminent domain particular to this case?
    2. What was the majority opinion?
    3. In the dissent written by Justice O’Connor, what was her point?
    4. Must there be a public use to be a public purpose? Why or why not?
  4. There have been various public discussions this year as to whether one or the other of the major party candidates is unqualified to be President.
    1. What are the qualifications given by the Constitution for a President?
    2. What other qualifications would you assert? On what grounds?
  5. The US national debt is, at the time of this writing, $19.6 trillion.
    1. What is the difference between the debt and the budget deficit?
    2. About 88% of the federal budget is consumed by six major items. Name four.
    3. What are the three ways available to finance government operations?
    4. Do we ever have to pay down the debt? Could we just keep running it up for the foreseeable future? Explain.
    5. The Federal government has the exclusive authority to coin money? Could the government just print its way out of debt? Why or why not?
    6. If the Federal government just repudiated the debt, what would happen? Who would be affected?
  6. In most elections, including this one, there have been discussions about what the candidates will do to create jobs.
    1. What direct authority does the President have to create jobs?
    2. What means are available to the President to influence the creation of jobs?
    3. In the 1930s, several programs were created to put people to work during the Great Depression, most notably the Works Progress Administration (WPA) and Civilian Conservation Corps (CCC). Do you think such programs could be used to effectively reduce unemployment on a permanent basis? Why or why not?

You have all the time you need.

Written by srojak

October 13, 2016 at 8:38 pm

The Winter of Our Discontent

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Wouldn’t it be great if choices in life were completely obvious? If you were presented with clear, highly differentiated alternatives that were so obvious that the right choice might as well be marked with a big neon arrow?

That rarely happens. Sometimes you have to choose between unclear or even unattractive alternatives. The 2016 presidential election is such a situation.

It is always good, in such situations, to seek to expand your option space. The two-item menu is usually presented by people who have their own agendas, which warrant a healthy skepticism.

It is in this light that I want to consider some recent articles that offer to tell us what we must do.

The Clinton Partisans

First, a pair of pieces from the New York Times.

That first debate seems to have helped Hillary Clinton move ahead of Donald Trump in the polls. However, I know that many of you are asking yourselves:Why is this even a question?
— Gail Collins, “How Could Anyone Vote for Trump?” (http://www.nytimes.com/2016/10/01/opinion/how-could-anyone-vote-for-trump.html), 30 Sep 2016.

I will take up the question of how anyone could vote for Trump later on. However, have no illusions that Collins has written a reflective article examining legitimate reasons for dissatisfaction with Hillary Clinton. There simply aren’t any. Collins is an intellectual bully. Not only are people who want to vote for Trump morally defective; so are people who want to vote for Gary Johnson, since he failed her geography test.

When I am confronted by the “not voting” or “protest voting” crowd, their argument often boils down to one of principle: They can’t possibly vote for Trump or Clinton because both are flawed in their own ways.

I know immediately that they have bought into the false equivalency nonsense, and additionally are conflating the casting of a ballot with an endorsement of a candidate’s shortcomings.
— Charles Blow, “The Folly of the Protest Vote” (http://www.nytimes.com/2016/09/22/opinion/the-folly-of-the-protest-vote.html), 22 Sep 2016.

But if the candidate’s shortcomings are not relevant, what are we voting on? Is it possible that the Trumpkins have a point? Oops, was that my outside voice?

The context of Charles Blow’s remarks are racial issues, so he already has a starting point in identity politics. Blow has staked out his ground rather clearly:

You can’t care about this issue and risk the ascendance of a man who last week was endorsed by the Fraternal Order of Police, a group that in its questionnaire to candidates claims: “Fringe organizations have been given a platform by the media to convey the message that police officers are a ‘militarized’ enemy and it is time to attack that enemy.” The questionnaire goes further: “There is a very real and very deliberate campaign to terrorize our nation’s law enforcement officers, and no one has come to our defense.” This, of course, is cop fantasy, but this group is the nation’s largest police union, representing some 330,000 officers.

Really? Cop fantasy? The Dallas police shootings were on 7 July. The Baton Rouge police shootings were on 17 July. Even the New York Times covered them. Is Blow really not aware?

Or is this the standard identity politics song, Nobody Knows the Trouble I’ve Seen? Nobody has suffered injustice the way my group has suffered injustice. And, yes, I’ll say it: poor people generally, and Blacks in particular, suffer injustice at the hands of some police, courts and municipalities. But Blow wants to overcome collective treatment of individuals who are black by collective treatment of individuals who are police. Good luck with that.

And, yes, Charles, thanks for reminding me:

There is another truth: That person will appoint someone to fill the current vacancy on the Supreme Court (assuming that the Senate doesn’t find religion and move on Merrick Garland before the new president takes office) and that person will also appoint federal judges to fill the 88 district court and court of appeals vacancies that now exist (there are 51 nominees pending for these seats).

Which is another reason not to want to vote for Hillary Clinton.

I will also discuss the question of equivalency between Trump and Clinton further on. But there is one more point to be made about the progressives and their following:

His convention was called “one of the worst ever.” Chris Matthews deemed him “dangerous” and “scary,” Ellen DeGeneres said “If you’re a woman, you should be very, very scared.” His opponent ran an ad against him portraying him as uniquely dangerous for women. “I’ve never felt this way before, but it’s a scary time to be a woman,” said a woman in the ad.

He was frequently called a “bully,” “anti-immigrant,” “racist,” “stupid,” and “unfit” to be president.

I’m referring, obviously, to the terrifying Mitt Romney.
— Karol Markowicz, “How Paul Krugman Made Donald Trump Possible” (http://www.thedailybeast.com/articles/2016/08/05/how-paul-krugman-made-donald-trump-possible.html), The Daily Beast, 5 Aug 2016.

Progressives have demonstrated that they can intimidate moderate opponents by calling them extremists. Having done so, they have helped cleared the way for genuine extremists who really are the threats that progressives like to holler about. Are you happy now?

The Trump Following

I am going to consider one of the more unique opinion pieces in support of Donald Trump.

A Hillary Clinton presidency is Russian Roulette with a semi-auto. With Trump, at least you can spin the cylinder and take your chances. To ordinary conservative ears, this sounds histrionic.
— Publius Decius Mus, “The Flight 93 Election” (http://www.claremont.org/crb/basicpage/the-flight-93-election/), Claremont Review of Books, 5 Sept 2016.

Yeah, I have rather ordinary conservative ears, and that sure sounds histrionic to me. It also sounds fairly representative of the argument I have heard from various Trumpkins. Let’s examine.

The argument in this article is founded on some rather substantial assertions. What interested me is the fact that the author progressed from these assertions in a very logical manner to his conclusion. The assertions are:

  • Nativism: the author objects foursquare to immigration, and maintains that Tom Tancredo got it right on immigration. I don’t accept nativism, so we’re off to a bad start.
  • Opposition to Free Trade: it is clear that the transition to free trade has been very badly managed, splitting the risk from the reward and dumping the former on those who are least able to manage it. Nevertheless, if you fully costed any practical program of reversing globalization, would you have any substantial political support for that? Yeah, I know — you can say that about almost any political program. And I am going to.
  • Opposition to Military Adventurism: clearly the neoconservative program of nation-building has been a failure in any honest assessment. We were supposedly in Afghanistan to prevent the spread of radical terror groups; now we have radical terror groups in Iraq, Syria, Libya and sub-Saharan Africa. That worked well, didn’t it?

However, the author goes further.

Let’s be very blunt here: if you genuinely think things can go on with no fundamental change needed, then you have implicitly admitted that conservatism is wrong. Wrong philosophically, wrong on human nature, wrong on the nature of politics, and wrong in its policy prescriptions. Because, first, few of those prescriptions are in force today. Second, of the ones that are, the left is busy undoing them, often with conservative assistance. And, third, the whole trend of the West is ever-leftward, ever further away from what we all understand as conservatism.

If your answer— [Matthew] Continetti’s, [Ross] Douthat’s,  [Reihan] Salam’s, and so many others’—is for conservatism to keep doing what it’s been doing—another policy journal, another article about welfare reform, another half-day seminar on limited government, another tax credit proposal—even though we’ve been losing ground for at least a century, then you’ve implicitly accepted that your supposed political philosophy doesn’t matter and that civilization will carry on just fine under leftist tenets. Indeed, that leftism is truer than conservatism and superior to it.
Ibid, italics in original.

This is a charge that we have to take seriously. Conservatism cannot keep on the genteel, self-satisfied path that it has been on. It has to, in the words of the article, “consider anything really different.” But Donald Trump is not just anything.

One of the Journal of American Greatness’s deeper arguments was that only in a corrupt republic, in corrupt times, could a Trump rise. It is therefore puzzling that those most horrified by Trump are the least willing to consider the possibility that the republic is dying. That possibility, apparently, seems to them so preposterous that no refutation is necessary.

The republic has been in trouble for at least 80 years, since FDR figured out how to implement an effective permanent vote-buying political establishment. You are not going to turn it around in one election, even if you find a Solon to run the country. Which I assure you Donald Trump is not.

Recall the earlier article by Markowicz.

It’s absurd to assume that any of this would stop or slow—would do anything other than massively intensify—in a Hillary administration. It’s even more ridiculous to expect that hitherto useless conservative opposition would suddenly become effective. For two generations at least, the Left has been calling everyone to their right Nazis. This trend has accelerated exponentially in the last few years, helped along by some on the Right who really do seem to merit—and even relish—the label. There is nothing the modern conservative fears more than being called “racist,” so alt-right pocket Nazis are manna from heaven for the Left. But also wholly unnecessary: sauce for the goose. The Left was calling us Nazis long before any pro-Trumpers tweeted Holocaust denial memes. And how does one deal with a Nazi—that is, with an enemy one is convinced intends your destruction? You don’t compromise with him or leave him alone. You crush him.

So it would seem the author wants us to become the extreme, ignorant yahoos the progressives have always claimed we are. But if we did so, would we not already be defeated?

Supporting Donald Trump to turn back progressivism is like using a flamethrower to get termites out of your house. Yes, you will get rid of the termites. You will also get rid of the house.

False Equivalence

Let me now return to the issue of an equivalence between Hillary Clinton and Donald Trump. No, there is none.

Hillary Clinton promises sunshine and kitten whiskers for everyone. Her behavior is self-seeking, but can be understood rationally. Her behavior is, within limits, predictable.

Every interaction is both an exchange of semantic information and a dance of social positioning, even those, as in science or academia, that strive to be purely the former.

To all appearances, Trump is engaged solely in the latter form of communication, and only in a narrow way: He treats all social interactions as zero-sum games establishing dominance and submission. In every interaction, someone is going to win and someone is going to lose, be with Trump or against him.
— David Roberts, “The Question of What Donald Trump “Really Believes” Has No Answer” (http://www.vox.com/2016/9/29/13086236/trump-beliefs-category-error), 29 Sept 2016.

Donald Trump says anything at any time. It is a semantic game to take an utterance of his and try to work backward to impute its purpose. Publius Decius Mus is fooling himself by thinking that Trump has any commitment to advance his or any other agenda other than Trump’s own self-aggrandizement. The entire concept of lying has no meaning for Trump. Reality is just a genre of television. Truth is whatever is convenient this minute.

If you want a businessman to vote for, Gary Johnson is a businessman. Trump is a real estate speculator, an economic rent-seeker and a reality TV star.

Nevertheless, it is damning with faint praise to say that Hillary Clinton is not as bad as Donald Trump. Even with no equivalence between the two, Clinton offers to take the country in a direction that I, for one, do not want to go. I don’t owe my vote to Trump to prevent the election of Clinton, but neither do I owe my vote to Clinton to prevent the election of Trump.

None of the Above

This election, for short-term purposes, is already down the drain. However, pursuant to the points made by Publius Decius Mus, the republic is in trouble and the country is going in the wrong direction. What makes it a wrong direction, rather than just a direction some of us dislike?

I maintain that, as the herald of this site asserts, ideas have consequences. My reading of history tells me that some choices lead to greatness and other choices lead to destruction. I have previously articulated how I know that a day of reckoning must come. The Trump candidacy is only the beginning of what we have to look forward to as the progressive fixation on negative-sum distribution plays itself out and the public square becomes increasingly nasty. It’s baked into the cake now. Decades in the making, it is too late for one enlightened chief executive to avoid, even if such were to be found.

I am most interested in the long game. Do we as conservatives want to alienate voters who we could reach and offer an alternative to progressive dependency, such as Hispanics, in the name of a misguided nativism? I think not. Do we want to risk the nation on Donald Trump, who provides no reason to expect any commitment to conservative principles or Constitutional process? I think not.

Someone on the Sunday shows observed that Donald Trump failed to make any mention in the first debate of the Supreme Court. There is a reason for this: He doesn’t care. He would blow off the court and Congress.

Donald Trump is a one-trick pony. All he knows how to do is negotiate. He negotiates things that should rightfully be non-negotiable, like his contractual commitments to his vendors. He would negotiate the American commitment to NATO and to South Korea. He negotiates what we as citizens have a right to know about the guiding principles of a presidential candidate. I see no evidence that, if elected, he would consider Constitutional law as non-negotiable.

As of this writing, several newspapers have endorsed Gary Johnson, most notably the Chicago Tribune and the Detroit News. The USA Today gave Trump an anti-endorsement, calling him “unfit for the presidency.”

The majority isn’t silent; the government is deaf.
— Unknown

Act well your part, there all honor lies.
— Alexander Pope

If you are repelled by the progressive agenda, this is not the time to cave in to fears and weakness by endorsing a candidate who seeks to exploit fears and weakness. We know that those who do not vote will be labeled as apathetic and cowardly; Gail Collins has already warned us of this. Find someone else with whom to make common cause and do so.

 

Written by srojak

October 2, 2016 at 12:36 pm

Guess What! Lindy Made It!

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Did you know that we have a gravely ill Constitution? Garrett Epps does, and he wants to tell us all about it in The Atlantic. Of course, you know there is going to be a convenient explanation for all this:

“Political correctness” is out of favor, so I won’t pretend that “both sides” bear responsibility. The corrosive attack on constitutional values has come, and continues to come, from the right. It first broke into the open in 1998, when a repudiated House majority tried to remove President Bill Clinton for minor offenses.
— Epps, “Trumpism Is the Symptom of a Gravely Ill Constitution”

I did just discuss the price to be paid for trying to nullify an election.

According to his bio, Epps teaches constitutional law and creative writing at the University of Baltimore. Obviously, his article owes more to the creative writing side than the constitutional law side. Can Epps really be that ignorant of history? Or is he hoping to put one over on us unenlightened rubes? We can’t settle that question, but we can review some history. Here are some years to remember from a constitutional perspective.

1913

The Sixteenth Amendment is adopted, which strikes out the wording in Article I, Section 9 that:

No Capitation, or other direct, Tax shall be laid, unless in proportion to the Census or Enumeration herein before directed to be taken.

The framers of the Constitution inserted that because they feared a mob would use the police power of the state to steal from a minority of the people. But, hey, nothing to worry about now!

As if that weren’t achievement enough, the Seventeenth Amendment follows three months later. This establishes direct election of Senators, thus eroding the status of States as mediators between the Federal Government and the people. The Senate becomes an Upper House with really expensive seats.

1935

In A.L.A. Schechter Poultry Corp. v. United States [295 US 495], the Supreme Court for the last time throws out delegation of lawmaking by Congress to the executive branch, holding:

A delegation of its legislative authority to trade or industrial associations, empowering them to enact laws for the rehabilitation and expansion of their trades or industries, would be utterly inconsistent with the constitutional prerogatives and duties of Congress. P. 295 U. S. 537.

Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade and industry. P. 295 U. S. 537.

The sitting president was Franklin Delano Roosevelt, and his response was to threaten to pack the Court. Did it work? Nobody will say, but since then no court has had the insolence to make Congress do its job.

2005

In Susette Kelo, et al., v. City of New London, CT [545 US 469], the Supreme Court ruled that a municipality could use its eminent domain powers to force the transfer of land from one private owner to another. This is the “Kelo” case and the source of the questions about eminent domain that Donald Trump artlessly glossed over earlier this year.

What’s not to like about this? The dissent of Justice O’Connor explains it:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

Either Garrett Epps is stupid or he believes we are; more likely than not the latter. The Constitution has been in real trouble for my entire life. Where was his impassioned defense of the Tenth Amendment? Now that the chickens are coming home to roost, he wants to start worrying about process. It’s a little late.

Written by srojak

September 22, 2016 at 10:18 pm