How Conservatives Should Think about the Constitution

It is has long been glaringly evident that a large and vocal fraction of U.S. citizens rejects the Constitution’s blueprint for liberty. That fraction — the anti-patriotic left — rejects almost everything about the Constitution, from its federal character to its promise to provide for the common defense to its guarantee of free exercise of religion.

The left’s attitude toward the Constitution shouldn’t be surprising, given that the left rejects the cultural context of the Constitution, and of the Declaration of Independence before it. That context is the Judeo-Christian tradition, generally, and the predominantly British roots of the signatories, in particular.

Candor compels me to admit that the high-flown language of the Declaration to the contrary notwithstanding, it was a p.r. piece, penned (in the main) by a slave-owner and subscribed to by various and sundry elites who (understandably) resented their treatment at the hands of a far-away sovereign and Parliament. The Constitution was meant, by the same elites, to keep the tenuous union from flying apart because of sectional differences (e.g., diverging trade policies and foreign connections), and to defend the union militarily without depending on the whims of the various State legislatures.

But in serving their interests, the Founders and Framers served the interests of most Americans — until the onset of America’s societal and cultural degeneration in the 1960s. It was then that political polarization began, and it has accelerated with the passage of time (despite the faux unity that followed 9/11).

Lamentable as it may be, the demise of the Constitution is just a symptom of the demise of America as something like a social and cultural entity. Conservatives must recognize this reality and act accordingly. Flogging a dead horse will not revive it. America as it was before the 1960s is dead and cannot be revived.

Conservatives must face the facts and learn from the left.

These are the facts (some of which are previewed above):

1. The Constitution was a contract, but not a contract between “the people”. It was a contract drawn by a small fraction of the populace of twelve States, and put into effect by a small fraction of the populace of nine States. Its purpose, in good part, was to promote the interests of many of the Framers, who cloaked those interests in the glowing rhetoric of the Preamble (“We the People”, etc.). The other four of the original thirteen States could have remained beyond the reach of the Constitution, and would have done so but for the ratifying acts of small fractions of their populations. (With the exception of Texas, formerly a sovereign republic, States later admitted weren’t independent entities, but were carved out of territory controlled by the government of the United States. Figuratively, they were admitted to the union at the point of a gun.)

2. Despite their status as “representatives of the people”, the various fractions of the populace that drafted and ratified the Constitution had no moral authority to bind all of their peers, and certainly no moral authority to bind future generations. (Representative government is simply an alternative to other types of top-down governance, such as an absolute monarchy or a police state, not a substitute for spontaneous order. At most, a minimal night-watchman state is required for the emergence and preservation of beneficial spontaneous order, wherein social norms enforce the tenets of the Golden Rule.)

3. The Constitution was and is binding only in the way that a debt to a gangster who demands “protection money” is binding. It was and is binding because state actors have the power to enforce it, as they see fit to interpret it. (One need look no further than the very early dispute between Hamilton and Madison about the meaning of the General Welfare Clause for a relevant and crucial example of interpretative differences.)

4. The Constitution contains provisions that can be and sometimes have been applied to advance liberty. But such applications have depended on the aims and whims of those then in positions of power.

5. It is convenient to appeal to the Constitution in the cause of liberty — and I have often done just that — but this does not change the fact that the Constitution was not and never will be a law enacted by “the people” of the United States or any State thereof.

6. Any person and any government in the United States may therefore, in principle, reject the statutes, executive orders, and judicial holdings of the United States government (or any government) as non-binding.

7. Secession is one legitimate form of rejection (though the preceding discussion clearly implies that secession by a State government is morally binding only on those who assent to the act of secession).

8. The ultimate and truly legitimate form of rejection is civil disobedience — the refusal of individual persons, or voluntary groupings of them (e.g., family, church, club, and other institutions of civil society), to abide by positive law when it infringes on natural law and liberty.

States and municipalities governed by leftists are engaging in institutional civil disobedience (e.g., encouragement of illegal immigration, spiteful adoption of aggressive policies to combat “climate change” and to circumvent the Second Amendment; an organized effort to undermine the Electoral College; a conspiracy by state actors, at the behest of Obama, to thwart the election of Trump and then to oust him from the presidency). There are also some conservative counterparts (e.g., Second Amendment “sanctuaries” and aggressive State efforts to undermine Roe v. Wade).

The lesson for conservatives is to do more of what the left is doing, and to do it aggressively. When the left regains control of the White House and Congress — as it will given the mindlessness of most American voters — conservatives must be prepared to resist the edicts emanating from Washington. The best way to prepare is to emulate and expand on the examples mentioned above. The best defense is a good offense: Dare Washington to deploy its weaponry in the service of slavery.

Slavish obedience to the edicts of the central government is neither required by the dead Constitution nor in keeping with conservative principles. Those principles put traditional morality and voluntarily evolved norms above the paper promises of the Constitution. In fact, those promises are valid only insofar as they foster the survival of traditional morality and voluntarily evolved norms.

Related page and posts:

Constitution: Myths and Realities

The Constitution: Original Meaning, Corruption, and Restoration
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
Substantive Due Process and the Limits of Privacy
The Southern Secession Reconsidered
Abortion and the Fourteenth Amendment
Obamacare: Neither Necessary nor Proper
Privacy Is Not Sacred
Our Perfect, Perfect Constitution
Restoring Constitutional Government: The Way Ahead
“We the People” and Big Government
Abortion Rights and Gun Rights
The States and the Constitution
Getting “Equal Protection” Right
How to Protect Property Rights and Freedom of Association and Expression
Judicial Supremacy: Judicial Tyranny
Does the Power to Tax Give Congress Unlimited Power? (II)
The Beginning of the End of Liberty in America
Substantive Due Process, Liberty of Contract, and States’ “Police Power”
Why Liberty of Contract Matters
The Answer to Judicial Supremacy
There’s More to It Than Religious Liberty
Turning Points
Equal Protection in Principle and Practice
Polarization and De-facto Partition
Freedom of Speech and the Long War for Constitutional Governance
Academic Freedom, Freedom of Speech, and the Demise of Civility
Restoring the Contract Clause
The Framers, Mob Rule, and a Fatal Error
Freedom of Speech: Getting It Right
Suicide or Destiny?
Freedom of Speech, to What End?
Nullification and Secession
The Constitution vs. Reality
Power Is Power
The Citizenship Question
Vive le collège électoral!
Liberty: Constitutional Obligations and the Role of Religion

Impeaching the President: Profiles in Partisanship

Profiles in Courage (1956), written by Theodore Sorenson (with a little help from John F. Kennedy, who accepted a Pulitzer Prize for it) is a

volume of short biographies describing acts of bravery and integrity by eight United States Senators, written by then-Senator John F. Kennedy…. The book profiles senators who defied the opinions of their party and constituents to do what they felt was right and suffered severe criticism and losses in popularity because of their actions.

I haven’t read the book, but I have a vague memory of the TV series that was based on it. The episode that sticks in my mind is based on the chapter about Senator Edmund G. Ross of Kansas, who (according to the Wikipedia article about the book) voted

for acquittal in the Andrew Johnson impeachment trial. As a result of Ross’s vote, along with those of six other Republicans, Democrat Johnson’s presidency was saved, and the stature of the office was preserved.

Whether keeping Johnson in office preserved the stature of the presidency is debatable, given his opposition to the Fourteenth Amendment, which granted citizenship to former slaves.

Whatever the case, the impeachment and trial of Andrew Johnson marked the first of four “serious” attempts to remove a president. Aside from the impeachments and trials of Johnson (1868) and Clinton (1998-99), there was the almost-certain impeachment of Richard Nixon (1974), which was mooted by his resignation, and the almost-certain impeachment of Donald Trump (2019), which will proceed to a Senate trial (2020). (The many “unserious” attempts to impeach presidents are recounted here and here.)

When the House of Representatives voted to impeach Johnson, a Democrat, only two Republicans voted “no”, as did all of the Democrats who voted. The resulting eleven articles of impeachment against Johnson were similarly approved along party lines. The votes reflected the essential issue between Johnson and congressional Republicans, which was how to proceed with the “reconstruction” of the South. Johnson, a Tennessean, had remained loyal to the Union but favored “reconstruction” measures that weren’t as harsh as those adopted by the Radical (abolitionist) Republicans, who controlled Congress. But seven Republican senators were having none of it, and voted for acquittal on the eleventh article (which was the first voted on). Ross, one of the seven, cast the final and deciding vote. (There were 35 “guilty” votes against 19 “not guilty” votes, but the Constitution’s two-thirds rule for conviction and removal from office required at least 36 “guilty” votes.) That broke the back of effort to remove Johnson, and the rest is history: Johnson remained in office through the end of his term (another nine months) as a lame-duck president.

Skipping forward 106 years, we find the House Judiciary Committee approving three articles of impeachment against Nixon, a Republican, with all the Democrats on the committee voting to approve two of them. The third article was approved despite two defections on the Democrat side. Two other articles were rejected because nine Democrats defected, joining unanimous opposition from Republicans (the only two cases in which Republicans held together). Nixon resigned before the House voted on the articles because it was certain that the House would adopt them, and enough Republicans might defect in the Senate to procure a conviction. If there was anything like a bipartisan impeachment of a president, this was it. But it is likely that Nixon got a bum rap, and was forced from office because he had been lynched by the media, which had long since become an outlet for left-wing propaganda.

Only 24 years later we come to the impeachment and trial of Clinton, a Democrat. I believe that the motive for the impeachment, at the hands of a Republican-controlled House, was resentment that Clinton had been elected in 1992 only because of the third-party candidacy of Ross Perot, who probably siphoned enough votes from George H.W. Bush to swing the election to Clinton. Be that as it may, some Democrats in the House joined the large Republican majority to approve impeachment proceedings, those being the days when there were still some old-line Southern (i.e., conservative) Democrats. Three articles of impeachment were approved by the House Judiciary Committee, two along party lines and the third with only one defection by a GOP member of the committee. The full House then approved the first two articles. The Senate voted to acquit Clinton on both charges because Democrats were united in their opposition to the effort to remove Clinton (evidence of guilt notwithstanding), and they held 45 seats (far more than the one-third-plus-one required to block conviction). Not a few RINOs joined the Senate’s 45 Democrats in voting for acquittal, so that Clinton was found not guilty by votes of 55-45 and 50-50, far from the 67 votes required to remove him from office.

Here we are, 20 years after Clinton’s acquittal, facing another impeachment trial, that of Trump. The House voted to initiate proceedings (even though they had already been initiated) with only a few Democrats and Republicans switching sides. The House Judiciary Committee voted strictly along party lines to approve two articles of impeachment against Trump. The House will vote the same way, and the Senate trial will end in acquittal because, paradoxically, in these polarized times the GOP is far more united around Trump (the neo-Republican) than it was around Nixon (the life-long Republican).

Liberty: Constitutional Obligations and the Role of Religion

Fifteen years ago I opined that the Constitution levied the following implicit obligations on citizens:

  • Obey the law, generally
  • Pay taxes
  • Accept the money of the United States as legal tender
  • Respect patents, copyrights, and other recognized forms of intellectual property
  • Refrain from rebellion and insurrection
  • Serve in the armed forces (if the law requires it)
  • Refrain from committing treason
  • Serve on juries
  • Do not take anyone into slavery or involuntary servitude.

A jejune libertarian, Timothy Sandefur, objected:

On what grounds does the Constitution assign these obligations? What moral right does it have to impose these upon us?

The Constitution, as a document, can’t have a “moral right”. But let us suppose that what Sandefur really meant to ask was “what moral right did the Framers of the Constitution have to imposed these obligations on us?”. The answer is “none”, for reasons to which I will come. But that doesn’t prevent the Constitution from binding Americans — either by consent or coercion.

Given the inevitability of the state (anarchism is a fantasy), the real issue is not the Framers’ (nonexistent) moral right but the advantages of living under the Constitution (as written) rather than the many inferior alternatives that abound in the world (including living under the Constitution as it has been ignored and misinterpreted).

Which brings me to a basic and widely flouted obligation that the Constitution imposes, namely to preserve, protect, and defend it. More properly, to preserve, protect, and defend the way of life that the Constitution presupposes.

I make the latter point because I was reminded of it by a passage in “A Genuinely Transgressive Act: On the Dedication of Christ Chapel at Hillsdale College” (The New Criterion, November 2019). In his dedicatory remarks, Justice Clarence Thomas

quoted John Adams’s address to the Massachusetts militia in 1798: “our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.” Thomas underscored the critical point, one that is missing from most lamentations about the failures of the educational establishment. “The preservation of liberty,” he said in his peroration, “is not guaranteed. Without the guardrails supplied by religious conviction, popular sovereignty can devolve into mob rule, unmoored from any conception of objective truth.”

To elaborate (and borrowing from an old post of mine), libertarians (like Sandefur) claim that libertarianism is a moral code, when it is in fact destructive of the kind of morality that binds a people in mutual trust and mutual forbearance. These depend on the observance of actual codes of conduct, not the rote repetition of John Stuart Mill’s empty “harm principle”.

It is my view that libertarians who behave morally toward others do so not because they are libertarians but because their cultural inheritance includes traces of Judeo-Christian ethics. For example, the non-aggression principle — a foundation of libertarian philosophy — is but a dim reflection of the Ten Commandments.

As Jennifer Roback Morse and Friedrich Hayek rightly argue (here and here), a libertarian order can be sustained only if it is built on deeply ingrained morality. But that morality can only operate if it is not circumscribed and undermined by the edicts of the state. The less intrusive the state, the more essential are social norms to the conditions of liberty. If those norms wither away, the results — more rapaciousness, heedlessness, and indolence — invite the the growth of the state and its adoption of repressive policies.

The flimsy morality of today’s libertarianism will not do. Neither the minimal state of “mainstream” libertarians nor the stateless Utopia of extreme libertarians can ensure a moral society, that is, one in which there is mutual trust, mutual forbearance, and promise-keeping.

Where, then, is moral education to be had? In the public schools, whose unionized teachers preach the virtues of moral relativism, big government, income redistribution, and non-judgmentalism (i.e., lack of personal responsibility)? I hardly think so.

That leaves religion, especially religion in the Judeo-Christian tradition. As the Catholic Encyclopedia puts it:

The precepts [of the last six of the Commandments] are meant to protect man in his natural rights against the injustice of his fellows.

  • His life is the object of the Fifth;
  • the honour of his body as well as the source of life, of the Sixth;
  • his lawful possessions, of the Seventh;
  • his good name, of the Eighth;
  • And in order to make him still more secure in the enjoyment of his rights, it is declared an offense against God to desire to wrong him, in his family rights by the Ninth;
  • and in his property rights by the Tenth.

Though I am a deist, I would gladly live in a society in which the majority of my fellow citizens believed in and adhered to the Ten Commandments, especially the last six of them. I reject the currently fashionable notion that religion per se breeds violence. In fact, a scholarly, non-sectarian meta-study, “Religion and its effects on crime and delinquency” (Medical Science Monitor, 2003; 9(8):SR79-82), offers good evidence that religiosity leads to good behavior:

[N]early all [reports] found that that there was a significant negative correlation between religiosity and delinquency. This was further substantiated by studies using longitudinal and operationally reliable definitions. Of the early reports which were either inconclusive or found no statistical correlation, not one utilized a multidimensional definition or any sort of reliability factor. We maintain that the cause of this difference in findings stemmed from methodological factors as well as different and perhaps flawed research strategies that were employed by early sociological and criminological researchers.The studies that we reviewed were of high research caliber and showed that the inverse relationship [between religiosity and delinquency] does in fact exist. It therefore appears that religion is both a short term and long term mitigat[o]r of delinquency.

But a society in which behavior is guided by the Ten Commandments seems to be receding into the past. As one headline puts it, “In U.S., Decline of Christianity Continues at Rapid Pace“. And the degree of religious belief probably is overstated because respondents tend to say the “right” thing, which (oddly enough) continues to be a profession of religious faith (in the hinterlands, at least).

Historian Niall Ferguson, a Briton, writes about the importance of religiosity in “Heaven Knows How We’ll Rekindle Our Religion, but I Believe We Must” (July 31, 2005):

I am not sure British people are necessarily afraid of religion, but they are certainly not much interested in it these days. Indeed, the decline of Christianity — not just in Britain but across Europe — stands out as one of the most remarkable phenomena of our times.

There was a time when Europe would justly refer to itself as “Christendom.” Europeans built the Continent’s loveliest edifices to accommodate their acts of worship. They quarreled bitterly over the distinction between transubstantiation and consubstantiation. As pilgrims, missionaries and conquistadors, they sailed to the four corners of the Earth, intent on converting the heathen to the true faith.

Now it is Europeans who are the heathens. . . .

The exceptionally low level of British religiosity was perhaps the most striking revelation of a recent … poll. One in five Britons claim to “attend an organized religious service regularly,” less than half the American figure. [In light of the relationship between claimed and actual church attendance, discussed above, the actual figure for Britons is probably about 10 percent: ED.] Little more than a quarter say that they pray regularly, compared with two-thirds of Americans and 95 percent of Nigerians. And barely one in 10 Britons would be willing to die for our God or our beliefs, compared with 71 percent of Americans. . . .

Chesterton feared that if Christianity declined, “superstition” would “drown all your old rationalism and skepticism.” When educated friends tell me that they have invited a shaman to investigate their new house for bad juju, I see what Chesterton meant. Yet it is not the spread of such mumbo-jumbo that concerns me as much as the moral vacuum that de-Christianization has created. Sure, sermons are sometimes dull and congregations often sing out of tune. But, if nothing else, a weekly dose of Christian doctrine helps to provide an ethical framework for life. And it is not clear where else such a thing is available in modern Europe.

…Britons have heard a great deal from Tony Blair and others about the threat posed to their “way of life” by Muslim extremists such as Muktar Said Ibrahim. But how far has their own loss of religious faith turned Britain into a soft target — not so much for the superstition Chesterton feared, but for the fanaticism of others?

Yes, what “way of life” is being threatened — and is therefore deemed worth defending — when people do not share a strong moral bond?

I cannot resist adding one more quotation in the same vein as those from Hayek and Ferguson. This comes from Theodore Dalrymple (Anthony Daniels), a no-nonsense psychiatrist who, among his many intellectual accomplishments, has thoroughly skewered John Stuart Mill’s fatuous essay, On Liberty. Without further ado, here is Dalrymple on religion (“Why Religion Is Good for Us”, New Statesman, April 21, 2003):

I remember the day I stopped believing in God. I was ten years old and it was in school assembly. It was generally acknowledged that if you opened your eyes while praying, God flew out of the nearest window. That was why it was so important that everyone should shut his eyes. If I opened my eyes suddenly, I thought, I might just be quick enough to catch a glimpse of the departing deity….

Over the years, my attitude to religion has changed, without my having recovered any kind of belief in God. The best and most devoted people I have ever met were Catholic nuns. Religious belief is seldom accompanied by the inflamed egotism that is so marked and deeply unattractive a phenomenon in our post-religious society. Although the Copernican and Darwinian revolutions are said to have given man a more accurate appreciation of his true place in nature, in fact they have rendered him not so much anthropocentric as individually self-centred….

[T]he religious idea of compassion is greatly superior, both morally and practically, to the secular one. The secular person believes that compassion is due to the victim by virtue of what he has suffered; the religious person believes that compassion is due to everyone, by virtue of his humanity. For the secular person, man is born good and is made bad by his circumstances. The religious person believes man is born with original sin, and is therefore imperfectible on this earth; he can nevertheless strive for the good by obedience to God.

The secularist divides humanity into two: the victims and the victimisers. The religious person sees mankind as fundamentally one.

And why not? If this life is all that you have, why let anything stand in the way of its enjoyment? Most of us self-importantly imagine that the world and all its contrivances were made expressly for us and our convenience….

The secularist de-moralises the world, thus increasing the vulnerability of potential victims and, not coincidentally, their need for a professional apparatus of protection, which is and always will be ineffective, and is therefore fundamentally corrupt and corrupting.

If a person is not a victim pure and simple, the secularist feels he is owed no compassion. A person who is to blame for his own situation should not darken the secularist’s door again: therefore, the secularist is obliged to pretend, with all the rationalisation available to modern intellectuals, that people who get themselves into a terrible mess – for example, drug addicts – are not to blame for their situation. But this does them no good at all; in fact it is a great disservice to them.

The religious person, by contrast, is unembarrassed by the moral failings that lead people to act self-destructively because that is precisely what he knows man has been like since the expulsion from Eden. Because he knows that man is weak, and has no need to disguise his failings, either from himself or from others, he can be honest in a way that the secularist finds impossible.

Though I am not religious, I have come to the conclusion that it is impossible for us to live decently without the aid of religion. That is the ambiguity of the Enlightenment.

The weakening of the Judeo-Christian tradition in America is owed to enemies within (established religions trying in vain to be “relevant”) and to enemies without (leftists and nihilistic libertarians who seek every opportunity to denigrate religion). Thus the opponents of religiosity seized on the homosexual scandals in the Catholic Church not to attack homosexuality (which would go against the attackers’ party line) but to attack the Church, which teaches the immorality of the acts that were in fact committed by a relatively small number of priests.

Then there is the relentless depiction of Catholicism as an accomplice to Hitler’s brutality, about which my son writes in his review of Rabbi David G. Dalin’s The Myth of Hitler’s Pope: How Pius XII Rescued Jews from the Nazis:

Despite the misleading nature of the controversy — one which Dalin questions from the outset — the first critics of the wartime papacy were not Jews. Among the worst attacks were those of leftist non-Jews, such as Carlo Falconi (author of The Silence of Pius XII), not to mention German liberal Rolf Hochhuth, whose 1963 play, The Deputy, set the tone for subsequent derogatory media portrayals of wartime Catholicism. By contrast, says Dalin, Pope Pius XII “was widely praised [during his lifetime] for having saved hundreds of thousands of Jewish lives during the Holocaust.” He provides an impressive list of Jews who testified on the pope’s behalf, including Albert Einstein, Golda Meir and Chaim Weizmann. Dalin believes that to “deny and delegitimize their collective memory and experience of the Holocaust,” as some have done, “is to engage in a subtle yet profound form of Holocaust denial.”

The most obvious source of the black legend about the papacy emanated from Communist Russia, a point noted by the author. There were others with an axe to grind. As revealed in a recent issue of Sandro Magister’s Chiesa, liberal French Catholic Emmanuel Mounier began implicating Pius XII in “racist” politics as early as 1939. Subsequent detractors have made the same charge, working (presumably) from the same bias.

While the immediate accusations against Pius XII lie at the heart of Dalin’s book, he takes his analysis a step further. The vilification of the pope can only be understood in terms of a political agenda — the “liberal culture war against tradition.” . . .

Rabbi Dalin sums it up best for all people of traditional moral and political beliefs when he urges us to recall the challenges that faced Pius XII in which the “fundamental threats to Jews came not from devoted Christians — they were the prime rescuers of Jewish lives in the Holocaust — but from anti-Catholic Nazis, atheistic Communists, and… Hitler’s mufti in Jerusalem.”

I believe that the incessant attacks on religion have helped to push people — especially young adults — away from religion, to the detriment of liberty. It is not surprising that “liberals”  tend to be anti-religious, for — as Dalrymple points out — they disdain the tenets of personal responsibility and liberty that are contained in the last six of the Ten Commandments. It is disheartening, however, when libertarians join the anti-religious chorus. They know not what they do when they join the left in tearing down a bulwark of civil society, without which liberty cannot prevail.

Humans need no education in aggression and meddling; those come to us naturally. But we do need to learn to take responsibility for our actions and to leave others alone — and we need to learn those things when we are young. Such things will not be taught in public schools. They could be taught in homes, but are less likely to be taught there as Americans drift further from their religious roots.

Am I being hypcritical because I am unchurched and my children were not taken to church? Perhaps, but my religious upbringing imbued in me a strong sense of morality, which I tried — successfully, I think — to convey to my children. But as time passes the moral lessons we older Americans learned through religion will attenuate unless those lessons are taught, anew, to younger generations.

Rather than join the left in attacking religion and striving to eradicate all traces of it from public discourse, those who claim to love liberty ought to accommodate themselves to it and even encourage its acceptance — for liberty’s sake.

Rawls vs. Reality

I have never understood the high esteem in which John Rawls‘s “original position” is held by many who profess political philosophy. Well, I understand that the original position supports redistribution of income and wealth — a concept beloved of the overpaid faux-socialist professoriate — but it is a logical and empirical absurdity that shouldn’t be esteemed by anyone who thinks about it rigorously. (Which tells me a lot about the intelligence, rigor, and honesty of those who pay homage to it.)

What is the original position? According to Wikipedia it is

a hypothetical situation developed by … Rawls as a thought experiment to replace the imagery of a savage state of nature of prior political philosophers like Thomas Hobbes.

In the original position, the parties select principles that will determine the basic structure of the society they will live in. This choice is made from behind a veil of ignorance, which would deprive participants of information about their particular characteristics: their ethnicity, social status, gender and, crucially, Conception of the Good (an individual’s idea of how to lead a good life). This forces participants to select principles impartially and rationally.

As a thought experiment, the original position is a hypothetical position designed to accurately reflect what principles of justice would be manifest in a society premised on free and fair cooperation between citizens, including respect for liberty, and an interest in reciprocity.

In the state of nature, it might be argued that certain persons (the strong and talented) would be able to coerce others (the weak and disabled) by virtue of the fact that the stronger and more talented would fare better in the state of nature. This coercion is sometimes thought to invalidate any contractual arrangement occurring in the state of nature. In the original position, however, representatives of citizens are placed behind a “veil of ignorance”, depriving the representatives of information about the individuating characteristics of the citizens they represent. Thus, the representative parties would be unaware of the talents and abilities, ethnicity and gender, religion or belief system of the citizens they represent. As a result, they lack the information with which to threaten their fellows and thus invalidate the social contract they are attempting to agree to….

Rawls specifies that the parties in the original position are concerned only with citizens’ share of what he calls primary social goods, which include basic rights as well as economic and social advantages. Rawls also argues that the representatives in the original position would adopt the maximin rule as their principle for evaluating the choices before them. Borrowed from game theory, maximin stands for maximizing the minimum, i.e., making the choice that produces the highest payoff for the least advantaged position. Thus, maximin in the original position represents a formulation of social equality.

The social contract, citizens in a state of nature contract with each other to establish a state of civil society. For example, in the Lockean state of nature, the parties agree to establish a civil society in which the government has limited powers and the duty to protect the persons and property of citizens. In the original position, the representative parties select principles of justice that are to govern the basic structure of society. Rawls argues that the representative parties in the original position would select two principles of justice:

  1. Each citizen is guaranteed a fully adequate scheme of basic liberties, which is compatible with the same scheme of liberties for all others;
  2. Social and economic inequalities must satisfy two conditions:
    • to the greatest benefit of the least advantaged (the difference principle);
    • attached to positions and offices open to all.

The reason that the least well off member gets benefited is that it is assumed that under the veil of ignorance, under original position, people will be risk-averse. This implies that everyone is afraid of being part of the poor members of society, so the social contract is constructed to help the least well off members.

There are objections aplenty to Rawls’s creaky construction, some of which are cited in the Wikipedia piece:

In Anarchy, State, and Utopia, Robert Nozick argues that, while the original position may be the just starting point, any inequalities derived from that distribution by means of free exchange are equally just, and that any re-distributive tax is an infringement on people’s liberty. He also argues that Rawls’s application of the maximin rule to the original position is risk aversion taken to its extreme, and is therefore unsuitable even to those behind the veil of ignorance.

In Solving the Riddle of Right and Wrong, Iain King argues that people in the original position should not be risk-averse, leading them to adopt the Help Principle (Help someone if your help is worth more to them than it is to you) rather than maximin.

In Liberalism and the Limits of Justice, Michael Sandel has criticized Rawls’s notion of veil of ignorance, pointing out that it is impossible, for an individual, to completely prescind from [his] beliefs and convictions … as … required by Rawls’s thought experiment.

There is some merit in those objections, but they they don’t get to the root error of Rawls’s concoction. For that’s what it is, a concoction that has nothing to do with real people in the real world. The original position is an exercise in moral masturbation.

To begin at the beginning, the ostensible aim of Rawls’s formulation is to outline the “rules” by which a society can attain social justice — or, more accurately, social justice as Rawls defines it. (In what follows, when I refer to social justice in the context of Rawls’s formulation, the reader should mentally add the qualifier “as Rawls defines it”.)

Rawls presumably didn’t believe that there could be an original position, let alone a veil of ignorance. So his real aim must have been to construct a template for the attainment of social justice. The actual position of a society could then (somehow) be compared with the template to determine what government policies would move society toward the Rawlsian ideal.

Clearly, Rawls believed that his template could be justified only if he arrived at it through what he thought would be a set of unexceptionable assumptions. Otherwise, he could simply have promulgated the template (the maximin distribution of primary social goods), and left it at that. But to have done so would have been to take a merely political position, not one that pretends to rest on deep principles and solid logic.

What are those principles, and what is the logic that leads to Rawls’s template for a just society? Because there is no such thing as an original position or veil of ignorance, Rawls assumes (implicitly) that the members of a society should want social justice to prevail, and should behave accordingly, or authorize government to behave accordingly on their behalf. The idea is to make it all happen without coercion, as if the maximin rule were obviously the correct route to social justice.

To make it happen without coercion, Rawls must adopt unrealistic assumptions about the citizens of his imaginary society: pervasive ignorance of one’s own situation and extreme risk-aversion. Absent those constraints, some kind of coercion would be required for the members of the society to agree on the maximin rule. Effectively, then, Rawls assumes the conclusion toward which he was aiming all along, namely, that the maximin rule should govern society’s treatment of what he calls primary social goods — or, rather, government’s treatment of those goods, as it enforces the consensus of a society of identical members.

What is that treatment? This, as I understand it:

  • Guarantee each citizen a fully adequate scheme of basic liberties, which is compatible with the same scheme of liberties for all others.
  • Tolerate only those inequalities with respect to social and economic outcomes that yield the greatest benefit to the least-advantaged.
  • Tolerate only those inequalities that derive from positions and offices that are open to all citizens.

Rawls’s scheme is superficially attractive to anyone who understands that forced equality is inimical to economic progress (not to mention social comity and liberty), and that it harms the least-advantaged (because they “share” in a smaller “pie”) as well as those who would otherwise be among the more-advantaged. Similarly, the idea that all citizens have the same basic rights and social advantages seems unexceptionable.

But many hard questions lurk beneath the surface of Rawls’s plausible concoction.

What is an adequate scheme of basic liberties? The two weasel-words — “adequate” and “basic” — mean that the scheme can be whatever government officials would prefer it to be, unless the clone-like populace defines the scheme in advance. But the populace can’t be clone-like, except in Rawls’s imagination, so government can’t be constrained by a definition of basic liberties that is conceived in the original position. Thus government must (and certainly will) adopt a scheme that reflects the outcome of intra-governmental bargaining (satisficing various popular and bureaucratic interests) — not a scheme that is the consensus of a clone-like citizenry lusting after social justice.

Do basic liberties entail equal rights under law? Yes, and they have been enshrined in American law for a century-and-a-half. Or have they? It seems that rights are a constantly evolving and malleable body of entitlements, which presently (in the view of many) include (inter alia) the right to defecate on public property, the right to be given addictive drugs, the right not to be offended or “triggered” emotionally, and the right not to be shunned by persons whose preferences don’t run to sodomy and “gender fluidity”.

The failure to provide equal rights– whatever they may be at the moment — isn’t a failure that can be remedied by magically reverting to the original position, where actual human beings aren’t to be found. The rights of the moment must be enforced by government. But government enforcement necessarily involves coercion, and certainly involves arbitrariness of a kind that might even offend Rawls. For government, in the real world, is a blunt instrument wielded by politicians and bureaucrats who strike crude bargains on behalf of the sundry interest groups to which they are beholden.

Turning to economic inequality, how does one define the least-advantaged? Are the least-advantaged those whose incomes fall below a certain level? For how long? Who defines the level? If raising incomes to that level reduces the rewards of economically productive work (e.g., invention, innovation, investment, entrepreneurship) through taxation, and thereby reduces the opportunities available to the least-advantaged, by what complex computation will the “right” level of taxation by determined? Surely not by citizens in the original position, operating behind the veil of ignorance, nor — it must be admitted — by government, the true nature of which is summarized in the final sentence of the preceding paragraph.

And what about wealth? How much wealth? Wealth at what stage of one’s life? When a person is still new to the work force but, like most workers, will earn more and accrue wealth? What about wealth that may be passed from generation to generation? Or is such wealth something that isn’t open to all and therefore forbidden? And if it is forbidden, what does that do to the incentives of wealth-builders to do things that advance economic growth, which benefits all citizens including the least-advantaged?

In both cases — income and wealth — we are dealing in arbitrary distinctions that must fall to government to decide, and to enforce by coercion. There is no question of deciding such things in the original position, even behind a veil of ignorance, unless the citizenry consists entirely of Rawls’s omniscient clones.

I must ask, further, why the least-advantaged — if they could be defined objectively and consistently — should be denied incentives to earn more income and build wealth? (Redistribution schemes do just that.) Is that social justice? No, it’s a particular kind of social justice that sees only the present and condescends toward the least-advantaged (whoever they might be).

What about the least-advantaged socially? If social status is directly correlated with income or wealth, there is no need to delve deeper. But if it is something else, the question arises: What is it, how can it be measured, and how can it be adjusted so that the least-advantaged are raised to some minimal level of social standing? How is that level defined and who defines it? Surely not Rawls’s clones operating in complete ignorance of such things. The task therefore, and again, must fall to government, the failings and coerciveness of which I have already addressed adequately.

Why should the least-advantaged on any dimension, if they can be defined, have privileges (i.e., government interventions in their favor) that are denied and harmful to the rest of the citizenry? Favoring the least-advantaged is, of course, “the right thing to do”. So all that Rawls accomplished by his convoluted, pristine “reasoning” was to make a plausible (but deeply flawed) case for something like the welfare state that already exists in the United States and most of the world. As for his conception of liberty and equal rights, Rawls cleverly justifies trampling on the liberty and equal rights of the more-advantaged by inventing like-minded clones who “authorize” the state to trample away.

Rawls put a lot of hard labor into his justification for welfare-statism in the service of “social justice”. The real thing, which was staring him in the face, amounts to this: Government intervenes in voluntarily cooperative social and economic arrangements only to protect citizens from force and fraud, where those terms are defined by long-standing social norms and applied by (not reworked or negated by) legislative, executive, and judicial acts. Which norms? The ones that prevailed in America before the 1960s would do just fine, as long as laws forbidding intimidation and violence were uniformly enforced across the land.

Perfection? Of course not, but attainable. The Framers of the original Constitution did a remarkable job of creating a template by which real human beings (not Rawls’s clones) could live in harmony and prosperity. Real human beings have a penchant for disharmony, waste, fraud, and abuse — but they’re all we have to work with.

Oh, The Irony

Who damaged America greatly with his economic, social, and defense policies and with his anti-business, race-bating rhetoric? Obama, that’s who.

Who has undone much of Obama’s damage, but might be removed from office on a phony abuse-of-power charge — because Democrats (and some Republicans) can’t accept the outcome of the 2016 election? Trump, that’s who.

Do I smell the makings of a great upheaval if Democrats are successful? I think so.

Scott Adams on Guns

Scott Adams’s stock in trade is provocation. Dilbert, Adams’s long-running comic strip, is a case in point. Adams packages a lot of subtle provocation behind the strip’s main premise, which is the frustration caused level-headed, logical Dilbert by the incompetence and posturing of his boss.

But in ways subtle and obvious, Adams makes known — and concisely illustrates — many unfortunate aspects of the modern, bureaucratized workplace; for example: the idiocy of hiring to fill quotas, the time-wasting fads of management “science”, and the ability of a trouble-maker protected by a group identity to cause trouble and impede productive work. In sum, Adams strikes at political correctness and its implementation by government edicts. This stance is at odds with the views of various elites, ranging from politicians of both parties to corporate executives to most members of the academic-media-information-technology complex. Adams gets away with it because the strip is (usually) humorous and its targets are caricatures, not actual persons with whom some readers might sympathize.

But when Adams ventures beyond Dilbert, to expound views on current political issues, it’s another matter. For example, according to Adams’s blog entry for July 11, 2016,

Some of you watched with amusement as I endorsed Hillary Clinton for my personal safety. What you might not know is that I was completely serious. I was getting a lot of direct and indirect death threats for writing about Trump’s powers of persuasion, and I made all of that go away by endorsing Clinton. People don’t care why I am on their side. They only care that I am.

You might have found it funny that I endorsed Clinton for my personal safety. But it was only funny by coincidence. I did it for personal safety, and apparently it is working. Where I live, in California, it is not safe to be seen as supportive of anything Trump says or does. So I fixed that.

Again, I’m completely serious about the safety issue. Writing about Trump ended my speaking career, and has already reduced my income by about 40%, as far as I can tell. But I’m in less physical danger than I was.

Despite the claimed loss of income, Adams almost certainly is wealthy beyond the aspirations of most Americans. He can attack sacred cows with impunity, knowing that (a) his personal stands don’t seem to affect the popularity of Dilbert, and (b) even if they did, he would still be extremely wealthy.

But candor doesn’t mean correctness. If it did, then I would have to bow to the likes of Bernie Sanders, Elizabeth Warren, Alexandria Occasio-Cortez, and the dozens of dim-wits like them who are cluttering the air waves and internet with proposals that, if adopted, would turn America into a fourth-world country.

I have — finally — set the stage for a discussion of Scott Adams and guns. In a blog post dated September 1, 2019, Adams says this:

You might find this hard to believe, but I’m about to give you the first opinion you have ever heard on the topic of gun ownership in the United States.

What? You say lots of people have opinions on that topic?

No, they don’t. Everyone in the United States except me has a half-pinion on the topic. I have the only full opinion. Here it is:

My opinion: I am willing to accept up to 20,000 gun deaths per year in the United States in order to preserve the 2nd Amendment right to own firearms.

For reference, the current rate of gun deaths is about double that number. In other words, I would be open to testing some gun ownership restrictions to see if we can get the number of gun deaths down.

A full opinion on any topic considers both the benefits and the costs. A half-pinion looks at only the costs or only the benefits in isolation. Ask yourself who else, besides me, has offered a full opinion on the topic of gun ownership. Answer: No one. You just saw the world’s first opinion on the topic.

So let’s stop pretending we have differences of opinion on gun ownership. What we have is exactly one citizen of the United States who has one opinion. Until someone disagrees with me with a full opinion of their own, there is no real debate, just blathering half-pinions.

This is hardly a “full opinion” because it doesn’t explain what measures might cut the rate of gun deaths in half. Nor does it address the costs of taking those measures, which include but aren’t limited to the ability of Americans to defend themselves and their property if the measures involve confiscation of guns.

Moreover, as Adams points out in a later post (discussed below), about half of the 40,000 gun deaths recorded annually are suicides. Actually, according to this source, suicides account for 24,000 of the 40,000 gun deaths, which is 60 percent of them. Suicide by gun, on that scale, can be reduced drastically only by confiscating all guns that can be found or turned in by law-abiding citizens, or by some kind of “red flag” law that would almost certainly ensnare not just suicidal and homicidal persons but thousands of persons who are neither. If those change could be effected, I daresay that the rate of gun deaths would drop by far more than half — though almost all of the remaining gun deaths would be killings of innocent persons by criminals.

Adams is being sloppy or slippery. But in either case, his “opinion”, which is hardly the only one on the subject, is practically worthless.

In a subsequent post, Adams assesses “dumb arguments” (pro and con) about gun control. I will address the more egregious of those assessments, beginning here:

Slippery slope

Slippery slope arguments are magical thinking. Everything in this world changes until it has a reason to stop. There is nothing special about being “on a slippery slope.” It is an empty idea. Society regulates all manner of products and activities, but we don’t worry about those other regulations becoming a slippery slope. We observe that change stops when the majority (or vocal minority) decide enough is enough. To put it another way, mowing the lawn does not lead to shaving your dog.

I take these assertions to be an attempt to rebut those who say that the enactment more restrictive laws about the ownership of guns would merely be a step toward confiscation. Adams, is entirely in the wrong here. First, “we” do worry about other regulations becoming a slippery slope. Regulations are in fact evidence of the slippery slope that leads to greater government control of things that government need not and should not control. The mere establishment of a regulatory agency is the first big step toward more and more regulation. Nor does it stop even when a vocal minority — consititutionalists, economists, and lovers of liberty in general — protest with all of the peaceful means at their disposal, including carefully argued legal and economic treatises that prove (to fair-minded audiences) the illegitimacy, inefficiency, and costliness of regulations. But the regulations keep on coming (even during the Reagan and Trump administrations) because it is almost impossible, politically, to do what needs to be done to stop them: (a) enforce the non-delegation doctrine so that Congress takes full and direct responsibility for its acts, and (b) abolish regulatory agencies right and left.

I will go further and say that the Antifederalists foresaw the slippery slope on which the Constitution placed the nation — a slope that unquestionably led to the creation and perpetuation of a vastly powerful central government. As “An Old Whig” put it in Antifederalist No. 46:

Where then is the restraint? How are Congress bound down to the powers expressly given? What is reserved, or can be reserved? Yet even this is not all. As if it were determined that no doubt should remain, by the sixth article of the Constitution it is declared that “this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shalt be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the Constitutions or laws of any State to the contrary notwithstanding.” The Congress are therefore vested with the supreme legislative power, without control. In giving such immense, such unlimited powers, was there no necessity of a Bill of Rights, to secure to the people their liberties?

Is it not evident that we are left wholly dependent on the wisdom and virtue of the men who shall from time to time be the members of Congress? And who shall be able to say seven years hence, the members of Congress will be wise and good men, or of the contrary character?


Despite the subsequent adoption of the Bill of Rights — and despite occasional resistance from the Supreme Court (in the midst of much acquiescence) — Congress (in league with the Executive) has for most of its 230 years been engaged in an unconstitutional power grab. And it was set in motion by the adoption of the Constitution, over the vocal objections of Antifederalists. Mr. Adams, please don’t lecture me about slippery slopes.


Criminals can always get guns

Criminals can always get guns if they try hard enough. But I’m more concerned about the 18-year old who has no criminal record but does have some mental illness. That kid is not as resourceful as career criminals. If that kid can’t get a firearm through the normal and legal process, the friction can be enough to reduce the odds of getting a weapon.

The 18-year-olds of Chicago and Baltimore don’t seem to find it difficult to get guns. Yes, it’s possible that the 18-year-old (or older) who is bent on committing mass murder at a school or workplace might be (emphasize “might”) be stopped by the application of a relevant law, but that would do almost nothing to the rate of gun deaths.

Which leads to this:

Gun deaths are not that high

About half of gun deaths are suicides. Lots of other gun deaths involve criminals shooting each other. If you subtract out those deaths, the number of gun deaths is low compared to other risks we routinely accept, such as the risk of auto accidents, overeating, sports, etc. If the current amount of gun violence seems worth the price to you, that would be a rational point of view. But it would not be rational to avoid testing some methods to reduce gun violence even further. Americans don’t stop trying to fix a problem just because only 10,000 people per year are dying from it. That’s still a lot. And if we can test new approaches in one city or state, why not?

I can’t think of a method to reduce gun violence by any significant amount that doesn’t involve confiscation, or something akin to it (e.g., extremely restrictive and vigorously enforced gun-ownership laws). The current amount of gun violence, balanced against the only effective alternative (confiscation), is “worth the price” to me and to millions of other persons who want to be able to defend themselves and their property from those who almost certainly wouldn’t comply with confiscatory laws.

Adams, clever fellow that he is, then tries to defuse that argument:

You are ignoring the lives saved by guns

No, I’m not. I’m looking at the net deaths by guns, which is what matters. If a new law improves the net death rate, that’s good enough, unless it causes some other problem.

Net deaths by guns isn’t what matters. What matters is whether the deaths are those of criminals or law-abiding citizens. I wouldn’t shed a tear if deaths rose because more citizens armed themselves and were allowed to carry guns in high-risk areas (i.e., “gun free” zones), if those additional deaths were the deaths of would-be killers or armed robbers.

I could go on and on, but that’s enough. Scott Adams is a provocative fellow who is sometimes entertaining. He is of that ilk: a celebrity who cashes in on his fame to advance ideas about matters that are beyond his ken — like Einstein the socialist.

There’s an oft-quoted line, “Shut up and sing”, which in Adams’s case (when it comes to guns, at least) should be “Shut up and draw”.

“Justice on Trial” A Brief Review

I recently read Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court by Mollie Hemingway and Carrie Severino. The book augments and reinforces my understanding of the political battle royal that began a nanosecond after Justice Kennedy announced his retirement from the Supreme Court.

The book is chock-full of details that are damning to the opponents of the nomination of Brett Kavanaugh (or any other constitutionalist) to replace Kennedy. Rather, the opponents would consider the details to be damning if they had an ounce of honesty and integrity. What comes through — loudly, clearly, and well-documented — is the lack of honesty and integrity on the part of the opponents of the Kavanaugh nomination, which is to say most of the Democrats in the Senate, most of the media, and all of the many interest groups that opposed the nomination.

Unfortunately, it is unlikely the authors’ evident conservatism and unflinching condemnation of the anti-Kavanaugh forces will convince anyone but the already-convinced, like me. The anti-Kavanaugh, anti-Constitution forces will redouble their efforts to derail the next Trump nominee (if there is one). As the authors say in the book’s closing paragraphs,

for all the hysteria, there is still no indication that anyone on the left is walking away from the Kavanaugh confirmation chastened by the electoral consequences or determined to prevent more damage to the credibility of the judiciary… [S]ooner or later there will be another vacancy on the Court, whether it is [RBG’s] seat or another justice’s. It’s hard to imagine how a confirmation battle could compete with Kavanaugh’s for ugliness. But if the next appointment portends a major ideological shift, it could be worse. When President Reagan had a chance to replace Louis Powell, a swing vote, with Bork, Democrats went to the mat to oppose him. When Thurgood Marshall, one of the Court’s most liberal members, stood to be replaced by Clarence Thomas, the battle got even uglier. And trading the swing vote Sandra Day O’Connor for Alito triggered an attempted filibuster.

As ugly as Kavanaugh’s confirmation battle became, he is unlikely to shift the Court dramatically. Except on abortion and homosexuality, Justice Kennedy usually voted with the conservatives. If Justice Ginsburg were to retire while Trump was in the White House, the resulting appointment would probably be like the Thomas-for-Marshall trade. Compared with what might follow, the Kavanaugh confirmation might look like the good old days of civility.


Did Nixon Get a Bum Rap?

Geoff Shephard, writing at The American Spectator (“Troubling Watergate Revelations, Too Late to Matter“), argues in the affirmative:

August 9 is the 45th anniversary of the resignation of Richard Nixon [on this date in 1974], the only president in American history to resign or be removed from office. We know what triggered his resignation. He was already on the ropes after two and a half years of Watergate revelations, but what ended any and all defense was the release of the “smoking gun” transcript on August 5 [1974]. It showed that Nixon had concurred with his staff’s suggestion that they get the CIA to tell the FBI not to interview two Watergate witnesses.

As astonishing as it may be to Americans, who have been assured that the smoking gun tape is proof positive of Nixon’s early cover-up involvement, every person connected to that particular conversation now agrees that the CIA gambit was an effort to prevent disclosure of prominent Democrats who had made substantial contributions to Nixon’s re-election campaign under assurances of absolute secrecy.

I should know. I was there: a member of Nixon’s Watergate defense team, the third person to hear the smoking gun tape, the one who first transcribed it, and the one who termed it “the smoking gun.” Here is a much fuller explanation of what actually happened. But the bottom line remains unchanged. Nixon’s Watergate defense lawyers completely misinterpreted the tape, and their mistake ended his presidency….

But Nixon did resign — in the aftermath of the release of the smoking gun transcript. Three months later, when prosecutors sought to prove their allegation of Nixon’s personal approval during the course of the Watergate cover-up trial — with their witnesses having to testify under oath and subject to cross-examination — they were totally unable to do so….

By this time, however, the total refutation of their secret allegation concerning Nixon’s payoff instructions had become irrelevant. Nixon had resigned the previous August, and the smoking gun tape seemed to prove his early cover-up involvement in any event. Since no one knew of their allegation of Nixon’s personal wrongdoing, it was as though it had never happened, and no one could claim that Nixon had been unfairly hounded from office. The underlying facts — and their significance — have only emerged in recent years.

I will leave it to the reader to parse Mr. Shepard’s full argument, which includes portions of the transcript of the “smoking gun” conversation, which occurred on June 23, 1972. (There is a more complete version here.) I will say only this: If the “smoking gun” was not really a “smoking gun”, as Mr. Shepard argues, then Mr. Nixon probably got a bum rap.

Why? Because The New York Times published, in May 1974, The White House Transcripts, a compendium of the transcripts of Oval Office conversations pertaining to Watergate that had been released before the so-called smoking gun tape emerged. In those days, when the Times was still relatively fair and balanced — and dealt mainly in news rather than opinion — R.W. Apple concluded the book’s introduction with this:

Throughout the period of the Watergate affair the raw material of these recorded confidential conversations establishes that the President had no prior knowledge of the break-in and that he had no knowledge of any cover-up prior to March 21, 1973. In all of the thousands of words spoken, even though they often are undlear and ambiguous, not once does it appear that the President of the United States was engaged in a criminal plot to obstruct justice.

On March 21, 1973, when the President learned for the first time of allegations of such a plot and an alleged attempt to blackmail the White House, he sought to find out the facts first from John Dean and then others. When it appeared as a result of these investigations that there was reason to believe that there may have been some wrongdoing he conferred with the Attorney General and with the Assistant in charge of the criminal division of the Department of Justice and cooperated fully to bring the matter expeditiously before the grand jury.

Ultimately Dean has pled guilty to a felony and seven former White House officials stand indicted. their innocence or guilt will be determined in a court of law.

This is as it should be.

The recent acquittals of former Secretary Stans and former Attorney General Mitchell in the Vesco case demonstrate the wisdom of the President’s actions in insisting that the orderly process of the judicial system be utilized to determine the guilt or innocence of individuals charged with crime, rather than participating in trials in the public media [emphasis added].

In any event, the “smoking gun” tape proved to be Nixon’s undoing:

Once the “smoking gun” transcript was made public, Nixon’s political support practically vanished. The ten Republicans on the House Judiciary Committee who had voted against impeachment in committee announced that they would now vote for impeachment once the matter reached the House floor. He lacked substantial support in the Senate as well; Barry Goldwater and Hugh Scott estimated no more than 15 Senators were willing to even consider acquittal. Facing certain impeachment in the House of Representatives and equally certain conviction in the Senate, Nixon announced his resignation on the evening of Thursday, August 8, 1974, effective as of noon the next day.

A gross miscarriage of justice? I report, you decide.

Vive le collège électoral!

Long live the Electoral College!

As long as the States retain their power under the Constitution, they remain co-sovereign with the government of the United States. The election of a president by the Electoral College recognizes the co-sovereignty of the States, and the separate voice that each of them has in the election of a president.

It is not for the voters of California to dictate the winner of a presidential election, as they would have done in 2016 had a nationwide tally of popular votes by State been decisive. Rather, it is for the voters of each State, in the aggregate, to cast what amounts to a State-wide vote through the Electoral College. One can quibble with the constitutional compromise that gave less-populous States a slightly disproportionate say in the outcome. (The number of electoral votes cast by each State is equal to the number of its Representatives in Congress — thus roughly proportional to its population — plus the number of its Senators in Congress, which is two for every State regardless of its population.) But the principle remains, regardless of the quibble: Each State is independent of every other State and its aggregate preference should not be submerged in the mythical nationwide popular-vote tally.

These observations are prompted by Victor Davis Hansen’s perceptive analysis of the meaning and consequences of the election of Donald Trump in 2016. Had it not been for the Electoral College, Hillary Clinton would have won the election and the United States would have been led deeper into costly and counterproductive spending and regulatory activity to combat “climate change” and various “social injustices”; the southern border would have been thrown open to all and sundry welfare-moochers; and the charade known as the Iran nuclear deal would have played out to its predictable end — the sudden emergence of an Iran armed with long-range nuclear missiles. In the meanwhile, the disarmament of America would have continued, in the face of the rising power of China and Russia. And those nations would (sooner later) have had carte blanche to commit economic and military blackmail against the interests of American citizens and companies.

What about 2020? Naive forecasts of the votes cast in the Electoral College based on trends in the GOP candidates’ share of each State’s popular vote (2000 to 2016 and 2012 to 2016) point to another win by Trump. The likely margin of victory is about the same as in 2016 or even larger if the pro-GOP trend continues in Maine, Minnesota, Nevada, or New Hampshire. (Any such projection is, of course, subject to great uncertainty — especially with respect to the state of the economy, the continuation of relative piece, the containment of terrorism, and other events that might jolt the electorate.)

John Paul Stevens, 1920-2019*

I do not mourn his passing because he

was the author of a diverse set of important opinions. In Chevron v. Natural Resources Defense Council, he wrote for a unanimous court in outlining the process by which courts should review federal agencies’ interpretation of the laws that the agencies administer. In Atkins v. Virginia, the court – by a vote of 6-3 – ruled that the Constitution bars the execution of the intellectually disabled. In Hamdan v. Rumsfeld, the court – by a vote of 5-3, with Chief Justice John Roberts recused – ruled that the use of military commissions to try terrorism suspects violated both the U.S. Uniform Code of Military Justice and the Geneva Convention and had not been authorized by Congress. And in Kelo v. City of New London, a divided court ruled that the city’s taking of private property to sell for private development as part of an economic development plan was a “public use” within the meaning of the Constitution’s takings clause – even if the land was not going to be used for the public.

Chevron required courts to defer to agencies’ interpretations of vague statutes, thus enabling agencies to legislate (and then to adjudicate based on their own legislation).

Atkins further weakened the efficacy of capital punishment by drawing a line where none need be drawn: murder is murder regardless of the perpetrator’s supposed state of mind or mental ability.

Hamdan undermined the ability of the president, as commander-in-chief, to wage war against America’s enemies.

Kelo was a body blow to property rights, which are an essential ingredient of liberty.

Nominating Stevens to the Supreme Court was Jerry Ford’s biggest mistake. In second place is his pardon of Nixon, who — unlike Trump — was actually guilty of offenses that were not only impeachable but also indictable.
* The original title of this post was “John Paul Stevens, 1920-1919” — an epic typo that reflects my deep roots in the 20th century. The 21st still seems strange to me, for many reasons.

Law vs. Justice

Here. It’s a quick read.

In summary: Gorsuch went over to the dark side in voting with Ginsburg, Breyer, Sotomayor, and Kagan. In doing so, Gorsuch to made it harder to put convicted criminals behind bars when they violate the terms of parole. Gorsuch’s nit-picky reading of the Constitution — an erroneous reading according to Alito — opens the door to further rulings that will make it harder to protect the public from the bad guys.

The Essential Declaration of Independence

The core of the Declaration, brought up to date:

To secure life, liberty, and the pursuit of happiness, the present government of the United States was instituted by the Constitution of 1787. That government has long since become destructive of its legitimate ends, having enacted myriad abuses of its power while often failing to secure life, liberty, and the pursuit of happiness. It is therefore the right and duty of the people to alter, abolish, or secede from that government, and to replace it with a new government that strictly adheres to the original Constitution and Amendments I-X, XI-XV, XIX, XX, XXII, XXV, and XXVII.

(See “Constitution: Myths and Realities” for much more, including the legality of secession.)

Supreme Court Page, Updated

With the end of the October 2018 term of the U.S. Supreme Court just behind us, I have updated “U.S. Supreme Court: Lines of Succession and Ideological Agreement“. It consists of four parts: Lines of Succession, Ideological Alignment, Polarization, and Judging the Justices: The Thomas Standard. The last two sections are new to the page; I adapted them from now-outdated posts.

The Citizenship Question

The Supreme Court’s ruling in Department of Commerce v. New York has effectively killed the use of citizenship question in the 2020 census. The entire case and the arguments for and against the citizenship question seem to have missed the essential questions:

Why is there a census?

Who is to be counted for that purpose?

There is a census because — and only because* — Article I, Section 2, of the Constitution says that the

House of Representatives shall be composed of Members chosen every second Year by the People of the several States….

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States….

… The actual Enumeration [i.e., census for the purpose of determining the apportionment of Representatives among the States, and not for the purpose of counting bedrooms, bathrooms, and square footage] shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years…

At this point, we must turn to Sections 1 and 2 of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside [thus overturning Dred Scott v. Sandford, which declared blacks to be non-citizens].

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

I don’t know how the idea arose that non-citizens should be counted, but I chalk it up to sloppy usage. The words “person” and “citizen” are used interchangeably throughout the Constitution. But a “person”, for the purpose of the enumeration that determines the apportionment of Representatives, is a citizen:

All persons born or naturalized in the United States … are citizens….

Representatives shall be apportioned among the several States according to their respective numbers [of citizens, a.k.a. persons]….

The challenge to the citizenship question should have been blown out of the water at the outset. Instead, States that have disproportionate shares of illegal immigrants will have disproportionate representation in the House of Representatives, and will claim disproportionate shares of “free stuff”. California, I’m looking at you.
* it says in the Constitution that “the actual Enumeration . . . shall be made . . . in such Manner as they shall by Law direct.” But the operative word is “enumeration”. It follows that Congress’s power to direct the “manner” of the enumeration is restricted to such matters as when and at what cost the enumeration shall be made. The census has become an intrusive inquiry into the private affairs of citizens because Congress has stretched its constitutional mandate to “enumerate” because it has enacted unconstitutional laws (e.g., aid to States, public schools, housing subsidies) that require the asking of unconstitutional questions.

The New York Times Has More to Worry About, Part 2

In “If the New York Times Is Worried [I’m Happy]” I quote an opinion piece by a law professor; in particular:

Justice Neil Gorsuch wrote a lengthy dissent [in Gundy v. United States] extolling the need to curb Congress’s powers to delegate to federal agencies. Surprisingly [?], two other justices, Chief Justice John Roberts and Justice Clarence Thomas, joined this radical [constitutionally correct] opinion. And while a fourth — Justice Alito — sided with the more liberal justices, he wrote separately to say that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power.

So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else [who’s this “we”?].

In a sequel, “The New York Times Has More to Worry About“, I write about Justice Gorsuch’s majority opinion in United States v. Davis; this passage in particular:

Only the people’s elected representatives in Congress have the power to write new federal criminal laws.

I go on to say this:

Guess who concurred fully in the opinion? Not Roberts, Thomas, Alito, and Kavanaugh — all of whom dissented. No, Gorsuch was joined by Ginsburg, Breyer, Sotomayor, and Kagan — the “liberals” on the Court.

With Gorsuch’s opinion as precedent, the “liberals” have just opened the door to a future ruling that enforces the non-delegation doctrine. (Just what the lawprof fears.)

If it’s true that only the people’s elected representatives in Congress have the power to write new federal criminal laws, it’s equally true that only the people’s elected representatives in Congress have the power to write new laws, period. And writing new laws is just what executive-branch agencies do when they write regulations pursuant to vague congressional directives to “do good”, or words to that effect.

Yes, the writing is on the wall for the hands-off doctrine that has effectively transferred legislative (and judicial) power from Congress (and the courts) to legions of unelected bureaucrats.

John C. Eastman, writing at RealClearPolitics, underscores the significance of Alito’s seemingly miscast vote in Gundy v. United States, where he sided with the Court’s “liberals”:

[Gundy] lost because Justice Brett Kavanaugh was recused from the case, and [Justice Samuel Alito] rather than casting a vote in line with his own previously expressed views on the subject (“The principle that Congress cannot delegate away its vested powers exists to protect liberty,” [as] he noted in the American Railroads case), … concurred in the judgment against Gundy, providing the necessary fifth vote to Justice Elena Kagan’s plurality opinion upholding the delegation of authority in this particular case.

To understand how strategic a vote that was, a little inside-baseball background is required.  When a justice is recused from a case and the remaining eight justices are evenly divided, the court merely issues a one-line order noting that the judgment of the lower court “is affirmed by an equally divided” court.”  In Gundy’s case, that would mean the decision of the U.S. Court of Appeals for the Second Circuit against him would stand, and we would have nothing further about the non-delegation doctrine coming from the Supreme Court in the case.  Had Alito joined Justice Neil Gorsuch’s dissenting opinion thoroughly analyzing (and reviving) the non-delegation doctrine, that opinion would no longer have been a dissent.  But neither would it have been a majority, because of Kavanaugh’s recusal.  Instead, the court would have merely affirmed the Second Circuit’s decision by an equally divided court, and neither Kagan’s nor Gorsuch’s opinions would have seen the light of day.  Indeed, the public would not even know what the actual line-up of the justices was, as the perfunctory affirmance by an equally divided court doesn’t even list which justices were on which side of the divide, much less their reasons.

Yet Alito left no doubt where he stands on the matter.  Significantly, he did not join Kagan’s opinion (thereby making it only a plurality opinion), but concurred only in the judgment, noting that he could not say the statute lacks a “discernible standard that is adequate” to support the delegation “under the approach this Court has taken for many years.”  But he added that “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”  In a case in which Kavanaugh is not recused, there is likely to be the necessary majority to undertake the very reconsideration that Alito said he would support. Kavanaugh’s tenure on the D.C. Circuit was marked, after all, by a strong devotion to separation-of-powers principles, and there is no separation of powers principle more basic than the non-delegation doctrine.  So I say to the non-delegation doctrine, “Welcome back!”

Hear, hear!

The New York Times Has More to Worry About

A few days ago I wrote about a piece in the NYT, in which a lawprof worries that the Supreme Court might curb Congress’s unconstitutional delegation of power to executive-branch agencies. Here is a quotation from that piece, with my comments in brackets:

Justice Neil Gorsuch wrote a lengthy dissent [in Gundy v. United States] extolling the need to curb Congress’s powers to delegate to federal agencies. Surprisingly [?], two other justices, Chief Justice John Roberts and Justice Clarence Thomas, joined this radical [constitutionally correct] opinion. And while a fourth — Justice Alito — sided with the more liberal justices, he wrote separately to say that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power.

So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else [who’s this “we”?].

Today, Justice Gorsuch issued the majority opinion in United States v. Davis, in which he wrote this:

Only the people’s elected representatives in Congress have the power to write new federal criminal laws.

Guess who concurred fully in the opinion? Not Roberts, Thomas, Alito, and Kavanaugh — all of whom dissented. No, Gorsuch was joined by Ginsburg, Breyer, Sotomayor, and Kagan — the “liberals” on the Court.

With Gorsuch’s opinion as precedent, the “liberals” have just opened the door to a future ruling that enforces the non-delegation doctrine. (Just what the lawprof fears.)

If it’s true that only the people’s elected representatives in Congress have the power to write new federal criminal laws, it’s equally true that only the people’s elected representatives in Congress have the power to write new laws, period. And writing new laws is just what executive-branch agencies do when they write regulations pursuant to vague congressional directives to “do good”, or words to that effect.

Yes, the writing is on the wall for the hands-off doctrine that has effectively transferred legislative (and judicial) power from Congress (and the courts) to legions of unelected bureaucrats.

A Bad Bargain

Justice Oliver Wendell Holmes Jr. (1841-1935) wrote in an opinion that “Taxes are what we pay for civilized society”. Well, since Holmes issued his fatuous dictum in 1927, the tax burden on Americans has rise from 10 percent of GDP to nearly 40 percent of GDP.

If taxes promote civilization, so do regulations, a fortiori. The federal regulatory burden, which was nearly zero in the 1920s is now so imposing that its myriad strictures reduce GDP by more than 10 percent. (I haven’t found an estimate of the undoubtedly huge State and local burden.)

So the total burden of government on the U.S. economy has increased more than five-fold in the past 90 years. Has the United States become a more civilized country as a result? I submit that since the advent of the Great Society, when the tax and regulatory burdens began to rise in earnest, things have gone to hell in a handbasket.

Government seems to be a bad bargain. I demand a refund.

If The New York Times Is Worried …

… I’m happy.

In particular, there’s an opinion piece in today’s Times by one Nicholas Bagley, who is identified as a professor of law at the University of Michigan. The professor writes:

In Gundy v. United States, which concerned the constitutionality of a law requiring the registration of sex offenders, four of the more conservative justices endorsed a controversial legal theory according to which Congress lacks the power to delegate broad powers to agencies like the Food and Drug Administration and the Department of Heath and Human Services.

For now, the four more-liberal justices have brushed back the challenge, ruling 5 to 3, with Justice Samuel Alito, that Congress can give to the executive branch the authority to implement that specific law. But a close reading of the decisions in the case — and the fact that Justice Brett Kavanaugh was recused — suggests that the liberals may not have the votes to turn back the conservative assault on Congress’s powers.

Federal agencies have been vested with expansive authority since the dawn of the republic, but the administrative state as we know it really took off in the 20th century. The rise of agencies like the Office of Price Administration, the Social Security Administration and the Environmental Protection Agency was essential to the prosecution of two world wars, the creation of the post-New Deal welfare state and the regulation of novel risks such as industrial pollution.

Slippery stuff, that argument. The “conservative assault” isn’t on Congress’s powers, but on Congress’s unconstitutional delegation of its powers, not to mention the judiciary’s powers, to the executive branch. Furthe, Bagley implicitly assumes that OPA, SSA, EPA, and a long list of unnamed co-conspirators are both constitutional in themselves, and that they actually perform beneficial functions. There is a a lot of evidence that most of the agencies of the executive branch have made things worse for Americans. (See, for just one example, “Economic Growth since World War II“.)

Bagley continues:

Since 1935, the Supreme Court has approved laws telling agencies to regulate “in the public interest” and to set pollution standards “requisite to protect the public health.” Not once in the 84 years since has the Supreme Court invalidated a law because it offends the so-called nondelegation doctrine.

And for good reason. To run a functional, modern government, Congress has no choice but to delegate authority and discretion to federal agencies. Doing so allows Congress to make use of agencies’ resources and scientific expertise, to enable a nimble response to emerging problems and to insulate technocratic decisions from raw politics.

In other words, it’s okay with Bagley (and a host of “liberals”) if unelected bureaucrats tell people — in minute detail — how to run their businesses and lives, and to act as judge and jury of the people whose actions do not comport with bureaucratic wisdom. Oh, and about those “nimble” bureaucracies — have you ever encountered one?

Bagley nevertheless says something that makes me happy:

Justice Neil Gorsuch wrote a lengthy dissent [in Gundy v. United States] extolling the need to curb Congress’s powers to delegate to federal agencies. Surprisingly [?], two other justices, Chief Justice John Roberts and Justice Clarence Thomas, joined this radical [constitutionally correct] opinion. And while a fourth — Justice Alito — sided with the more liberal justices, he wrote separately to say that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power.

So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else [who’s this “we”?].

Near the end, Bagley asserts this:

The Constitution broadly empowers Congress “to make all Laws which shall be necessary and proper for carrying into Execution” its authorities. Congress does not surrender its legislative power by delegating. It exercises that power.

If follows, by Bagley’s “logic”, that Congress could write a law which delegates all of its power — and all of the judicial branch’s power — to executive-branch agencies. Why not just resurrect the Third Reich or Stalin’s USSR and be done with it?

Gearing Up for the 2020 Census

You probably received in the mail a first notice from the Census Bureau, demanding that you complete an online questionnaire. I ignored that one, and received a follow-up questionnaire a few days later, which I will also ignore. But I did take the time to annotate the second notice for your amusement:

This is in keeping with my non-compliance with the desires of the census snoops in 2000 and 2010, as I relate here and here. The reason for my non-compliance is given in the post at the first link:

[T]he Constitution mandates the census, for the purpose of apportioning membership in the House of Representatives among the States. And it says in the Constitution that “the actual Enumeration . . . shall be made . . . in such Manner as they shall by Law direct.” But the operative word is “enumeration.” It follows that Congress’s power to direct the “manner” of the enumeration is restricted to such matters as when and at what cost the enumeration shall be made.

The census form (even the short one) has long since become intrusive and vastly overblown in relation to the constitutional purpose of the census. Now, as in 2000 and 2010, I refuse to violate the Constitution.

Justice Thomas Throws Down Another Gauntlet

In connection with the overturning of Roe v. Wade (see this), I noted here Justice Thomas’s

concurring opinion in Box v. Planned Parenthood of Indiana and Kentucky, Inc., [which] is devastating in its revelations about the racist motives of Margaret Sanger, a founder of Planned Parenthood, and of abortion’s “disparate impact” on blacks. For a synopsis of Thomas’s opinion, see “Clarence Thomas, Ruth Bader Ginsburg, and Margaret Sanger Walk Into a Segregated Bar…“, by John Zmirak, The Stream, May 29, 2019.

Now, from Fox News, comes this:

In a concurring opinion in a Supreme Court case announced Monday, Justice Clarence Thomas issued a lengthy call for his colleagues to overturn “demonstrably erroneous decisions” even if they have been upheld for decades — prompting legal observers to say Thomas was laying the groundwork to overturn the seminal 1973 case Roe v. Wade, which established a constitutional right to abortion.

Thomas’ blunt opinion came in Gamble v. United States, a case concerning the so-called “double-jeopardy” doctrine, which generally prohibits an individual from being charged twice for the same crime. But both pro-life and pro-choice advocates quickly noted the implications of his reasoning for a slew of other future cases, including a potential revisiting of Roe.

“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” Thomas wrote.

Hear, hear.

But will Roberts and Kavanaugh heed Thomas? Roberts is erratic and Kavanaugh may have sold his soul (on abortion) to win the vote and endorsement of Susan Collins.