Courts and Qualifications for Elected Federal Positions

 

Walker v United States, 800 F.3d 720, 723–24 (6th Cir. 2020) (Roger, J.) (“Walker’s right to seek and hold public office has not been restored, because he was never deprived of that right to begin with. Neither Congress nor the states can add to the constitutional qualifications for holding federal elective office. Powell v. McCormack, 395 U.S. 486 (1969); U.S. Term Limits, Inc. v. Thornton, 514 U.S. (1995). Because the constitutional qualifications make no mention of convictions, under federal law, Walker could always run for and hold federal public office.” (emphasis added)); 

Gordon v. Secretary of State of N.J., 460 F. Supp. 1026, 1027 (D.N.J. 1978) (Biunno, J.) (“As a consequence, whether in jail or not, nothing prevented Gordon from seeking to gain the votes of enough electors to have been elected President of the United States . . . . Eugene V. Debs ran for President four times and was a candidate while in jail. Gordon was free to do the same.”); 

United State v. Richmond, 550 F. Supp. 605, 606 (E.D.N.Y. 1982) (Weinstein, C.J.) (holding that “plea agreement pertaining to resignation from Congress and withdrawal as a candidate for re-election are void.”); id. at 608 (“Just as Congress and the states are prohibited from interfering with the choice of the people for congressional office, federal prosecutors may not, directly or indirectly, subvert the people’s choice or deny them the opportunity to vote for any candidate.”); 

Seth Barrett Tillman, Courts and Qualifications for Elected Federal Positions, New Reform Club (Feb. 22, 2021, 8:54 AM), <https://reformclub.blogspot.com/2021/02/courts-and-qualifications-for-elected.html>; 

America Is a Christian Nation

A friend asked me to defend the claim in a prior post that American is a Christian nation. This was my response:  

* * * 

What is America? A few months back I asked this question, and answered: it depends. It depends on us. It depends on the choices we make at defining moments. 

It was not a real answer, of course. It was just a lot of throat clearing, working my way up to an answer. But here I will give you my answer to what America is. And I will answer it by first asking: 

What's left of it? 

In a very short space of time, we have lost much of the essence of the American political order. We have lost the presumption of the freedom of assembly, which is now subject to public health czars. We have lost the presumption of free speech, which is now subject to Silicon Valley algorithms. We have lost the presumption of a free press for the same reason (and because the press no longer sells news, it sells ads). 

We have lost the presumption of equal treatment of the laws, where endless federal investigations put outsiders in jail for "process crimes" and give insiders community service, and protect Wall Street insiders from Reddit outsiders. We have lost the presumption of warrantless searches, as our banks partner up with the government and offer up our papers voluntarily. 

We have lost the American value equality, and now find the president of the new order choking on it and replacing it in real time with a curious new word, equity; the contents of this replacement for one of our founding values to be supplied at a later time. 

We have lost the presumption of democratically administered elections, whose rules are now decided by people who never stand for election. The party who spent the last four years disputing the outcome of the prior election, having regained power in the most recent election, now promotes silencing those who doubt the outcome of elections – which amounts to some 47% of the country. Joe Biden's own party does not even recognize his leadership: to his call for "unity," the Democrats in Congress are pressing ahead with an unprecedented second impeachment of a private citizen already gone from office and returned to the outside world. Rather obvious to all is that the object of this spectacle is not one American citizen, but 74 million of them, pour encourager les autres. To all the other outsiders out there: don't challenge our power ever again. 

This is a grim state for America's political order. But what does it say about America? Because America is not the same thing as its political order. America is more than its government. We tend to overlook this because our government is such an extraordinary experiment, and so when asked what it means to be American, we often begin by talking about our political rights. Yes, the American government is extraordinary because it wrote down its own limits, and wrote down our rights. That government is (or, was) a very fine government. But a government is not a country. And the American political order is not America. 

I say again, the upheaval we are now witnessing is of America's political order. America itself, the American people, I mean, changed some time ago. Having deferred to experts and professional lawmakers and executives and bureaucrats for several generations now, we have been long out of practice of the habits of self-government. Those habits are, as we are now learning, a use-it-or-lose-it proposition. 

And it is habits that are decisive, not government, which is merely a set of tools, a piece of social technology. It was the habits of the English, whose children were trained as archers from a young age, that proved decisive in battles during the Hundred Years' War. The French knew of archery, of course. It was not a deficit of technology from which the French suffered but a deficit of habits: their boys did not grow up training as archers, building the skill and immense upper-body strength over more than a decade to harness the power and accuracy of the longbow. Instead, the French relied on the technological shortcut of the Italian crossbow, which proved far less effective than an English archer. 

Americans have lost the habits of democracy. We talk a good game about speech, but we have long since stopped having anything to say. We have long since stopped believing our press was on the level. I myself have wondered, for example, why other countries would not insist on having a First Amendment. But perhaps my counterparts in other countries may be asking: what do the Americans have to tell us, other than that they have the right to say it? 

But while the American political order is not America, the political order reflects America. We may not know what we think of ourselves, but we know what the political establishment thinks of us. This is why Americans are so fond of offering up the Constitution as their autobiography: the Constitution, in describing a deferential government, tells of a vigorous and determined American people. What does our vigorous and determined new political order tell us, but that it sees the American people as having become deferential? The story of the last quarter millennium in America is one of a reversal of roles. A people with nothing to say and no God to serve might not notice the sun setting on the First Amendment. 

I've no doubt that describes a large portion of America. But not all. No, not all Americans will snuff out their lights. Not all Americans will give up their vermilion ink. These Americans cannot find themselves reflected in a political order accommodated to a supine people. 

These Americans, I said – and now I am nearly finished clearing my throat – see the purpose of the American polity as guaranteeing "a space where we each could serve our neighbors, our families, and our God." For these Americans, I said, "America is a Christian nation, in its best and broadest sense of allowing every American the freedom and opportunity to serve God, or at a minimum not to interfere with their neighbors' freedom and opportunity to serve God." For these Americans, a people "must serve something higher than themselves, for there is no surer way to wreck our world than to put it under our own feet." 

America is a Christian nation, I said. 

And you ask me: Prove it. (More specifically, you asked, "[w]hat evidence/arguments do you propose to establish this?")

Asking me to prove America is a Christian nation is a good example of how our public discourse is wrecked. Your question suggests you are habituated to expect me to marshal citations to historians, sociologists, legal constitutional scholars, or such other experts as support for the claim. And no doubt such authorities may have interesting and probative things to say on the subject. (Mark David Hall and Daniel Dreisbach come to mind.) 

But your expectation is maligned. Not, I rush to clarify, that I would suggest your intentions are malign. But you have been trained to seek discord rather than understanding. This I say with regret, because through our correspondence I can see a light in you that does seek truth. But the evil of our time would extinguish such light under torrents of mere information, drowning all meaningful inquiry. 

Let me posit this: Citing experts and authoritative sources back and forth to each other is not debate. It is not even discussion. Rushing to put every claim to the proof is rather the problem with discourse in America today, for we rush to "debunk" and "fact check" every claim without ever first asking: What do you mean? 

For if you would take a moment to ponder what it means that I would claim that America is a Christian nation, it might have occurred to you that it is not the sort of claim I would presume to defend by citation, or by anything less than by my own example. My life will serve as my citation. And I will pray to God for the courage to prove it.  

This is a habit of liberal society that has been lost for a generation at least. And it will take a generation to get it back, assuming we still have a taste for it. 

One of the habits of a liberal society was captured in the great line, uttered by a not-so-great man, that we should ask not what your country can do for you, but what you can do for your country. In the ensuing half-century, sadly, a culture of consumption continued consuming America. And so when we ask what kind of country America is, we must first look out, dismally, as from Ozymandias' pedestal amid an expanse of waste, and ask, what is left?

When I said that America is a Christian nation, I was not making a historical claim (though there are historical authorities to support it). Nor a sociological claim (though such a claim also could fairly easily be supported). I was not even quite making a religious, certainly not a theological, claim. When I said America is a Christian nation, I was making something like a teleological claim: a claim about our purpose as a people. Here was my immediately preceding sentence: "The purpose of the American polity was to have a space where we each could serve our neighbors, our families, and our God." 

Experts try their best to answer such "why" questions. They can give social, political, economic, legal, demographic, and various and sundry other types of academic explanations why early settlers established American colonies, why the Americans fought for independence, etc. But I am not interested in those kinds of explanations. People may have come to America because it offered economic opportunity. Or tolerance. Or diversity. But these things were never the essence of America, or of any other nation: if a person loves a country because of its economic opportunity, or tolerance, or diversity, that person will betray that country for the next one comes along offering more opportunity, or tolerance, or diversity. 

What I am talking about are primary loyalties. Why would a person fight and die for America? Not, certainly, for any mere practical reasons. A merely rational man, said Chesterton, will not marry. A merely rational man will not fight. 

So my claim does not really depend on things like polls of how many Americans identify as Christians, which numbers continue to decline. Sadly, a growing number of Americans do not believe in anything, or they give nary a thought to what they believe, so occupied are they with cakes and bubbles of bliss that, if ever they do tire of their superficial luxuries, they are more prone to lash out and do something nasty, for we are habituated never to think of a loyalty higher than consumption. We as a nation may come to be defined by our ruined people, if indeed we persist in the endeavor, for it is never merely on the surface that we exist: either we soar into the heavens, or burrow into the depths. 

You see, the question might be turned round on you: if America is not a Christian nation, whatever else might it be? A merely industrious and wealthy nation? A merely powerful nation? A merely diverse nation? You cannot (Chesterton again) go clad in crimson and gold for this. 

We are told we are a nation founded on an idea. Probably I myself have repeated that at some point in the past. But on reflection, it is confusing, empty, and dangerous. Whatever those ideas are, we have not lived up to those ideas. No other nation has set up such a standard, after all. No other nation has crucified itself on a cross of its own ideals like America has. And yet we are told we still have not lived up to our ideals. Though no nation has bled itself for its ideals more than America has, our blood has not slaked the thirst of the idealists. 

And what may we call a nation founded on ideals who cannot achieve them? The ideals themselves appear as so much shifting sand. Having neared equality, the ideal in recent weeks has evanesced, and in its place, we find a new ideal: equity, a word without limits, without an object, without an end. A perfectly violent word. A word that will drain our blood to the last drop.  

This is because ideas are not transmissible. They exist only in the mind. They are solipsistic. Orwell's conclusion in 1984 is that a mere idea cannot live without flesh. That is why Christ made the Word flesh. Through himself he brought the Word into the world. What is a nation? A nation is an idea made flesh in its people, its land, its homes, its communities. It is Chesterton's response to what is civilization: why, we would not know where to begin, for it is everywhere we look. 

We become patriots by having compatriots. Hugh Hewitt said he asked Mark Zuckerberg if he was a patriot, and he scoffed, indignant, and boasted of all the help Facebook had given to the Department of Defense. The Department of Defense? Becoming a defense contractor does not make one a patriot. I am sure Zuckerberg thinks himself a patriot. Like many, he probably measures his patriotism by his commitment to a set of ideals. But a patriot is not measured by his own ideals. A patriot in his own mind is a maniac. One cannot be a patriot without compatriots. And a patriotism that takes checks from his compatriots has rather lost the thread.  

Besides, even having a lofty set of ideals, like the principle of equality, and principles of due process, and democracy, and natural rights, does not tell us anything. These are mere bylaws. They do not amount to an ethos. They do not tell us what kind of a people America is. They only tell us what kind of government America has. We do not fight and die for a government. We do not build monuments to ideas, but to people.

As a still young nation, it is not self-evident what kind of nation America is. "Everybody knows in their bones," wrote Thornton Wilder in his famous play Our Town, "that something is eternal, and that something has to do with human beings." What is eternal about America? Other nations and peoples have defined themselves over the course of centuries and even millennia. We can speak of traits being quintessentially Greek, or Persian, or English, or Chinese. America has not had enough epochs to demonstrate which of its traits will stand the test of time. 

"Patriotism," Enoch Powell said, "is to have a nation to die for; and to be glad to die for it – all the days of one's life." A quarter millennium ago, Americans found they had something to die for. What was it? Do we still have it?

This is our present struggle, and why I boast "we are a Christian nation": my boast is not historical, it is a battle cry: that there is something left to fight and die for. I mean by it what the English meant when they cried, "For Saint George!" A people must have something it will die for. The lack of something to die for is a vacuum that human nature abhors. And our country has been falling under the shadow of that void for some time, so that more and more Americans will not fight for their country, will not even leave their homes for their country (except, perhaps, on occasion, to set part of it on fire). 

How long have we lacked something to die for? Did Americans forget who they are, and are only just now recognizing it? No, I don't think so. I think people like me, effete desk-worker types, people who think the world needs to know their opinions, those people are the first to lose sense of who we are. But regular Americans never forget. Orwell said, our hope lies in the proles. They are the repository of our soul as a people, precisely because they never lost their old habits. So what roused our proles? Trump, of course, which is why he roused the hatred of the elites whose project it was to keep the proles sated and sedated. So more statues would have to come down. More buildings would have to be renamed. More books burned. More songs silenced. More speech censored. More thoughts criminalized. For the statists will not teach history, but they know history: they know the British had made a mistake by respecting the colonists' rights of Englishmen, and that this liberal impulse allowed the Americans' ideas to take flight and soar and assume among the powers of the earth the separate and equal station to which the laws of nature and of nature's God ... you know the thing. 

Or maybe you don't. There was no school last year, after all, at which to learn it. There was no Fourth of July last year at which to remember it. And there will be none this year. No, our modern elites will not make such a mistake as the 18th century British by letting ordinary people go around learning about things, and talking about things, and thinking about things, things that are worth living and dying for. Their model is not the British liberal response in the colonies. Their model is the Chinese Communist response in Tiananmen. 

Yet, there were different people facing those responses. Americans fought fiercely for independence against liberals. There are still some of those kinds of Americans left. And we have no reason to doubt they will fight vulgar 21st century statists any less fiercely than they fought genteel 18th century liberals.

Speaking of Independence Day, my wife and I help put on the annual Fourth of July Parade in Huntington Beach. (She puts it on: I get to drive her around on official business in the city golf cart.) It is the largest parade west of the Mississippi: that is what we tell people, and that is how we treat it. No one has called Guinness to report it as such. No one has bothered to definitively establish the accuracy of the statement. That is because it is not just another mere factoid, the kind journalists and experts vomit into the atmosphere already black with factoids, choking off all discussion. When we say our parade is the largest in the west, it is not a mere fact, it is a boast: we dare you to gainsay it. A mere fact you challenge by putting your sport jacket on and looking into the camera and blathering. A boast you challenge by taking your jacket off and stepping outside. This is a boast. Come at me, bro. 

That is what I mean when I say America is a Christian nation. My house will serve the Lord. My church will serve the Lord. I will not suffer anyone to gainsay it. And my country, well, what is my country but the curtilage of my home and my church? A country is merely the name for the space where our families and our compatriots move about, raise our children, worship God, and serve one another. There may be those who regard this country instead as the space where they move between their mixed-use zoning flat and their dance club, as the curtilage of their local mega-corpo-sponsored sports stadium, or of their local Planned Parenthood. 

But as the past year has shown, most of these sorts of people gave up their curtilage without a fight: they stayed in their homes, and still stay in their homes, indefinitely. They did not even insist on a discussion. Do you think I would let such people decide the fate of my country? 

So yes, America is a Christian nation. Come at me, bro. 

For Christ's sake, Kowal, but you are calling for a religious war! Let it not be so. Lord knows, as an effete desk-worker type, I do not want war at all. Surely not a sectarian war, for I mean my claim in the most ecumenical sense, desirous of the chance to fellowship with others who seek God's perfection in the beyond, if only we might avoid those flogging us to attain perfection here on earth. But our race has never quit of war. And if we must war, I do not regard religious causes as the worst of reasons. Surely there are worse things to die for. Surely it is worse to float along, Camus-like, held aloft on a wing of mere sensation. There is something worse than a bloody existence, and that is a bloodless one. Not that we are without a choice, but that none of our choices should be worth dying for. That we have already taken up an underground existence, where there is no fighting or dying except for survival. That we should have left behind the days of glory on the surface world, where we bled to reach the heavens. 

That is why I boast that America is a Christian nation. I will not submit to interrogatories on the point. A man will not be put to the proof on matters on which he would be put to the death. 

Democracy is too precious a thing to let the public get anywhere near

I was fulminating recently against the carefully orchestrated simulacrum of democracy that occurs in our Capitol building, along the lines of Mark Steyn's critique here, when my surprised interlocutor asked: was it really true that Congressional rules prohibit cameras from showing whether a given speechifying politician is actually speechifying to anybody? 

 

Is it really true that, in the "citadel of democracy," in the "light to the world," there are no other cameras allowed?

Yes, it is, sadly, so:

The camera issue is important now because House Speaker John Boehner (R-OH) recently turned down the latest request by C-SPAN Founder and CEO Brian Lamb to allow his company's cameras - or for that matter - the cameras of any other news organization, to televise what happens in the House chamber.

Lamb has pushed the issue since C-SPAN's inception. But he really went to the mat in 1995 when Republicans rode to power and promised more transparency. Then-House Speaker Newt Gingrich (R-GA) rejected Lamb's entreaty. And former House Speakers Dennis Hastert (R-IL) and Nancy Pelosi (D-CA) have followed suit when Lamb made similar requests at the beginning of their tenures.

....

Boehner responded to Lamb that he would maintain the "precedent set by former speakers" noting that "the dignity and decorum of the United States House of Representatives - are best served by the current system of televised proceedings provided by the House Recording Studio."

It's the House Recording Studio that literally calls the shots of what people will see when telecasting House sessions.
....

During his speakership 16 years ago, Newt Gingrich denied C-SPAN's request for complete access. But he did instruct the House Recording Studio to start providing cutaway shots of activity throughout the House chamber. That experiment lasted about a week as the House feed showed lawmakers dozing, goofing off and reading. Callers then lit up the Capitol switchboard as they phoned to admonish their lawmakers for not showing respect to the speaker or accusing them of sloughing off on the taxpayer's dime.

The lawmakers then complained to Gingrich who hastily halted the exercise.

But if not through the camera's eye, at least we may visit "the People's House" and see the workings of democracy with our own eyes. 

Oh, wait. Hold off on that just now. I see the People's House is closed to the people: 

Might check back later. 

On further thought, don't bother: "The enemy is within the House of Representatives," said the Speaker of the House recently. For once, she is right. If only that possibly-permanent fence now being built around the Capitol would protect America from what lies within that House of horror. 

But this is how the people inside the Capitol see democracy: Democracy is too precious a thing to let the people get anywhere near. The people may not visit the Capitol. The people may not see the Capitol, except through chain-linked fence. The people may not even watch what happens inside the Capitol on TV, except for tightly orchestrated frames around the face currently bloviating. Lawmaking, like the rest of news, is just poor-quality entertainment.

But if you would like to know more about our democracy, Amazon is happy to provide you with a copy of this collection of professionally produced, instructional videos, from the people who canceled Gina Carano. For a fee, of course:

 

 

Jesus and the Syrophoenecian Woman: Failing to Rise to Our Highest Ideals

Every year about this time, the story of Jesus and the Syrophoenecian woman appears in the Catholic lectionary. It is a jarring story. In it, Jesus is not egalitarian. In his speech to the Syrophoenecian woman, Jesus does not meet modern expectations of fair and equal treatment, he does not celebrate diversity. In fact, if we are going to be strictly modern about things, when Jesus calls the woman a "dog" he proves himself to be, let's be honest, a racist hate criminal. 

Here is the story of Jesus and the Syrophoenecian woman. You have been warned: 

Gospel Mk 7:24-30

Jesus went to the district of Tyre.

He entered a house and wanted no one to know about it,

but he could not escape notice.

Soon a woman whose daughter had an unclean spirit heard about him.

She came and fell at his feet.

The woman was a Greek, a Syrophoenician by birth,

and she begged him to drive the demon out of her daughter.

He said to her, “Let the children be fed first.

For it is not right to take the food of the children

and throw it to the dogs.”

She replied and said to him,

“Lord, even the dogs under the table eat the children’s scraps.”

Then he said to her, “For saying this, you may go.

The demon has gone out of your daughter.”

When the woman went home, she found the child lying in bed

and the demon gone.

I am sorry to have to expose the savior of the world as just another deplorable, but such is the calling of a self-righteous age. 

 

But what could this story mean? As I mentioned, this story has appeared in the lectionary before, appearing right around this time of year. So I went back a couple of years in my journal. In 2019 when I had reflected on the story, I had a different kind of reaction. Perhaps it is because I had not yet attained the higher altitudes of our ideals. My mind had not yet expanded, my head had not yet split, I had not yet devoured the heavens. I offer up here what I wrote, unedited except for typos:

2/14/19. What does this mean? Jesus really was going to deny this woman and her child his help because she was not Jewish? Did he know she was going to say this? I think not. I don't think (?) he was omniscient while on earth (I think all this was from the Father, and his closeness with the Father gave him great power and understanding, but not exact identity, not all power and not all knowledge in any given moment.) Maybe this is an insight into how Jesus saw his own limitations. He knew he could not alleviate all suffering for all people during his time. He had to focus on the Jews, to fulfill God's covenant with them, and then his grace would be displayed to the whole world. But in that moment, the woman's faith proved to Jesus... something. What? That her child could be saved? No, he could have saved her with a word regardless of her faith. That saving her child would not be pearls before swine? Jesus could have healed all sickness, cured all disease, but he didn't. Why? Because he is a sadist? Of course not. Because wellness in this world was not his mission. Man is fallen, that is the story of Genesis. Our bodies slouch toward death, our minds toward the ditch. The law proves we are none of us fit to bear it. The point is humility. We must be humble before God can save us. What a powerful image this story becomes! Jesus would have to leave this woman and her daughter unhelped, his whole mission on earth to finish the story about how man's pride would take him all the way to murdering God himself, and how even then God could forgive if only man would humble himself. When the woman showed her humility, all this became unnecessary to save her: her humility opened the way for faith, and her faith saved her and her daughter. 

 

That was 2019. Just two years ago I was justifying Jesus's hateful statements! But now we know better. We do not want humility. We demand purity. And on that score, giving up one's life for his friends didn't help Lincoln, and it doesn't help you, either, Jesus. 

It gives me no joy to say this, but I must deem Jesus's legacy as: Problematic.

Joseph Story’s Commentaries on the Constitution: Late Impeachment and Other Unresolved Impeachment-Related Issues

 

 

The discussion he puts forward “is not intended to express any opinion in these commentaries, as to which is the true exposition of the [C]onstitution, on the points above stated [including late impeachment]. They are brought before the learned reader, as matters still sub judice, the final decision of which may be reasonably left to the high tribunal, constituting the court of impeachment, when the occasion shall arise.

Seth Barrett Tillman, Joseph Story’s Commentaries on the Constitution: Late Impeachment and Other Unresolved Impeachment-Related Issues, New Reform Club (Feb. 8, 2021, 11:07 AM), <https://reformclub.blogspot.com/2021/02/joseph-storys-commentaries-on.html>; 

Government and Media Took Away Our Unity: They Cannot Give It Back

In my last post, I confess I may have foamed at the mouth a bit raging against "the chummy relationship between the media and the big-corpo-statists" who have created the disunity in our country. In response, my left-of-center friend asked me what political reforms could I offer to address the problem. Here was my response: 

I am trying to get at the question you posed at the end of your email, when you asked for my diagnosis and prescription for what I regard as a media that has become altogether poisonous. For many years I have had Christopher Lasch on my reading list, having seen his name mentioned in various books or articles I'd come across. I happened finally to read his Revolt of the Elites a few weeks ago. It was a revelation. Apparently others have said the same following Trump's 2016 election. Lasch's thesis is that our media is not an aid to our public discourse. To the contrary, our media seeks to put an end to public discourse. Our media is simply an outgrowth of a modern condition in which our elite class has become entirely insular, talking only to themselves, with but an academic concern for the practical interests of ordinary Americans.

At the time of the Lincoln-Douglas debates, partisan newspapers were an outgrowth of public discourse. Every person knew where to find opinions that suited their own. (As I recall reading elsewhere, the debates themselves were often misreported, to suit the editorial perspective of the particular paper.) Around the turn of the century, with the civil service reforms following government scandals, newspapers became more professionalized. Lasch argues newspapers became more of a resource for legislative research services. (The professionalization of legislatures, and the extinction of the part-time, citizen-legislator, is a topic for another time but is a related and serious problem.) The newspapers no longer served as extensions of public debate. The public was excluded from the process of seeking truth. Instead, it was replaced by journalists seeking mere facts. And today, of course, the difference between "truth" and "values," on the one hand, and "facts" on the other hand, is almost entirely obscured.

So Lasch argues that the American public, having been excluded from the public debate, no longer has any reason to become informed – the flood of professionally produced, "fact-checked" information has the effect of drowning debate rather than informing it: "Since the public no longer participates in debates on national issues, it has no reason to inform itself about civic affairs. It is the decay of public debate, not the school system (bad as it is), that makes the public ill informed, notwithstanding the wonders of the age of information. When debate becomes a lost art, information, even though it may be readily available, makes no impression."

"What democracy requires," Lasch went on, "is vigorous public debate, not information. Of course, it needs information too, but the kind of information it needs can be generated only by debate. We do not know what we need to know until we ask the right questions, and we can identify the right questions only by subjecting our own ideas about the world to the test of public controversy."

Neil Postman said something similar in his book Amusing Ourselves to Death, where he agreed with Huxley over Orwell in diagnosing the modern condition: "What Orwell feared were those who would ban books. What Huxley feared was that there would be no reason to ban a book, for there would be no one who wanted to read one. Orwell feared those who would deprive us of information. Huxley feared those who would give us so much that we would be reduced to passivity and egoism. Orwell feared that the truth would be concealed from us. Huxley feared the truth would be drowned in a sea of irrelevance." Eric Voegelin had seen this coming some decades earlier from the trenches of the social sciences, whose publishing profligacy was just beginning: "Since the ocean of facts is infinite, a prodigious expansion of science in the sociological sense becomes possible, giving employment to scientistic technicians and leading to the fantastic accumulation of irrelevant knowledge."

As Lasch points out, modern journalism takes its cue from Walter Lippmann's elitist thesis that the public doesn't really care about democracy per se: it just wants effective governance, and the generous public goods it promises: “The public is interested in law, not in the laws; in the method of law, not in the substance.” Trump proved Lasch's populism right, and Lippmann's elitism wrong. The pre-Trump American government produced a relatively stable, prosperous order. Yet it had become unresponsive. The people could see in their government a highly professional, skilled, and effective body of men and women, but what the people could not see in their government was anything of themselves, or anyone who advocated their interests. Without that, it was all for nothing. If you cannot see yourself in your country, you will see yourself out, one way or another.

Lasch did not see partisan newspapers as an ideal. And I do not either. But they served a vital need in a democracy. When that fell away, in its place for more than half a century we had a professionalized state and a professionalized media. It was not without its benefits. But we also got the CIA, who eventually admitted propagandizing to US citizens through a professionalized media. And then we got an NSA to spy on our government's enemies, who turn out to include its entire citizenry – and that mass Constitutional violation, too, with the complicity of a professionalized, corporatized media. 

 

So professionalization is no panacea either. At the bottom of it all is the crooked timber of human nature. "I do not know what is in the heart of a scoundrel," said Joseph de Maistre, "I know what is in the heart of an honest man: it is terrible."

Before I tell you my diagnosis, let me tell you I also tend to agree with you about money's effect in politics. This is a topic on which my views in the past likely were affected by partisan bias. Money is too big a topic and I don't want to get distracted by it here. I always recall how Larry Lessig tried to forge an alliance between the Occupy movement and the Tea Party movement. I might have mentioned to you before, or maybe not, that I see a nexus between Tucker Carlson's anti-corporatism and Elizabeth Warren's (though Warren has tempered her views since becoming a politician). So I see our cronyist corporatist government as having become deeply corrupt. And it really bothered me to hear the sanctimony of Senatepersons and Congresspersons talk about January 6 as a violation of the "citadel of democracy" and a "threat to our way of life." I have already condemned what those unarmed slapdash vandals did there, but the contempt these lawmakers show toward their constituents on a daily basis is a worse violation of our democracy, in my view, than mere trespassing in the cradle of that contempt, and the burning and looting of people's livelihoods this past summer was a greater threat to our way of life than a few broken windows at the Capitol, which did not prevent the loss even of a single day's work. (On the score of lives lost, this summer's riots were far deadlier, too, than January 6.)

So having got that out of my system, here is my diagnosis for our media problem. And you are not going to like hearing this, but here is my opinion:

It's the Nietzsche, stupid.

By which I mean, what we are witnessing here is the scrambling of mortals to fill the void left behind when modern man "killed God." On this, too, I find Lasch was here before me when he observed that modern man's quest for certainty is fundamentally a religious quest. The world's great religions teach humility of belief – but the man who will take no religion has no schoolmaster by which he might receive that lesson: "For those who take religion seriously, belief is a burden, not a self-righteous claim to some privileged moral status. Self-righteousness, indeed, may well be more prevalent among skeptics than among believers. The spiritual discipline against self-righteousness is the very essence of religion."

The Abrahamic religions teach of the folly of seeking to reach the perfection of heaven in the story of God scuttling the project of Babel. Those religions, at least the Christian religion, teach Give all that thou hast to the poor and follow me, if thou wouldst be perfect. But the modern man has not yet heard of this lesson against seeking perfection in earthly works. As Dostoyevsky said, "socialism is not merely the labor question, it is before all things the atheistic question, the question of the form taken by atheism today, the question of the tower of Babel built without God, not to mount to heaven from earth but to set up heaven on earth." 

The Abrahamic religions teach the story of the great flood, by which God purged wickedness from the earth. But the act grieved God so terribly that he vowed never to do it again. I have been enriched by reading the Old Testament because it teaches that justice is a thing so terrible that no one ought ever pray for it, and indeed to pray that God may stay his hand. ("Indeed I tremble for my country," said Jefferson, "when I reflect that God is just....") Indeed, it is why Paul says that the law is meant as a schoolmaster to bring people to the gospel: once one realizes that no one can stand to the measure of justice, one will beg for mercy. And in Christ, God freely gives it.

But the Nietzschean man, the super-man, the over-man, has not yet learned this – if ever he can. The rains of the elites' deluge are starting to fall on our heads as they seek to purge what they see as wickedness from the earth. As Lasch goes on, a secular society has not yet grasped the need for a discipline of belief, the need of any epistemic humility, and so "it misunderstands the nature of religion: to console but, first of all, to challenge and confront." Our purely secular society wants justice – ancient, tribal, bloody justice, from which there is neither escape nor forgiveness, only punishment.

Another way to express my diagnosis might be that we have an addiction to certainty. Too many Americans today believe that there is right, and there is wrong, and that every contest between them may be settled scientifically. By acquiring moral judgment man was cast out of the garden, but by shedding moral judgment and substituting science in its place, the idea seems to be, we might attain paradise. But not only may we have scientific certainty of every conflict of values, but also do we insist on judgment: the right must be rewarded, the wrong punished, and in this lifetime. If we are to have unity, we must search our souls for any trace of certainty, which is the father of disunity, and cast it out. And replace it with the spirit that says we all of us must work out our own salvation in fear and trembling, that there but for the grace of God go I into perdition, and to seek truth, and to do good, but never to be certain that we are right, and to pray in earnest that our neighbor will be saved.

But you will tell me: Tim, you are talking about religion when I asked you for policy. And you will be right. In all these things I have my eyes on something beyond this world. But there is no other way to reorder a polity that has gone wrong than to return to its foundations, to its purpose. The purpose of the American polity was to have a space where we each could serve our neighbors, our families, and our God. To be quite clear, what I am saying is: America is a Christian nation, in its best and broadest sense of allowing every American the freedom and opportunity to serve God, or at a minimum not to interfere with their neighbors' freedom and opportunity to serve God. No other answer to great political schisms may be given than to return to God. A people must serve something higher than themselves, for there is no surer way to wreck our world than to put it under our own feet. The pedestal of Shelley's Ozymandias, the 13th century Ramses II, the earthly king of all earthly kings, said, "Look on My Works, Ye Mighty, and Despair." And all had been laid waste.

Humility, my friend, is my prescription. God himself, though he created paradise, could not maintain its perfection while allowing us grubby humans to inhabit it. Earthly works cannot deliver us. Nor the fire and punishment of justice. Through mercy, by grace, may we return to God. But not to Eden. Those gates are closed to us.

Trump's fall explained

Much more about us than him.

A Friend Wants to Know: Why Won't I Shut Up and Get with the Program?

Two friends contacted me recently, telling me something I thought strange. Both felt the need to tell me Trump was lying to me about the 2020 election. 

 

When the second friend asked me this question, I told him it made me wonder that, if he thought that I believe what politicians tell me, does he believe what politicians tell him? No, no, he assured me: he, too, believes all politicians, naturally, are cheats and liars; but it is only that Trump's lies about the election, and about Covid, are so unique.

 

The courts and the experts have spoken, after all. My friend wants to know, and asks very politely (more politely than this): why don't I shut up and get with the program?

I wrote him this response, slightly edited:  

Restoring Election Integrity in One Easy Step

In February 2020, "the nation's leading expert" on election law, UC Irvine law professor Rick Hasen, published his book Election Meltdown. Subtitled "Dirty Tricks, Distrust, and the Threat to American Democracy," Prof. Hasen bemoans "Inflammatory rhetoric about 'stolen' elections [that] supercharges distrust." What insight, I wondered, might the nation's leading election law expert's book give on the controversies surrounding the 2020 presidential election?  

According to Prof. Hasen's book, as of early 2020 the only way to repel the "threat to American democracy" was to push back against not one, not two, not three, but at least four key dangers threatening the voting process. You will have to buy the book to learn what they are. But if the book's digital dust flap is an indication, it appears Prof. Hasen has one of his fingers pointed pointed squarely at "incompetence in election administration, often in large cities controlled by Democrats," which "have created an opening to claims of unfairness." Oh, my!

Also in the docket: "domestic misinformation campaigns via social media." You don't say? 

Just in case you are beginning suspect this is some right-wing book, I understand from loosely following his work for the past several years that Prof. Hasen is, shall we say, in no danger of being identified as a friend of Republican causes. I also have it on good authority there are no conservative professors at UC Irvine's law school, unless something has changed recently. It is my earnest belief Prof. Hasen is a man of the left in good standing.

Back to Prof. Hasen's latest book. When the book went to print, there were "concrete steps" needed "to restore trust in American elections." Otherwise,  Prof. Hasen warned, "the democratic process" could be "completely undermined"! 

This sounds like real trouble. But it also sounds like a lot of work: "Concrete steps"? That strikes me as more than we can handle.

Thankfully, we found a way to economize. The American corpo-political leadership stumbled upon a simple program to restore confidence in the American voting process in just one easy step. Here is the one-step program to restoring confidence in American elections: 

The Democrat wins. 

When the Democrat wins, Americans stop complaining about the integrity of our democracy. (Social media is seeing to that.) What could be simpler?

I am sorry to have to report, however, that with the advent of this new one-step system, Prof. Hasen's book sales may experience a slump. 

Freedom Is a Luxury Progress Cannot Afford

The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”

― H.L. Mencken 

I deactivated my Twitter account today. I will never give the enemies of freedom another click, if I can help it. If I may not argue for an idea, then I can only fight for it.

Peace Is a Miracle

In the bad old days before Year Zero, some Americans used to know about something called the Miracle of 1800. The reason America's first transition of power from one political party to another was called a "miracle" was because the peaceful transition of political power in a democracy was not something that had been known to work. There is, in fact, no particularly good reason to think that it should work. And yet, miraculously, it did work. Perhaps it was that Americans, still fresh with patriotic feeling for their new country, forged in a Revolutionary War, willed that it work. Who knows?

But even when it did work, there was no real reason to assume it should go on working. Yet, Americans saw it go on working. Perhaps there was something exceptional about America. Who knows? 

 

In fact, the peaceful continuation of American democratic governance went on working so well, and for so long, that Americans began to take it for granted. They began to see peace as a sort of natural state of their political life. And political violence as something, strange, foreign. Something that, if ever we should observe it, could be explained only as something that must have been imported. 

 

Violence, we came to assume, was not among America's gross domestic products.

In the bad old days, too, Americans used to acknowledge death as a fact of life. Illness was commonplace, and it took from all groups, not just the old. Poverty, too, was a typical and certain condition. If a person did not work, he would not eat. And then, almost suddenly, there came a point when Americans could expect good health, and a long life, as the rule and not the exception. And to accompany that good long life, Americans could assume a comfortable and satisfying job, and settle in somewhere in the broad middle-class. These became nearly as certain as the Laws of Thermodynamics. Exceptions to the rule prompted questions that someone was to blame for upsetting the natural order of things. 

But then came 2020, a year wreathed in horror. That year upset the presumptions of perpetual good health, perpetual prosperity, and perpetual peace. The year 2020 came with these three sobering and ancient lessons: Good health is a miracle. Prosperity is a miracle. And domestic peace, too, is a miracle. Health, prosperity, and peace are not the story of human history. The story of human history is sickness, poverty, and war. They are the domestic product of every people, in every time, in every place. And we have no right to insist otherwise. Ever. 

We suffered mightily under the tutelage of 2020. It drove its lessons into us with fire, pestilence, ruin, despair, and death. 

It is now early January 2021, and it is clear those lessons, however cruelly drilled into us, were not learned. We still insist on health and prosperity, enforced under pain of law. We will take them by force, if necessary. And we still take peace for granted. We assume democratic governance is naturally and automatically self-perpetuating.

When Trump supporters broke into the Capitol building Wednesday, January 6, 2021, they acted wrongfully. Their actions were wrongful for exactly the same reasons BLM supporters' actions were wrongful when they broke into hundreds of buildings, both private and government, over the summer of 2020. These acts were wrongful because violence, except in self-defense, is wrong. And no justification of self-defense was ever offered by either group. 

That short paragraph is all that needs saying about that. Yet we are now treated to endless versions of it, offered at indulgent length, by every person who is paid to offer political opinion in America. All talking heads think the country needs to hear, on an endless loop, that violence against our democracy is wrong. Fine. But Americans already know that violence is wrong. What they need to start hearing is why our democracy is worth keeping. And what they really need to hear is that our political class cares about our democracy – that they don't just care about maintaining the assumption that they are entitled to rule over our democracy, without meaningful challenge.

Both groups who committed recent violence in America – BLM in dozens of American cities in 2020; Trump supporters at the Capitol on January 6 – happen to have acted for the same reasons. They both stopped believing the very thing we ought never to have taken for granted: that our system of democratic government still functions. They both stopped taking for granted that our democracy is worth keeping. In 2020, these people on the left half of America told us that, for them, the Miracle of 1800 was dead. And on January 6, 2021, these people on the right half of America told us that the Miracle of 1800 was dead for them, too. 

That, my friends, is a serious problem. These BLM supporters and Trump supporters were not attacking democracy. Their violence was not a threat to democracy. For these people, democracy was already dead. The violence we witnessed was the violence our democracy, during its miraculous existence, had kept at bay. As our democracy continues, in the eyes of growing numbers of Americans, to die, I am afraid we will see the ancient violence fill its place. Not something new, as though from the outside, but something that has always been, covered over by the thin veneer of our democracy. Our democracy is an artwork, painted over a bloody canvas. 

There appears to be precisely zero acknowledgment that the peaceful continuation of democratic self-government should not be taken for granted. Instead, every reaction to January 6 is about pointing blame. Donald Trump is at blame for "inciting" his supports to invade the Capitol building (though that is bosh). Republican senators and lawyers are at blame for giving credence to claims about election fraud (though officials charged with the responsibility have not bothered to investigate, let alone prosecute, the many instances of credibly alleged fraud). Social media is at blame for not more tightly censoring claims that undermine trust in the American voting system (as if their censorship were not already intolerable). 

Blame? Blame is what got us here. If democracy fails, it is not because someone committed violence. Violence is always the default position, lurking in the background, and never more than a few millimeters from the surface. Shower upon a man every earthly blessing, chided Dostoyevsky, drown him in a sea of happiness, so that nothing but bubbles of bliss can be seen on the surface; give him economic prosperity, such that he should have nothing else to do but sleep, eat cakes and busy himself with the continuation of his species, and even then out of sheer ingratitude, sheer spite, man would play you some nasty trick. No, iPhones and DoorDash and porn-on-demand and bubbles of bliss will not keep a man from storming the nearest AutoZone. And nihilism about toppling statutes of our country's founding patriots seemed an improbable way to instill reverence toward the same country's legislative buildings. 

Nihilism is what is killing our democracy. The leftists who toppled statutes believe, because they are taught to believe, that the people the statues depict – the people who founded our country – hated them. And thus that the country itself hates them. The Trump supporters who invaded the Capitol believe – because the people in that very building told them – that the people in that building, who run this country today, hate them. A country cannot have peace while its government tells its people the country hates them. Yet our government has managed to tell both halves of its divided nation that they are hated. If there were a Darwin Award for governments, the American political establishment would be tough to beat. 

As I said, violence is always lurking just beneath the surface. We do not place blame for man's fallen nature. We only ask how to mitigate it. We used to call this civilization. Violence is also mitigated through speech. Not polite speech. The only kind of speech that could ever serve as a substitute for the thrill of violence is the kind that lets 'er rip. No mute buttons or fact checks or penalty boxes. A man who would just as soon fight his opponent is not going to submit petitions to a censor. If you desire democracy, you must give a man his adverbs. 

Trump tells his supporters he hears them. Trump's opponents want to censor them. They've already censored Trump himself. Raucous free speech was one of the ways we ensured peaceful democracy. Not polite democracy. And not always exactly peaceful. But peaceful enough. And when the alternative is the war of all against all, as Hobbes believed – and the grim history of mankind bears him out – peaceful enough is enough. 

But that safeguard is gone now. Our political and corporate establishment refuse to accept the American form of democracy: crude, and not always completely peaceful, but a mostly peaceful democracy. Those who would defend the peaceful continuation of democracy today have a mind to impose it forcibly. They will censor you. They will take your adverbs (and give you new pronouns instead). They will put you on lists. Dox you. Humiliate you. Destroy you. They will no longer tolerate the rough peace we enjoyed through the crude exercise of our freedoms. They insist upon a perfect peace, through the exercise of their strength. They will achieve peace through war. War is peace. 

I will tell you why they are doing this. Our political establishment is a government without a country. Trump's supporters are a country without a government. The calls for Trump to resign, and the building of lists so that Trump's supporters will never have representation in the current government again, are not helping our democracy. The Trump supporters' spontaneous, stupid, and wrongful actions against the government is not the real story. The real story is the government's wrongful actions against its people. That is why we do not have peace. And that is why we will not have peace for quite some time to come. Except the Orwellian kind. 

If democracy fails, it will not be because someone did something. It will not be because someone is to "blame." Democracy is not a thing that may be taken for granted. Democracy, if indeed it can last at all, lasts only as a result of...of what, exactly, we have never been able to answer. That is why the first peaceful transition of power in 1800 was called a miracle. There has never been a better word for it. 

It is perhaps not for nothing that that miracle persisted for so long as America could be called a Christian nation, or at least a nation with Judeo-Christian values, who worshiped Yahweh, the God of our founders. The America that saw its miraculous experiment continue was a praying nation. America today is a blaming nation. I do not know what good there is in blaming. I will leave that for others to answer. All I know is blaming has not yet produced a miracle. 

If we would like another miracle, I suggest we start praying for one again. 

One Hidden Cost of Lockdown: How Some Spent New Year’s Day

 

From:  A Reader

To:       Seth Barrett Tillman [via Jurist] 

January 1, 2021

I read the November 30 post by Seth Tillman with interest. I’d be interested in his view as to whether his conclusion—that Kamala Harris can simultaneously serve as both a Senator and the VP—is undercut by the incongruous prospect of her being able to vote twice on the same measure: once as Senator and, if a tie ensues, a second time as VP/President of the Senate. I’m not aware of any legislative body in which one individual has two votes on the same measure, and I can’t imagine the Founders were either, or would’ve intended such a result. 

-----------

From:  Seth Barrett Tillman

To:       A Reader

January 3, 2021

The presiding officer of an Anglo-American legislative house abstains from voting in most circumstances, but has a right to vote as any other member, and is sometimes required to break a tie. Beyond that, practices varied in the past, as they still do across elected and appointed assemblies.

For a discussion of the disparate practice circa 1788 in U.S. states, see: William Smith, A Comparative View of the Constitutions of the Several States with Each Other, and with that of the United States (Philadelphia, John Thompson 1796). For example: ibid. at tbl.1 & n.n (“CONNECTICUT, [Governed under the] Old Colonial Charter of Charles II [of 1662]. unaltered, except where necessary to adapt it to the Independence of the United States . . . . Governor, as Presid[ent] of the council, and the Speaker of the House, have each a vote [as a member], besides a casting vote [as the presiding officer].”). For a more modern resource, see: Margaret A. Banks, The Chair’s Casting Vote: Some Inconsistencies and Problems, 16 U.W. Ont. L. Rev. 197 (1977).

One of the most famous of such famous incidents involved NY’s [royal] Governor Cosby and Councillor/President [Rip] Van Dam. See John F. Burns, Controversies Between Royal Governors and Their Assemblies in the Northern American Colonies 320 (1923) (“[Prior to 1733, Governor] Cosby [of New York] took part in the deliberations of the Council while acting in a legislative capacity. Thus as a member [!] of the Council he had one vote, as executive he had final veto power, and in case of tie he cast the deciding ballot. Always two, and sometimes three, votes were at his command.”).  You can find the primary documents on the Cosby-Van Dam dispute, which was the genesis of the celebrated John Peter Zenger trial, here: 6 Documents Relative to the Colonial History of the State of New York 39–45 (E.B. O’Callaghan ed., Albany, Weed, Parsons and Co. 1855). The legal issues you raise were at the heart of the Zenger trial. Zenger was if not the most famous, at least, one of the most significant pre-1763 trials in the British New World colonies. Thus it seems likely that lawyers and the educated lay public circa 1788 would have been aware of Anglo-American legislative bodies permitting multiple voting in, at least, certain specific circumstances.

You wrote that you cannot “imagine” that the Founders were aware of legislatures where “one individual has two [or more] votes on the same measure”. You might reconsider your position—or, read my publications touching on the subject. They are all on Westlaw and posted on SSRN (for free and easy access). [See, e.g., Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 61 Clev. St. L. Rev. 285 (2013).]

Seth

Seth Barrett Tillman, Lecturer*

_______________________________________

*Seth Barrett Tillman, One Hidden Cost of Lockdown: How Some Spent New Year’s Day, New Reform Club (Jan. 3, 2021, 7:17 PM), <https://reformclub.blogspot.com/2021/01/one-hidden-cost-of-lockdown-how-some.html>; 

Seth Barrett Tillman, Senator and Vice President of the United States: Can Kamala Harris Hold Both Positions at the Same Time?, Jurist–Academic Commentary, Nov. 30, 2020, 5:46:13 PM, <https://www.jurist.org/commentary/2020/11/seth-barrett-tillman-kamala-harris-vp-senator/>, <http://ssrn.com/abstract=3737188>; 

See also Seth Barrett Tillman, Member of the House of Representatives and Vice President of the US: Can Paul Ryan Hold Both Positions at the Same Time?, Jurist–Forum, Aug. 23, 2012, <http://jurist.org/forum/2012/08/seth-barrett-tillman-vice-presidency.php>; <https://www.jurist.org/commentary/2012/08/seth-barrett-tillman-vice-presidency/>, <http://ssrn.com/abstract=2129812>; 

 Cf. Cosby v. Van Dam, 1733, Historical Society of the NY Courts (last visited Jan. 7, 2021), <https://history.nycourts.gov/case/cosby-v-van-dam/>;