"There are only two ways of telling the complete truth—anonymously and posthumously."Thomas Sowell

Friday, January 18, 2019

Who Was On The Remain Side?

Her Majesty's Government was for Remain. 
The leading opposition parties were for Remain. 
The primary regional parties in Scotland (SNP), Wales (
Plaid Cymru), and Northern Ireland (DUP and Sinn Fein**) were all for Remain. 
The EU was for Remain.
The Archbishop of CanterburyDo you really need me to tell you this?—was for Remain.
The diplomatic community was for Remain. 
Cameron, the incumbent Prime Minister, was for Remain, along with all his living predecessors: Brown (Is he still in the country?), Blair (Won't he ever leave the country?), and Major (Does he think anyone in the country is listening?A man's got to know his limitations. )
Jeremy Corbyn, the leader of the opposition, was 100% for Remain. (But no one really believed him.) 
The majority of members of Parliament were for Remain. (I am using British-English here.)
President Obama was for Remain. (People did listen to him—then they voted the other way—just ask Frank Field.
The bureaucracy and the Bank of England were for Remain. (Go Team Canada!)
The labour unions were for Remain. 
(What would P.J. O'Rourke say?)
Academia was overwhelmingly for Remain. (What would P.J. O'Rourke say?)
Industry (e.g., the Confederation of British Industry) was for Remain. 
The BBC and the largest part of the media were for Remain. (Where is Bill Buckley when you need him?)
All the magazines were for RemainThe Spectator excepted. (Who says Fraser Nelson cannot do anything right?)
The actors & arts communities were for Remain. (As of yet, no British headliners have emigrated. Tell Mark Steyn.)
The vast majority of student activists were for Remain. (British English again.)
Owen Jones and all the wannabe student activists were for Remain. 
Diana Mosley (had she lived passed 2003) was for Remain. (Just ask Mark Steyn.)
The vast majority of people with hyphenated last names were for ... but I repeat myself. (British English again.)

Now ask yourself: precisely, who was on the Leave side? 
Just some votersand what do they know? 

Seth Barrett Tillman, Who Was On The Remain Side?, New Reform Club (Jan. 18, 2019, 7:32 AM), <https://reformclub.blogspot.com/2019/01/who-was-on-remain-side.html>. 

**Compare E-mail from Rónán McLaughlin, Political Advisor, Sinn Fein, to Seth Barrett Tillman, (Jan. 18, 2019, 4:16 PM) ("Sinn Féin campaigned rigorously for a remain during the June 2016 EU referendum."), with Killian Foley-Walsh <https://twitter.com/Kilfalwol/status/1086236204574691329> ("As a point of order, the DUP campaigned for Leave, and SF didn’t register to campaign one way or the other."), and id. ("They were in favour of remain (or so they said...), but they bizarrely declined to campaign. It was and remains a very odd position."). Tillman: I regret my lack of clarity. 

The Old Whig Theory of the Executive Power

The Old Whig position is that the express powers (including the veto) vested in the presidency by Article II are not part of the “Executive Power” (except in the limited sense that they are powers appended to the presidency for him to execute). Today, we think of those powers as executive merely because we are used to the President doing them.

Those express powers are merely appendages to the presidency—in much the way that the Chief Justice presides over presidential impeachments (outside the context of the Judicial Power vested in the federal courts by Article III) and in much the same way that the Vice President presides over the Senate and has a vote on equal division (although the VP is not a constituent part (or member) of Congress or the Senate (as defined by Article I).

The Executive Power of Article II is wholly an excrescence of Congress’ twin powers under Article I, Section 7, Clause 2 (to make statutes) and Article I, Section 7, Clause 3 (to make subsidiary legislation or statutory instruments: orders, resolutions, and votes). That is why Article II does not have to mimic Article I’s language about “herein granted”. In other words, because Congress’ powers are already limited to the subject matters “herein granted” and because all Executive Power flows from grants from Congress under 1/7/2 and 1/7/3, then the Executive Power is also limited to the same subject matters, viz., where Congress has the power to enact binding law (widely construed). Putting “herein granted” language in Article II would be wholly redundant. Congress can only gift or grant what it has and holds, and the President can only receive or take (as Executive Power) what Congress has the power to grant.

The Old Whig theory stands in opposition to the Hamiltonian theory of a core or residium of undefined executive power which exists absent an express grant of Article I, Section 7 authority from Congress. The Old Whig position is a unitary-executive-type position, like Hamilton’s, but it permits that executive to be a weak one, albeit one which cannot be stripped of the powers expressly granted by Article II.

I suspect that this is what Chief Justice Taney had in mind ... when he wrote:

The only power, therefore, which the president possesses, where the “life, liberty or property” of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires “that he shall take care that the laws shall be faithfully executed.” He is not authorized to execute them himself, or [even] through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the co-ordinate branch of the government to which that duty is assigned by the constitution.

Ex parte Merryman, 17 F. Cas. 144, 149 (C.C.D. Md. 1861) (No. 9487) (Taney, C.J.) (emphasis added).

I know most, including many well informed scholars, will not agree with this post. I can already hear the chorus of execration ....

For a different take on executive power, see Oran Doyle, The Constitution of Ireland: A Contextual Analysis 102 (Hart Publishing 2018) ("[E]xecutive power consists either of textually explicit power, such as the Government's power in relation to foreign affairs, or of implicit State powers that necessarily inhere in Ireland and which fall to be exercised by the Government, such as immigration control power."). 


Seth Barrett Tillman, The Old Whig Theory of the Executive Power, New Reform Club (Jan. 18, 2019, 5:02 AM), <https://reformclub.blogspot.com/2019/01/the-old-whig-theory-of-executive-power.html>. 

Welcome Instapundit Readers!

Wednesday, January 16, 2019

CONLAWPROF: Americans Arguing Over Brexit

Dear Professor,

I did not “prais[e] the process that brought Brexit to the UK.” I will say that the process was not stupid and it was not criminally stupid. Why do you use this hyperbolic language? It was just a referendum. Cameron did not surprise the country (the UK) by putting the decision to the People. It was a long-standing promise of the Tory Party to do just that. That promise was made by the Tory Party in the two party manifestos in the two prior general elections. After the first election, Cameron’s Tory Party did not have an absolute majority on the floor of the Commons, and his Liberal-Democratic coalition partners did not back a referendum. So nothing happened. After the second election, Cameron had a majority—and the referendum was a simple expression of a well known campaign pledge from the most recent general election. I see nothing “stupid” about this; I see nothing “criminally stupid.” Why this hyperbolic language?

The bill to implement the referendum (i.e, to put the question to the People) had overwhelming majority support of the Tories, the Labour Party, and even the Liberal-Democrats. These two latter parties chose to vote for the referendum. They did so for reasons they thought good, not because of internal squabbles in the Tory Party. The only major party to vote against the referendum was the Scottish National Party (SNP). 

Was it wrong for the referendum not to have a floor in regard to a minimum percentage of voter participation? Eg 2/3 of all eligible voters? Was it wrong for the referendum not to require a supermajority of those voting? I would think that such privileging (or, possibly, gerrymandering?) of the status quo is the sort of thing reasonable minds could disagree about. I don’t remember any major voices calling for such requirements ex ante. (Except the SNP: calling for a majority vote in Scotland and in each of the 4 “provinces” before the UK were to leave the EU as a whole. Yet, as I remember, when voting on Scottish independence: SNP wanted simple majority rule.) I don’t hear about such American-style supermajority requirements now from the voices in the UK calling for a second referendum. I don’t say the referendum process was perfect, but I don’t see it as unreasonable either. I see no reason for you to use hyperbolic language like “stupid” or “criminally stupid.”

Why would you call Cameron “inept”? The continued participation of the UK in the EEC/EU is a long standing divisive issue in the UK. It divides the People, and it divides Parliament. It has brought down several ministries—not just Cameron’s. (In the end, it was this issue which brought down Thatcher.) It divides the Tory Party, and it divides Labour. There is a long history of left-of-center and left-wing parliamentarians who opposed the UK entering and staying in the EEC/EU. Yesterday’s Michael Foot & Tony Benn, and today’s Kate Hoey & Frank Field come to mind. 

Why would you call this process “thoughtless”? There was endless debate in every type of media. Both sides had funding from the Exchequer to conduct campaigns.

Whether there should be a second referendum or not is an entirely different question from whether the process already engaged in so far was “stupid.” I am sure there are arguments for both sides. Why would you say: a “second referendum is almost self-evidently the best option save for idiots.” Moreover, why this strong language? How is it “self-evident”? The people who prevailed in the referendum want the referendum vote implemented—how is that “idiotic”—they want the UK to “Leave” the EU. That is in line with the vote which was already held. That does not mean that there can’t be a second vote—either before “Leave” goes into effect, or during a delay if a delay can be negotiated with the EU to extend the deadline, or after the UK leaves—which would, in effect, be a vote to apply for re-entry. Whether implementing “Leave” is a good thing or a bad one is exactly what the referendum was about—so it is not stupid that those who prevailed (i.e., those who believe that result a good thing for the UK) should want to see it implemented without delay. This is particularly true where (as here) none of the major parties prior to the referendum said: if my side loses, then we get another bite at the apple.

I think your first point was strongest. You asked: “Does Seth deny that the leading leavers simply fabricated arguments that have been shown to be demonstrably untrue?” The answer is that nothing was sprung on the voters last minute. The process played itself out in a normal way. If bad arguments were made by one side, the other side had a full, free, and fair opportunity to make frank and meaningful counterarguments. The Remain side did not lack time and resources to make those arguments. 

For example, HMG was for Remain. 
The leading opposition parties were for Remain. 
The regional parties in Scotland, Wales, and Northern Ireland were all for Remain. 
The bureaucracy and the Bank of England were for Remain. 
The labour unions were for Remain. 
Academia was for Remain. 
Industry (e.g., the CBI) was for Remain. 
The BBC and the largest part of the media was pro-Remain. 

Given all that, it seems to me that holding a referendum to a perfectionist standard seems misplaced. But if the standard is perfectionism, then no process will make the grade. 

Again, I don’t claim to know how the British people ought to have voted. I am not British, and the UK is not my country. I was not born there; I am not a citizen by naturalisation or otherwise; I was not educated there; I do not have any higher degrees specialising in British history, government, culture, etc; I do not live there; and, I do not pay taxes there. It is not my job to tell them how to vote. I see no reason to call their elected politicians and their public “inept” or “stupid” because the People voted in a way which was not expected by those who think or thought they know or knew better. So I am left wondering why you continue to use such strong language about a foreign country’s politics and politicians? Is it that you believe the result was obviously wrong?—How did you reach that conclusion? Or, is it that you believe the process was substantially defective (a process wholly free of gerrymanderinga subject which is a frequent source of complaint by academics here on Conlawprof)?—How did you reach that conclusion? And even if you think the result wrong or the process defective, why are you using such strong language? When you use such strong language about Brexit, and you do so for reasons that are (in my opinion) entirely opaque, it sort of undermines the force of the similar hyperbolic language you use in regard to Trump. You do see that, right? 


Seth Barrett Tillman, CONLAWPROF: Americans Arguing Over Brexit, New Reform Club (Jan. 16, 2019, 2:19 AM), <https://reformclub.blogspot.com/2019/01/conlawprof-americans-arguing-over-brexit.html>. 

Welcome Instapundit Readers.

I have a series of prior posts on Brexit. Have a look around New Reform Club to see them and other interesting posts -- by my co-bloggers and me.

See, e.g., Seth Barrett Tillman, A Letter to George F. WillNew Reform Club (Jan. 13, 2019, 10:27 AM); 

Seth Barrett Tillman, Brexit And The “Flailing” United KingdomNew Reform Club (Nov. 30, 2018, 4:05 AM), <https://reformclub.blogspot.com/2018/11/the-flailing-united-kingdom.html>; 

Seth Barrett Tillman, Trump, American Greatness, and BrexitNew Reform Club (Nov. 30, 2018, 12:01 AM) <https://reformclub.blogspot.com/2018/11/the-united-states-and-brexit.html>; 

Seth Barrett Tillman, A Response to Megan Nolans: I Didn’t Hate the English—Until Now, New Reform Club (Nov. 4, 2018, 10:58 AM), https://reformclub.blogspot.com/2018/11/a-response-to-megan-nolans-i-didnt-hate.html



Seth Barrett Tillman, Melodies for BrexitThe New Reform Club (June 24, 2016, 1:40 PM);

Tuesday, January 15, 2019

The New Property Qualifications and Your Right to Vote

In 1787, when the Constitution was drafted many states had property qualifications. There were property qualifications to vote (for state positions) and property qualifications to hold elected (state) positions. The 1787 Constitution departed from that model—qualifications for elected federal positions relied upon age, inhabitancy, and citizenship. Generally, the rest would be left up to the voters. By stripping property out of the system, government and people—both administration and elections—were freed to debate ideas and ideologies, rather than class loyalties (or mere personal loyalties to factional leaders). Ending property qualifications paved the way to egalitarian national citizenship and to rational Popperian democracy.

Of course, people in office still had property and property-like interests. A doctor-congressman could continue to practice medicine (and charge patients). A lawyer-vice president could continue to teach law (for pay) or author books on law and politics (for sale). If some goodwill attached to the doctor’s or the lawyer’s practice because he was a public celebrity—that was a matter for the voters. It does not stop there: we allow felons (even if in prison), the indigent (even while on welfare), and the bankrupt (contrary to British tradition!) to run for and hold public office. Who would say that a person on food stamps is legally or constitutionally prohibited from running for and being President? It is a matter for the voters—it is not a forbidden emolument. 

We used to think that a wide open competition for public positions was a public good and one of the great achievements of 1787. We used to trust voters. But now all is changed.” We have a newly invented set of norms—which came into existence to stop Trump. We have a new property qualification. It is not in the Constitution or in any statute. No onenot one voter and not one elected federal officialhas had a chance to vote on it. It was invented in 2016. Candidates and officeholders are now not allowed to own illiquid investments, e.g., land, buildings, and hotels—particularly in foreign countries. And if you do own them, you cannot deal in them just the same way you have always dealt in them—i.e., charging customers for services, and petitioning the government for regulatory and tax relief. This new norm is not grounded in any ideal that all property and contracts involving those who hold elected positions cause conflicts. We know that is not the new norm because presidents and other elected federal officials have, continue, and will continue to write and sell books to all comers—foreign government libraries included. In short, the sort of property (e.g., liquid stock and bond investment and retirement funds) held by our elites—in government, in academia, and in journalism—their property and their dealings in such property will remain constitutionally sanctified, and the people who own such property will continue to enjoy all the protections the law offers. It is just some property—the sort held by people not pleasing to the elites—is now seen as disabling in regard to holding elected federal positions. What kind of property?: Trump’s property. And if that takes away a meaningful right to vote from millions of Americans—that is A-OK with the inventors of the new norm. 

To put it another way, the creation of property qualifications, particularly ad hoc and post hoc property qualifications, is a means by which the powerful manipulate democratic results and nullify your vote and elections. Today, it might not be your candidate, but tomorrow . . . . 

One day—in the not too distant future—I expect people will look back calmly on all that has transpired. The inventors of the new norm—including many who know the sad, sorry history of property qualificationswill compare favourably to Bull Connor—but not by much.


Seth Barrett Tillman, The New Property Qualifications and Your Right to Vote, New Reform Club (Jan. 15, 2019, 2:53 AM), <https://reformclub.blogspot.com/2019/01/the-new-property-qualifications-and.html>.

FYI: I have participated as an amicus in the three Emoluments Clauses cases against the President. They are: CREW v. Trump; Blumenthal v. Trump; and, DC & MD v. Trump. See Seth Barrett Tillman, A Work in Progress: Select Bibliography of Court filings and Other Sources Regarding the Foreign and Domestic Emoluments Clauses Cases, New Reform Club (Feb. 28, 2018, 8:59 AM), <https://reformclub.blogspot.com/2018/02/a-work-in-progress-select-bibliography.html>. 

PSSeth Barrett Tillman, A Letter to Professor John McWhorterNew Reform Club (Jan. 13, 2019, 8:29 AM), <http://reformclub.blogspot.com/2019/01/a-letter-to-professor-john-mcwhorter.html>.

PSSeth Barrett Tillman, A Letter to George F. WillNew Reform Club (Jan. 13, 2019, 10:27 AM), <https://reformclub.blogspot.com/2019/01/a-letter-to-george-f-will.html>. 

Welcome Instapundit readers!

Sunday, January 13, 2019

A Letter to George F. Will

Responding to: George F. Will, Brexit Shows How Direct Democracy Can Be Dangerous, Investor’s Business Daily (Jan. 12, 2019)

@GeorgeWill asks: "But why, with its primacy at stake, did Parliament punt one of the most momentous decisions in British history to a referendum?"

Answer: Because continued membership in the EU means ceding further powers of Parliament to the EU. Those powers are entrusted to Parliament by the People. Parliament is not free to give them away to any other entity, including to EU institutions. Parliament is also conflicted in making such a choice. Recourse to the People is proper—particularly given that in 1975 that was the vehicle (i.e., a referendum) which was used to take the UK into the EEC (i.e., the predecessor of the EU). We (Americans) do much the same in the United States—when amending the U.S. Constitution we have methods to bypass both Congress and/or the state legislatures—because they might have an interest in the proposed reform.


Seth Barrett Tillman, A Letter to George F. WillNew Reform Club (Jan. 13, 2019, 10:27 AM)

PS: Welcome Instapundit readers! Feel free to look around New Reform Club--my co-bloggers do good work.

PPS: If you liked this letter, see also: Seth Barrett Tillman, A Letter to Professor John McWhorter, New Reform Club (Jan. 13, 2019, 8:29 AM), <http://reformclub.blogspot.com/2019/01/a-letter-to-professor-john-mcwhorter.html>.

A Letter to Professor John McWhorter

This letter responds to: John McWhorter, Trump’s Typos Reveal His Lack of Fitness for the Presidency, The Atlantic (Jan. 11, 2019), <https://tinyurl.com/y8nae79q>. 

Dear Professor: 

I have read your material on and off for many years. You say interesting, and sometimes courageous things. That said, I was disappointed by your recent article in The Atlantic

We (Americans) have had many talented wordsmiths in the White House. I see no connection between such talents, and adopting & putting into effect substantively sound policies. Woodrow Wilsona university academiccomes to mind. But very few can explain precisely why the U.S. entered WWI or offer any justification for Wilson's allowing the federal civil service to be (re)segregated by race. He was good with words. 

Your article amounts to a non-instrumental claim that elites who share your specific skill set should have power and those who do not share that skill set should not. Unless you can offer some substantial connection between those skills which you value and something akin to objective success in office, then your argument amounts to a shallow elitist claim, not an instrumental or pragmatic one. Eg: "He simply cannot accept—cannot grasp—that international diplomacy could possibly require more subtlety than a real-estate transaction.

Your repeated references to President Truman are illustrative. Truman took the U.S. into a major land war in Asia. It was an undeclared war. More than 50,000 American dead and wounded. The U.S. and its U.N. allies did not prevailat least, not in the traditional sense. That conflict—the Korean conflictstill festers to this day. Trump has not taken us into any such conflict; indeed, he is ramping down our participation in such conflicts. Maybe your focus on spelling and sound composition skills aremaybe just a tadmisplaced? 

It is certainly better for the President to spell "forest" with a single R rather than two Rs. But a lot of property was destroyed in California, and more importantly, many were injured or died from the conflagration. All told: it is probably more important that better policies be put in place to stop similar future disasters than we worry about spelling. I think those situated closer to the disaster might agree with me, even if you and others in New Yorkcomfortably distantsee it otherwise. 


Seth Barrett Tillman, A Letter to Professor John McWhorter, New Reform Club (Jan. 13, 2019, 8:29 AM), <https://reformclub.blogspot.com/2019/01/a-letter-to-professor-john-mcwhorter.html>, <https://tinyurl.com/yak58zs8>. 

PS: Welcome Instapundit readers! Feel free to look around New Reform Club--my co-bloggers do good work.

PPS: If you liked this letter, you might also want to see: Seth Barrett Tillman, A Letter to George F. WillNew Reform Club (Jan. 13, 2019, 10:27 AM). 

Charles Thomson (1730–1824)

I think your citing Charles Thomson [Secretary of the Articles Congress] is more trouble than you acknowledge. Thomson was the highest functionary of the outgoing Articles [of Confederation] government. He held official materials for George Washington and surrendered those materials personally to George Washington at the inauguration of the new government. Yet Thomson held no position in George Washington’s government, and as far as I know, George Washington offered Thomson no position. The same was true (as far as I know) for Washington’s successors and high ranking cabinet members in his and his successors administrations. 

The reason might have been that Thomson was just no good. The letters you cite [where Thomson offered Washington legal advice regarding the new constitution] might be seen as George Washington’s offering Thomson a try out for a position in the new government. [If that is true, then] Thomson [apparently] flubbed the audition. You cite him as good authority—but maybe he was seen as bad authority offering second rate advice—and that’s why he was offered nothing by George Washington, his successors, his cabinet, and the new Congress (e.g., posts such as Clerk of the House and Secretary of the Senate). It is difficult to be sure.


Seth Barrett Tillman, Charles Thomson (17301824), New Reform Club (Jan. 13, 2019, 2:56 AM), <https://reformclub.blogspot.com/2019/01/charles-thomson-1730-1824.html>

Friday, January 04, 2019

On "Jefferson's Qur'an"

The title page from Jefferson's copy of the Koran.
Cover page of "Jefferson's Qur'an"
Missing from the current "happy face" reporting on new congresspersons swearing in on "Jefferson's Qur'an" is that his 1734 translation by George Sale is accompanied by a preface that is highly critical of Islam as serious religion.

The Protestants alone are able to attack the Koran with success; and for them, I trust, Providence has reserved the glory of its overthrow.


...for how criminal soever Mohammed may have been in imposing a false religion on mankind...

The Qur'an of course, borrows liberally from the stories in the Bible and indeed contains many common sense truths of its own; thus the cover page itself carries an ominous caveat from St. Augustine, "Nulla falsa doctrina est quae non aliquid veri permisceat," that is, “There is no false doctrine that does not contain some truth.”

So the front page of the very "Jefferson Qur'an" these folks are swearing upon calls its contents "false doctrine" mixed with some truth. The irony is complete. And so it goes also in our current world of "news": We may get the truth, but seldom the whole truth.

Full text here, courtesy of gutenberg.org.

Tuesday, December 25, 2018

Merry Christmas from the Moon

Fifty years ago today, remembering the important things as these men did, seems longer ago and even farther away with each passing year, and to some, even more silly. But Merry Christmas to all those here gathered anyway, and may we smile today, give thanks, and be inspired in the coming year to perpetuate their silliness...

It was on Christmas Eve 1968 that the astronauts of Apollo 8, Frank Borman, Jim Lovell, and Bill Anders, became the first of mankind to see an earthrise from the orbit of the moon, and looking back on us, they spoke these words:

Anders: "We are now approaching lunar sunrise. And, for all the people back on earth, the crew of Apollo 8 have a message that we would like to send to you...

"In the beginning, God created the Heaven and the Earth. And the Earth was without form, and void; and darkness was upon the face of the deep. And the Spirit of God moved upon the face of the waters. And God said, Let there be light; and there was light. And God saw the light, that it was good; and God divided the light from the darkness."

Lovell: "And God called the light Day, and the darkness He called Night. And the evening and the morning were the first day. And God said, Let there be a firmament in the midst of the waters, and let it divide the waters from the waters. And God made the firmament, and divided the waters which were under the firmament from the waters which were above the firmament; and it was so. And God called the firmament Heaven. And the evening and the morning were the second day."

Borman: "And God said, Let the waters under the Heaven be gathered together unto one place, and let the dry land appear; and it was so. And God called the dry land Earth; and the gathering together of the waters He called Seas: and God saw that it was good."

And from the crew of Apollo 8, we close with good night, good luck, a Merry Christmas, and God bless all of you, all of you on the good earth."

Friday, December 21, 2018

What The Media Is Not Reporting (with Update)

This has not been reported much in the media. The Plaintiffs (i.e., the Attorneys General for DC and Maryland) have moved to voluntarily dismiss (without prejudice) their individual capacity claim against the President, and to move forward exclusively with their official capacity claim against the President (in reality a claim against the government, not Donald J. Trump). It is not yet clear if the President will consent to the dismissal! The President's private counsel might take the position that the matter has been fully briefed for nearly 7 months. No oral argument has been held—or, even scheduled. In other words, the President is entitled to have his day in court. Moreover, the President's counsel might take the view that it is better to litigate the matter now and on these facts in the expectation that the President might gain an outright victory and see the matter dismissed with prejudice, than to allow these Plaintiffs to dangle a sword of Damocles over the President's head forever and to bring the same suit forward again at a later date (possibly with new facts which are more helpful to the Plaintiffs).

The President's brief is due later today—then we will know the President's position. 
This is all a stunning turn of events. The media is not reporting it.

Update: The President's private counsel filed a reply brief on Friday, December 21, 2018. The President's counsel argued that the federal rules of civil procedure (and appellate procedure) prevent the Plaintiffs from dropping their claim against the President at this late juncture. Courageous! The President wants his day in courtwhich the Attorneys General for DC and MD are seeking to deny. 


Welcome Instapundit readers! Please look around New Reform Clubmy co-bloggers do good work.

Seth Barrett Tillman, What The Media Is Not Reporting (with Update), New Reform Club (Dec. 21, 2018, 7:20 AM) <https://reformclub.blogspot.com/2018/12/what-media-is-not-reporting.html>. 

For a list of all major filings, see: Seth Barrett Tillman, A Work in Progress: Select Bibliography of Court filings and Other Sources Regarding the Foreign and Domestic Emoluments Clauses Cases, New Reform Club (Feb. 28, 2018, 8:59 AM) <https://reformclub.blogspot.com/2018/02/a-work-in-progress-select-bibliography.html>.

Greenbelt Division
Civil Action No. 8:17-cv-01596-PJM

Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, Plaintiffs the District of Columbia and the State of Maryland voluntarily dismiss without prejudice the above-captioned action against Donald J. Trump in his individual capacity to allow the claims against President Trump in his official capacity to move forward expeditiously. This notice of dismissal is being filed with the Court before service of either an answer or a motion for summary judgment by Defendant Donald J. Trump in his individual capacity. This notice shall not pertain to the claims brought against Defendant Donald J. Trump in his official capacity.

Wednesday, December 12, 2018

What's the Matter with Orange County?

This Christmas season we are saying goodbye to dear friends. They are leaving Orange County, California, for Boise, Idaho. We have said goodbye to many other friends this year who have left California, and we will soon say goodbye to still others who are now planning to leave. They are leaving because California has become increasingly challenging for working families with young children. The voters of California elected lawmakers, and continue to elect still more lawmakers, who have passed and defended laws that make family housing among the least affordable in the world. Voters of California elected and continue to elect lawmakers who keep raising taxes, higher than anywhere else in the country. Voters of California elect lawmakers who adopt and maintain policies making the cost of living in this state among the highest in the nation. Voters of California elect lawmakers who have presided over a crisis of homelessness.  

Californians are leaving because of how Californians vote. 
Image result for orange county affluence

Why do Californians vote for higher housing prices, higher taxes, and lower quality of life? Californians vote this way because Californians are bourgeois. What else can one call voters who live where the median home price is over $600,000 and are still insulated from the effects of their votes? The bourgeoisie are voters affluent enough that they do not depend on the state or their communities in any meaningful way. The bourgeoisie are liberated. Freed from the need to vote their interests, which are already comfortably provided for, the bourgeoisie can vote purely to advance their ideals. Only voters who are truly free are empowered to vote their ideals

"Middle-class" voters, by contrast, are not free. Middle-class voters have needs. Middle-class voters need a paycheck to pay this month's food and housing, and they'll need a raise if they are going to pay for their daughter's dance class or their son's baseball gear. They need the state to provide their kids a good education. They need the state to keep their neighborhoods safe. They need the state to guarantee their religious rights and medical rights. Middle-class voters need a relatively stable social order for all of this. 

All these needs make middle-class voters imperfect voters. It even tends to make middle-class voters conservative. These kinds of voters are not going to be interested in global climate policy. These voters cannot be counted on to support intersectionality. Middle-class voters are going to vote their own interests. These working middle-class people -- the petit bourgeoisie -- are not free to conceptualize the world as it could be.

How confining. How very nonidealistic

The affluent, by contrast, the bourgeoisie, are not bound by such needs. By loving no one in particular they are free to love humanity all the more. Only through detachment from the world is the idealist free to love it with a more perfect love. As Sophia Tolstoy said of her idealist husband:  "You ... may not especially love your own children, [but] we simple mortals are neither able nor wish to distort our feelings or to justify our lack of love for a person by professing some love or other for the whole world." 

Leo! -- huzzah! 

Sophia! -- boo, hiss!

It is bourgeois affluence that frees brilliant minds from the fear of getting all the important things wrong. Only the idealists can steal the celestial fire and bring it to earth. Whether these savant-idiots burn the whole world down is a small price to pay for godhood. "I do not know what the heart of a rascal may be," said Joseph de Maistre, "I know what is in the heart of an honest man; it is horrible."

The California bourgeoisie, likewise, feel their ideals so very deeply precisely because they are free, liberated, from their effects

People are leaving California because, in short, its voters are maniacs. 

What Was the Matter with Kansas? They Were Duped, That's What

Thomas Frank once wrote a book about his home state, asking What's the Matter with Kansas? Frank is a journalist who trends left. His state once trended left, and he wanted to know why it stopped trending left and went hard in the other direction. Before the 1990s, Kansans supported moderate Republicans. They supported moderate Republicans because they sent subsidies and economic benefits back home -- and middle-class people like money and they like jobs. These moderate Republicans also supported women's rights -- and idealists like abortion. Quite a suitable political economy for the idealists. Eventually Kansans were voting Republican so moderately that they started voting Democrat. By 1990, Democrats controlled the state legislature. 

The Kansas idealists' salad days ended in 1991. That year, Operation Rescue held a major anti-abortion demonstration. This set in motion a culture war that serves as the microcosm of nationwide politics ever since. Activists demanded purity of their leaders on moral issues; leaders provided that purity in their messaging, though they provided substantially less in their results. This gave leaders more freedom (from accountability) to pursue economic benefits for their wealthy corporate donors, cutting the working middle-class out of the mix. This enriched (and continues to enrich) politicians of both parties, Frank argued, and its effects harmed the interests of both parties. Frank, however, argues Republican politicians enjoyed a better strategic position because their cultural issues had more populist appeal, while Democrats, whose issues appealed disproportionately to wealthier constituencies, became the party of "limousine liberals" with "Hollywood values." But despite their packaging, both parties served moneyed interests more than in the past, and returned fewer tangible benefits to their voters. And yet their voters rewarded them so long as the messaging was pure. There was something "the matter" with this, Frank argued (from the left). And in fact there is, as Tucker Carlson now similarly argues (but from the right). 

I should not like to admit that Frank was right, because I have long derided the perspective that suggests there is something "the matter" with people who vote their values. In Frank's view -- and presumably in Carlson's -- rational voters, voters who are worthy of democracy -- or at least, voters who are worthy of their leaders -- would vote their interests. This way, at least, leaders could decide how much it was going to cost them to pay for their ideals. But what, one might ask, is so self-evidently laudable about voting one's interests -- crude, material, measurable interests? Frank apparently does not doubt the strong moral character of Kansans, or that they should like their values to be reflected in their political leadership. Why, then, should Frank be so derisive of people who vote their sincere and deeply-felt values? 

The problem underlying Frank's question -- and one that Frank himself did not really address -- is the problem of bourgeois voting: voters who are completely insulated from the effects of their voting. This is different from the problem Frank diagnosed, which is the problem of voters who merely stand no actual chance of achieving their desired results -- dupes, we might call them. When votes become merely symbolic, expressions of virtue and value but lacking any agency to actually carry it into effect, voters are acting irrationally. They are not bargaining over interests that can be measured, balanced, compromised. They are trading now only in indivisibles, in principles. This makes politics more volatile, at a minimum. (It is why wars are fought.) 

So when Kansans stopped voting their pocketbooks, they took themselves out of the game. Business interests certainly did not stop voting their pocketbooks, and without any opposition from labor or consumers, the game became a rout. What Frank found so puzzling about Kansas is that many Kansas families were genuinely struggling. Kansas is not exactly the first place one looks for symptoms of affluence and hyper-abundance. Yet Kansas set side their pocketbooks in favor of their principles. 

Again, I have never found this to be crazy as Frank seems to find it. Values are important, and some values, to some people, are more important than getting a little pork from Washington. But despite the catchy title of his book, Frank's main point is not that there is something psychologically wrong with voters voting their values, but that it is strategically unwise for the voters (and politically volatile for the rest of us). Voting your values might make you the horse chasing the carrot tied to his own head: it likely winds up serving someone else's interests, and never actually promoting your values. (On the other hand, corporate interests are now also in the culture business, so now it is not clear whether Kansas was stupid or ahead of its time.)

What was "the matter" with Kansas is that Kansans made a tactical error and allowed themselves to be duped. 

What's the Matter with Orange County? They Are Maniacs

Now comes Orange County, the new Kansas. Orange County was, like Kansas, moderately Republican. Orange County has become, as did Kansas, so moderately Republican that it now votes Democrat. So it goes. 

Remember that what puzzled Frank about Kansas was that Kansans should vote as if they were bourgeois before they achieved the requisite affluence: here are people who need handouts; moderate Republicans/Democrats (whatever) delivered handouts. The people delivered votes in return. This is simple, reliable political economics. But it all goes awry when voters become affluent, like they are in Orange County -- and even just when voters act like they're affluent, like in Kansas.

That is what happened when Kansans, against all odds, started voting their values. Why, this was a privilege reserved for the bourgeois! (Why didn't we listen to Marx?!) The jig was up: if the game was "traditional American values versus Hollywood values," Democrats were going to lose every time. Epater les bourgeoisie was a luxury the idealist could no longer afford. It is no fun to shock a bourgeoisie that can shock us back! We cannot afford any longer to shock the bourgeoisie. Instead, we must make the shocking seem bourgeois, in order to increase the number of culture issues, in order to remain competitive. The right is populist. Well, we will be populist too, when we are finished creating a separate population with its own values! Set bourgeoisie against bourgeoisie! 

The result is that we are no longer asking What's the Matter with Kansas? The entire nation is Kansas. The entire nation is affluent enough -- petit bourgeois is bourgeois enough -- to be insulated from the economic effects of their voting. So no one votes like Kansans used to. We don't for for survival, like tribes, like savages. We vote for ideals, like ideologues, like maniacs. 

"Democracy needs a vibrant middle class." This political apothegm has passed its sell-by date. Today there are effectively only two classes in America: people who depend on the government for their livelihoods, and people who depend on the government for their ideals. A democracy doesn't need a middle class per se. What it needs is people who have a concrete interest in democracy. That is what makes democracy scientific, in the sense it is measured against the results it delivers (or fails to deliver). Democracy that is measured merely by our own ideals is not a branch of political science or statecraft at all. It is a branch of metaphysics, or of theology.

That was what was "the matter" with Kansas: people who had real concrete interests were nonetheless voting like idealists. They were voting like maniacs before they had the means to vote like maniacs. This surprised people like Frank who thought people needed much more comfort, much more affluence, before they would start voting their ideals. Democracy's demise arrived sooner than planned: a little affluence, it turned out, went a long way. 

Well, says Orange County, if Kansas is affluent enough to vote bourgeois, then hold my beer. I'll show you voting without a single concrete interest in sight. 

What the left have learned since Frank is that, once voters start voting like bourgeois, give them plenty of culture-war issues to choose from and your disparate bourgeoisies will fight with each other while the corporate interests and governing elites help themselves to the levers of power. 

The left does not ask "what's the matter with Orange County?" Orange County, just like Kansans, are voting their values. Orange County went from economic conservatives to moderate conservatives to so moderately conservative they might as well be liberal. Plus ça change.

I was right about Frank after all: there's nothing the matter with Kansas. Kansans weren't tricked, they were betrayed. They didn't vote for their values because they had no other reason to vote. Affluent Orange County voters, however, liberated from the effects of their votes, bring nothing to the ballot but their ideals. They are maniacs.