A Response to Professor David Post, I’m, with her (and with Orin), too, The Volokh Conspiracy (Nov. 6, 2016, 12:24 PM), http://tinyurl.com/hh65hfe
I did not know when I came home [to the UK] from Australia in September 1939 whether these islands could defend themselves against the German armies and air-fleets. To be [morally] impelled to fight for one’s country it is not necessary to be certain that one’s country is going to win.
At the beginning [of this address] I refused to define patriotism; but now at the end I venture it. Patriotism is to have a nation to die for, and to be glad to die for it—all the days of one’s life.
—E.P., Address On Patriotism, St. Lawrence Jewry, London (1977).
A significant part of the commentariat, including the legal professoriate, has again and again stated, with a regularity that belies conviction, that the American public’s choice, the choice between Trump and Clinton, is not a choice, not in the sense of a normal election, but a choice in which one is morally or prudentially impelled to choose Clinton because Trump poses an existential threat to the country. Their position is that to vote for Trump is to put the nation and its people at a profound risk approaching certainty. Why? Because Trump will be dictator-strongman of sorts: one election, one time. Or because Trump will plunge the nation into destructive wars. Or because Trump will wreck the fabric of the economy. Or because Trump will destroy the constitutional order and the rule of law.
I am not going to comment on the substance of the anti-Trump message. You have heard it all before, and you have or will very soon make up your own minds whether Trump or Clinton deserves your vote. What I will say here is that the messengers of the anti-Trump message are not believable because their actions (or, more accurately, the lack thereof) do not accord with their message. Moreover, because these messengers are not believable, on balance, I suspect they are helping Trump, not Clinton.
Let me explain. If you have a country (a country you are attached to, a home, as opposed to a mere place of residence), and if you value its future and its people’s future, and if you believe that country faces an existential threat, then you will do something significant and concrete for your country to help it avoid that existential threat (or, at least, to minimize its untoward consequences). What you do not do is to merely offer advice and opinion. Offering advice and opinion is what you do in a normal election when your party faces a loyal opposition: i.e., one having merely different aims and policies. If all your actions accord with what one does in a normal election, then those who hear your opinion cannot be expected to believe your message: that one of the two democratic alternatives poses an existential threat to the country. In Professor David Post’s recent blog post on The Volokh Conspiracy, all he offers is opinion and advice. I doubt there are many whose positions or vote will be affected by what Professor Post has to say, except for a few who will find the advice insincere** and for that reason, they just might vote for Trump.
I recently posed a query on Conlawprof along these lines. I noted that many see Trump as posing an existential threat. I asked what have these anti-Trumpers actually have done, other than post opinion and advice on Conlawprof? The answers were staggering. One person responded offline that he rejiggered his personal portfolio; one responded online that he did the same. And one suggested that it would be imprudent to do more than that, as Clinton was leading in the polls and should Trump prevail or should a close race be contested, he and others would then volunteer to help Clinton in litigation. I suggest that all this is too little and too late. If you believe that Trump poses an existential threat to our country, then there are things you could do now (which are not only needed but will also have the added benefit of making your opinions appear sincere). What could you do? You could donate all, a half, a third, a quarter, or even a tenth of your net worth, or your liquid assets, or your current (post-tax) salary. In other words, you could do something that indicates your genuinely held belief in regard to the purported Trump threat and your willingness to take on some meaningful and significant personal and shared sacrifice to meet that threat. If you have little, you could volunteer all your time to Clinton’s campaign: you could take temporary leave from your employment, or use your vacation time, or just use all your waking hours outside of work to help Clinton. Again, you could do something that indicates your genuinely held belief in regard to the purported Trump threat and your willingness to take on some meaningful and significant personal and shared sacrifice to meet that threat. But if you don’t do things like this and don’t take actions illustrative of some significant personal sacrifice, then many who think the choice between Clinton and Trump is a regular normal election-time choice, will hear your opinion as insincere, or, worse, that you don’t really have a country.
I did receive one response to my Conlawprof post that bears repeating. One respondent wrote it would be irrational to make a significant personal monetary sacrifice along the lines I suggested because it is doubtful whether such a sacrifice would be determinative. What an interesting rule of action that would be if generalized to the public at large. I volunteer to do nothing—notwithstanding my country’s facing an existential threat—unless I have a guarantee that my side will prevail. If that is the way most people think, then, indeed, the country’s future is miserable.
After the Brexit referendum, Frank Field, a long serving Labour MP, explained why Vote Leave eked out a majority. Too many in the elite told ordinary voters how they must vote and that the alternative was madness, chaos, and anarchy. Adults just don’t take kindly to being told what they must do in a democratic election, particularly from those who are going about their lives just as they always seem to do. The elite’s strategy backfired, or at the very best, it convinced no one. The same may happen in the United States. And if it does, we will know who is responsible for the result.
Our election is on November 8. Three days later is Veterans Day, or what in some of the other Allied countries is known as Remembrance Day, Poppy Day, or Armistice Day. For a country to survive, much less prosper (and I speak in more than the mere financial sense), it must have citizens who—if they believe the country at real risk—will do more than write a blog post addressed to their grandchildren. See Professor David Post, I’m, with her (and with Orin), too, The Volokh Conspiracy (Nov. 6, 2016, 12:24 PM), http://tinyurl.com/hh65hfe (“I offer this for my grandchildren, just so they’ll know, when they grow up, that I did what I could.”). Patriots and citizens would do more, much more.
In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.
We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie,
In Flanders fields.
Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.
[**To be sure, I do not suggest that the advice is insincere, only that it is likely to be seen that way.]
Twitter: https://twitter.com/SethBTillman ( @SethBTillman )
My prior post: Seth Barrett Tillman, The Case of the Ship Money, R v Hampden 3 State Trials 381 (1640), and its relevance today, The New Reform Club (Nov. 6, 2016, 7:30 AM). [here]