This Is What The Great And The Good Were Saying in 2016

 

This is what the great and the good were saying in 2016 about President Obama’s nominating a successor to the seat held by the late Justice Scalia and about the Senate’s duty to consider the President’s nominee: 

Chief Judge Peter J. Eckerstrom, The Garland Nomination, the Senate’s Duty, and the Surprising Lessons of Constitutional Text, 21 U. Pa. J. Const. L. 33 (2018); and, Chief Judge Peter J Eckerstrom, Yes, the Senate Elevated Partisan Political Goals Over Constitutional Text When It Refused to Consider President Obama’s Nominee to Replace Justice Scalia, 21(4) U. Pa. J. Const. L. Online 1 (Feb. 2019). 

Eckerstrom asserted that the Senate has an “affirmative constitutional duty” to consider President Obama’s nominee. Elsewhere Eckerstrom used “obligatory” and “mandatory” language in regard to the Senate’s duty to act on a presidential nominee. 

Dean Tacha (Pepperdine) & Dean Minow (Harvard) in The Boston Globe in 2016: affirming that President Obama has a “clear constitutional duty to nominate a successor” to Justice Scalia. See  Martha Minow & Deanell Tacha, Opinion, US Needs a Government of Laws, Not People, Boston Globe (Mar. 22, 2016), <https://tinyurl.com/y4962bau>. 

David F. Tavella & Anne Marie Tavella, Advice and Consent for Federal Judges: A New Alternative Based on Contract Law, 3 Drexel L. Rev. 521, 531 (2011) (“[T]he [Appointments] [C]lause places an affirmative obligation on the President and the Senate to fill the described appointments ….”). 

Steven J. Harper, “Let the People Speak”?, Lawyer Bubble (Mar. 9, 2016) (“The President has a duty to nominate and the Senate has a responsibility to act on that nomination.”). 

Some even said if the Senate refuses to act on a presidential nominee, then President can appoint the person absent Senate advice and consent! Gregory L. Diskant, Obama Can Appoint Merrick Garland to the Supreme Court if the Senate Does Nothing, Wash. Post (Apr. 8, 2016).

What are they saying now? 

Seth

Seth Barrett Tillman, This Is What The Great And The Good Were Saying in 2016, New Reform Club (Sept. 21, 2020, 3:01 AM), <https://reformclub.blogspot.com/2020/09/this-is-what-great-and-good-were-saying.html>; 

 

Extracts from Bauer & Goldsmith’s “After Trump”

 

Bob Bauer & Jack Goldsmith, After Trump: Reconstructing the Presidency (Lawfare Press 2020).

The Foreign Emoluments Clause, found in Article I, Section 9, is written in the passive voice and does not specifically reference the president. Instead, it provides that “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” There is disagreement, as yet unresolved by the Supreme Court, whether this provision applies to elected federal officials, including the president. However, Congress assumed that the Foreign Emoluments Clause applies to the president when it exercised its power to “consent” to foreign “emoluments” in the Foreign Gifts and Decorations Act of 1966. That statute specifically applies to the president and supplies congressional consent for gifts of “minimal value” that might be received in the course of hospitality provided by a foreign government or official. 

Id. at 51 (footnotes omitted).

We acknowledge that it is an open question whether the Foreign Emoluments Clause applies to the president and thus whether Congress can regulate the president pursuant to its consent power in that clause. We agree with the weight of lower court and scholarly analysis that concludes that the Foreign Emoluments Clause applies to the president, but the matter is not open and shut. Only the Supreme Court can definitively resolve this issue. But we expect that most if not all future presidents would not challenge the constitutionality of our reform proposal. And the statute could in the interim go a long way in establishing the right norms even if there were eventually litigation over the matter. And in any event, the Supreme Court cannot resolve the issue unless it is presented to it in a challenge to the statute, assuming that one can be crafted. 

Id. at 66.

That said, the application of the anti-bribery statute to the president is not certain, especially since it defines a covered “public official” as a “Member of Congress, Delegate, or Resident Commissioner, … or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof.” In the absence of a plain statement, it is possible that a court might would rule that the president is not an “officer or employee” of the United States. There should be no doubt on this matter. We thus propose that Congress make clear that the president is a “public official” within the meaning of the bribery statute. Congress should also amend the statute’s prohibition on a public official seeking or accepting a bribe “in return for being influenced in the performance of an official act” to make clear that “official act” includes a pardon. These changes are entirely consistent with the Justice Department’s view of presidential prerogative and would clearly criminalize pardons as part of a bribery scheme. The amended bribery statute would not prohibit a president from pardoning a campaign supporter to reward his or her loyalty, without regard to the merits. Such a pardon may well be unworthy or controversial, but it would not be a crime for the president to use the pardon power in this fashion. Under the amended statute (and quite possibly under the current statute), the same pardon of a supporter would give rise to legal jeopardy if evidence surfaced that the president had entered into a corrupt agreement to grant the pardon in return for political contributions.

Id. at 113 (footnotes omitted) (emphasis added). 

Query: What does the word “corrupt” add? What did the authors think it added? If the word “corrupt” had been dropped, how would the effect of their proposed statute change? Would it be possible for the President to agree to exchange a pardon for campaign contributions and the transaction not be corrupt and, therefore, lawful? 

It is a puzzle.

Seth

Seth Barrett Tillman, Extracts from Bauer & Goldsmith’s “After Trump,” New Reform Club (Sept. 15, 2020, 5:30 AM), <https://reformclub.blogspot.com/2020/09/extracts-from-bauer-goldsmiths-after.html>;

Is America's "soul" up for election? What if it loses?

Politics used to be about things like tax cuts. When politics was about tax cuts and subsidies and spending on projects and putting a stop sign at the end of the street, Americans could bear to get a little more or a little less from election to election. An election result could be disappointing. But it was not catastrophic. Quality of life is very important to Americans. But quality of life is not all-important. Americans will argue with each other over quality-of-life issues. But they will not kill each other over them. Settling things like tax cuts through elections worked out just fine.

But politics is not about things like tax cuts anymore. Now politics is all about causes. Causes like Black Lives Matter. Causes like LGBTQ+. Causes like Climate Change. Causes like Defunding the Police. Causes like Systemic Racism, and Open Borders, and Reproductive Rights, and Trans Rights, and Dismantling the Cis-Normative Patriarchy. And on. And on.

You cannot settle causes like these by vote. For one thing, they are indivisibles. They will not bear compromise. To suggest compromise may be considered a form of "violence." Nor may you watch, in silence, as the issues unfold -- for silence, too, may be considered a form of "violence." Besides, many of the issues are simply unsolvable. Politics has no answer to them. 

Which leads to the larger reason causes like these cannot be settled by vote: Causes like these bear too great a resemblance to religion -- the nature of man, his original sin, his fallenness, and his salvation from it. Politics cannot settle disputes over dogma. They are neither soluble nor dissoluble.

Elections cannot decide causes like these. Yet these causes dominate 2020 election journalism. The 2020 election is not about quality of life. In fact, it is not about life at all. In 2020, the election is about our "soul." Democratic presidential nominee Joe Biden says this election is a "battle for the soul of the nation." He has said it repeatedly and prominently. Senator Kamala Harris independently has said the same thing, even before receiving the nod for vice-presidential nominee: "The task is to fight for the soul of our country." 

Supposing Joe's instincts are slipping? Supposing Kamala is making up for her lack of substance? Think again. Spencer Critchley, a consultant on the successful 2008 and 2012 Obama campaigns agrees that treating politics in the traditional way, as a way to solve problems, is for suckers. "There is more to life than reason, and people are not motivated by data," says Critchley. "They are motivated by matters of the heart and the soul." 

So do not bother asking a Biden/Harris supporter what policies they support. Do not bother asking what solutions they offer. They will answer only with causes. Because in 2020 America, the Biden/Harris team is betting that voters are driven in elections by nothing less than the salvation of their souls.

But supposing the Biden/Harris team is right: If America's very soul is indeed up for election, what if it loses? 

Contests over souls, history tells us, are not very nice. The Romans' persecution of the early Christians "was a natural response," wrote Rowan A. Greer, because "[t]he Roman world rightly saw that one possible implication of Christianity was a rejection of the social order." And centuries later, after the Roman world gave way to the Christian world, many Christians, such as King St. Louis IX, still saw the matter much the way their former persecutors had:

St. Louis advised his people not to discuss religion with Jews; “the layman,” he told Joinville, “when he hears any speak ill of the Christian faith, should defend it not with words but with the sword, which he should thrust into the other’s belly as far as it will go.”

(To those with the spittle for it, Chesterton had it that the pious king's counsel was to argue with infidels "on the reasons of the philosophers themselves," as a real philosopher can argue. But failing that, Louis concluded, all that remained was to "thrust a sword through his body as far as it will go.")

Even by the 18th century, the great English man of letters Samuel Johnson thought matters of the soul were worth dying for. "In short, Sir, I have got no further than this: Every man has a right to utter what he thinks truth, and every other man has a right to knock him down for it. Martyrdom is the test." Johnson believed the state had a right to regulate the religion of the people, for the upbringing of children. Johnson was reminding a clergyman supportive of this right that he may not so readily agree with it should he travel in a state committed to exercising the same right, but on behalf of a different religion.

Which we may take to mean: all causes are not equal. Some causes are sensible. Some causes are bosh. Some are merely useful. Some are profound. And some hold the key to everlasting life. Johnson thought the state had a role to play in ordering ideas and causes, prioritizing them, and as to those responsible for holding the social order intact, ensuring their survival. But: so does the individual have a role. Some ideas are worth dying for. But how would we ever know which ones, if no one volunteers for the demonstration?  Anyone may be willing to kill for their ideas. But how many are willing to die for them? 

Awaiting us at the end of argument is sometimes agreement, though rarely. More commonly we may try to reach compromise; or failing that, tolerance. But lest we forget: also awaiting us may be intolerance: our fellow may choose to knock us down for our beliefs. We might well give a thought to what we are prepared to do then.

Margaret Thatcher and Enoch Powell debated this on the eve of Argentina's invasion of the Falklands. The Prime Minister is reported to have spoken about the Christian concept of the just war and Western values. To which Powell responded, "We do not fight for values," and "I would fight for this country even if it had a Communist government." Thatcher disagreed: "If I send British troops abroad, it will be to defend our values." The last word recorded of this exchange is Powell's: "No, Prime Minister, values exist in a transcendental realm, beyond space and time. They can neither be fought for, nor destroyed." 

Now, to fight for something requires a loyalty to it. I do not know on what loyalty depends. But it is not dependent upon something so abstract as values, is what Powell was telling Thatcher. Powell was saying that, when a man is called to fight for his country, he does not ask for a moment to consider what values are espoused in the nation's party platforms of the most recent election, or in the nation's high court decisions of the most recent term, or in the newspapers of that very morning. He does not consider who won the last election. He fights for his country for the same reason he fights for his family. 

There are some things -- religion, perhaps little else -- that are so wrapped up in a man's being that he cannot be expected to suffer undue challenge to his practice and belief. As St. Louis suggested, if religion is to be put to the test, parley is reserved for the philosopher and the saint; for the rest, however, for those who grasp the eternal weight of the stakes, he must evade, seek refuge, and, if pursued and cornered into the last redoubt, then, at the last, to turn, and to fight, to the mortal death. The words Robert Bolt placed in the mouth of Sir Thomas More on this subject, in his 1960 play A Man for All Seasons, were these:

MORE Now listen, Will. And, Meg, you listen, too, you know I know you well. God made the angels to show him splendor -- as he made animals for innocence and plants for their simplicity. But Man he made to serve him wittily, in the tangle of his mind! If he suffers us to fall to such a case that there is no escaping, then we may stand to our tackle as best we can, and yes, Will, then we may clamor like champions . . . if we have the spittle for it. And no doubt it delights God to see splendor where He only looked for complexity. But it's God's part, not our own, to bring ourselves to that extremity! Our natural business lies in escaping, so let's get home and study this Bill.

Thomas More was expected to swear an oath to support the marriage of King Henry to Anne Boleyn. This, More knew, he could not do without violence to his allegiance to his faith, which he held higher than his allegiance to earthly authority. In the end, More was willing to suffer death for his loyalty. Yet, he did not relish it, and sought to avoid the ultimate decision, if he could. 

Joe Biden and Kamala Harris sound as though they are ready to put Americans to a similar decision. Perhaps, in some ways, even a more terrible decision. For St. Louis, and Dr. Johnson, and King Henry all presumed that a man who withheld his loyalty from the state for the sake of his soul, though his life be lost, may still keep his soul for God. That, at least, was beyond the reach of any earthly sovereign. 

But for a godless state, no such respite exists. Since Nietzche, the state is not limited to having men's lives only. The consummate statesman may now command his very soul. His ultimate arbiter is History, whose judgment rolls, inscribed by newsroom priests and university monks, record severe judgments and odium theologicum against apostates and infidels. History, the Biden/Harris ticket will have you know, shall condemn the souls of those who do not vote Democrat. 

Their eyes have seen the coming of electoral reward;
They will trample out the vintage where the grapes of wrath are stored;
They will loose the fateful lightnings of their terrible swift sword;
Their truth is marching on.

Glory, glory, hallelujah?

We have no Colosseum, so we must make do...

"Intellectuals perennially grumbled about the amount of time the Roman people wasted watching sports, but the stadium offered the only place a citizen regularly saw their ruler."  

Douglas Boin, Alaric the Goth: An Outsider's History of the Fall of Rome (W.W. Norton & Co. June 2020).

If you cannot afford a $10,000 a plate dinner at your local elite campaign fundraiser, you can still order a pizza and peruse "Donald Trump's Best Tweets of the Decade, Ranked." Number 18:

Crazy Joe Biden is trying to act like a tough guy. Actually, he is weak, both mentally and physically, and yet he threatens me, for the second time, with physical assault. He doesn’t know me, but he would go down fast and hard, crying all the way. Don’t threaten people Joe!

— Donald J. Trump (@realDonaldTrump) March 22, 2018

The food is better, too.

Speak your mind, as though ready to be exiled for it

Lord, give us the courage to stand openly against a rebellious world: 

during the day while they are looking on,

prepare your baggage as though for exile, 

migrate from where you live to another place;

perhaps they will see that they are a rebellious house.

Ezekiel 12:3.

But, Lord, also give us the wisdom to know when we should evade detection: 

In the town of Elvira, Spain, in the year 309 AD, a council of early Christians convened to discuss their brothers and sisters who had been killed for openly defying Roman gods. The council decided they were not martyrs: 

"If someone smashes an idol and is then punished by death, he or she may not be placed in the list of martyrs, since such action is not sanctioned by the Scriptures or by the apostles." 

The courage of God compels us to witness to the truth, even unto exile. 

Yet the wisdom of God instructs we make an effort to avoid detection, when circumstances require. 

 

When living in the land of bloody pagans, spitting on their idols isn't martyrdom -- it's stupidity.

Speak your mind, as though ready to be exiled for it. 

‘Lawfare’ does not post corrections: A Response to McKinney, Sagan, and Weiner

 

Seth Barrett Tillman, A Response to McKinney, Sagan, and Weiner’s ‘Hiroshima and the Myths of Military Targets and Unconditional Surrender’ (submitted to Lawfare on Aug. 24, 2020).

 

In their August 21, 2020 article on Lawfare, Hiroshima and the Myths of Military Targets and Unconditional Surrender, Katie McKinney, Scott D. Sagan, and Allen S. Weiner wrote:

Evaluating the military advantage of an attack under jus in bello [rules for conduct during war] principles must be assessed in light of a state’s overall war aims, which are themselves subject to legal and moral constraints. Admittedly, the principles governing the terms that states may impose as conditions for ending war—whether under the framework of jus ad bellum [rules regarding the resort to force] proportionality or jus post bellum [rules regarding justice after war]—make up one of the least well-developed areas of the law of armed conflict. But there are limits on the ends states may seek in terminating wars. As the Defense Department Law of War Manual notes, “the overall goal of the State in resorting to war should not be outweighed by the harm that the war is expected to produce.” This principle applies at the end of a war as well. Because it would have entailed the awful human costs of an invasion, Truman’s demand for Japan’s unconditional surrender to end the war was indefensible. Seeking to avoid the larger losses that would flow from an unjust demand for unconditional surrender cannot justify the Hiroshima attack. (bold and underscore added.)

The passage marked in bold is used to support the prior proposition, which was “that there are limits on the ends states may seek in terminating wars.” But the specific quote extracted from the Law of War Manual, I suggest, means exactly the opposite of what the authors think it supports. As such, perhaps, some reconsideration may be in order?

For a view of the wider subject-matter different from the three authors, the careful reader might consider my 1-page 2015 article which appeared in the Claremont Review of Books.

Seth

Seth Barrett Tillman, ‘Lawfare’ does not post corrections: A Response to McKinney, Sagan, and Weiner, New Reform Club (Aug. 24, 2020, 8:53 PM), <https://reformclub.blogspot.com/2020/08/lawfare-does-not-post-corrections.html>; 

Seth Barrett Tillman, Advice to the Allies—1945, 15(2) Claremont Review of Books 13, Spring 2015, <http://ssrn.com/abstract=2478600>, <http://tinyurl.com/pbhmrox/>;

The Doctor-Policeman Will See You Now

"Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience." C.S. Lewis 

Sure enough, recent news on the health-guidelines enforcement front should see the robber barons' reputations improving by comparison:

• "Police have been forced into the extraordinary measure of smashing car windows to get Victorians to comply with second wave COVID-19 restrictions in Victoria. “On at least three or four occasions in the past week we’ve had to smash the windows of people in cars and pull them out of there so they could provide us their details because they weren’t telling us where they were going, they weren’t adhering to the chief health officer guidelines, they weren’t providing their name and their address,” Victoria Police Chief Commissioner Shane Patton said." 
• "Police have been forced to shoot through a 64YO driver's window after he drove at them at an Altona Meadows servo. It was 1.20am & officers asked him to stop so they could question why he was out after curfew. He's now in hospital (medical cond) under guard."
• Completing a trifecta out of Victoria: Police officer chokes a 21-year-old woman and wrestles her to the ground for not wearing a face covering out of doors.
  
• Two women in Orange County reportedly were locked in a Mother's Market by the manager until police could arrive to arrest them. Mother's Market is a grocery chain offering vegan, organic, and fair-trade options. The women's crime: not wearing a face covering.
  
• Los Angeles Mayor Eric Garcetti “deputized” thousands of “Karens” with his “snitches get rewards” program to encourage people to inform on companies not practicing social distancing or opening against local strictures.

• A woman with a medical condition preventing her from wearing a mask recently entered a Walmart in Summit County, Utah, where masks are mandatory. In that Utah county, residents are required to report on anyone seen without a mask so that the police can report to the scene.
  
• The French government is sending riot police to the Marseille region to help enforce mask requirements. 
  

If you don't like a doctor's advice, there are other doctors. If you don't like the laws, you may, at least, vote for new ones. But what relief is there from Doctor-Policeman? Doctor-Policeman brooks no exemptions. Accepts no substitutes. Suffers no dissent. And having deputized your neighbors, Doctor-Policeman has eyes everywhere.

 

A year ago, I shared this quote from Alan Bloom's The Closing of the American Mind, anticipating such a figure as Doctor Fauci and all his public health official colleagues who would impose their will upon us -- though we did not elect them -- on authority of their medical judgment -- though we are not their patients:

"Doctor and policeman, enhanced by the application of science to their endeavors, were to be the foundations of a wholly new political undertaking. If the pursuit of health and safety were to absorb men and they were led to recognize the connection between their preservation and science, the harmony between theory and practice would be established. The actual rulers, after a couple of centuries of astute propaganda directing popular passions against throne and altar, would in the long run be constrained by their subjects and would have to enact the scientists’ project. The scientists would, to use Harvey Mansfield’s formula, be the hidden rulers. The ends pursued by politicians and the means they use would be determined by philosophers. Scientists would be free and get support, and scientific progress would be identical to political progress so conceived."

In other words, the people cannot possibly understand the policies needed to enact utopianism, thus the people should be conditioned to just trust scientists, as they once trusted their priests and ministers, whose conclusions could then be enacted without fuss.

 

I commented that, while one may object that the interests of a recalcitrant people -- of Populists -- may not be very nice, and have led to endless wars throughout human history, the Populist at least may answer: we have survived. What we more nearly did not survive, and still might not survive, is the rule of the Philosopher, the hidden ruler...the Doctor-Policeman. "I doubt," said Tom Wolfe, "that any Calvinist of the sixteenth century ever believed so completely in predestination as these, the hottest and most intensely rational young scientists in the United States at the end of the twentieth."

 

Or as Andy Rooney said: "When I talk politics with a doctor, I wonder how they haven't killed all their patients."

Communism Kills.

One cannot expect total compliance from a free people. Particularly compliance to orders issued by persons that never appeared on a ballot. About 80 to 90% compliance is about the best one can ever hope to achieve. Oh, you will get close to 100% of pretended compliance, of gestures toward compliance: the shopkeeps will display the appropriate signs in the window to draw away suspicion, as the Jews of Europe, and the Armenians of Turkey, and the Czechs under communism, had learned to do. But all around there are glitches in the matrix: the man wearing his mask around his chin, or under his nose; the woman who, upon being asked by a clerk to wear a mask, feigns forgetfulness as she reaches, resignedly, into her purse; the mother who pretends not to see the "park closed" signs, and lets her children play in the sunshine anyway. 

At any rate, we have achieved sufficient compliance on the mask-wearing front. To insist on 100% compliance is to lead where people will not follow.

Nor should we wish to achieve better than that. You will not find agreement above 80 to 90% across all Americans on nearly any issue of significance. That is to the good. The absence of dissent should be more horrifying than the absence of a mask here or there. The absence of dissent implies the existence of speakeasies, of an underground. The absence of dissent implies the brewing of violence. A man will argue for his beliefs. But if a man may not argue for his beliefs, well... then he can only fight for them.

The zero-tolerance policy against breaking the advice of Dr. Fauci and all his regional mini-me health officials is not sound leadership. But then again, it is not intended as leadership. It is intended as power -- the final, perfected form of power: Power without review, without rival -- power without dissent. 

 

Ok now, you may feel a slight pinch....

DOJ Letter to Yale: Stop Racially Discriminating Against Asians

I mean, what would you expect from a school named after a slave trader? 

Re: Notice of Violation of Title VI of the Civil Rights Act of 1964 

Dear Mr. Spivack: I write to notify you that the United States Department of Justice has determined that Yale University violated, and is continuing to violate, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., by discriminating on the basis of race and national origin (hereinafter “race”) in its undergraduate admissions with respect to domestic non-transfer applicants to Yale College. Yale’s discrimination is long-standing and ongoing. 

.... 

For example, the likelihood of admission for Asian American and White applicants who have similar academic credentials is significantly lower than for African American and Hispanic applicants to Yale College. For the great majority of applicants, Asian American and White applicants have only one-tenth to one-fourth of the likelihood of admission as African American applicants with comparable academic credentials. 

.... 

For example, data produced by Yale show that Asian American applicants have a much lower chance of admission than do members of Yale’s preferred racial groups, even when those Asian Americans have much higher academic qualifications and comparable ratings by Yale’s admissions officers. Every year from 2000 to 2017, Yale offered admission to Asian American applicants to Yale College at rates below their proportion of the applicant pool. [Emphasis mine. -tk]

.... 

We would like to secure Yale’s compliance with Title VI by voluntary means. 28 C.F.R. §§ 42.107 & 42.108; see also 42 U.S.C. § 2000d-1. To that end, Yale must agree not to use race or national origin in its upcoming 2020-2021 undergraduate admissions cycle, and, if Yale proposes to consider race or national origin in future admissions cycles, it must first submit to the Department of Justice a plan demonstrating that its proposal is narrowly tailored as required by law. Any such proposal should include an end date to Yale’s use of race. 

PDF: https://www.justice.gov/opa/press-release/file/1304591/download?utm_medium=email&utm_source=govdelivery

According to the “disparate impact” theory, Yale is prima facie guilty of racism because the rate of Asian admissions is much lower than the proportion of Asian applicants.

Are all arguments based on the Natural Born Citizen Clause racist?

The knives have come out (again) for my old law professor John Eastman for his piece setting up the legal analysis concerning the Natural Born Citizen Clause and Democratic vice-presidential candidate Kamala Harris. There was much heavy breathing about it on my Facebook feed; I hope they were wearing masks.

The overwhelming response to the constitutional argument? Racist. Obviously. It has never been considered a valid argument. So what else could it be? When has the Natural Born Citizen Clause ever been used against a white candidate? 

Let's ask Wikipedia: 

"The family's frequent moves later spawned accusations that Chester Arthur was not a native-born citizen of the United States. ... Had that been true, opponents might have argued that Arthur was constitutionally ineligible for the vice presidency under the United States Constitution's natural-born-citizen clause.".

We might find our history more interesting if we didn't find it merely racist.

The Origins of the "Grandfather Clause" Are Actually in Northern Anti-Immigrant Bias, Not Southern Racist Bias

(1850s Know-Nothing Cartoon Depicting Irish and German Immigrants Affecting the Election)

The Massachusetts Appeals Court last week says it will no longer use to use the term "grandfather clause." A grandfather clause is commonly used to refer to legal exceptions that allow nonconforming land uses that predate applicable zoning laws. The decision concerned a homeowner attempting to replace his dilapidated garage.

The court explains:

"We decline to use that term, however, because we acknowledge that it has racist origins. Specifically, the phrase "grandfather clause" originally referred to provisions adopted by some States after the Civil War in an effort to disenfranchise African-American voters by requiring voters to pass literacy tests or meet other significant qualifications, while exempting from such requirements those who were descendants of men who were eligible to vote prior to 1867."

Except, that is not actually correct, as NPR reported some years ago. The practice of "grandfathering" does not have its origins in anti-black sentiment in southern states. In fact, the term was used earlier, and in the north -- ironically, in Massachusetts -- against the surge of immigrants from Ireland, Germany, and Great Britain. Google's Ngram results also show pre-Civil War use: 

 

Discrimination against Irish, German, and British immigrants would have been based in anti-immigrant sentiment, and possibly ethnic sentiment. But to say the practice "has racist origins," particularly against blacks in the post-Civil War south, is historically inaccurate. 

The practice, of course, against whatever group, is inexcusable. But one hopes that we could learn to eschew bad government practices on their merits, and not on the basis of the race or class of their victims. 

But progress is progress, even if ahistorical, right? Sadly, no. U. Penn linguist Nicole R. Holliday (who, the NY Times deems relevant to note, is black), "said she would not correct her own mother if she used the term 'grandfathered' in casual conversation, because doing so would be 'actually rude, and it doesn’t accomplish the goal of creating a more equal society.'" Still, Prof. Holliday supports the decision. Replacing the term, she says, even if it won't accomplish anything, is "not too much to ask." 

The good professor is on to something. Our fellow Americans need only ask, in earnest, and we should only be too happy to find an alternative to words that make them uncomfortable. It is the litigious approach that one finds grating -- the approach that begins by mining the record for evidence and arguments (even if faulty); the approach that pits victim groups against oppressor groups; the approach that assumes all the work of justice lies in establishing guilt.

Besides, were I to advocate for a client seeking the protection of a "grandfather" zoning clause, I would have misgivings about associating it with statutes long-held to be illegitimate. (Not to mention we all know how racist grandfathers tend to be.)

And yet: the Massachusetts court does not question the land use practice formerly known as "grandfathering." So governments may still allow nonconforming preexisting land uses. Just don't call it grandfathering.

The Myth of "Human Progress"

 

The Various Translations of the Simple Plea, "Please Don't Hurt Us"

NYC Mayor Bill de Blasio, writing a message on a city street. What is he trying to say?

The parable of the shopkeep who placed a "Workers of the World, Unite!" sign in his window was published in 1978, after its author, Vaclav Havel, living in communist Czechoslovakia, was arrested. Zbygniew Bujak, a Solidarity activist, said that Havel's essay, which contained the parable, "maintained our spirits; we did not give up, and a year later--in August 1980--it became clear that the party apparatus and the factory management were afraid of us. We mattered."

From “The Power of the Powerless,” by Vaclav Havel:

The manager of a fruit-and-vegetable shop places in his window, among the onions and carrots, the slogan: “Workers of the world, unite!” Why does he do it? What is he trying to communicate to the world? Is he genuinely enthusiastic about the idea of unity among the workers of the world? Is his enthusiasm so great that he feels an irrepressible impulse to acquaint the public with his ideals? Has he really given more than a moment’s thought to how such a unification might occur and what it would mean?

I think it can safely be assumed that the overwhelming majority of shopkeepers never think about the slogans they put in their windows, nor do they use them to express their real opinions. That poster was delivered to our greengrocer from the enterprise headquarters along with the onions and carrots. He put them all into the window simply because it has been done that way for years, because everyone does it, and because that is the way it has to be. If he were to refuse, there could be trouble. He could be reproached for not having the proper decoration in his window; someone might even accuse him of disloyalty. He does it because these things must be done if one is to get along in life. It is one of the thousands of details that guarantee him a relatively tranquil life “in harmony with society,” as they say.

Some immigrant and minority shopkeeps can't afford all that yellow paint. So they have to improvise:

Photo by Michael Tracey

 I am afraid that will not do. Pieties must be observed. The correct words and ceremonies must be invoked. Milan Kundera, another Czech writer, described this in his novel The Joke:

He said there were two great opposing institutions involved: the Catholic Church with its traditional thousand-year-old rites and the civil institutions that must supplant the thousand-year-old rites with their own. He said that people would stop going to church to have their children christened or to get married only when our civil ceremonies had as much dignity and beauty as the church ceremonies.

.... 

I asked my old classmate what he did with people who didn't want to take part in his ceremonies, whether there were any such people. He said of course there were, since not everybody had come round to the new way of thinking yet, but if they didn't attend, they kept receiving invitations, and most of them came in sooner or later, after a week or two. I asked him whether attendance at such ceremonies was compulsory. He replied with a smile that it wasn't, but that the National Committee used attendance as a touchstone for evaluating people's sense of citizenship and their attitude towards the State, and in the end people realized that and came.

In that case, I said, the National Committee was stricter with its believers than the Church was with theirs. Kovalik smiled and said that could not be helped.

Now you begin to see the problem. We have class solidarity, and gay marriage solidarity, and now of course LGBTQ+∞ solidarity, Black Lives Matter solidarity, climate solidarity. Why, the poor shopkeep's store will be utterly obscured behind all these signs!

The needful thing is an All-Purpose Solidarity Sign. I have fashioned a prototype, but some enterprising lefty signmaker is going to need to meet me halfway here.

Virtual America--A Twinkie Defense

I think it started in Miami Beach. 1981. The Twinkie Defense. Teenager Ronny Zamora had brutally murdered an 84-year-old grandmother; his lawyer pleaded that poor Ronny could not distinguish fantasy from reality because of an overconsumption of refined sugar. 

The Hostess cakebaking operation was to blame, and in a larger sense America itself, for its careless and destructive dietary habits.

1981. Not only were most of those manning [personing?] the current Children’s Crusade for Black Trans Lives Matter for Social, Economic, Racial, Sexual and Fundamental, Environmental and Just Mental Justice Reasons not even born yet, neither were some of their parents.

In 1981, the horrors of the real world and mankind’s most murderous century were still quite real. As America still struggled with a decade-long recession, the Soviet Union still existed, with its gulags and economic ruin. China was still under the thrall of its own Communist Party and its forced abortions, and of course the shadow of the murderous Chairman Mao.

And on Miami Beach itself, many of the last survivors of the Holocaust lived out the rest of days that providence had granted them [and mysteriously so few others].

The world that our current Children’s Crusade is protesting in 2020 is not that world.  The world they are inherit is a much better world, at least for now.  A world comfortably removed from the consequences of man’s true evil, the evils that reside in his very nature--not that the evil that men foster simply out of carelessness, inattention, and pique.

George Floyd’s death was not a product of any system, except perhaps a system that permits sometimes vain and intemperate men to carry our guns for us to keep us safe from the genuinely evil men.  Humanity has not yet come up with an alternate system or candidate class except the military draft. But there is no assurance or statistical proof that a random pool of draftees are any less capable of atrocities than volunteers.

“Defund The Police” is a Twinkie World based on nothing but fantasy.  So too is the economic program that is accompanying the current Children’s Crusade, that a person will work as hard for someone else’s family as hard as he will work for his own.

Zamora’s “Twinkie Defense” failed in court. He was found guilty and was sentenced to life in prison. We can only hope that the jury in November will come to the same verdict. The NEW Minneapolis is already becoming uninhabitable.