Sunday, July 24, 2016

Re Connecting the dots: Why I continue to despair

Sandy Levinson

The new issue of The Nation, a magazine to which I've subscribed for at least 35 years (and have published in over many of those years) has a "special convention issue" with the overall title, on the cover, "We Still Need a Future to Believe in:  How to Build the Political Revolution," which involves relatively short pieces by 24 "activists and leaders."  Today's New York Times Magazine has a very interesting article about what sounds like an altogether admirable group pushing a left-wing agenda on Hillary Clinton.  The key document of the group, the Roosevelt Institute, is a document "Rewriting the Rules of the American Economy," one of shoe major authors is the completely commendable Nobel Prize-winning economist Joseph Stieglitz.  So far so good.

But, as anyone familiar with my screeds over the past years could now readily predict, I am left in near despair by the fact that none of the twenty-four gurus brought to us by The Nation or the plan for "Rewriting the Rules..." seems even to consider the fact that among the rules very much in need of writing--or at least of what Alexander Hamilton called "reflection," perhaps on our way to "choice" regarding changing them--are those of the Constitution itself.  Instead, The Nation devotes the margin of the very first page of the response to Norman Lear's "We liberals are the true conservatives.  Don't mess with our Constitution, our Bill of Rights, those words that guarantee to all equal opportunity and equal justice under the law."  Norman Lear is also a commendable person, but this kind of mindless veneration of the Constitution is precisely what sends me into paroxysms of despair.  The right, for all of its professions of constitutional devotion, is actually willing to suggest that constitutional amendments might be desirable.  Jeb Bush has recently made this argument in the Washington Post.  All the left can do, apparently, is profess absolute horror that anyone might even think of "mess[ing] with our [perfect] Constitution."  Certainly the original 1787 Constitution said nothing at all about "equal opportunity and equal justice under law" even for all American citizens, let alone all American residents.  The former included women who were not allowed to vote (and the Constitution didn't care), and the latter included slaves whom the Constitution noticed only to give unjust benefits to their "owners."  Obviously, things got better, in part because of a war that killed 750,000 people, but one has to be optimistic indeed to believe that the Reconstruction Amendments are enough to "guarantee to all equal opportunity and equal justice under law."  One obvious problem is that realizing this wonderful visions requires the passage of a great deal of legislation, and the Constitution was rigged in 1787, and remains rigged now, to prevent any such radical developments from taking place save in those astrological years when all planets align for a brief period.  As I've been writing recently, it simply doesn't matter, with regard to achieving the sorely needed progressive agenda, if Hillary Clinton is elected and the Democrats take the Senate if, at the same time, the egregious Paul Ryan continues to remain the Speaker of the House because of illegitimate gerrymandering and a pernicious system of single-member districts sorely in need ion change.  All of the programs for "rewriting the rules" will be of nought.  This is one reason that honorable Republicans are rapidly deserting their sociopathic candidate for President and placing their energies on maintaining even one house of Congress, because they realize that Hillary simply can't do that much without having working majorities in both the House and the Senate.  It's as simple as that.

Will Berne Sanders take his time tomorrow night, when I think he speaks to the Convention, talking about what a truly serious non-violent "political revolution" would require, i.e., rethinking our Constitution?  Don't hold your breath.  Instead, we will hear lots of commendable people saying lots of commendable things in terms of wish lists for the future, even as they say nothing whatsoever about an egregious constitutional system that makes their realization difficult to the point of near impossibility.  That is why I continue to despair, even if I am relatively confident that the sociopathic Mr. Trump will not in fact become our next President.

Saturday, July 23, 2016

Rendering unto God and Caesar: Reflections on the Republican Platform

Sandy Levinson

From the Republican Party Platform:

We are the party of the Declaration of Independence and the Constitution. The Declaration sets forth the fundamental precepts of American government: That God bestows certain inalienable rights on every individual, thus producing human equality; that government exists first and foremost to protect those inalienable rights; that man-made law must be consistent with God-given, natural rights; and that if God-given, natural, inalienable rights come in conflict with government, court, or human-granted rights, God-given, natural, inalienable rights always prevail; that there is a moral law recognized as “the Laws of Nature and of Nature’s God”; and that American government is to operate with the consent of the governed. We are also the party of the Constitution, the greatest political document ever written. It is the solemn compact built upon principles of the Declaration that enshrines our God-given individual rights and ensures that all Americans stand equal before the law, defines the purposes and limits of government, and is the blueprint for ordered liberty that makes the United States the world’s freest and most prosperous nation   

I assume that Michael Pence, or for that matter Ted Cruz, has no trouble embracing this part of the Republican Party platform, which clearly subordinates any laws passed by legislatures or any other governmental institution to "the Laws of Nature and of Nature's God."  We could, of course, get into long debates about the difference between the "laws of nature," which could be Aristotelian, and non-dependent on any belief in God, in contrast to subordination to "Nature's God," which sound more in Revelation and divine sovereignty than in Reason.  In any event, we have a clear hierarchy of norms, with Divine commands at the top and everything else beneath.

We might compare the Republican platform, in this respect, to the Constitution of the Islamic Republic of Iran:

Article 2The Islamic Republic is a system based on belief in:

    1.the One God (as stated in the phrase "There is no god except Allah"), His exclusive sovereignty and the right to legislate, and the necessity of submission to His commands;
    2.Divine revelation and its fundamental role in setting forth the laws;...

From a purely analytic perspective, it is hard to tell the difference between the Republicans and the Iranians.  The same can be said,incidentally, of those ultra-Orthodox Jews who would look to the Torah and other Jewish materials to structure the law of Israel.

What can Donald Trump possibly make of this?  Whatever else one might think of the Platform, it seems to accept the notion of "individual rights" as limits against an overreaching government.  (That may well be a difference worth noting between the Republican Platform and the Iranian Constitution.)  But Trump seems to have no recognition of individual rights that are Dworkinian trumps (so to speak) against the state.  The admirer of strong-men dictators who almost literally can't wait to order waterboarding (or worse, such as retaliation against the families of those deemed by Trump and Chris Christie to be "terrorists") surely can't take seriously the proposition that even the least of us, made, after all, in the image of God, have rights against the state (or, for that matter, that it is easier for a camel to pass through the eyes of a needle than for a rip man to enter into the kingdom of Heaven.  Can anyone imagine Donald Trump spending his time and sharing the last meal with a condemned criminal about to be executed the next morning, as Tim Kaine, a serious Catholic, did?). To valorize the state is to commit the sin of idolatry, by placing the all-powerful state in the place of a formerly all-powerful God (who may or may not be just, but that's the subject of yet another theological argument).  Of course, Trump may want to cite Romans 13:1 on magistrates being chosen by God and, therefore to suggest, that his political success, including potential election, would be quite literally providential.  

I do not mean to be simply snarky about the Republican tip of the hat to theocracy.  There is obviously something to be said for the idea of a limited state, and it is certainly the case that many have looked to religious sources for a sense of what those limits are.  

The fact is that three of the four candidates, Hillary Clinton, Tim Kaine, and Mike Pence, are genuinely religious by any conventional measures.  She is a serious Methodist, and has been so since she was young.  Her oft-rerated  "slogan," "Do all the good you can...." is usually attributed to John Wesley and is the foundation of Methodist intervention in the world, including anti-slavery.  [Again, if I can try to anticipate some of the comments, I hope that none of you are so completely obtuse as to deny the reality of Clinton's religious beliefs and commitments.  Anyone doing so simply reveals the utter ignorance of her actual biography.]  Kaine, by all accounts, is a serious "social justice Catholic" who served as a missionary in Central America, and Pence is a former Catholic who apparently became aborn-again Evangelical because he wanted a closer relationship with God.  And, of course, he has emphasized that his primary identity is as a Christian.  (Let him try to explain how a serious Christian can hook up with Donald Trump, but that's another matter.)  

Should we be heartened or disheartened by the religiosity of three of the four candidates?  I define myself as a "secular Jew," with an emphasis on "secular," and I would be delighted if religion played less of a role in the lives of most Americans.    Christopher Hitchens certainly wouldn't be heartened.  But I can't imagine his being overly cheered by the fact that Trump felt no political duty to make any bow to religion in his speech.  I don't recall that he even bothered to end with the now ritual request for God's blessing on the U.S.  One did hear the Rolling Stones  and the importance of settling for getting what you need rather than wishing for what you want.   More suitable, I think, would have been "Sympathy for the Devil."

Trump and American Moral Leadership

Mary L. Dudziak

It has been a staple of presidential rhetoric, on both sides of the aisle, to hold up the American example as a model for others (even though there is of course disagreement about the degree to which the United States lives up to its own values). So it was striking this week to read Donald J. Trump's response in a New York Times interview to a question about Turkish President Recep Tayyip Erdogan's detention of tens of thousands of Turkish citizens.

Here's an excerpt:
SANGER: Erdogan put nearly 50,000 people in jail or suspend them, suspended thousands of teachers, he imprisoned many in the military and the police, he dismissed a lot of the judiciary. Does this worry you? And would you rather deal with a strongman who’s also been a strong ally, or with somebody that’s got a greater appreciation of civil liberties than Mr. Erdogan has? Would you press him to make sure the rule of law applies?
TRUMP: I think right now when it comes to civil liberties, our country has a lot of problems, and I think it’s very hard for us to get involved in other countries when we don’t know what we are doing and we can’t see straight in our own country. We have tremendous problems when you have policemen being shot in the streets, when you have riots, when you have Ferguson. When you have Baltimore. When you have all of the things that are happening in this country — we have other problems, and I think we have to focus on those problems. When the world looks at how bad the United States is, and then we go and talk about civil liberties, I don’t think we’re a very good messenger.
My take on this appears in today's New York Times. Two small snips:
This argument — that the United States could not be a model because of its domestic problems — was made during the early years of the Cold War, when racial segregation and violence against civil rights demonstrators generated international criticism. But this case was made by Soviet propagandists, not American presidential candidates....
As the world looks at the United States’ election this year, it is ultimately the American electorate that will have a final say about whether we, as a nation, are ready to embrace the idea that American democracy has nothing to offer the world.

Friday, July 22, 2016

The peculiar Mr. Pence (and the notion of "conscience")

Sandy Levinson

Two other things are worth noting about the strange ticket embraced by the Republican Party.  First, Trump, though acknowledging and appreciating his support from Evangelicals, didn't even both to pretend that he himself takes religion remotely seriously.  He did not, for example, give any support to James Dobson's assertions that Trump had in fact found Christ and was now a "baby (saved) Christian," since I assume that his baptism as a Presbyterian 70 years ago, assuming that occurred, wouldn't be enough to establish him as properly reborn. 

Mike Pence, on the other hand, repeatedly describes himself as a "Christian, a conservative, and a Republican" in that order.  Did anyone else--and I will open for comments exclusively on this point--find it at all odd that he didn't even both to include, in fourth place, "American."  One might have thought that a hyper-nationalist party like the Trumpized GOP would make sure that their candidates were true-blue Americans.  It would be one thing--and represent fidelity to the theocratic GOP Kim Davis-influence platform--if Pence had said that he would never put anything ahead of God. But one might think that American national interest might take second place, even if, on occasion, that might require deviating from "conservatism" and the interests of the Republican Party,

Of course, there is also the added frisson provided by the fact that the political party that is willing to go to the mat to honor the "consciences" of the Little Sisters, Hobby Lobby, and Kim Davis, is willing to boo an Evangelical Christian who suggests that "conscience" might have something to do with deciding whom to vote for in November.  What if Kim Davis had been a Kentucky delegate for Cruz who honestly believed that the libertine Donald  Trump was an insult to Christianity and therefore did not deserve her support.  Would she have been booed down?  If not, why not?  Does God clearly say "no same-sex licenses," but speak less clearly about "no Donald Trump"?

Donald Trump as anti-conservative (and anti-constitutionalist) authoritarian

Sandy Levinson

There is so much that one could say about last night's fear-filled diatribe.  No FDR there!  If we're not already fearful, we ought to be!  Fortunately, though, there's a would-be authoritarian leader who is volunteering to relieve our fears by doing whatever is necessary (though I was a little surprised that he didn't mention his desire to waterboard at will, given that the central theme of his candidacy is the "triumph of the will"). 

But I want to note only that Donald Trump, who may well have never really discussed the Constitution with anyone competent to do so, has, shall we say, an exaggerated view of presidential power.  Even if one stipulates that we are facing a resurgent crime wave and need much more "law and order," it's not remotely clear that the crimes in question are federal crimes, unless, of course, one believes that everything should be federalized, which I don't recall being a tenet of the old-Republican Party.  (See, e.g., Lopez.)  Indeed, to what I think is their shame, the Kennedy Administration for too long refused to get involved in Alabama or Mississippi on the ground that we are, after all, a federal system and, as Burke Marshall argued, was without jurisdiction to intervene.  I take it that subsequently-passed civil rights laws have changed the situation, at least somewhat, but I also assume that there continue to be some kinds of limits to national power--or so we are constantly told by our conservative friends.  To put it mildly, though, there's no reason to believe that Caudillo Trump would let the metaphysics (or reality) of federalism get in the way of his desire to be an all-powerful savoir of the country. 

I suppose that he does have the unilateral authority to renounce any and all executive agreements and treaties.  Again, though, I wasn't aware that this was a view of presidential power that conservatives are committed to. 

Perhaps he could order the immigration service (or whatever it's called these days) not to let in anyone from a country in which terrorism has occurred (which, of course, includes the UK, France, Spain, and now Germany).  No serious person (which might exclude a sociopath like Trump) believes that the particular threat comes from people who want to come here as immigrants.  I assume that a Trumpeteer should advocate shutting down all tourism unless and until everyone (save, perhaps, for white Christians) proves his or her eligibility for a visa (that would be include an ankle bracelet that would always let the Department of Homeland Security know where the visa holder is at all times).

I don't know how the Trump Hotels would do if the US start interrogating all visitors to the US for hours on end in order to guard against the possibility that one of them might be up to no good.  At the very least, I would assume that no sane international organization, including the International Olympic Committee,would schedule any events int eh US.  I'd also be curious if other countries would have greater "respect" for such a Trumpian policy or, instead, would impose similar inconvenience on all Americans who might want to visit a foreign countries.  Several years ago, I had to pay about $160 for a visa to visit Argentina solely because that was the amount the US imposed on Argentines.  Anyone going to Rio for the Olympics will have paid similar fees to get into that fascinating country.    

But all of this is to pretend that Donald Trump is a serious man with serious policies worth discussing.  He is not, and they are not.  This is a defining moment in American political history.  There are honorable Republicans, including, say, Lindsay Graham, David Brooks, Michael Gerson, John Kasich, Jennifer Rubin, Brent Scowcroft, and, to give the devil his due, Ted Cruz (even though no one seems willing to believe that he acting on the basis of anything other than his perceived self interest), and  no doubt, many others, who I suspect will reveal themselves in coming days.  Some will support Clinton, as is true of Scowcroft and, I think, Rubin.  Incidentally, Rubin has an absolutely terrific column explaining why the Supreme Court does not supply an adequate rationale for conservatives to vote for Trump.  There are a few people who seem genuinely to support Trump, like the pathetic Jeff Sessions and the absolutely contemptible fascist bully Chris Christie.  But the worst circle in political hell should be reserved for craven opportunists like Paul Ryan and Mitch McConnell, whose only recourse, since they can't explain a single redeeming feature about the actual person of Donald Trump, simply pander to a lynch mob the more moderate members of whom simply want to "lock up" Hillary Clinton. 

I note that Ilya Somin quite a while ago admirably indicated that he would not be voting for Donald Trump under any circumstances.  I would hope this is generally true of my friends at the Volokh Conspiracy, who seem to have a natural resting place in the Johnson-Weld candidacy.  Indeed, I very much hope that Johnson-Weld demonstrate enough support to participate in the presidential and vice-presidential debates.  This year especially, it would be an absolute scandal if the debate powers-that-be decide to exclude them because, say, they don't reach an arbitrary level of 15% support.  I would hope that Democrats would join with Libertarians and honorable Republicans in supporting their eligibility for the debates.  

Shakespeare's Take on Donald Trump's Acceptance Speech

Gerard N. Magliocca

I could be well moved if I were as you.
If I could pray to move, prayers would move me.
But I am constant as the northern star,
Of whose true-fixed and resting quality
There is no fellow in the firmament.
The skies are painted with unnumbered sparks.
They are all fire and every one doth shine,
But there’s but one in all doth hold his place.
So in the world. 'Tis furnished well with men,
And men are flesh and blood, and apprehensive,
Yet in the number I do know but one
That unassailable holds on his rank,
Unshaked of motion. And that I am he
Let me a little show it even in this:
That I was constant Cimber should be banished,
And constant do remain to keep him so.

Thursday, July 21, 2016

Trump as President (Part I)

Stephen Griffin

So, constitutionally speaking, how bad could it be?  I will divide my answer into three parts: creative ways in which Trump could exercise the formal powers of the presidency; what recent experience tells us about how he could exercise the presidency’s informal capacities; and the relation of politics to the exercise of constitutional power.  In general, I think the answer turns on how we understand what the Constitution is and (my favorite topic) the process of constitutional change.  I’m going to start in the middle, with what could happen on the informal front.  One more distinction – I’m focusing on the possibility of questionable constitutional means, not ends.

Some scholars have voiced the opinion that a Trump presidency wouldn’t be that bad.  Although Trump may have an authoritarian style, the thinking goes that he is no Hitler and, in any case, has to work under the same constitutional structure as every president.  One thinks of the Truman-Eisenhower anecdote, the one in which as he is leaving office, Truman remarks that Eisenhower will get frustrated at his orders not being followed.  It’s certainly a fair point that the executive branch is not the military writ large.

Nonetheless I beg to differ with the “no big deal” position, but on what non-armchair basis?  Consider that theories of the “small-c” constitution are popular these days.  Our Constitution is said to have a significant small-c component, which works much like the British “unwritten constitution” model, riding alongside the more familiar “big-C” text.

But consider the implications of having a “small-c” or practice-based Constitution for Trump's case.  If the Constitution has a significant “small-c” component, it becomes much harder to claim that Trump could not change the constitution, that he has to work under the same structure as any president.  For one thing, anything he does potentially constitutes a new “precedent,” a new moment for constitutional law.  Normally I’m against thinking about these issues in terms of “practice,” (a pretty vague notion!) but I’ll leave that aside.  My present point is that the reality that we have a Constitution of practice means that Trump’s choice of possible means goes well beyond what Article II says.  In fact, in terms of history, we’ve had a lot of experience along this line.  Presidents who operate outside the box show us that constitutional norms and institutions people of the time thought were fixed in fact have hidden fault lines that can produce rapid change.  We can all think of examples – I assume Jackson, Polk, Lincoln, and both Roosevelts would qualify.

In fact, Trump’s campaign has recently encouraged a Nixon 1968 analogy.  As probably many readers appreciate, this is not a normatively attractive comparison.  Still, constitutionally, what's the issue?  Well, perhaps you were thinking that Watergate came in Nixon’s second term?  As I argue in my book Long Wars (it’s standard stuff with historians of Vietnam), Watergate in fact grew out of Nixon’s first term vision of himself as a beleaguered war president surrounded by domestic unrest that amounted to terrorism.  That is disturbingly relevant to how Trump sees the world today.

But let's get more specific.  In terms of the constitution of practice, what could happen?
Read more »

UPDATE: Zubik remand developments: (i) Federal Govenrment notifies Zubik petitioners' insurers and TPAs they must begin providing contraceptive payments; and (ii) agencies promulgate Request for Information on whether other alternatives might also work

Marty Lederman

Today, in each of the courts of appeals to which the "nonprofit" contraception cases have returned from the Supreme Court after the Court's remand in Zubik, the Department of Justice notified the courts that, in the cases involving insured plans and self-insured, nonchurch plans, the government will now proceed to notify known insurance issuers and third-party administrators, respectively, that they have an "obligation to make or arrange separate payments for contraceptives, without cost to or involvement by plaintiffs."  [The link is to the Zubik notice in the Court of Appeals for the Third Circuit; but they're all materially identical.]

This action by the federal agencies is consistent with the Court's directive that "[n]othing . . . in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by [plaintiffs’] health plans “obtain, without cost, the full range of FDA approved contraceptives.”  In other words, the government is taking steps to ensure that women are receiving payments for contraception during the pendency of the cases (which is an especially apt development for the status quo because the government is likely to prevail in those cases).  (Of course, the government cannot notify an issuer or TPA if it does not know who they are; in most of the cases, however, the employers have willingly provided that information in the course of litigation.)

As I've explained, the government does not have the legal authority to require TPAs of self-insured "church plans" to provide payments.  Therefore,  in the case of empployers that have identified their employees' or students' plan as a self-insured church plan, "the Departments will notify the TPA of the incentive available under the regulations [for them] to [voluntarily] make or arrange separate payments for contraceptives."

Meanwhile, this morning the Departments of Health and Human Services (HHS), Labor, and Treasury issued a Request for Information (RFI) in light of the Court's remand.  The RFI invites public comments concerning whether there are alternative ways (other than those offered in current regulations) for eligible organizations that object to providing coverage for contraceptive services on religious grounds to obtain an accommodation, while still ensuring that women enrolled in the organizations’ health plans have access to seamless, cost-free coverage of the full range of FDA-approved contraceptives.  The agencies explain that they "are committed to respecting the beliefs of religious employers that object to providing contraceptive coverage," and "have consistently sought to accommodate religious objections to the contraceptive-coverage requirement even where not required to do so by RFRA."

The Departments are using the RFI procedure "because the issues addressed in the supplemental briefing in Zubik affect a wide variety of stakeholders, including many who are not parties to the cases that were before the Supreme Court.  Other employers also have brought RFRA challenges to the accommodation, and their views may differ from the views held by the employers in Zubik and the consolidated cases.  In addition, any change to the accommodation could have implications for the rights and obligations of issuers, third party administrators, and women enrolled in health plans established by objecting employers."

Comments are due, by my calculation, on September 20.

Among other things, the agencies have invited comments on the following questions:

-- Whether the alternative procedure described by the Court would resolve the RFRA objections of objecting organizations with insured plans.  (We already know that the Zubik petitioners themselves would continue to interject a RFRA objection, no matter how untenable it might be.  But there are many other organizations at issue, too.)  And, for any organization that would continue to assert a RFRA objection, could that objection "be resolved by any procedure(s) or system(s) in which the organization’s issuer provides contraceptive coverage"?

-- Recall that the Zubik petitioners represented to the Court that their RFRA objections would only be alleviated, as to insured plans, if (i) the insurance company is required to offer women the opportunity to enroll in separate, contraceptive-only insurance policies, rather than providing separate direct payments to the women, outside any insurance plan, for contraceptive services; and (ii) that the affected women are required to take affirmative, "opt-in" steps to enroll in those contraceptive-only policies, rather than being automatically eligible for payments by the issuer for contraceptive services.  The agencies have asked for comments on the impact this approach would have on the ability of women enrolled in group health plans established by objecting employers to receive seamless coverage for contraceptive services; on whether the approach would be feasible for health insurance issuers; and whether there would be state-law obstacles to such an approach.

-- "Are there alternative procedure(s) or systems (without relying on contraceptive-only policies or imposing an affirmative enrollment requirement) that would resolve objecting organizations’ RFRA objection to the accommodation," with respect to insured plans?

-- As to self-insured plans, the agencies "have not identified any viable alternative to the existing accommodation," and thus they "they seek comment on any possible modifications to the accommodation for self-insured plans, including self-insured church plans that would resolve objecting organizations’ RFRA objections while still providing seamless access to coverage."  In particular, "are any reasonable alternative means available under existing law by which the Departments could ensure that women enrolled in self-insured plans maintained by objecting employers receive separate contraceptive coverage that is not contracted, arranged, paid, or referred for by the objecting organization but that is provided through the same third party administrators that administer the rest of their health benefits?," and would such alternative mechanisms satisfy the RFRA objections of objecting organizations with self-insured plans?

Will the U.S. Survive the 2016 Election III

Sandy Levinson

Can anyone who has looked at any of the hatefest of the past three days--which has been comparable, depending on your taste in metaphors, to the Salem Witch Trials or a lynch mob (led by the ostensible "prosecutor" Chris Christie--believe that the Republican Party as an institution is read to make peace with President Hillary Clinton?  It would be bad enough were we a parliamentary system, with an opposition party that not only opposes, but regularly refers to their desire to jail or execute the lawfully elected prime minister.  But, of course, we're not blessed with such a system.  Instead, we have one, courtesy of the Framers of 1787, in which the opposition party has all too much ability to torpedo any programs of the purported "party in power," as captured in the Republican use of the filibuster.  As I have written many times before, Mitch McConnell is not a raving ideologue; he was simply behaving "rationally" in his desire to deprive Barack Obama of a second term and believing that the most effective way to do it was to deprive him of any accomplishments.  He learned that Ted Kennedy had disastrously miscalculated by enabling George W. Bush to claim victory on two key aspects of his own domestic policy, i.e., No Child Left Behind and the prescription drug bill, and McConnell was not going to make the same mistake.  As it turned out, thanks to Mitt Romney's inept campaign (and Sheldon Adelson's providential financing of Newt Gingrich's campaign for at least a month longer than any rational analysis would have predicted), it didn't work.  But that doesn't mean that McConnell was irrational.  To be sure, he wasn't very Publican; he preferred factional Party interest to any notion of the "public interest," but of course, the Publican vision, even if you think it attractive, ultimately makes very little sense empirically, as illustrated by the rise of the two-party system by the mid-1790s.

So what's the most likely outcome of this dreadful election system.  There are three possibilities:

A. A sociopathic Donald Trump wins the presidency with Republicans retaining control of the House and Senate.  I would hope that Democrats would do whatever possible to torpedo any such Trump Administration, including refusal to confirm almost all of his appointments, but, then, I would expect the Republicans to eliminate the filibuster in then first week of January 20217 and govern like a parliamentary majority, paying no attention at all to wailing Democrats.  The latter would either begin supporting secession in Pacifica, as suggested earlier, start organizing for the 2018 elections, engage in "inner emigration,' or in fact move elsewhere.   And, of course, it would almost certainly be the case that a Trump "win" would be with regard to the electoral college, but not the popular vote.  I.e., he could either lose to Clinton directly or, even if he beats her, still have significantly less than a majority because Gary Johnson will get a significant vote as the Libertarian candidate.  Recall the 1968 and 1992 elections, where Nixon and Clinton each got only 43% of the popular vote (or, for that matter, the 1860 election, where Lincoln got 39.8% of the popular vote.)

B.  Hillary Clinton wins, the Democrats get back the Senate, but Paul Ryan remains Speaker of the House with a five-vote majority.  Again, one can imagine various popular votes.  Perhaps Hillary will emulate Bill in 1992 by winning as the first-past-the-post candidate, but with considerably less than a majority vote.  In any event, Democrats, if they have any backbone, will immediately vote to eliminate the filibuster re Supreme Court appointments and appoint to the Court people who will steadfastly enforce what most liberals believe is the "correct" view of the Constitution.  But, otherwise, Clinton and Democratic supporters will be unable to pass any legislation, thanks to Paul Ryan, who will immediately be running for the presidency in 2020 on a platform of "I hate Hillary as much as you do."  This will lead to further disaffection from the political system by anyone who actually believes that Congress should respond to the great challenges facing us.  What particular form the disaffection will take is obviously unclear.

C.  Clinton will win by 15 points (53-38, with Gary Johnson and Bill Weld getting almost all of the remaining 9%), which will be enough to give Democrats both houses of Congress.  The filibuster is eliminated for everything, including legislation, in January 2017, and the Democrats will govern as a genuine majority party.  That will, of course, make people like me very happy, but I would assume that the Republican Party "represented" by the delegates to the Cleveland Convention will increasingly take to the streets, brandishing their 2nd Amendment-protected firearms, and make it very clear that they in fact view the President of the United States as nothing other than a (lucky) criminal who is entitled to no genuine respect whatsoever.  (If that's not their view, then someone should have explained that to Chris Christie.)

Options A and C both provide something that can be called a "government," but one that is viewed by much as the country as completely illegitimate, at least if the President has anything to do with it.  Option B leaves us more or less where we are, i.e., mired in legislative gridlock and ever-increasing contempt for the most important of all American political institutions, the Congress, with who knows what consequences.

Foolishly or not, I continue to allow comments (at least some of which I find illuminating).  Again, the only thing I'm really interested in is the political analysis.  I'm not interested in anyone's personal opinions of Trump or Clinton (i.e., whether the former is "really" a sociopath or the latter "really" deserves to be jailed).  The only important question is the number of people in the country at large, including those who are politically active, who do have such views and the consequence for our political system.  Steve Griffin wrote an excellent book on the importance of "trust" in any viable political order.  Can anyone possibly be optimistic that we as a society  possess whatever minimal level of trust in our political leaders is required to function effectively?

Wednesday, July 20, 2016

"A Newer Originalism: Book History and Constitutional Interpretation"

Jeremy K. Kessler

The Society for U.S. Intellectual History has posted an interesting, short essay on the historiographical methods best suited to an originalism rooted in public meaning rather than intent. Specifically, the authors argue that the "history of the book," rather than more traditional "intellectual history," might be of greatest salience to new originalists looking for firmer empirical footing. The publishing history of The Federalist is offered as an example. The authors are Drew Starling, a PhD candidate at Penn, and Sean Nadel, a JD candidate at Columbia. A brief excerpt follows:

"Towards the end of Justice Scalia’s career, some legal scholars began advocating that originalists and new originalists abandon 'law-office history' in favor of the methodological rigors of intellectual history. Above all, the methods advocated have been those of James Kloppenberg, Quentin Skinner, and David Hollinger, which privilege the linguistic context and semantic content of texts and, in this case in particular, the Constitution.

While the adoption of such methods would undoubtedly better ground legal arguments from history, they alone are insufficient, especially given originalism’s shift from a focus on discovering the original intentions of the framers of the Constitution to new originalism’s focus on the original public meaning of the text. Such a shift entails a change in belief as to where meaning inheres. Theoretically speaking, for originalists, the author endowed the text with fixed meaning at the time of writing. For new originalists, the meaning of a text is determined by the ways in which particular historical or imagined historical readers would have made sense of it.

With the adoption of such a method, the history of reading and reception, to which Saul Cornell has briefly alluded, becomes key, as do the history of the book’s methodologies more broadly speaking. Book historians, following the cue of bibliographers, have long grown accustomed to the notion that ideas . . . . are mediated by a number of actors – authors, copyists, editors, translators, publishers, compositors, and printers, just to name a few – each with his or her own intentions in doing whatever he or she does. . . . Engaging with the histories of publishing, reading, and reception may deepen our understanding of the original meaning of texts, what readers could possibly have known about them and their authors, and how such information would have shaped their reading."

Tuesday, July 19, 2016

Two Acquittal Crises

Mark Graber

The United States has experienced two acquittal crises.  The first occurred when the Constitution was being ratified.  Studies show that a remarkably high percentage of juries acquitted criminal defendants even when substantial evidence supported their guilt.  The second is occurring at present.  A remarkably high percentage of juries are acquitting police officers charged with killing innocent persons of color even when substantial evidence supports their guilt.  The similarities and differences between these acquittal crises highlight consistencies and changes in constitutional understandings of the criminal law and race.

Americans at the time of the framing regarded many values as more important than law and order.  Juries acquitted criminal defendants when they did not believe certain behaviors should be criminalized.  Juries acquitted criminal defendants when they believed law enforcement officials had violated certain rights. Most important, juries frequently acquitted persons when they believed criminal punishment was inappropriate for that wrongdoing or wrongdoer.  These juries seem as concerned with the character of the defendant as with the evidence supporting conviction.   Persons who committed murder during a drunken fight might be acquitted if they were productive members of the community and had not previously demonstrated a distinctive inability to control their liquor.

Americans during the first decades of the twenty-first century also regard many values higher than law and order, at least when police officers are on trial for killing an innocent person of color. Twenty-first century juries (or triers of fact) seem as concerned with the character of the police officer as with the evidence supporting conviction.  Police officers who grossly overreact and kill persons of color are acquitted, recent experience suggests, when triers of fact are convinced that the defendant is not a bad person.  I suspect conviction rates when police officers are on trial for corruption are a good deal higher than conviction rates for police killings of innocent civilians.  Being on the take more clearly demonstrates bad character than shooting someone in the spur of the moment, even when the race of the innocent person clearly influenced the decision to resort to criminal violence.

That police violence, particularly police violence towards persons of color, is a systemic problem in the United States is beside the point for many triers of fact.  Drunken violence has also always been a systemic problem in the United States.  The practice seems to be that juries and triers of fact do not convict persons for actions they perceive as embedded in systemic problems within institutions rather than individual guilt.  Actions based on conscious racism in 2016 demonstrate bad character in ways that actions based on unconscious racism do not.

My account of the eighteenth century is obviously romantic.  A good deal of evidence suggests that the vast majority of persons suspected of crime were punished with at most a smidgen of due process.  Jury trials and common law/constitutional rights were for the minority of people who were perceived as productive members of society.  Persons thought to be of poor character because of their economic status or race experienced an entirely different justice system.  The analogy today is obvious.  The conviction rate in highly public trials is fairly low (think O.J. Simpson, round 1) and punishments fairly light (think the recent Stanford rapist), in part because those defendants get their full due process rights and in part because the defendant in most highly public criminal trials tends to be someone whose crime can be depicted as out of character.  By comparison, the vast majority of persons in our prisons are there as a result of plea bargains where there is very little representation and even less due process. As in 1776, persons thought to be of poor character because of economic status or race experience an entirely different justice system.

This history suggests that the United States has always had two criminal justice systems.  The first is for people deemed productive members of the community.  Such persons are not subject to criminal sanctions or, at least severe criminal sanctions, whenever their crimes seem inconsistent with their presumed characters.  Juries find reasons not to convict their peers.  Police officers take middle-class white teenagers home who engage in underage drinking.  Such persons do not get off scot-free.  Americans rely on social rather than criminal sanctions to deter and punish productive members of the community.  The drunken murderer leaves town.  The drunken teenager gets car privileges suspended for six months by their parents.  The second criminal justice system is for people deemed non-productive members of society.  Such persons are subject to criminal sanctions, often severe criminal sanctions, for their wrongdoing.  Their crimes are presumptively consistent with their characters because of unspoken ancient assumptions that persons of their economic class, race or ethnicity are prone to criminality.  The poor drunken murderer is sentenced to death.  The underage teenage drinker of color is declared a delinquent.  Social sanctions are foregone partly because the wrong sort of people do not respond to social sanctions and partly because the wrong sort of communities do not adequately sanction wrongdoers. 

The most important development over the past two centuries may be in the relationship between these two criminal justice systems.  The official criminal justice system in 1776 was the system that productive members of the community experienced, the system that safeguarded fundamental rights and preferred social to criminal sanctions, unless the crime was clearly in character.  The persons responsible for the Constitution spoke with great passion about the need to protect the rights of productive community members accused of crime and hardly at all about the need to protect citizens against ordinary criminals.  The unofficial criminal justice system in 1776 was extensive, but remained to a fair degree unofficial.  The official criminal justice system in 2016 is  the system less productive members of the community experience, the system that emphasizes law and order at the expense of fundamental rights and prefers criminal to social sanctions.  Politicians compete to punish more crimes more severely.  Even liberal justices suspend rights when drugs are involved.  We are outraged when government officials fail to prosecute or triers of fact fail to convict in cases where substantial evidence of guilt exist.

The demand to punish police officers involved in the Freddie Gray trials and our outrage when they are found not guilty is the demand that police officers be subject to the same criminal justice system as was Freddie Gray, a criminal justice system in which substantial evidence of guilt always merits a conviction or an unfavorable plea bargain.  We might, however, respond to these not guilty verdicts in a different way.  Perhaps we might expand the criminal justice system that criminal defendants who are police officers or considered productive members of society have historically experienced to members of all social classes, races and ethnicities rather than expand the justice system less productive members of society have historically experienced to more fortunate citizens.

Will the United States survive the 2016 election (II)

Sandy Levinson

People may think I'm being my usual hyperbolic self in asking this question, but I suggest they may be somewhat myopic and overly addicted to a strange form of American exceptionalism.  As to the latter, one cannot overestimate the extent to which secession is as American as apple pie.  Our "revolution" was in fact a secession from the British Empire.  Our second largest state seceded from Mexico (and then, of course, with ten other states, attempted to secede from the United States in a struggle that ultimately cost 750,000 lives (for starters)).

And, finally, there is the phenomenon of secession all over the world, the most dramatic example of which is surely Brexit, to be followed, one suspects, in relatively short order by Scotland's repudiation of the Treaty of Union and its own declaration of independence,.  This may or not be accompanied by recognition of some kind of mystical sovereignty of HRH Queen Elizabeth, but, most certainly, not a scintilla of sovereignty in the London Parliament.  (That deal, incidentally, was on offer to King George by Benjamin Franklin and others, but he and his ministers were too stupid to accept it.)  So what is it that convinces all "thoughtful" people that secession could never happen here?

Consider, for starters, the following statement by Alexis deTocqueville:

“….what keeps large numbers of citizens subject to the same government is much less the rational determination to remain united than the instinctive and in some sense involuntary accord that results from similarity of feeling and likeness of opinion.”  Alexis de Tocqueville, 1 Democracy in America, part 2 2, chapter 10, pp. 430-431 (Library of America ed., trans. by Arthur Goldhammer, 2004).

This view can easily be linked to the insistence in Federalist #2 that divine Providence has blessed America with a population of similar manners, religion, anguage, and political views.  This was, of course, utterly preposterous.  However, as I argue in my book An Argument Open to All:  Reading the Federalist in the 21st Century, Publius (in this case Jay) thought it necessary to make such an assertion in order to persuade people that what was in fact a "consolidationist Constitution" made sense as a replacement for the Articles of Confederation.  I think that one can say with confidence that we have become ever-more multi-cultural, in all senses, since 1787, and it's ever-harder to find "similarity of feeling and likeness of opinion."

It is clear that Donald Trump's critics, the most eloquent of whom are Republican, as a matter of fact, see him basically as a dangerous sociopath (which is why they are publicly opposing him and , unlike the despicable Paul Ryan, maintaining their honor for 2020, when Hillary Clinton will be the most vulnerable incumbent since Herbert Hoover).  They are, of course, wholly correct.  And, in addition, he is receiving all-too-much support from out-and-out racists like Iowa Rep. Steven King (no relation, I assume, to the author) and the out-and-out fascistic Rudy Giuliani, who, had he only been wearing a suitable black shirt, could have been a solid ringer for Mussolini in his call for a strong-man who would do whatever it takes to save the country from the Schmittian "enemy."  So, if one tries to imagine Hillary conceding the election to Trump, I confess I can't come up with a plausible speech.  I would be truly outraged if she gave a typical "let's rally around the choice of the people" speech.  Instead, she should refer to Lockean rights of resistance to tyranny and perhaps even suggest that we remind ourselves of classical theories of tyrannicide.  Were I a resident of Pacifica or New England (as in fact I am during the fall), I would certainly wonder why in the world we should remain within a Union that would elect a dangerous sociopath as President and give him access to nuclear codes and rely on courageous members of the armed forces basically to rebel against their commander-in-chief.

No one watching the evening of hate at last night's Republican Convention could possibly believe that those people who honestly support Donald Trump and admire Rudy Giuliani will regard Hillary as a legitimate president should she win.  And given Trump's narcissism, it's impossible to imagine what his concession speech would look like.  Will he accept his status as a  LOSER to someone he regards, at least while performing his most recent role as "Donald Trump, candidate of the angry," as totally unfit to serve as President?  Isn't he likely to say that she won by a "rigged election," which by definition denies legitimacy to the result? (See, at least for a while, Bernie on this score.)

I take it that no one believes that the national vote, whatever it is, will be mirrored in each of the states.  There are the classic "battlegrounds" where perhaps the margin will be only 3-4 points.  I suspect that most of the states will have margins closer to 10 and perhaps even 15 points.  So why should the majorities who voted for the loser in those states really wish to stay in a Union that would elect someone they view as patently unfit to serve and a menace besides?  

My good friend and casebook co-editor Akhil Amar will no doubt remind me that secession is "unconstitutional."  Two quick responses:  He and I have quite different readings of the Constitution on this point.  I think the Constitution was and is silent on secession.  I don't view Lincoln's arguments as dispositive, which is different, incidentally, from simply saying that all things considered, on balance, they are more persuasive than those of the Southerners.  Nor do I share the view of my friends Paul Finkelman and Laurence Tribe that the issue was settled in the case of "Grant v. Lee" or by the Supreme Court's decision in Texas v White.  But let's stipulate that they're right on the law.  So what?  As Tocqueville suggests, it's ultimately not a legal question at all.  Perhaps this is why the Supreme Court, in In re Debs, suggested that it would have been foolish for Lincoln to have sought an injunction against Davis and his fellow secessionists.

As Scot Peterson informed us last week in his post on the aftermath of Brexit, Parliamentary power in England is ultimately a question of what the public will accept.  "Sovereignty" is ultimately a matter of social fact, not of abstract legal argument.  Recall Holmes's statement in The Path of the Law, which remains the most important single essay in the history of American constitutionalism:  " I once heard the late Professor Agassiz say that a German population would rise if you added two cents to the price of a glass of beer. A statute in such a case would be empty words, not because it was wrong, but because it could not be enforced." What is true of statutes is no less true of constitutions.  So the ultimate question is whether the rest of the United States would be willing to support killing the secessionists who were attempting to leave.  Legal arguments would be near irrelevant.

But, one might say, optimistically or not, that surely there is no serious secessionist sentiment in the United States today.  If that's true, then we are surely exceptional!  But consider a 2014 poll taken by Reuters, at the time of the secession vote in Scotland, that showed that 25% of the U.S. respondents favored their state's seceding from the U.S.  And, most interestingly, although only 16% of people my age seemed to think secession might be a good idea, 40% of those between 18-29 were receptive to the idea.  What might this say about the American future?  Will they grow out of it, or does this suggest that Millennials may simply not feel much of the tug of what Lincoln called the "mystic chords of memory"?  And, by the way, in the aftermath of Brexit, 37% of millennials supported Texas secession., which I think should be labeled "Texodus."   Doug Bandow, of the Cato Institute, who applauded Brexit, had earlier suggested that Brexit should set the stage for the breakup of what he regards as a far too large U.S.

No doubt there were some in 1860 who believed that the US would survive the election.  After all, he initially relied on the "mystic chords" before emulating King George by sending in the troops to "kill friends and family," in the words of Hamilton's version of King George.  Lincoln at least had the motivation, at least after 1863, of trying to end slavery.  What grand cause justifies the use of force against Pacifica or New England (including, presumably, New York)?  Should those chords really lead us to accept living in a country that would accept a dangerous sociopath like Donald Trump as its commander-in-chief?  Or should we look forward simply to demonstrating, marching on Washington, and perhaps even suggesting use of our Second Amendment rights to rebel against an oppressive government?

No doubt many people will talk about "individual secession," what our friend Ilya Somin calls "foot voting," whereby we could join Ruth Ginsburg in moving to New Zealand or the like.  But
why stop with individuals foot voting, which by definition requires a willingness to uproot one's life and perhaps go into exile?  What really and truly prevents Pacifica (or Dixie, or Texas) from saying, collectively, "we've had enough, and we want out.  Here's our 2017 version of the Declaration of Independence!"?

I'm opening this for comments, but let me make one thing clear:  I'm not in the least interested in what anyone actually thinks of Donald J. Trump or Hillary Rodham Clinton.  What I'm interested in is the analysis that is offered about the potential difficulty of their opponents treating their election as truly legitimate and meriting respectful obedience until the next election at which they would try to throw the rascals out.  Bernie, we know, is willing to live under a Clinton presidency, however unhappy that makes him.  And Paul Ryan is apparently willing to do the same with regard to a Trump presidency.  Do they really speak for America in general on this point?  (Of course, it is hard to get good data, since few American pollsters seem to be taking seriously the possibility of a genuine secessionist movement arising in the country.  Perhaps they would view asking such questions as the equivalent of trying to measure public support for a violent response to the election.)

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