The End of Freedom of Speech?

Vivek Ramaswamy and Jed Rubenfeld, writing in The Wall Street Journal (“Save the Constitution from Big Tech“; January 11, 2021), opine about an issue that I addressed almost three years ago. Here’s some of what Ramaswamy and Rubenfeld say in their piece:

Conventional wisdom holds that technology companies are free to regulate content because they are private, and the First Amendment protects only against government censorship. That view is wrong: Google, Facebook and Twitter should be treated as state actors under existing legal doctrines. Using a combination of statutory inducements and regulatory threats, Congress has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution.

It is “axiomatic,” the Supreme Court held in Norwood v. Harrison (1973), that the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” That’s what Congress did by enacting Section 230 of the 1996 Communications Decency Act, which not only permits tech companies to censor constitutionally protected speech but immunizes them from liability if they do so….

Section 230 is the carrot, and there’s also a stick: Congressional Democrats have repeatedly made explicit threats to social-media giants if they failed to censor speech those lawmakers disfavored [emphasis and link added]. In April 2019, Louisiana Rep. Cedric Richmond warned Facebook and Google that they had “better” restrict what he and his colleagues saw as harmful content or face regulation: “We’re going to make it swift, we’re going to make it strong, and we’re going to hold them very accountable.” New York Rep. Jerrold Nadler added: “Let’s see what happens by just pressuring them.”

Such threats have worked. In September 2019, the day before another congressional grilling was to begin, Facebook announced important new restrictions on “hate speech.” It’s no accident that big tech took its most aggressive steps against Mr. Trump just as Democrats were poised to take control of the White House and Senate. Prominent Democrats promptly voiced approval of big tech’s actions, which Connecticut Sen. Richard Blumenthal expressly attributed to “a shift in the political winds.”

(But there are idiots in the so-called libertarian legal community who still defend Big Tech’s right to censor conservatives.)

My recommendations (here and here) for swift action against Big Tech and its allies weren’t heeded. But I will borrow from them here, beginning with the predicate for action.

Apple, Google, Facebook, Microsoft, Amazon, and other information-technology companies represent just one facet of the complex of institutions in the thought-control business.

A second facet consists of the so-called mainstream media (MSM) — the print and broadcast outlets that for the most part, and for many decades, have exploited their protected status under the First Amendment to heavily lard their offerings with “progressive” propaganda. MSM’s direct influence via the internet has been diluted slightly by the plethora of alternative sources, many of them libertarian and conservative, but Google and friends do a good job of throttling the alternative sources.

I need say little about a third facet — the “entertainment” industry — which also exploits its First-Amendment privilege to spew left-wing propaganda.

The academy and its spawn, public education indoctrination, form a fourth facet. The leftward tilt of most academic administrations and goodly chunks of the professoriate is no secret. Neither is the stultifying atmosphere on college campuses.

These information-entertainment-media-academic institutions are important components of what I call the vast left-wing conspiracy in America. Their purpose and effect is the subversion of the traditional norms that made America a uniquely free, prosperous, and vibrant nation.

Clearly, the information-entertainment-media-academic complex is striving for a monopoly on the expression and transmission of political thought in America. Such a monopoly would be tantamount to state action (see this and this), and must therefore be prevented before it can be perfected. For, if it can be perfected, the First Amendment will quickly become obsolete.

Complete victory for the enemies of liberty is nearly upon us. The squishy center of the American electorate — as is its wont — will swing back toward the Democrat Party. With a Democrat in the White House, a Democrat-controlled Congress, and a few party switches in the Supreme Court [or perhaps without those switches], the dogmas of the information-entertainment-media-academic complex will become the law of the land.

Here is what should have been done before it was too late:

Enforce the First Amendment against information-entertainment-media-academic complex. This would begin with action against high-profile targets (e.g., Google and a few large universities that accept federal money). That should be enough to bring the others into line. If it isn’t, keep working down the list until the miscreants cry uncle.

What kind of action do I have in mind? This is a delicate matter because the action must be seen as rescuing the First Amendment, not suppressing it; it must be taken solely by the executive; and it must comport with legitimate authority already vested in the executive. Even then, the hue and cry will be deafening, as will the calls for impeachment. It will take nerves of steel to proceed on this front.

Here’s a way to do it:

EXECUTIVE ORDER NO. __________

The Constitution is the supreme law of the land. (Article V.)

Amendment I to the Constitution says that “Congress shall make no law … abridging the freedom of speech”.

Major entities in the telecommunications, news, entertainment, and education industries have exerted their power to suppress speech because of its content. (See appended documentation.) The collective actions of these entities — many of them government- licensed and government-funded — effectively constitute a governmental violation of the Constitution’s guarantee of freedom of speech (See Smith v. Allwright, 321 U.S. 649 (1944) and Marsh v. Alabama, 326 U.S. 501 (1946).)

As President, it is my duty to “take Care that the Laws be faithfully executed”. The Constitution’s guarantee of freedom of speech is a fundamental law of the land.

Therefore, by the authority vested in me as President by the Constitution, it is hereby ordered as follows:

1. The United States Marshals Service shall monitor the activities of the entities listed in the appendix, to ascertain whether those entities are discriminating against persons or groups based on the views, opinions, or facts expressed by those persons or groups.

2. Wherever the Marshals Service observes effective discrimination against certain views, opinions, or facts, it shall immediately countermand such discrimination and order remedial action by the offending entity.

3. Officials and employees of the entities in question who refuse to cooperate with the Marshals Service, or to follow its directives pursuant to this Executive Order, shall be suspended from duty but will continue to be compensated at their normal rates during their suspensions, however long they may last.

4. This order shall terminate with respect to a particular entity when the President is satisfied that the entity will no longer discriminate against views, opinions, or facts on the basis of their content.

5. This order shall terminate in its entirety when the President is satisfied that freedom of speech has been restored to the land.

I recommended those because of the imminent danger to what was left of Americans’ liberty and prosperity. The alternative was to do nothing and watch liberty and prosperity vanish from view. There was nothing to be lost, and much to be gained.

It is now too late to act. The deluge is upon us. The enemies of free speech are in power, and their allies in the information-entertainment-media-academic complex will do their bidding, quite willingly.

Here We Go …

Down the tubes. It is almost certain that the Democrat candidates will be declared the winners of Georgia two Senate seats. The Senate will then be divided 50-50, and control will pass to the Democrats because VP Harris will cast deciding votes in the case of ties.

This won’t be the first time that Democrats have controlled Congress and the White House, but this Democrat Party isn’t your grandfather’s party, or your father’s party. It isn’t even the party that was led by Barack Obama, who was (and is) an ardent advocate of government control. Today’s party is filled with Obamas and politicians who make the Obamas seem moderate.

What, exactly, happens now (or as soon as Democrats get organized)? The follow list is borrowed from an earlier post. Not every item on the list will be adopted, but it wont’ be for want of trying.

1. Abolition of the Senate filibuster.

2. An increase of at least two seats on the U.S. Supreme Court (USSC), though there may be some vacancies to be filled.

3. Adoption of an interstate compact by states controlling a total of at least 270 electoral votes, committing each member state’s electoral votes to the presidential candidate who compiles the most popular votes nationwide, regardless of the outcome of the popular vote in each state that is a party to the compact. (This may seem unnecessary if Biden wins, but it will be a bit of insurance against the possibility of a Republican victor in a future election.)

4. Statehood for either the District of Columbia or Puerto Rico, or for both of them. (Each would then have two senators and a requisite number of representatives with full voting privileges in their respective bodies. All of them will be Democrats, of course.)

5. Empowerment of the executive branch to do at least three of the following things:

a. Regulate personal and business activity (in new ways) with the expressed aim of reducing CO2 emissions.

b. Commit at least $500 billion in new obligational authority for research into and/or funding of methods of reducing and mitigating CO2 emissions.

c. Issue new kinds of tax rebates and credits to persons/households and businesses that spend money on any item on a list of programs/technologies that are supposed to reduce CO2 emissions.

d. Impose tax penalties on persons/households and businesses for their failure to spend money on any item in the list mentioned above (shades of the Obamacare tax penalty).

e. Impose penalties on persons/households and businesses for failing to adhere to prescribed caps on CO2 emissions.

f. Establishment of a cap-and-trade program for CO2 emissions (to soften the blow of the previous item). (Needless to say, the overall effect of such initiatives would deal a devastating blow to economic activity – meaning massive job losses and lower real incomes for large swaths of the populace.)

6. Authorization for an agency or agencies of the federal government to define and penalize written or spoken utterances that the agency or agencies declare “unprotected” by the First Amendment, and to require media enforcement of bans on “unprotected” utterances and prosecution of violators (e.g., here). (This can be accomplished by cynically adopting the supportable position that the First Amendment protects only political speech. The purported aim would be to curb so-called hate speech, but when censorship is in full swing — which would take only a few years — it will be illegal to criticize or question, even by implication, such things as illegal immigration, same-sex marriage, transgenderism, anthropogenic global warming, the confiscation of firearms, or the policies of the federal government. Violations will be enforced by fines and prison sentences — the latter sometimes called “sensitivity training”, “citizenship education”, or some other euphemistic term. Candidates for public office will be prime targets of the enforcers, which will suppress open discussion of such matters.)

7. Imposition of requirements for organizations of all kinds — businesses, universities, charitable organizations, clubs, and even churches — to favor anyone who isn’t a straight, white male of European descent. (The “protections” will be enacted, upheld, and enforced vigorously by federal agencies, regardless of their adverse economic and social effects.)

8. Effective nullification of the Second Amendment through orders/regulations/legislation, to enable gun confiscation (though there will be exemptions for private security services used by favored elites).

9. Use of law-enforcement agencies to enforce “hate speech” bans, mandates for reverse discrimination, and gun-confiscation edicts. (These things will happen regardless of the consequences; e.g., a rising crime rate, greater violence against whites and Asians, and flight from the cities and near-in suburbs. The latter will be futile, anyway, because suburban and exurban police departments will also be co-opted.)

10. Criminalization of “sexual misconduct”, as it is defined by the alleged victim, de facto if not de jure. (Investigations and prosecutions will be selective, and aimed mainly at straight, white males of European descent and dissidents who openly criticize this and other measures listed here.)

11. Parallel treatment for the “crimes” of racism, anti-Islamism, nativism, and genderism. (This will be in addition to the measures discussed in #7.)

12. Centralization in the federal government of complete control of all health care and health-care related products and services, such as drug research, accompanied by “Medicare and Medicaid for All” mandates. (Private health care will be forbidden or strictly limited, though — Soviet-style — there will be exceptions for high officials and other favored persons. Drug research – and medical research, generally – will dwindle in quality and quantity. There will be fewer doctors and nurses who are willing to work in a regimented system. The resulting health-care catastrophe that befalls most of the populace will be shrugged off as necessary to ensure equality of treatment, while ignoring the special treatment accorded favored elites.)

13. Revitalization of the regulatory regime (which already imposes a deadweight loss of 10 percent of GDP). A quantitative measure of revitalization is an increase in the number of new rules published annually in the Federal Register by at least 10 percent above the average for 2017-2020.

14. Proposals for at least least two of the following tax-related initiatives:

a. Reversal of the tax-rate cuts enacted during Trump’s administration.

b. Increases in marginal tax rates for the top 2 or 3 income brackets.

c. Imposition of new taxes on wealth.

15. Dramatic enlargement of domestic welfare programs. Specifically, in addition to the creation of “Medicare and Medicaid for All” programs, there would be a “fix” for Social Security that mandates the payment of full benefits in the future, regardless of the status of the Social Security Trust Fund (which will probably be abolished). (Initiatives discussed in #5, #7, #9, #10, #11, #12, #13, #14, and #15 would suppress investment in business formation and expansion, and would disincentivize professional education and training, not to mention work itself. All of that would combine to push the real rate of economic growth toward a negative value.)

16. Reduction of the defense budget by at least 25 percent, in constant dollars, by 2031 or sooner. (Eventually, the armed forces will be maintained mainly for the purpose of suppressing domestic uprisings. Russia and China will emerge as superpowers, but won’t threaten the U.S. militarily as long as the U.S. government acquiesces in their increasing dominance and plays by their economic rules.)

17. Legalization of all immigration from south of the border, and the granting of citizenship to new immigrants and the illegals who came before them. (The right to vote, of course, is the right that Democrats most dearly want to bestow because most of the newly-minted citizens can be counted on to vote for Democrats. The permanent Democrat majority will ensure permanent Democrat control of the White House and both houses of Congress.)

*      *     *

The list is in keeping with the direction in which the country is headed and, in many cases, has been headed since the 1930s — despite Reagan and Trump, and with the connivance of Ike, Nixon, the Bushes, and (in some crucial cases) the USSC.

The Constitution’s horizontal and vertical separation of powers, system of checks and balances, and limitations on the power of the federal government have been eroded almost to the point of irrelevance. The next few years will put an end to the pretense (or false hope) of governance in accordance with the Constitution as it was written. The next few years will see the destruction of liberty, the bankruptcy of America, and the onset of obeisance to Russia and China.

Texas v. Pennsylvania — The Supremes Cut and Run

UPDATED 12/14/20

I was right about the Supreme Court, though the scenario played out differently than I had expected it to. As it turns out, there wasn’t a single justice with the guts to admit that Texas attorney general Ken Paxton had it right:

[T]he 2020 election suffered from significant and unconstitutional irregularities in the Defendant States [Georgia, Michigan, Pennsylvania, and Wisconsin]:

Non-legislative actors’ purported amendments to States’ duly enacted election laws, in violation of the Electors Clause’s vesting State legislatures with plenary authority regarding the appointment of presidential electors.

Intrastate differences in the treatment of voters, with more favorable allotted to voters–whether lawful or unlawful–in areas administered by local government under Democrat control and with populations with higher ratios of Democrat voters than other areas of Defendant States.

The appearance of voting irregularities in the Defendant States that would be consistent with the unconstitutional relaxation of ballot-integrity protections in those States’ election laws.All these flaws–even the violations of state election law–violate one or more of the federal requirements for elections (i.e., equal protection, due process, and the Electors Clause) and thus arise under federal law. See Bush v Gore, 531 U.S. 98, 113 (2000)(“significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question”) (Rehnquist, C.J., concurring). Plaintiff State respectfully submits that the foregoing types of electoral irregularities exceed the hanging-chad saga of the 2000 election in their degree of departure from both state and federal law.Moreover, these flaws cumulatively preclude knowing who legitimately won the 2020 election and threaten to cloud all future elections.Taken together, these flaws affect an outcome-determinative numbers of popular votes in a group of States that cast outcome-determinative numbers of electoral votes.

In sum, the citizens of States that were won by Trump were denied equal protection of the laws: Their votes were nullified because Georgia, Michigan, Pennsylvania, and Wisconsin flouted their own election laws. (To say nothing of massive instances of fraud, of which there is ample evidence, Democrats and media enablers to the contrary notwithstanding.)

William Rehnquist, who presided over Bush v. Gore twenty years ago, must be spinning in his grave.

This may have been a (futile) attempt by Roberts et al. to forestall court-packing, which surely will happen as soon as the Democrats garner a working majority in the Senate. Which is one reason among many to hope that the January 5 runoff elections in Georgia result in victories by the two Republican candidates.

Update:

An esteemed reader and correspondent sent me a link to a piece in which Alan Dershowitz is quoted at length. Here’s some of it:

Dershowitz agreed with Justices Samuel Alito and Clarence Thomas, who indicated that Texas did have standing, saying they ”get the better of the argument,” but that the court just didn’t want to deal with what may be perceived as political.

”This Supreme Court decision sends a message,” Dershowitz said. ”The majority included the three justices appointed by President [Donald] Trump, and they all said, ‘We’re not going to hear the Texas case. We’re not going to get involved in this election.’

”I think this sends a message. It’s not a legal message, but it’s a practical message: the Supreme Court is out of this game.”

Elsewhere, Mollie Hemingway weighs in:

[H]ow can the state of Texas not have a judicially cognizable interest in her sister states living up to the compact they entered when they entered the Union?

Texas attempted in its briefs to crystalize the harm by stressing its interest in who serves as vice president, given the vice president’s tie-breaking status in the Senate and senators’ role as the representatives of the states. But a simpler and stronger argument came in a brief submitted by would-be amicus curiae [in] Citizen’s United:

When one state allows the Manner in which Presidential Electors be chosen to be determined by anyone other than the state legislature, that state acts in breach of the presuppositions on which the Union is based. Each state is not isolated from the rest—rather, all states are interdependent. Our nation’s operational principle is E pluribus unum. Each state has a duty to other states to abide by this and other reciprocal obligations built into Constitution. While defendant states may view this suit as an infringement of its sovereignty, it is not, as the defendant states surrendered their sovereignty when they agreed to abide by Article II, § 1. Each state depends on other states to adhere to minimum constitutional standards in areas where it ceded its sovereignty to the union—and if those standards are not met, then the responsibility to enforce those standards falls to this Court.

On Friday, the Supreme Court voted not to enforce those standards.

Maybe there is a good reason. Maybe Rehnquist’s view was wrong. Maybe the court found the alleged violations not “significant” enough to reach the level of a constitutional violation. (How “significant” would a violation have to be?) Maybe the court viewed a violation of the compact on which our country was founded as beyond its purview.

There might be a satisfactory answer, but Americans have yet to hear it. And that was wrong, both for the court and the country.

As the old saying goes, “we wuz robbed” by a cabal of crooked umpires.

A Note to Proponents of Defunding the Police

Be careful what you wish for.

There are already 400 million privately owned firearms in the United States. It is obvious that most owners of those firearms are law-abiding citizens. But they are not supine or spineless citizens. They are prepared to defend themselves, their families, and their property. That’s why gun sales go up whenever there’s a perceived threat to law and order; for example:

What will happen if there are drastic cuts in the funding of police departments? Or if persistent physical and political attacks on police lead to understaffing of police departments and higher crime rates?

Here’s what I believe will happen. The number and size of community defense groups will increase rapidly. despite hostile reactions from leftist politicians (and some “political” police chiefs who are their lap dogs). And when the time comes for serious action and the police fail to do their duty — because they have been ordered not to, or because they are overwhelmed — the gun owners will be there. This is more likely to happen in suburbs and exurbs. But there is no reason that the beleaguered (and well-armed) denizens of big cities should continue to stand by while their homes and businesses are looted and burned.

Citizens who are defending themselves, their families, and their property are likely to be less discriminating than police when it comes to shooting someone who is perceived as a possible threat.

You have been warned.

A Congress of Unlimited Power?

Preamble

In the debates about the passage of the Patient Protection and Affordable Care Act (ACA), there were charges (and denials) that ACA would include “death panels”. In fact, a central feature of ACA was the now-defunct Independent Payment Advisory Board (IPAB), which was

to have the explicit task of achieving specified savings in Medicare without affecting coverage or quality….

Beginning in 2013, the Chief Actuary of the Centers for Medicare and Medicaid Services determined in particular years the projected per capita growth rate for Medicare for a multi-year period ending in the second year thereafter (the “implementation year”). If the projection exceeded a target growth rate, IPAB was to develop a proposal to reduce Medicare spending in the implementation year by a specified amount.

With regard to IPAB’s recommendations, the law said: “The proposal shall not include any recommendation to ration health care, raise revenues or Medicare beneficiary premiums … , increase Medicare beneficiary cost sharing (including deductibles, coinsurance, and co-payments), or otherwise restrict benefits or modify eligibility criteria.”

Defenders of ACA claimed that IPAB wasn’t a “death panel” (or an incipient one) because ACA specifically prohibited it from recommending the rationing of health care. But IPAB didn’t have to ration health care directly. All it had to do was “develop a proposal to reduce Medicare spending … by a specified amount”. Any such proposal, which would go into effect unless Congress overrode it, would have had the effect of forcing rationing of some kind, by some means (e.g., reducing or eliminating Medicare coverage for certain conditions, or reducing the compensation of providers who might treat certain conditions, thus discouraging them from treating those conditions in the first place).

It’s true that IPAB, or something like it, was (and still is) necessary in a government-run systems like Medicare and Medicaid, where the amount of money available to provide health care is limited by Congress. (In fact, some lefties openly admit it.) But that just moves the problem up a level. It means that Medicare and Medicaid, which are essentially mandatory for tens of millions of persons, constitute a system for rationing health care. (All misguided rhetoric to the contrary, free markets are not rationing mechanisms.)

But what if Medicare and Medicaid didn’t exist and many older Americans had to do without many of the health-care products and services that they enjoy because they couldn’t afford those products and services? The existence of Medicare and Medicaid, whatever their benefits, is tantamount to governmental rationing; that is, their existence forces the redistribution of income among citizens (beneficiaries of Medicare and Medicaid vs. those who subsidize it) and the reallocation of resources toward health care and away from other uses.

The bottom line: It’s true that ACA doesn’t mention death panels and prohibits rationing. But ACA in fact established a “death panel” (IPAB) and authorized (even more) rationing of health care than was already the case under Medicare and Medicaid, pre-ACA.

In sum, a thing can exist without being called by a particular name. Reverse discrimination, for example, exists because Affirmative Action and various “diversity” programs, as they are practiced, foster discrimination against straight, white males of European descent. But to say that Affirmative Action and “diversity” programs are discriminatory is verboten in left-speak.

The Issue at Hand: Whether the Powers of Congress Are Specifically Enumerated in the Constitution

The same principle — that a thing can exist without being called by a particular name — applies to the Constitution of the United States. An obvious case is found in the structure of the Constitution, which is characterized as a system of checks and balances. The term “check and balances” is found nowhere in the Constitution, but the Constitution does nevertheless provide checks on the power of the central government and balances between the powers of the central government’s branches and between the powers of the central government and State governments.

Likewise, the Constitution nowhere says that the powers of the central government are enumerated (and therefore limited). But they are, despite Richard Primus’s casuistry in “Herein of ‘Herein Granted’: Why Article I’s Vesting Clause Does Not Support the Doctrine of Enumerated Powers” (U of Michigan Public Law Research Paper No. 681, October 8, 2020).

What is the Vesting Clause? It is Section 1 of Article I, which says this:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Primus makes much of what he calls the lack of parallelism between that language and the its counterparts in Article II (which defines the executive branch) and Article III (which defines the judicial branch); viz.:

The executive Power shall be vested in a President of the United States of America.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Which, as I will show, is akin to making a mountain out of a molehill. To what end?

This: Primus’s attack on the Vesting Clause is really an attack on the doctrine of enumerated (and therefore limited) powers. As he says,

the idea that Article I’s Vesting Clause limits Congress to a set of textually enumerated powers was virtually unknown in the ratification debates of 1787-88. 18 It was also absent from the First Congress, and conspicuously so. The First Congress prominently featured conflict over the question of whether Congress was limited to powers specifically enumerated in the Constitution: think, for example, of the fight over chartering the Bank of the United States. The Representatives arguing for the enumerationist position in those debates had every incentive to point to the Vesting Clauses for support, if they thought the Vesting Clauses supported their view. None of them did, which suggests that none of them thought Article I’s Vesting Clause established the enumeration principle.

In all of the Federalist Papers, for example, thirty or so of which specifically addressed questions about the extent of congressional power, Publius invoked the Vesting Clause exactly zero times.

This is nothing but argumentative sleight of hand. The Vesting Clause may not have been invoked, but the Constitution was ratified on the clear understanding that the powers of the central government were limited because they were specifically enumerated (mainly in Section 8 of Article I). The proponents and opponents of specific legislation wouldn’t have argued about the broad language of the Vesting Clause. Rather, they would have argued about the specific inclusion or exclusion of the subject matter in text of the Constitution. The main repository of specific language is Section 1 of Article I.

Enumerated and Limited Powers: The Lynch-Pin of the Constitution

Under the Articles of Confederation (Articles) that preceded the Constitution, the central government — such as it was — depended on the whims of member States to finance its operations. It therefore proved difficult to provide for such things as the defense of the United States, the conduct of foreign affairs on behalf of all of the States, and the free flow of trade among the States. Further, every State was equal to every other State — one State, one vote — which made it possible for regional coalitions and even individual States to wield disproportionate power. (Among the compromises that underlay the adoption and ratification of the Constitution was the creation of the Senate, which wields some amount of disproportionate power but not as completely as did the States of the confederation.)

The Constitution doesn’t specifically say that the powers of the central government are enumerated and limited, but they are, as a legacy of the Articles:

Article II. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

(Aside: Whereas the Articles of Confederation refer specifically to a “perpetual Union” of the member States, the Constitution nowhere says or implies that the resulting union was meant to be perpetual.)

During the debates about the ratification of the Constitution, a great many speeches were given and great amounts of ink and paper were devoted to the issue of constraints on the central government. Alexander Hamilton, James Madison, and John Jay — leading advocates of ratification — issued their arguments in the series of essays that became known as The Federalist Papers. Among Madison’s contributions are Federalist Nos. 41, 42, 43, 44, and  45. Those five papers constitute a defense of the specific powers granted to the central government by the Constitution. Madison nowhere adverts to unmentioned, free-floating power because the Constitution doesn’t grant any such power to the central government.

As Madison puts it in Federalist No. 45:

The powers delegated by the proposed Constitution to the federal government, are few and defined [emphasis added]. Those which are to remain in the State governments are numerous and indefinite.


Related posts:

The Slippery Slope of Constitutional Revisionism
The Constitution: Original Meaning, Corruption, and Restoration
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
Our Perfect, Perfect Constitution
Does the Power to Tax Give Congress Unlimited Power? (II)
The Constitution: Myths and Realities

Election 2020: What Will the Supreme Court Do?

Here’s my guess. Roberts, who has shown animus toward the Trump administration in some of his opinions will join the “liberals” — Breyer, Sotomayor, and Kagan — in decisions that favor Biden. Many commentators will simply ascribe Roberts’s rulings to his desire to maintain an appearance that the Court is non-political. They will also ascribe to him a desire to fend off court-packing by making it seem less threatening to Democrats, despite its supposed conservative majority. The mainstream media will simply ignore or minimized Roberts’s animus.

But Roberts plus the three lefties do not a majority make. So how will Roberts achieve his real objective, which is to remove Trump from office? He will appeal to Gorsuch, who seems to march to a different drummer than the Court’s real conservatives (Thomas, Alito, Kavanaugh, and Barrett). “Neil”, he’ll say, “here’s our chance to reassure the Democrats, who would surround us with their lackeys, that we aren’t rubber stamps for Republican policies.” And so Gorsuch will join Roberts and the lefties, for an anti-Trump majority. And perhaps (though I doubt it) Roberts will be able to recruit Kavanaugh or Barrett to the cause of making the Court seem to be above partisan politics. (Ironically, that’s precisely what Roberts will be engaged in, and everyone will know it.)

And so, Trump will lose despite evidence of massive election fraud in key Democrat-controlled States. And when the Democrats next get their hands on the Senate, court-packing will proceed apace, and Roberts will be an impotent chief justice who is dominated by the Court’s new, permanent left wing.

A Solid Conservative Majority on the Supreme Court … but for How Long?

Democrats vow “retaliation” for the confirmation of Amy Vivian Coney Barrett as an associate justice of the U.S. Supreme Court. Big deal! Democrats were certain to pack the Court anyway. John Roberts and Neil Gorsuch, though they wander off the conservative reservation from time to time, are nevertheless too conservative for Democrats. (That’s especially true of the up-and-coming radicals who will control the party in a few years.) The urge to pack will grow exponentially if Trump wins, the GOP holds the Senate, and Trump’s next nominee is a replacement for Stephen Breyer, now the Court’s oldest justice — by 10 years — at 82.

In the meantime, let us enjoy the fruits of the successful Trump-McConnell campaign to move the nation’s courts to the right. And hope that it’s not all undone in the next few years.


Related pageU.S. Supreme Court: Lines of Succession and Ideological Agreement (updated to reflect Barrett’s confirmation and the Court’s holdings in its 2019-2020 term)

Election 2020: Liberty Is at Stake

I have written many times over the years about what will happen to liberty in America the next time a Democrat is in the White House and Congress is controlled by Democrats. Many others have written or spoken about the same, dire scenario. Recently, for example, Victor Davis Hanson and Danielle Pletka addressed the threat to liberty that lies ahead if Donald Trump is succeeded by Joe Biden, in tandem with a Democrat takeover of the Senate. This post reprises my many posts about the clear and present danger to liberty if Trump is defeated and the Senate flips, and adds some points suggested by Hanson and Pletka. There’s much more to be said, I’m sure, but what I have to say here should be enough to make every liberty-loving American vote for Trump — even those who abhor the man’s persona.

Court Packing

One of the first things on the agenda will be to enlarge the Supreme Court and fill the additional seats with justices who can be counted on to support the following policies discussed below, should those policies get to the Supreme Court. (If they don’t, they will be upheld in lower courts or go unchallenged because challenges will be perceived as futile.)

Abolition of the Electoral College

The Electoral College helps to protect the sovereignty of less-populous States from oppression by more-populous States. This has become especially important with the electoral shift that has seen California, New York, and other formerly competitive States slide into leftism. The Electoral College therefore causes deep resentment on the left when it yields a Republican president who fails to capture a majority of the meaningless nationwide popular vote, as Donald Trump failed (by a large margin) in 2016), despite lopsided victories by H. Clinton in California, New York, etc.

The Electoral College could be abolished formally by an amendment to the Constitution. But amending the Constitution by that route would take years, and probably wouldn’t succeed because it would be opposed by too many State legislatures.

The alternative, which would succeed with Democrat control of Congress and a complaisant Supreme Court, is a multi-State compact to this effect: The electoral votes of each member State will be cast for the candidate with the most popular votes, nationwide, regardless of the popular vote in the member State. This would work to the advantage of a Democrat who loses narrowly in a State where the legislature and governor’s mansion is controlled by Democrats – which is the whole idea.

Some pundits deny that the scheme would favor Democrats, but the history of presidential elections contradicts them.

Electorate Packing

If you’re going to abolish the Electoral College, you want to ensure a rock-solid hold on the presidency and Congress. What better way to do that than to admit Puerto Rico and the District of Columbia? Residents of D.C. already vote in presidential elections, but the don’t have senators and or a voting representative in the House. Statehood would give them those things. And you know which party’s banner the additional senators and representative would fly.

Admitting Puerto Rico would be like winning the trifecta (for Democrats): a larger popular-vote majority for Democrat presidential candidates, two more Democrat senators, and five more Democrat representatives in the House.

“Climate Change”

The “science” of “climate change” amounts to little more than computer models that can’t even “predict” recorded temperatures accurately because the models are based mainly on the assumption that CO2 (a minor greenhouse gas) drives the atmosphere’s temperature. This crucial assumption rests on a coincidence – rising temperatures from the late 1970s and rising levels of atmospheric CO2. But atmospheric CO2 has been far higher in earlier geological eras, while Earth’s temperature hasn’t been any higher than it is now. Yes, CO2 has been rising since the latter part of the 19th century, when industrialization began in earnest. Despite that, temperatures have fluctuated up and down for most of the past 150 years. (Some so-called scientists have resolved that paradox by adjusting historical temperatures to make them look lower than the really are.)

The deeper and probably more relevant causes of atmospheric temperature are to be found in the Earth’s core, magma flow, plate dynamics, ocean currents and composition, magnetic field, exposure to cosmic radiation, and dozens of other things that — to my knowledge — are ignored by climate models. Moreover, the complexity of the interactions of such factors, and others that are usually included in climate models cannot possibly be modeled.

The urge to “do something” about “climate change” is driven by a combination of scientific illiteracy, power-lust, and media-driven anxiety.

As a result, trillions of dollars have been and will be wasted on various “green” projects. These include but are far from limited to the replacement of fossil fuels by “renewables”, and the crippling of industries that depend on fossil fuels. Given that CO2 does influence atmospheric temperature slightly, it’s possible that such measures will have a slight effect on Earth’s temperature, even though the temperature rise has been beneficial (e.g., longer growing seasons; fewer deaths from cold weather, which kills more people than hot weather).

The main result of futile effort to combat “climate change” will be greater unemployment and lower real incomes for most Americans — except for the comfortable elites who press such policies.

Freedom of Speech

Legislation forbidding “hate speech” will be upheld by the packed Court. “Hate speech” will be whatever the bureaucrats who are empowered to detect and punish it say it is. And the bureaucrats will be swamped with complaints from vindictive leftists.

When the system is in full swing (which will take only a few years) it will be illegal to criticize, even by implication, such things as illegal immigration, same-sex marriage, transgenderism, anthropogenic global warming, or the confiscation of firearms. Violations will be enforced by huge fines and draconian prison sentences (sometimes in the guise of “re-education”).

Any hint of Christianity and Judaism will be barred from public discourse, and similarly punished. Islam will be held up as a model of unity and tolerance – at least until elites begin to acknowledge that Muslims are just as guilty of “incorrect thought” as persons of other religions and person who uphold the true spirit of the Constitution.

Reverse Discrimination

This has been in effect for several decades, as jobs, promotions, and college admissions have been denied the most capable persons in favor or certain “protected group” – manly blacks and women.

Reverse-discrimination “protections” will be extended to just about everyone who isn’t a straight, white male of European descent. And they will be enforced more vigorously than ever, so that employers will bend over backward to favor “protected groups” regardless of the effects on quality and quantity of output. That is, regardless of how such policies affect the general well-being of all Americans. And, of course, the heaviest burden – unemployment or menial employment – will fall on straight, white males of European descent. Except, of course, for the straight while males of European descent who are among the political, bureaucratic, and management elites who favor reverse discrimination.

Rule of Law

There will be no need for protests riots because police departments will become practitioners and enforcers of reverse discrimination (as well as “hate speech” violations and attempts to hold onto weapons for self-defense). This will happen regardless of the consequences, such as a rising crime rate, greater violence against whites and Asians, and flight from the cities (which will do little good because suburban police departments will also be co-opted).

Sexual misconduct (as defined by the alleged victim), will become a crime, and any straight, male person will be found guilty of it on the uncorroborated testimony of any female who claims to have been the victim of an unwanted glance, touch (even if accidental), innuendo (as perceived by the victim), etc.

There will be parallel treatment of the “crimes” of racism, anti-Islamism, nativism, and genderism.

Health Care

All health care and health-care related products and services (e.g., drug research) will be controlled and rationed by an agency of the federal government. Private care will be forbidden, though ready access to doctors, treatments, and medications will be provided for high officials and other favored persons.

Drug research – and medical research, generally – will dwindle in quality and quantity. There will be fewer doctors and nurses who are willing to work in a regimented system.

The resulting health-care catastrophe that befalls most of the populace (like that of the UK) will be shrugged off as a residual effect of “capitalist” health care.

Regulation

The regulatory regime, which already imposes a deadweight loss of 10 percent of GDP, will rebound with a vengeance, touching every corner of American life and regimenting all businesses except those daring to operate in an underground economy. The quality and variety of products and services will decline – another blow to Americans’ general well-being.

Taxation

Incentives to produce more and better products and services will be further blunted by increases on corporate profits, a more “progressive” structure of marginal tax rates (i.e., soaking the “rich”), and — perhaps worst of all — taxing wealth. Such measures will garner votes by appealing to economic illiterates, the envious, social-justice warriors, and guilt-ridden elites who can afford the extra taxes but don’t understand how their earnings and wealth foster economic growth and job creation. (A Venn diagram would depict almost the complete congruence of economic illiterates, the envious, social-justice warriors, and guilt-ridden elites.)

Government Spending and National Defense

The dire economic effects of the foregoing policies will be compounded by massive increases in government spending on domestic welfare programs, which reward the unproductive at the expense of the productive. All of this will suppress investment in business formation and expansion, and in professional education and training. As a result, the real rate of economic growth will approach zero, and probably become negative.

Because of the emphasis on domestic welfare programs, the United States will maintain token armed forces (mainly for the purpose of suppressing domestic uprisings). The U.S. will pose no threat to the new superpowers — Russia and China. They won’t threaten the U.S. militarily as long as the U.S. government acquiesces in their increasing dominance.

Immigration

Illegal immigration will become legal, and all illegal immigrants now in the country – and the resulting flood of new immigrants — will be granted citizenship and all associated rights. The right to vote, of course, is the right that Democrats most dearly want to bestow because most of the newly-minted citizens can be counted on to vote for Democrats. The permanent Democrat majority will ensure permanent Democrat control of the White House and both houses of Congress.

Future Elections and the Death of Democracy

Despite the prospect of a permanent Democrat majority, Democrats won’t stop there. In addition to the restrictions on freedom of speech discussed above, there will be election laws requiring candidates to pass ideological purity tests by swearing fealty to the “law of the land” (i.e., unfettered immigration, same-sex marriage, freedom of gender choice for children, etc., etc., etc.). Those who fail such a test will be barred from holding any kind of public office, no matter how insignificant.

The Supreme Court: A Scorecard

The following table summarizes the frequency with which the justices disagreed with one another in non-unanimous cases during the recently completed 2019-2020 term (October Term 2019). (For a complete treatment of the terms during which John Roberts has been chief justice — OT2005-OT2019 — go here and scroll down past the three-part table that traces the Court’s lines of succession.) The use of non-unanimous cases highlights the degree of disagreement among justices, which would be blurred if all cases were included in the analysis.

DEFECTIONS

I used the statistics that underlie the preceding table, and its counterparts for the preceding 14 terms, to construct the following index of defection (D) for each justice, by term:

D = percentage disagreement (in non-unanimous cases) with members of own wing/percentage disagreement (in non-unanimous cases) with members of opposite wing.

The “conservative” wing’s members during the 2005-2019 terms were and are Alito, Gorsuch, Kavanaugh, Kennedy, Roberts, Thomas, and Scalia. The “liberal” wings members in the period were and are Breyer, Ginsburg, Kagan, Sotomayor, Souter, and Stevens.

The lower the index, the more prone is a justice to vote with the other members of his or her wing; the higher the index, the more prone is a justice to vote with members of the opposing wing. Here’s a graph of the indices, by term:

Kennedy’s long-standing proneness to defect more often than his colleagues grew markedly in the 2014-2015 terms and receded a bit in the 2016 term. His turnaround in the 2017 term restored him to the Court’s “conservative” wing. Whereupon he retired and was succeeded by Kavanaugh.

Roberts’s slippage in the 2011-2015 terms has never been fully reversed, and his performance in the 2019 term bodes ill for the future of the “conservative” wing. Roberts’s transparent attempts to protect the Court from accusations of political bias (e.g., the Obamacare, census, and DACA cases), have rightly caused conservatives to be wary of him.

Gorsuch started out strongly in his abbreviated 2016 term (he joined the Court in April 2017), but he seems to be a fairly solid “conservative”, with some notable exceptions (e.g., LGBTQ rights).

Kavanaugh’s record in his second term aligns him with Gorsuch as somewhat of a “conservative” maverick — but not in the same league as Kennedy and Roberts.

What’s most striking about the preceding graphs, other than Kennedy’s marked departure from the “conservative” wing after the 2010 term and sudden return to it in his final term, is the increasing coherence (ideological, not logical) of the “liberal” wing. This graph captures the difference between the wings:

Despite Kennedy’s retirement, the presence of Roberts (and to a lesser extent, Gorsuch and Kavanaugh), ensures that the “conservative” wing will be less monolithic than the “liberal” wing.

POLARIZATION

The statistics also yield an index of polarization (P) for each justice, by term:

P = maximum percentage of non-unanimous cases in which a justice disagreed with any other justice during the term

Graphically:

A slight upward trend over the past 15 terms? Perhaps. But there has been definite movement toward polarization since Kennedy’s peak defection terms (2014-2015). Trend or no trend, it’s clear that there is and has been a great deal of polarization among most of the justices. The exceptions are among the “conservatives”, namely Gorsuch, Kavanaugh, and Roberts — which is why the “liberal” wing is more monolithic.

THE THOMAS STANDARD

I would be pleased no end if the Supreme Court consisted of Clarence Thomas and eight clones of him. It seems to me that Justice Thomas has been the most faithful adherent of the Constitution among all of the justices who have served on the Court since I became interested in its doings more than 50 years ago. Taking Thomas as the standard for constitutional judging, it is possible to grade some of the other justices who have served with him, including all of his present colleagues.

Reversing the numbers discussed thus far, so that degree of disagreement becomes degree of agreement, and focusing on the extent to which other justices agree with Thomas non-unanimous cases, I obtain the following statistics:

Graphically:

Scalia was a stalwart “conservative”, albeit somewhat quirky inn criminal cases, as is Gorsuch. Alito remains a stalwart, and Kavanaugh shows promise. Roberts continues to slip away. Breyer, Ginsburg, Kagan, and Sotomayor remain stalwart “liberals”. At the present rate, Sotomayor will find herself alone on the Court’s far-left fringe.

Racism in Action

Here. It’s not what you expected, is it?

The perp — a young-ish black man — had previously been arrested more than 100 times

Why was he walking around free?

Why aren’t white’s rioting and burning down buildings?

(See also “Crime Revisited“.)

Less Discrimination Means More Discrimination

From a piece by Jordan Davidson in The Federalist:

The United States Supreme Court on Monday ruled [in Bostock v. Clayton] that the definition of sex in a federal civil rights law expanded to include sexual orientation and gender identity, ensuring the protection of gay, lesbian, and transgender people from being reprimanded or fired at work. This controversial decision comes after multiple failed legislation attempts in Congress over the last 15 years to rewrite the definition of the word “sex” into law.

The ruling was 6-3 with Justice Gorsuch and Justice Roberts, both appointed by Republican presidents, voting with the majority while Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh dissented on the grounds that the definition of sex is not the Court’s decision.

Kavanaugh’s dissent includes this conciliatory aside:

Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.

Granting more “equality” to yet another identity group means that employers are less likely to hire and promote — and more likely to fire — white, heterosexual males under the age of 40 who are undeniably of European descent. It’s the only group that can’t claim employment discrimination. Well, maybe it’s not the only group, but it’s certainly the only group that comprises more than a fraction of a percent of the populace. And you can bet that the minuscule minorities will eventually acquire more “rights” than the aforementioned white, heterosexual males.

So much for equal treatment under the law. To paraphrase George Orwell’s observation in Animal Farm: All persons are equal, but some persons are more equal than others.

Is Trump Taking My Advice?

I made a case, here and here, for preemptive action against Big Tech’s censorship of conservative viewpoints. There has been some movement along anti-trust lines, but Trump’s executive order on social media is a big step in the right direction. Stewart Baker (The Volokh Conspiracy) explains:

The order really only has two and a half substantive provisions, and they’re all designed to increase the transparency of takedown decisions.

The first provision tells NTIA (the executive branch’s liaison to the FCC) to suggest a rulemaking to the FCC. The purpose of the rule is to spell out what it means for the tech giants to carry out their takedown policies “in good faith.” The order makes clear the President’s view that takedowns are not “taken in good faith if they are “deceptive, pretextual, or inconsistent with a provider’s terms of service” or if they are “the result of inadequate notice, the product of unreasoned explanation, or [undertaken] without a meaningful opportunity to be heard.” This is not a Fairness Doctrine for the internet; it doesn’t mandate that social media show balance in their moderation policies. It is closer to a Due Process Clause for the platforms.  They may not announce a neutral rule and then apply it pretextually. And the platforms can’t ignore the speech interests of their users by refusing to give users even notice and an opportunity to be heard when their speech is suppressed.

The second substantive provision is similar. It asks the FTC, which has a century of practice disciplining the deceptive and unfair practices of private companies, to examine social media takedown decisions through that lens.  The FTC is encouraged (as an independent agency it can’t be told) to determine whether entities relying on section 230 “restrict speech in ways that do not align with those entities’ public representations about those practices.”

(The remaining provision is an exercise of the President’s sweeping power to impose conditions on federal contracting. It tells federal agencies to take into account the “viewpoint-based speech restrictions imposed by each online platform” in deciding whether the platform is an “appropriate” place for the government to post its own speech. It’s hard to argue with that provision in the abstract. Federal agencies have no business advertising on, say, Pornhub. In application, of course, there are plenty of improper or unconstitutional ways the policy could play out. But as a vehicle for government censorship it lacks teeth; one doubts that the business side of these companies cares how many federal agencies maintain their own Facebook pages or Twitter accounts. And in any event, we’ll have time to evaluate this sidecar provision when it is actually applied.)

That’s it.  The order calls on social media platforms to explain their speech suppression policies and then to apply them honestly. It asks them to provide notice, a fair hearing, and an explanation to users who think they’ve been treated unfairly or worse by particular moderators.

I would take a much harder line (follow the links in the first sentence of this post). But something is better than nothing. It’s a shot across the bow of Big Tech, though I would prefer a nuclear-tipped torpedo below the water line.

Obamagate

In case you haven’t seen my page “Obamagate (a.k.a. Spygate and Russiagate)“, which I’ve just updated, I’m reproducing it below. But you should go there from time to time because the list of related reading at the bottom of the page keeps growing, and is certain to expand greatly in the coming weeks and months.


I have added to the list of related reading at the bottom of this page many times since publishing it on August 31, 2018. There have, however, been only two substantive revisions (noted by boldface), neither of which has altered my original thesis about the origin and purposes of the conspiracy. On 05/03/20 I included former FBI director James Comey as a full-fledged member of the post-election phase of the conspiracy, based on Andrew McCarthy’s article of 05/02/20 (see “related reading”). On 05/12/20 I limited former deputy AG Sally Yates’s role to the post-election phase (based on McCarthy’s article), and (based on Francis Menton’s article of 5/11/20) I acknowledged the possibility that the post-election phase of the conspiracy was really meant to be a coverup of the pre-election attempt to discredit Trump with the Steele dossier. Also, in view of the confirmation of Obama’s central role in the conspirace, which I had posited from the beginning, I began on 05/11/20 to refer to the affair as Obamagate.

The persecution of General Flynn, as it turns out, was an essential element of the post-election coverup attempt. See McCarthy’s article of 05/20/20 for a complete explanation.

Neither Donald Trump nor anyone acting on his behalf colluded with Russia to influence the outcome of the 2016 presidential election.

The original story about collusion, the Steele Dossier, was cooked up by the White House and the Clinton campaign. The story was then used to launch a three-pronged attack on Trump and the Trump campaign. The first prong was to infiltrate and spy on the campaign, seeking (a) to compromise campaign officials and (b) learn what “dirt” the campaign had on Clinton. The second prong was to boost Clinton’s candidacy by casting Trump as a dupe of Putin. The third prong was to discredit Trump, should he somehow win the election, in furtherance of the already-planned resistance to a Trump administration. (According to Menton, the effort to discredit Trump may have been just a welcome side effect of the underlying effort to deflect attention from Obama’s role in the pre-election conspiracy to defeat Trump.)

The  investigation led by Robert Mueller is a continuation and expansion of FBI investigations that had been aimed at “proving” a conspiracy between the Trump campaign and Russia. Mueller’s investigation was expanded to include the possibility that Trump obstructed justice by attempting to interfere with the FBI investigations. All of this investigatory activity was and is intended to provide ammunition for Trump’s impeachment and removal from office. That would leave a Republican in the White House, but — as with the forced resignation of Nixon — it would weaken the GOP, cause a “Blue wave” election in 2018, and result in the election of a Democrat president in 2020.

(Aside: The effort to brand Trump as a dupe of Russia is ironic, given the anti-anti-communist history of the Democrat party, Barack Obama’s fecklessness in his dealings with Russia, and his stated willingness to advance Russia’s interests while abandoning traditional European allies. Then there was FDR, who was surrounded and guided by Soviet agents.)

Why was it important to defeat Trump if possible, and to discredit or remove him if — by some quirk of fate — he won the election?

  • First, Obama wanted to protect his “legacy”, which included the fraudulent trifecta of Obamacare, the Iran nuclear deal, and the Paris climate accord. The massive increase in the number of federal regulations under Obama was also at risk, along with his tax increase, embrace of Islam, and encouragement of illegal immigration (and millions of potential Democrat voters).
  • Second, members of the Obama administration, including Obama himself, were anxious to thwart efforts by the Trump campaign to obtain derogatory information about Hillary Clinton. Such information included, but was not limited to, incriminating e-mails that Russians had retrieved from the illegal private server set up for Clinton’s use. That Obama knew about the private server implicated him in the illegality.

In sum, helping Hillary win — with the aid of the CIA, Justice Department, and FBI — was supposed to protect Obama and his “legacy”. One way of doing that was to ensure a victory by Hillary. (The Obama-directed whitewash of her illegal e-mail operation was meant to defuse that issue.) The other way of protecting Obama’s “legacy” was to cripple Trump’s presidency, should he somehow manage to win, and thus hinder Trump’s effectiveness. The media could be counted out to fan the flames of resistance, as they have done with great vigor.

The entire Obamate operation is reminiscent of Obama’s role in the IRS’s persecution of conservative non-profit groups. Obama spoke out against “hate groups” and Lois Lerner et al. got the message. Lerner’s loyalty to Obama was rewarded with a whitewash by Obama’s. Department of Justice and FBI.

In the case of Obamagate, Obama expressed his “concern” about Russia’s attempt to influence the election. Obama’s “concern” was eagerly seized upon by hyper-partisan members of his administration, including (but not limited to):

Valerie Jarrett, Obama’s confidante and chief strategist

CIA Director John (the Red) Brennan (probably Obama’s action officer for the operation)

Director of National Intelligence James Clapper

National Security Adviser Susan Rice

Attorney General Loretta Lynch

Deputy Attorney General Sally Yates, who became Acting Attorney General in the first weeks of the Trump administration, and who was fired for refusing to defend Trump’s “travel ban” (which the Supreme Court ultimately upheld). (Yates didn’t become involved in the conspiracy until after the election, as indicated by Susan Rice’s memo of January 20, 2017, in which she notes that Obama asked Yates and Comey to stay behind after the end of a meeting of January 5, 2020, presumably so that he could fill them in on the effort to frame General Flynn and discuss how they were to deal with the incoming administration. Again, see Menton’s piece dated May 11, 2020 in “related reading”.)

Deputy Associate Attorney General Bruce Ohr, a subordinate of Sally Yates and Christopher Steele’s contact in the Department of Justice

Nelli Ohr, wife of Bruce Ohr, who was hired by Fusion GPS to do opposition research for the Clinton campaign

Deputy FBI Director Andrew McCabe

FBI General Counsel James Baker, in charge of FISA requests and leaker of the Steele Dossier (possibly a dupe)

Peter Strzok, chief of the FBI’s counterintelligence section;

Lisa Page, the FBI attorney (and Strzok’s paramour), who (with Strzok) was assigned to the Mueller investigation.

What about FBI Director James Comey? He was initially an outsider, a nominal Republican in a Democrat administration, and possibly a willing dupe at first (see the pieces by VDH dated August 7, 2018, and Margot Cleveland dated December 20, 2019.  But if he was initially a willing dupe with his own agenda, it seems that he had became a full-fledged conspirator by the time of Trump’s inauguration (see the piece by Andrew McCarthy dated May 2, 2020).


Related reading, in chronological order:

National Sentinel: “The Spygate Files: Timeline to the Biggest Political Scandal in American History

Paul Roderick Gregory, “The Timeline of IRS Targeting of Conservative Groups“, Forbes, June 25, 2013

Jay Sukelow, “Obama’s Fingerprints All Over IRS Tea Party Scandal“, Fox News Opinion, October 20, 2013

Andrew C. McCarthy, “Obama’s Growing Conflict of Interest in the Clinton E-mail Scandal“, National Review, February 3, 2016

Miles Terry, “President Obama’s IRS Scandal: Seven Years & Counting“, ACLJ, August 2016

Andrew C. McCarthy, “Obama’s Conflict Tanked the Clinton E-mail Investigation — As Predicted“, National Review, September 26, 2016

Andrew C. McCarthy, “The Obama Administration’s Uranium One Scandal“, National Review, October 21, 2017

Andrew C. McCarthy, “Was the Steele Dossier the FBI’s ‘Insurance Policy’?“, National Review, December 23, 2017

Andrew C. McCarthy, “Clinton-Obama E-mails: The Key to Understanding Why Hillary Wasn’t Indicted“, National Review, January 23, 2018

George Parry, “Did Fusion GPS’s Anti-Trump Researcher Avoid Surveillance With A Ham Radio?“, The Federalist, March 2, 2018

Andrew C. McCarthy, “In Politicized Justice Desperate Times Call For Desperate Measures“, National Review, May 19, 2018

Andrew C. McCarthy, “The Real Origination Story of the Trump-Russia Investigation“, National Review, May 22, 2018

Sharyl Atkisson, “8 Signs Pointing to a Counterintelligence Operation Deployed Against Trump’s Campaign“, The Hill, May 23, 2018

Julie Kelly, “The Open Secret of the FBI’s Investigation of Trump’s Campaign“, American Greatness, May 25, 2018

Roger Kimball, “For Your Eyes Only: A Short History of Democrat-Spy Collusion“, Spectator USA, May 25, 2018

Daniel John Sobieski, “Jarrett and Obama Are Behind Spygate“, American Thinker, May 26, 2018

Francis Menton, “‘Russia’: Bona Fide Basis for Investigation or Preposterous Cover Story?“, Manhattan Contrarian, May 27, 2018

Michael Barone, “Obama’s Spying Scandal Is Starting to Look a Lot Like Watergate“, New York Post, May 27, 2018

C. Michael Shaw, “Spygate Is a Bigger Scandal Than Watergate“, The New American, May 28, 2018

David Harsanyi, “Obama Says ‘I Didn’t Have Scandals.’ So What Are All These?“, The Federalist, May 29, 2018

Andrew C. McCarthy, “The Obama Administration’s Hypocritical Pretext for Spying on the Trump Campaign“, National Review, May 29, 2018

Andrew C. McCarthy, “Yes, the FBI Was Investigating the Trump Campaign When It Spied“, National Review, May 30, 2018

Scott Johnson, “The Curious Case of Mr. Downer“, Power Line, June 1, 2018

C. Michael Shaw, “FBI’s Violation of Rules in Spying on Trump Campaign Further Exposes Deep State“, The New American, June 1, 2018

Jason Veley, “Confirmed: Barack Obama Was Running the Entire Spygate Operation That Violated Federal Law to Spy on Trump Campaign Officials“, Natural News, June 1,  2018

MJA, “Peter Strzok Asks Lisa Page: ‘You Get All Your OCONUS Lures Approved?’“, iOTWReport.com, June 5, 2018

Andrew C. McCarthy, “Clinton E-mails: What the IG Report Refuses to Admit“, National Review, June 19, 2018

George Neumayr, “Mueller Has Strzok Out“, The American Spectator, June 20, 2018

Alex Swoyer, “Sen. Lindsey Graham Quizzes Inspector General over Peter Strzok’s ‘Insurance Policy’ Text“, The Washington Times, June 21, 2018

George Neumayr, “Hillary’s Fiends in High Places“, The American Spectator, June 22, 2018

Lee Smith, “Seven Mysterious Preludes to the FBI’s Trump-Russia Probe“, RealClearInvestigations, June 26, 2018

John Solomon, “Memos Detail FBI’s ‘Hurry the F Up Pressure’ to Probe Trump Campaign“, The Hill, July 6, 2018

Scott Johnson, “The Brennan Factor Revisited“, Power Line, July 20, 2018

John Hinderaker, “First Thoughts on the Carter Page FISA Application“, Power Line, July 21, 2018

John Hinderaker, “The Associated Press Lies about the FISA Application“, Power Line, July 22, 2018

Michael Ledeen, “Why Are the Democrats and the Spooks Suddenly So Ferociously Anti-Putin?PJ Media, July 22, 2018

Thomas Lifson, “Ten Problems with the Release of the Heavily Redacted FISA Warrants on Carter Page“, American Thinker, July 22, 2018

Hans A. von Spakovsky, “The Clinton State Department Major Security Breach That Everyone Is Ignoring“, The Heritage Foundation, July 22, 2018

Steve Byas, “Does Strzok Have a Perjury Problem?“, The New American, July 23, 2018

Daniel J. Flynn, “Did the FBI Lie to the FISA Court?“, The American Spectator, July 23, 2018

Victor Davis Hanson, “Just How Far Will the Left Go?“, American Greatness, July 23, 2018

Scott Johnson, “Devin Nunes Vindicated“, Power Line, July 23, 2018

Andrew C. McCarthy, “FISA Applications Confirm: The FBI Relied on the Unverified Steele Dossier“, National Review, July 23, 2018

Ed Morrissey, “Reuters: Butina Met with Two ‘Senior’ Government Officials — in 2015“, Hot Air, July 23, 2015

Jason Beale, “James Comey’s Own Words Suggest FBI, DOJ Hid Dossier Funding From The FISA Judge“, The Federalist, July 24, 2018

Victor Davis Hanson, “Russianism“, National Review, July 24, 2018

Dennis Prager, “The Greatest Hysteria in American History“, RealClearPolitics, July 24, 2018

Ned Ryun, “None Dared Call It Treason … When It Was a Democrat“, American Greatness, July 24, 2018

Katarina Trinko, “What the Carter Page FISA Warrant Reveals about the Trump-Russia Investigation“, The Daily Signal, July 24, 2018

Jason Beale, “It’s Suspicious That The FBI And DOJ Didn’t Check Into Christopher Steele’s Leaks To The Press“, The Federalist, July 25, 2018

Julie Kelly, “Vindication for Carter Page“, American Greatness, July 25, 2018

Mollie Hemingway, “Media Gaslighting Can’t Hide Fact Trump Campaign Was Spied On“, The Federalist, July 26, 2018

Paul Mirengoff, “What the FBI Didn’t Tell the FISA Court“, Power Line, July 27, 2018

Scott Johnson, “The Story So Far“, Power Line, July 29, 2018

Willis Krumholz, “The Facts Behind The Trump Tower Meeting Are Incriminating, But Not For Trump“, The Federalist, July 30, 2018

Dan Perkins, “The FBI, Hillary’s Computers, and the Russians“, American Thinker, July 30, 2018

Ned Ryun, “Americans Need Clear Answers on FISA Abuse“, American Greatness, July 30, 2018

Scott Johnson, “Contra the Dross of Doss (3)“, Power Line, July 31, 2018

Margot Cleveland, “If You Inspect The FISA Applications Closely, More Mysteries Arise About Joseph Mifsud“, The Federalist, August 2, 2018

George Neumayr, “Never Forget the Brennan-Brit Plot to Nail Trump“, The American Spectator, August 3, 2018

Byron York, “!2 Times Christopher Steel Fed Trump-Russia Allegations to the FBI after the Election“, Washington Examiner, August 3, 2018

Victor Davis Hanson, “The Police Were Not Policed“, National Review, August 7, 2018

Byron York, “Emails Show 2016 Links among Steele, Ohr, Simpson — with Russian Oligarch in Background“, Washington Examiner, August 8, 2016

John Solomon, “The Handwritten Notes Exposing What Fusion GPS Told DOJ About Trump“, The Hill, August 9, 2018

George Neumayr, “Strzok Out, Ohr In“, The American Spectator, August 13, 2018

Lee Smith, “2016 Trump Tower Meeting Looks Increasingly Like a Setup by Russian and Clinton Operatives“, RealClearInvestigations, August 13, 2018

Margot Cleveland, “New Info Indicates Clinton-Funded Oppo Research Launched FBI’s Trump Investigation“, The Federalist, August 14, 2018

Margot Cleveland, “Notes Suggest FBI Employees Plotted To Keep Using Steele After He Broke FBI Rules“, The Federalist, August 14, 2018

Chuck Ross, “Fusion GPS Founder Shared ‘False Story’ About GOP Lawyer In Meeting With DOJ’s Bruce Ohr“, The Daily Caller, August 14, 2018

Margot Cleveland, “How Bruce Ohr Could Implicate High-Ranking Obama Officials In Spygate“, The Federalist, August 15, 2018

Margot Cleveland, “New Details Show Firing Strzok Didn’t Remove All The Compromised FBI Agents Involved In Russiagate“, The Federalist, August 15, 2018

Adam Mill, “Bruce Ohr May Have Broken More Than The Law By Pushing His Wife’s Opposition Research To The FBI“, The Federalist, August 16, 2018

Steve Baldwin, “Did Trump Really Save America from Socialism?“, The American Spectator, August 16, 2018

Kimberley Strassel, “What Was Bruce Ohr Doing?“, The Wall Street Journal, August 16, 2018

Catherine Herridge, “DOJ’s Bruce Ohr Wrote Christopher Steele Was ‘very concerned about Comey’s firing — afraid they will be exposed’“, Fox News, August 17, 2018

George Neumayr, “John Brennan, a Security Risk from the Start“, The American Spectator, August 17, 2018

u/lonestarbeliever, “Connecting Some Dots“, Reddit, August 21, 2018 (This illustrates the ease with which conspiracy theories can be constructed, which isn’t to say that it’s wrong.)

Scott Johnson, “The Weiner Laptop Revisited“, Power Line, August 23, 2018

Paul Sperry, “Despite Comey Assurances, FBI Failed To Examine Vast Bulk Of Weiner Laptop Emails“, The Federalist, August 24, 2018

Bre Payton, “FBI Agent Says DOJ Used Leaked Stories It Planted To Get FISA Warrants“, The Federalist, August 28, 2018

Jay Greenberg, “Bruce Ohr Testimony Exposes Even Deeper Cesspit of FBI Corruption“, Neon Nettle, August 29, 2018

Thomas Lifson, “Ohr Speaks! (Behind Closed Doors“, American Thinker, August 29, 2018

Aaron Klein, “Email Logs Reveal Correspondence Between Clinton Associate, Fusion GPS, and Russians at Trump Tower Meeting“, Breitbart.com, August 31, 2018

Laura Barrón-López, “Bruce Ohr, FBI Together Attempted to Flip Russian Oligarchs to Gather Information on Trump Campaign: Report“, Washington Examiner, September 1, 2018

Paul Mirengoff, “The FBI’s Anti-Trump Leak Strategy“, Power Line, September 10, 2018

Thomas Lifson, “Newly Revealed Texts Reveal Strzok and Page Conspired to Release Information Intended to Damage Trump on Russiagate“, American Thinker, September 11, 2018

Paul Minrengoff, “The FBI’s Anti-Trump Leak Strategy, Part Two“, Power Line, September 12, 2018

Andrew C. McCarthy, “Reading the FISA Redactions“, National Review, September 14, 2018

Andrew C. McCarthy, “In the Russia Probe, It’s ‘Qui S’excuse S’accuse’“, National Review, September 15, 2018

Scott Johnson, “Whose Stuff Did Steele Shovel?“, Power Line, September 18, 2018

Michael Barone, “The Air Has Seeped Out of the Russia/Collusion Balloon“, Washington Examiner, September 19, 2018

John Solomon, “Collusion Bombshell: DNC Lawyers Met with FBI on Russia Allegations before Surveillance Warrant“, The Hill, October 3, 2018

John Solomon, “FBI’s Smoking Gun: Redactions Protected Political Embarrassment, Not ‘National Security’“, The Hill, October 7, 2018

Scott Johnson, “What We Have Learned So Far“, Power Line, October 30, 2018

Scott Johnson, “What We Have Learned So Far” [2], Power Line, November 11, 2018

John Hinderaker, “The Ultimate Fake News”, Power Line, November 18, 2018

George Neumayr, “Why Britain Doesn’t Want Trump to Declassify Obamagate Docs“, The American Spectator, November 27, 2018

Margot Cleveland, “New Details Reinforce That The FBI Used Fake Pretexts To Start Investigating Trump“, The Federalist, November 30, 2018

John Solomon, “Trump, Russia and Lessons from the Mob: Did ‘Godfathers’ Steer Collusion Probe?“, The Hill, November 30, 2018

Sidney Powell, “New Facts Indicate Mueller Destroyed Evidence, Obstructed Justice“, The Daily Caller, December 16, 2018

Fuzzy Slippers, “IG Report: Strzok, Page iPhones Wiped Clean, Thousands of Texts Destroyed Before IG Could Review Them“, Legal Insurrection, December 16, 2018

Lee Smith, “New Documents Suggest the Steele Dossier Was a Deliberate Setup for Trump“, The Federalist, January 2, 2019

Jed Babbin, “The Most Successful Coverup“, The American Spectator, January 7, 2019

Paul Mirengoff, “Report: FBI Opened Inquiry into Whether Trump Was Working for the Russians“, Power Line, January 11, 2019

Scott Johnson, “More Mueller Madmess“, Power Line, January 12, 2019

C. Michael Shaw, “Whistleblowr: Obama-era Deep State Surveillance Program Spied on Trump, Judges, Others“, The New American, January 12, 2019

Andrew C. McCarthy, “FBI Russia Investigation Was Always about Trump“, Fox News, January 13, 2019

Gregg Jarrett, “An FBI That Is Corrupt and Dishonest — Latest Reports Offer Only More Proof“, Fox News, January 14, 2019

Mollie Hemingway, “Top Mueller Officials Coordinated with Fusion GPS Spouse in 2016“, The Federalist, January 17, 2019

Catherine Herridge and Cyd Upson, “New Details of 2016 Meeting with Trump Dossier Author Conflict with Dems’ Timeline“, Fox News, January 28, 2019

Scott Johnson, “Coup’s Next“, Power Line, February 16, 2019 (a roundup of links to commentary about Andrew McCabe’s admission of the FBI’s attempt to remove Trump from office)

Andrew McCarthy, “McCabe, Rosenstein, and the Real Truth about the 25th Amendment Coup Attempt“, Fox News, February 16, 2019

Francis Menton, “Comments on Andrew McCabe and the FBI Coup Plotters“, Manhattan Contrarian, February 16, 2019

Victor Davis Hanson, “Autopsy of a Dead Coup“, American Greatness, February 17, 2019

Greg Re, “Lisa Page Admitted Obama DOJ Ordered Stand-Down on Clinton Email Prosecution, GOP Rep Says“, Fox News, March 12, 2019

Greg Re, ” DOJ Reached Agreement with Clinton Lawyers to Block FBI  Access to Clinton Foundation Emails, Strzok Says“, Fox News, March 14, 2019

Margot Cleveland, “Did Peter Strzok Lie, Or Was There A Spy Targeting The Trump Campaign? “, The Federalist, March 19, 2019

Dan Mills, “Lisa Page Transcripts Reveal Huge Preferences For Clinton During Email Scandal Investigation“, The Federalist, March 19, 2019

Andrew C. McCarthy, “After Mueller’s Exoneration of Trump, Full Disclosure“, National Review, March 23, 2019

Sharyl Atkisson (eponymous blog), “— Media Mistakes in the Trump Era: The Definitive List“, as of March 24, 2019

William P. Barr, Letter to the Chairmen and Ranking Members of the Senate and House Judiciary Committees, March 24, 2019

Sean Davis, “In Letter To Congress, Attorney General Confirms Mueller Found No Evidence Of Collusion By Trump“, The Federalist, March 24, 2019

Margot Cleveland, “Who Launched An Investigation Into Trump’s Campaign Before Crossfire Hurricane?“, The Federalist, March 25, 2019

William L. Krumholz, “Russiagate’s Damage To The Country Will Take Years To Realize“, The Federalist, March 25, 2019

Jeffrey Lord, “What Did Obama Know and When Did He Know It?“, The American Spectator, March 25, 2019

Adam Mill, “In New York, Deputy U.S. Attorney Jumps Sinking Russiagate Ship“, The Federalist, March 25, 2019

Adam Mill, “No, Barr’s Summary Of The Mueller Report Does Not Support Trump’s Alleged Obstruction“, The Federalist, March 25, 2019

Andrew C. McCarthy, “How Long Has Mueller Known There Was No Trump-Russia Collusion?“, Fox News, March 26, 2019

Sean Davis, “The Only 2016 Campaign That Deliberately Colluded With Russians Was Hillary Clinton’s“, The Federalist, March 28, 2019

Melissa Mackenzie, “Mueller Russia Hoax: Keep Yer Eye on the Ball“, The American Spectator, March 28, 2019

George Parry, “Was Mueller’s Investigation a Cover Up?“, The American Spectator, March 28, 2019

Victor Davis Hanson, “The Tables Turn in Russian Collusion Hunt“, American Greatness, March 31, 2019

Victor Davis Hanson, “All the Progressive Plotters“, American Greatness, April 8, 2019

Mollie Hemingway, “AG Barr Confirms Multiple Intel Agencies Implicated in Anti-Trump Spying Operation“, The Federalist, March 10, 2019

Madeline Osburn, “Top FBI Lawyer Testified Rosenstein Discussed Removing Trump from Office“, The Federalist, April 10, 2019

Mollie Hemingway, “New York Times Admits Obama Admin Deployed Multiple Spies Against Trump Campaign In 2016“, The Federalist, May 2, 2019

Joseph DiGenova (interview), “Obama Knew about CIA Chief John Brennan’s Illicit Anti-Trump Targeting Scheme!“, YouTube, May 14, 2019

John Solomon, “State Department’s Red Flag on Steele Went to a Senior FBI Man Well before FISA Warrant“, The Hill, May 14. 2019

Andrew C. McCarthy, “The Steele Dossier and the ‘VERIFIED APPLICATION’ That Wasn’t“, National Review, May 18, 2019

Victor Davis Hanson, “He Did It, Not Me!“, American Greatness, May 19, 2019

Thomas Lifson, “Joe DiGenova Blows the Lid off the Real Scandal: The Russia Hoax Was a Cover-up Effort for Obama’s Political Spying since 2012“, American Thinker, May 28, 2019

Stephen F. Cohen, “How Did Russiagate Begin?“, The Nation, May 30, 2019

Jed Babbin, “Who Ran Crossfire Hurricane?“, The American Spectator, June 3, 2019

Margot Cleveland, “Why Did The Obama Administration Ignore Reports Of Russian Election Meddling?“, The Federalist, June 4, 2019

Jay Sekulow, “Obama Administration’s Anti-Trump Actions Revealed in Newly Disclosed Documents“, Fox News, June 25, 2019

Paul Sperry, “Justice Dept. Watchdog Has Evidence Comey Probed Trump, on the Sly“, RealClearInvestigations, July 22, 2019 (This supports my view that Comey was acting on his own, for his own reasons, and was at most a “useful idiot” for the concerted, Brennan-led effort to frame Trump.)

Jed Babbin, “The Comey-Brennan Conspiracy to Violate Trump’s Civil Rights“, The American Spectator, September 2, 2019 (Did Comey and Brennan conspire knowingly, or did Comey happen to act in ways that served Brennan’s conspiracy? We shall see — maybe.)

George Parry, “Michael Flynn Graymails the Government“, The American Spectator, September 16, 2019 (Will the FBI risk disclosure of its dirty tactics in its persecution of Michael Flynn? Flynn’s new lawyer thinks it won’t.)

Krystina Skurk, “Andrew McCarthy Unveils the Real Russia Collusion Narrative“, The Federalist, October 11, 2019

Michael Horowitz, Inspector General of the Department of Justice, “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation“, December 9, 2019

Margot Cleveland, “IG Report Hints James Comey Was In On FBI’s FISA Misconduct“, The Federalist, December 20, 2019

Alan J. Favish, “The Horowitz Report: Yes, It Gets Worse“, American Thinker, December 22, 2019

Victor Davis Hanson, “Impeachment Fallouts“, National Review, December 31, 2019

James Re, “James Comey Focus of FBI Leak Investigation, Report Says“, Fox News, January 16, 2020 (This report, about which I have no doubts, doesn’t contradict my view that Comey was a useful idiot of the conspirators, who happened to advance the conspiracy while trying (a) to stay on Trump’s good side and (b) trying to undermine him after (a) failed.)

Paul R. Gregory, “Why Was the Steele Dossier Not Dismissed As a Fake?“, Defining Ideas, February 3, 2020

David Krayden, “Former NSC Chief: John Brennan Buried Evidence That Putin Actually Favored Hillary in 2016“, The Daily Caller, April 23, 2020

Susan Davis, “Explosive New Flynn Documents Show FBI’s Goal Was ‘To Get Him Fired’“, The Federalist, April 29, 2020

Chrissy Clark, “Christopher Steele Testifies Hillary Clinton, Susan Rice Knew about Anti-Trump Research“, The Federalist, April 29, 2020

Sean Davis, “BREAKING: FBI Closed Flynn Case, Dubbed ‘Crossfire Razor,’ In Early 2017, Until Strzok Ordered It To Stay Open“, The Federalist, April 30, 2020

Chuck Ross, “Text Messages Reveal Peter Strzok Intervened FBI’s Planned Closure of Michael Flynn Investigation“, The Daily Signal, April 30, 2020

Tristan Justice, “Comey Bragged About Violating FBI Policy To Ambush Flynn In Corrupt Setup“, The Federalist, April 30, 2020

Andrew C. McCarthy, “The FBI Set Flynn Up to Preserve the Trump–Russia Probe“, National Review, May 2, 2020

Neo, “John Brennan Again“, The New Neo, May 4, 2020

Margot Cleveland, “Your Guide to the Obama Administration’s Hit on Michael Flynn“, The Federalist, May 4, 2020

Mary Chastain, “DOJ Documents: Rosenstein Expanded Russia Probe Beyond Scope, Obama and Biden Knew Details From Flynn’s Wire-Tapped Calls“, Legal Insurrection, May 8, 2020

Mollie Hemingway, “Obama, Biden Oval Office Meeting On January 5 Was Key To Entire Anti-Trump Operation“, The Federalist, May 8, 2020

Margot Cleveland, “Why Did Obama Tell the FBI to Hide Its Activities from the Trump Administration?“, The Federalist, May 11, 2020

Francis Menton, “So What Was the Russia Hoax Really About?“, Manhattan Contrarian, May 11, 2020

Jeffrey Lord, “Obamagate“, The American Spectator, May 12, 2020

“Give Me Liberty or Give Me Death”

Most Americans who graduated from high school before the mid-1960s —  when patriotism was still a permissible attitude — would know that the man who said, famously, “give me liberty or give me death” was Patrick Henry. Henry said it at the end of his speech to the Second Virginia Convention on March 23, 1775. The speech convinced the convention to pass a resolution to provide troops for the Revolutionary War.

What Henry said applies with full force in today’s crucial moment, when the fearful are being goaded and coerced by state-worshipers into abandoning what is left of their liberty. The final sentences of Henry’s speech put today’s choice starkly:

What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

The difference between then and now is that the citizens of Virginia had on their side — the side of liberty — the stalwarts who adopted the resolution and put it into effect. Those stalwarts, in addition to Patrick Henry, included Richard Henry Lee (grandfather of “Light Horse Harry” Lee and great-grandfather of Robert E. Lee), Benjamin Harrison (father of future president William Henry Harrison and great-grandfather of future president Benjamin Harrison), Thomas Jefferson, and George Washington.

Where are their spiritual descendants today? I ask because there is much truth in a piece that is making its way around the internet:

When the State tells you it’s safe to go to The Home Depot to buy a sponge but it’s too dangerous to go to a florist and buy flowers—it’s not about your health.

When the State shuts down millions of private businesses but doesn’t lay off a single government employee—it’s not about your health.

When the State bans dentists because it’s unsafe, but deems abortion visits safe—it’s not about your health.

When the State prevents you from buying cucumber seeds because it’s too dangerous, but allows in-person lottery ticket sales—it’s not about your health.

When the State tells you it’s too dangerous to go golf alone, fish alone or be in a motorboat alone, but the Governor can get his stage make up done, and hair done for 5 TV appearances a week—it’s not about your health.

When the state puts you IN a jail cell for walking in a park with your child because it’s too dangerous but lets criminals OUT of jail cells for their health—it’s not about YOUR health!

When the state tells you it’s too dangerous to get treated by a doctor of chiropractic or physical therapy treatments yet deems a liquor store essential—it’s not about your health!

When the State lets you go to the grocery store or hardware store but is demanding mail-in voting, IT’S NOT ABOUT YOUR HEALTH.

Yes, there’s a good deal of conspiracy-minded paranoia behind sentiments like that. But the screed also points to a truth: Governments across this once-free nation are making dictatorial decisions that are harming tens of millions of Americans, socially and economically, instead of letting those Americans decide for themselves what risks to take. That is to say, Americans are being deprived of (more of) their liberty because of the possibility that a small fraction of them might die.

Reducing the small fraction to an even smaller one is the official excuse for inflicting economic and social devastation on Americans. What’s the truth of the matter? There are many truths:

1. Elected officials prefer to err on the side of caution — in the guise of “caring” for the health of their constituents — to guard against second-wave effects. Rightly or wrongly — and mostly wrongly — they suffer electoral consequences for things that go wrong when they are in office, even those things are unavoidable or have nothing to do with official actions.

2. Elected officials (and government employees generally) are insulated from the economic effects of lockdowns, and have no skin in the game. Moreover, most of them — especially in the central government, State governments, and governments of cities — mingle with and take their cues from information, media, and academic elites who likewise have no skin in the game. Thus their focus, according to #1, is keeping the death toll low.

3. The personal consequences of economic devastation, for the tens of millions of Americans who aren’t insulated from it, aren’t big news. The media instead plays up the consequences of the disease — debilitation and death — in keeping with its age-old tradition: If it bleeds, it leads.

4. The tens of millions of Americans who are suffering economically are represented by demonstrators (often armed) who are portrayed as “selfish” Walmartians. They are the present equivalent (for elite snobs) of Hillary Clinton’s “deplorables”. And Trump is the leading “deplorable” because of his “racist” insistence on calling a virus that originated in China the “China virus”.

5. To the extent that the destruction of small businesses and the nation’s soaring unemployment rate are news, they stand (somehow, in the mind of smug elites) as proof that the “Trump economy” was somehow phony.

6. Therefore, Trump is discredited and doesn’t deserve reelection. Especially because his early, optimistic pronouncements about COVID-19 somehow caused the federal bureaucracy (a.k.a. the deep state) and many State and local governments (mostly those run by Democrats) to respond inadequately to the pandemic.

All of this plays well, not only to the insiders who perpetrate it but also — and importantly — to the tens of millions of Americans who haven’t a clue about what it means to lose a business or a job because they are economically secure thanks to a government job (or other sinecure), retirement income (especially from a government source), parental support, or ample savings. Fear wins with them because they might die but aren’t going to suffer financially.

To look at it another way, in America the COVID-19 pandemic is another front in the culture war between “cosmopolitan elites” (and their cosseted sycophants) and “real people“.

It is also another way for the ruling classes (for that is what they are) to secure their economic and social dominance, as Joel Kotkin explains in “The Pandemic Road to Serfdom” (The American Mind, May 1, 2020):

Even before the outbreak of the Covid-19 pandemic, America, like most higher-income countries, was already heading toward a neo-feudal future: massive inequality, ever-greater concentrations of power, and increasingly widespread embrace of a uniform (albeit secular) religion. The pandemic, all too reminiscent of the great plagues of the Middle Ages, seems destined to accelerate this process….

[A]s jobs are destroyed on Main Street, others, like those at well-positioned Amazon, are created by the hundreds of thousands. It is also a rosy new dawn for online collaboration applications like Zoom, Google Hangouts, Facebook Rooms, Microsoft Teams, and Slack, the fastest-growing business app on record. Also greatly enhanced will be those who provide the infrastructure for the conquering digital economy, including chipmakers like Intel and cloud-computing behemoths like (yet again) Amazon and Microsoft.

The pandemic seems likely to further consolidate the tech industry shift from its garage-based startup past, with firms like Google, Facebook, Microsoft, and Amazon increasingly resembling Japan’s long-dominant keiretsu. The pandemic may have squashed many new companies that are now short on capital. In contrast, the oligarchic firms, which control upwards of 80% of such key markets as search, social media, cloud computing, and computer operating systems, now enjoy an even greater edge in garnering ever more of the nation’s technical talent.

Ultimately the pandemic will provide the new elite with opportunities to gain control of a whole set of coveted industries, from entertainment and media to finance and space travel. Perhaps most concerning will be their ability to control all aspects of information as the last vestiges of local and small-town journalism face Covid-driven “extinction level” events. What is now left of the “legacy” media—the Atlantic, Time, the Washington Post, and the Los Angeles Times—has fallen increasingly under their control. Nine of the 13 richest people under age 40 are in the tech industry: the odds are favorable that the new elite will maintain their control over information for generations….

In contrast, the pandemic has proven an utter disaster for much of the Third Estate [the “commoners”]. The most evident damage can be seen at the malls, or on Main Street, where millions of small firms have been forced to close and, at least in some locations, may be forced to stay locked down for many more months….

In the aftermath of the lockdowns, small independent firms will be harder-pressed to compete against larger competitors with better access to capital and better positioning to wait out the pandemic. In the coming months, we might see many of our favorite local gyms and bars, or taco stands and family-owned Chinese restaurants, replaced by either online options or larger chains….

With the yeomanry thundering mostly from the Right, the protests of “essential” blue-collar workers could help boost the socialist cause. Roughly half of American households have no emergency savings and face an uncertain future as jobs disappear. A new class of ex-workers now finds the dole a more amenable or viable option than hard and dangerous work for relatively low pay. Bernie Sanders may have lost the nomination, but the message he ran on is amplified at a time when soup kitchens, as during the Depression, are now serving New York artists, writers, and musicians. The pandemic will likely increase the strong socialist tendency among both millennials and the successor Z generation….

Ultimately … disorder [born of joblessness] threatens the power of both the oligarchs and the clerisy. Their likely response may be embracing what I call “oligarchal socialism,” where the very notion of work disappears in favor of a regime of cash allotments. This notion of providing what Marx called “proletarian alms,” widely supported in Silicon Valley, could prove a lasting legacy of the pandemic. This is how Rome, as slaves replaced the middle orders, kept its citizenry in line, and how the Medieval order in times of economic stress relied on the charitable efforts of the Church.

The virus that now dominates our daily lives may soon begin to slowly fade, but it will have a deep, protracted impact on our society and class structure. Covid-19 will likely leave us with conditions that more resemble feudalism than anyone could have imagined just a few years ago.

As Rahm Emanuel, then Obama’s chief-of-staff-in-waiting, said during the financial crisis of late 2008,

You never let a serious crisis go to waste. And what I mean by that it’s an opportunity to do things you think you could not do before.

What that means now, in addition to the entrenchment of the ruling oligarchy, is probably a permanent expansion of governmental power. As with the New Deal and Great Society, the current wave of handouts has engorged the rolls of those who depend on government and look to it (mostly in vain) for “solutions” to whatever problems seem beyond their (government-enfeebled) ability to solve through private action. And, “deplorables” aside, government’s role as nagging nanny (however incompetent) has been reinforced, and will be exploited to a fare-thee-well.

That’s what the mere possibility of death has done to liberty in the year 2020 A.D.


Other related reading:

F.H. Buckley, “What’s at Risk in Redivided America?“, The American Spectator, May 9, 2020

Wendell Cox, “Majority of COVID-19 Deaths in Nursing Homes: New Report“, newgeography, May 12, 2020

Dov Fischer, “A Time to Hate“, The American Spectator, May 11, 2020

Daniel Horowitz, “Simple Arithmetic Demonstrates that the Epidemic, outside Nursing Homes, Is Essentially Over“, Conservative Review, May 7, 2020

Arnold Kling, “The Future That We Won’t Have“, askblog, May 10, 2020

Francis Menton, “Why Are Government Employees Supposedly Immune to Layoffs?“, Manhattan Contrarian, May 6, 2020

Norbert Michel, “1% of Counties Home to Half of COVID-19 Cases, Over Half of Deaths“, The Daily Signal, May 12, 2020

Dave Middleton, “‘Predictive Models’ Rarely Are Predictive“, Watts Up With That?, May 8, 2020

Dave Middleton, “Lockdown Fail in One Easy Graph“, Watts Up With That?, May 12, 2020

Wilfred Reilly, “The Lockdowns Still Aren’t Working“, Spiked, May 8, 2020

Not-So-Random Thoughts (XXVI)

“Not-So-Random Thoughts” is an occasional series in which I highlight writings by other commentators on varied subjects that I have addressed in the past. Other entries in the series can be found at these links: I, II, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX, XX, XXI, XXII, XXIII, XXIV, and XXV. For more in the same style, see “The Tenor of the Times” and “Roundup: Civil War, Solitude, Transgenderism, Academic Enemies, and Immigration“.

CONTENTS

Free Trade Rethought

The Death Penalty

State Actors in Action

Red vs. Blue

Serfdom in Our Future?


FREE TRADE RETHOUGHT

My position on so-called free trade:

  • Estimate the amount by which the price of a foreign product or service is reduced by the actions of foreign governments or their proxies.
  • Add that amount to the price as a tariff.
  • Regularly review and adjust the schedule of tariffs.

All other trade would be unencumbered, excepting:

  • the importation of products and services otherwise restricted by U.S. law (e.g., tanks, artillery pieces)
  • the exportation of products and services that are used directly in the development, manufacture, and operation of sensitive military systems (e.g., fighter aircraft, anti-missile defenses).

Selective tariffs, based on actual costs of production, would encourage the efficient use of resources and protect American workers who would otherwise be victimized by unfair trade. But that’s it. Sweeping tariffs on imports — just to “protect” American workers — do more than protect them. They also penalize American consumers, most of whom are also workers.

William Upton, writing in light of current events (“Make America Autarkic Again“, The American Mind, March 13, 2020), would go a lot further:

In our over-globalized world, a policy of total autarky is infeasible. But a degree of autarky should be recognized as self-evidently in America’s national interest.

Autarky, for those unfamiliar, was an economic and industrial policy of self-reliance wherein a nation need not rely on international trade for its economic survival. This is not to say that said nation rejected international trade or isolated itself from the global economic order, rather that it merely could survive on its own if necessary….

[Oren] Cass notes that sound industrial policy has allowed nations like Germany and Japan to retain strong manufacturing sectors. Cass also emphasizes the pivotal importance of manufacturing, not just for the economy, but for American communities:

[M]anufacturing is unique for the complexity of its supply chains and the interaction between innovation and production. One of the most infuriating face-palms of modern economics is the two-step that goes like this: First, wave away concern as other countries with aggressive industrial policies … attract our critical supply chains overseas, explaining that it doesn’t matter where things get made. Second, wait for people to ask “why can’t we make this or that here,” and explain that of course we can’t because all of the supply chains and expertise are entrenched elsewhere. It’s enough to make one slam one’s head into the podium.

There may be something to it.


THE DEATH PENALTY

I was surprised to read the assessment by Theodore Dalrymple, a former prison doctor, of the death penalty (“The Death Penalty’s Demise and the Withering of Authority“, Law & Liberty, February 11, 2020). On the one hand:

If I had been a prison doctor while the death penalty was still imposed in Britain, I should have had the somewhat awkward task of certifying murderers fit for execution….  It was not permitted to execute madmen even if they had been sane at the time of their crime; but with the ever-widening and loosening of psychiatric diagnosis, I should no doubt have been tempted always to find a medical reason to postpone the execution sine die. I would have found it hard to sign what would have amounted to a medical death warrant, all the more so with the man before my very eyes. Nor would I have much relished attending the execution itself, to certify that the execution had worked….

But while I should not have wanted to participate in an execution, I was nevertheless viscerally in favour of the death penalty because it seemed to me that there were crimes (though by no means all of them murder) so heinous, so despicable, that no other penalty was adequate to express society’s outrage at, or repudiation of, them. Moreover — though quite late in my career — I discovered evidence that suggested that the death penalty did in fact act as a deterrent to murder, something which has long been contested or outright denied by abolitionists.

But on the other hand:

Does its deterrent effect, then, establish the case for the death penalty, at least in Britain? No, for two reasons. First, effectiveness of a punishment is not a sufficient justification for it. For example, it might well be that the death penalty would deter people from parking in the wrong place, but we would not therefore advocate it. Second, the fact is that in all jurisdictions, no matter how scrupulously fair they try to be, errors are sometime made, and innocent people have been put to death. This seems to me the strongest, and perhaps decisive, argument against the death penalty.

And on the third hand:

Although, on balance, I am against the death penalty, I do not assume that those who are in favour of it are necessarily moral primitives, which abolitionists often give the impression of believing. For most of our history, the rightness of the death penalty has been taken for granted, and it cannot be that we are the first decent, reflective people ever to have existed. The self-righteousness of the Europeans in this respect disgusts me when they set themselves up to judge others. France, for example, abolished the death penalty only in 1981 – AD 1981, that is, not 1981 BC. When the death penalty in Britain was abolished in 1965 after many decades of campaigning by abolitionists, more than 90 per cent of the population was still in favour of it. Almost certainly it believed, if not necessarily in a fully coherent way, that to abolish the death penalty was to weaken the authority of society and to lessen the majesty of the law. It was also to weaken the prohibition against killing and, though involving the taking of a life (the murderer’s), also lessened the sanctity of life….

In Britain, one of the effects of the abolition of the death penalty, the downward pressure on all prison sentences, has been little remarked. Punishment has to be roughly proportional to the gravity of the crime (exact proportionality cannot be achieved), but if murder attracts only 15 years’ imprisonment de facto, what sentences can be meted out to those who commit lesser, but still serious, crimes? Moreover, the charge of murder is often reduced to the lesser crime of manslaughter, in which sentences – as a consequence – are often derisory….

It is scarcely any wonder that in the years since the abolition of the death sentence, Britain has gone from being a well-ordered, non-violent, law-abiding society to being a society with the highest rate of violent crime in Western Europe. Of course, the abolition of the death penalty was not the only cause, for crime was rising in any case, but it brought its contribution to the festival of disorder that followed.

It seems to me that Dalrymple ends up arguing in favor of the death penalty. He is correct about its deterrent effect (same post). He is wrong to give heavy weight to the possibility of error. And he overlooks a conclusive argument in its favor: there is one less criminal who might be let loose to commit more crimes. All of those points and more are covered in these posts:

Does Capital Punishment Deter Homicide?
Libertarian Twaddle about the Death Penalty
A Crime Is a Crime
Crime and Punishment
Saving the Innocent?
Saving the Innocent?: Part II
More Punishment Means Less Crime
More About Crime and Punishment
More Punishment Means Less Crime: A Footnote
Clear Thinking about the Death Penalty
Let the Punishment Fit the Crime
Another Argument for the Death Penalty
Less Punishment Means More Crime
Crime, Explained
Why Stop at the Death Penalty?
Crime Revisited


STATE ACTORS IN ACTION

Once upon a time I made a case for rescuing the First Amendment from its enemies in

the telecommunications, news, entertainment, and education industries [which] have exerted their power to suppress speech because of its content….  The collective actions of these entities — many of them government- licensed and government-funded — effectively constitute a governmental violation of the Constitution’s guarantee of freedom of speech (See Smith v. Allwright, 321 U.S. 649 (1944) and Marsh v. Alabama, 326 U.S. 501 (1946).)

Leo Goldstein (“Google and YouTube Are State Actors“, American Thinker, March 9, 2020) finds a smoking gun

in the FCC Obamanet orders of 2010 and 2015. The 2015 Obamanet Order, officially called Open Internet Order, has explicitly obligated all internet users to pay a tax to Google and YouTube in their ISP and wireless data fees. The Order even mentions Google and YouTube by name. The tax incurs tens of billions of dollars per year. More specifically, the Order said that by paying ISP fees (including mobile wireless), each user also pays for the services that ISP gives to platforms and content providers like YouTube, even if the user doesn’t use them….

Platforms and content providers are misleadingly called “edge providers” here. Thus, every ISP customer in the US is obligated to pay for the traffic generated by Google, Netflix, Facebook, and Twitter, even if he used none of them!

Off with their heads.


RED VS. BLUE

The prolific Joel Kotkin weighs in on the Red States’ economic and electoral advantages:

Even in a state as deeply blue as [California}, Democrats’ disdain for the basic values and interests of their own base could unravel their now seemingly unbridgeable majority. At some point, parents, artists, minorities, small businesspeople and even sex workers will not be mollified sufficiently by a fulsome expression of good intentions. If more voters begin to realize that many of the policies being adopted are injurious, they may even begin to look again at the Republicans, particularly once the toxic President Trump is no longer on the ballot scaring the masses to toe the line. [“Democrats Risk Blowback with Leftward Turn“, newgeography, March 1, 2020]

* * *

The political and cultural war between red and blue America may not be settled in our lifetimes, but it’s clear which side is gaining ground in economic and demographic terms. In everything from new jobs—including new technology employment—fertility rates, population growth, and migration, it’s the red states that increasingly hold the advantage.

Perhaps the most surprising development is on the economic front. Over the past decade, the national media, and much of academia, have embraced the notion that the future belonged to the high-tax, high-regulation economies clustered on the East and West Coasts. The red states have been widely dismissed, in the words of the New York Times, as the land of the “left behind.”

Yet the left-behind are catching up, as economic momentum shifts away from coastal redoubts toward traditionally GOP-leaning states. Just a few years ago, states like California, Massachusetts, and New York held their own, and then some, in measurements of income growth from the Bureau of Economic Analysis. Now the fastest growth is concentrated in the Sunbelt and Great Plains. Texans’ income in the latest 2019 BEA estimates was up 4.2 percent, well above California’s 3.6 percent and twice New York’s 2.1 percent. The largest jumps—and this may matter a lot in 2020—took place in the Dakotas, Nebraska, and Iowa. [“Red v. Blue“, City Journal, February 7, 2020]

But:

[S]ocialism is gaining adherents even in the upper middle-class and among the oligarchy. One critical component lies in detestation of all things Trump even among CEOs, most of whom, according to a recent Chief Executive survey, want him impeached. Corporate America is increasingly embracing the notion of a guaranteed income and is adopting politically correct positions on such things as immigration, particularly in tech and on Wall Street.

But the most important driver for socialism comes from the burgeoning green movement. Long dominated by the elite classes, environmentalists are openly showing themselves as watermelons — green on the outside, red on the inside. For example, the so called “Green New Deal” — embraced by Sanders, Warren and numerous oligarchs — represents, its author Saikat Chakrabarti suggests, not so much a climate as “a how-do-you-change-the entire-economy thing”. Increasingly greens look at powerful government not to grow the economy, but to slow it down, eliminating highly paid blue-collar jobs in fields like manufacturing and energy. The call to provide subsidies and make work jobs appeals to greens worried about blowback from displaced workers and communities.

Combined with the confused and vacillating nature of our business elites, and the economic stagnation felt by many Americans, socialism in the West is on the rise. An ideology that history would seem to have consigned to Leon Trotsky’s “dustbin of history”, could turn the land that once embraced Adam Smith closer to the vision of Karl Marx. [“The West Turns Red?“, newgeography, February 25, 2020]

I have shown the economic superiority of the Red State model. But that isn’t enough to rescue the country from the perpetual allure of socialism. As I say here,

… States and municipalities governed by Democrats will ever more boldly pursue policies that undermine traditional American culture (e.g., unabated encouragement of illegal immigration, accelerated favoritism toward “identity groups”) and which are broadly destructive of the economic and social fabric; for example: persisting in costly, money-losing recycling and composting programs that do nothing for the environment (taking into account the environmental effects of the vehicles and equipment involved); the replacement of fossil-fuel sources of electricity by unreliable and expensive “renewable” sources; encouragement of homelessness by subsidizing it and making it socially acceptable; discouragement of family formation and stability through the continuation and expansion of long-discredited vote-buying welfare programs; openly persecuting conservatives and conservative institutions.

All of that will intensify the divisions between Red and Blue States, and the divisions between Red State governments and the Blue cities within them. But that is a first-order effect.

The second-order effect is to make living in Blue States and cities more onerous for middle-to-low-income earners (and even some among the affluent), who will seek greener (Redder) pastures outside Blue cities and Blue States. But many (most?) of those refugees will not flee because they have come to believe that big government is the cause of their problems. Rather, they (especially the younger, more mobile, and more “socialistic” ones) will flee because they don’t want to suffer the consequences of big government (high taxes, high housing costs, etc.). But, being addicted to the idea that big government is good, and ignorant of the connection between big government and their woes, they will continue to vote for big-government politicians and policies. Thus will Blue States and Blue cites gradually turn Purple and, in many cases, Blue.

You read it here.


SERFDOM IN OUR FUTURE?

I recently mused about Walter Scheidel’s book, The Great Leveler. Kotkin addresses the thesis of that book in “Who Will Prosper After the Plague?” (Tablet, April 13, 2020):

[T]he wreckage [caused by the Black Plague of the 14th century] created new opportunities for those left standing. Abandoned tracts of land could be consolidated by rich nobles, or, in some cases, enterprising peasants, who took advantage of sudden opportunities to buy property or use chronic labor shortages to demand higher wages. “In an age where social conditions were considered fixed,” historian Barbara Tuchman has suggested, the new adjustments seemed “revolutionary.”

What might such “revolutionary” changes look like in our post-plague society? In the immediate future the monied classes in America will take a big hit, as their stock portfolios shrink, both acquisitions and new IPOs get sidetracked and the value of their properties drop. But vast opportunities for tremendous profit available to those with the financial wherewithal to absorb the initial shocks and capitalize on the disruption they cause….

Over time, the crisis is likely to further bolster the global oligarchal class. The wealthiest 1% already own as much as 50% of the world’s assets, and according to a recent British parliamentary study, by 2030, will expand their share to two-thirds of the world’s wealth with the biggest gains overwhelmingly concentrated at the top 0.01%….

The biggest long-term winner of the stay-at-home trend may well be Amazon, which is hiring 100,000 new workers. But other digital industries will profit as well, including food delivery services, streaming entertainment services, telemedicine, biomedicine, cloud computing, and online education. The shift to remote work has created an enormous market for applications, which facilitate video conferencing and digital collaboration like Slack—the fastest growing business application on record—as well as Google Hangouts, Zoom, and Microsoft Teams. Other tech firms, such as Facebook, game makers like Activision Blizzard and online retailers like Chewy, suggests Morgan Stanley, also can expect to see their stock prices soar as the pandemic fades and public acceptance of online commerce and at-home entertainment grows with enforced familiarity.

Growing corporate concentration in the technology sector, both in the United States and Europe, will enhance the power of these companies to dominate commerce and information flows….

The modern-day clerisy consisting of academics, media, scientists, nonprofit activists, and other members of the country’s credentialed bureaucracy also stand to benefit from the pandemic. The clerisy operate as what the great German sociologist Max Weber called “the new legitimizers,” bestowing an air of moral and technocratic authority on the enterprises of their choosing….

Members of the clerisy are likely to be part of the one-quarter of workers in the United States who can largely work at home. Barely 3% of low-wage workers can telecommute but nearly 50% of those in the upper middle class can. While workers at most restaurants and retail outlets face hard times, professors and teachers will continue their work online, as will senior bureaucrats….

The biggest winners in the fallout from the coronavirus are likely to be large corporations, Wall Street, Silicon Valley, and government institutions with strong lobbies. The experience from recent recessions indicates that big banks, whose prosperity is largely asset-based, will do well along with major corporations, while Main Street businesses and ordinary homeowners will fare poorly….

In the Middle Ages, many former citizens, facing a series of disasters from plagues to barbarian invasions, willingly became serfs. Today, the class of permanently propertyless citizens seems likely to grow as the traditional middle class shrinks, and the role of labor is further diminished relative to that of technology and capital.

In contrast to the old unionized workers, many people today, whether their employment is full-time or part-time, have descended into the precariat, a group of laborers with limited control over how long they can work, who often live on barely subsistence wages. Nearly half of gig workers in California live under the poverty line.

Now comes the payoff:

Historically, pandemics have tended to spark class conflict. The plague-ravaged landscape of medieval Europe opened the door to numerous “peasant rebellions.” This in turn led the aristocracy and the church to restrict the movements of peasants to limit their ability to use the new depopulated countryside to their own advantage. Attempts to constrain the ambitions of the commoners often led to open revolts—including against the church and the aristocracy.

… As steady and well-paying jobs disappear, the demands for an ever more extensive welfare state, funded by the upper classes, will multiply.

Like their counterparts in the late 19th century, the lower-class workforce will demand changes. We already see this in the protests by workers at Instacart delivery service, and in Amazon warehouse workers concerned about limited health insurance, low wages, and exposure to the virus.

As the virus threatens to concentrate wealth and power even more, there’s likely to be some sort of reckoning, including from the increasingly hard-pressed yeomanry.

In the years before the great working-class rebellions of the mid-19th century, Alexis de Tocqueville warned that the ruling orders were “sleeping on a volcano.” The same might be seen now as well, with contagion pushing the lava into the streets, and causing new disruptions on a scale of which we can’t predict.

Something like socialism (for non-elites) may emerge for the rubble. It will be the 21th century equivalent of bread and circuses: share just enough of the wealth to keep the proletariat in line.

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.