THE NEW REFORM CLUB: 2018

Tuesday, December 25, 2018

Merry Christmas from the Moon

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

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

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

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

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

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

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

Friday, December 21, 2018

What The Media Is Not Reporting (with Update)

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

The President's brief is due later today—then we will know the President's position.

This is all a stunning turn of events. The media is not reporting it.

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

Seth

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

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

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

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Greenbelt Division

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

NOTICE OF VOLUNTARY DISMISSAL OF DONALD J. TRUMP, IN HIS INDIVIDUAL CAPACITY, PURSUANT TO FED. R. CIV. P. 41(a)(1)(A)(i)

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

Wednesday, December 12, 2018

What's the Matter with Orange County?

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

Californians are leaving because of how Californians vote.

Image result for orange county affluence

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

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

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

How confining. How very nonidealistic.

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

Leo! -- huzzah!

Sophia! -- boo, hiss!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, December 11, 2018

Today on CONLAWPROF

The recent election results which followed political gerrymanders and other recent opportunistic reassignment of powers within state governments by lame duck legislatures—they have been described as “cheating”, “monstrous”, etc. I inquired about specifying the scope of the rule from which one could conclude that anything wrongful had happened. No one came forward with anything like a substantive answer. Had there been such an answer as to the scope of the rule, then I would have inquired about the source of that rule.

Professor ZZZ’s answer is to tell me what I already know and what no one could reasonably deny—that gerrymandering exists and it produces identifiable winners and losers—ex ante and ex post. I don’t disagree with that.

Where I disagree is with the normative judgment that these sorts of political behaviours are wrongful. The proponents of these conclusions—“gerrymanders as wrongs” and “monstrous”—don’t point to any particular democratic enactment making this behaviour a wrong. I never had an opportunity to vote on this issue or to vote for either: [a] any candidate (at least none come to mind) or [b] any national or state party promising to enact constitutional reform or regular legislation to stop such practices. On the other hand, this sort of behaviour has a rich history in our country—over vast spans of time. So maybe that is some argument that the people or country are not against it, or if they are, maybe it is not at the top of their list of priorities?

During my lifetime there have been several periods of time where the levers of the federal government and any number of states have been in the unified control of the Democrats. Did they run on platforms to forbid such practices and then implement such reforms? Answer: Nothing at the federal level, and inconsistent practice at the state level. The same is true for the Republicans. In such circumstances, complaining about legal conduct with a rich history, and doing so in hyperbolic and harsh terms, seems (to me at least) misplaced moral judgment. Captain Louis Renault: “I am shocked—shocked—to find that gambling is going on in here!”

Those people who are against these practices would (I think) be better off convincing the public that what the status quo allows is not best for the country and would seek support to implement such reforms. They could run for office, support candidates who and parties which would reform such practices, etc, etc—or they could just sit in judgment of...their neighbours, and people who have actually won elections and faced the voters, and others with whom they are having a vanilla political disagreement.

Some states have turned to purported non-partisan commissions. But the commission members are elected by the public or appointed by partisans—so whether you get better results by that method is hardly answerable as a matter of pure theory. One would have to look to practice—and then you’d still need a shared normative framework to determine if better results have been achieved. So at some point, even if you move to a commission, you might want to consult the people as to what the commission ought to do. Where has that happened?

If the [sincerely held] goal is to actually to convince the public toward institutional reform to end such practices [as opposed to intellectually sterile virtue signalling], you will need majorities, if not super-majorities. If you start that process by demonizing people who you are having a vanilla disagreement with, you are not likely to convince many (among those not already convinced). Such language—“cheating” and “monstrous”—will just lead to a pronounced Wilder/Bradley Effect (a/k/a Clinton/Trump Effect) (a/k/a Remain/Leave Brexit Effect). You won’t have political debate—you’ll have political silence. Those who disagree with you will not engage with you; they’ll lie to pollsters at election time, and then they’ll vote for Trump, and in the future, maybe Trump-squared. And I’ll add that among the many moderates who might be won over—they are liable to ask you...if this behaviour is so bad and deserves such hyperbolic characterizations—“What have you done to stop it, other than engage in strong language on CONLAWPROF?” And if they won’t ask that question, I will.

So go ahead, keep using language like “cheating” and “monstrous”, and keeping demonizing people with whom you disagree, and keep using hyperbolic language about normal politics without having first established a pedigree of personal conduct to stop such “wrongs”—and as you keep doing all that—you’ll get more ... Trump. But now I repeat myself.

Seth

Welcome Instapundit readers!

Seth Barrett Tillman, Today on Conlawprof, New Reform Club (Dec. 11, 2018, 2:04 PM), <https://reformclub.blogspot.com/2018/12/today-on-conlawprof.html>.

<https://twitter.com/SethBTillman/status/1072569602054520832>

Thursday, December 06, 2018

This Is Not Quite Schadenfreude, But If So, What Do You Call It?

I live in Ireland. Just over a year ago, a journalist in this country wrote something—intended as a compliment—but was perceived by many as bigotry (or at least so they said). What happened next was nightmarish. Social media (initially started by a tweet from J.K. Rowling in England) exploded against the malefactor. Then the newspapers and other media chimed in, and finally, the chair of the Press Council and the Prime Minister! each added their politically correct two cents—against the embattled journalist. The journalist was fired from his job—notwithstanding his heartfelt apology—followed by the self-anointed morally perfect permanently outraged class dancing on the man’s (professional) grave. The whole episode was ad idem with Shirley Jackson’s The Lottery and the worst stereotypes associated with group-think in traditional village life.

I was one of a few people who defended this journalist in public.

A few days ago, he and I were having dinner. He made a point of thanking me (something which he had already done in the past)—and told me that he just could not imagine how he would have gotten through those trying times absent support he had from me and a handful of others.

This is what I told him.

I was sorry those events had happened to him. I would not wish such trials on him or anyone else, particularly as he was innocent of the gravamen of the charge. Still I urged him not have to thank me. Here is why. It was good craic defending him in public. For a few days, I was a person of interest to the Irish news media—in print and on the air. The reality was that my public role was a joy. The professionally morally preening class was (to some small extent) wrong-footed by my efforts. And my e-mail account was filled with notes of encouragement—something which does not happen all too often. So I urged him not to get into such hot water again—but he really did not have to thank me.

This is not quite schadenfreude, but if so, what do you call it?

Seth Barrett Tillman, This Is Not Quite Schadenfreude, But If So, What Do You Call It?, New Reform Club (Dec. 12, 5:42 AM), <https://reformclub.blogspot.com/2018/12/this-is-not-quite-schadenfreude-but-if.html>.

Wednesday, December 05, 2018

Escalation

I think the best I can say by way of response is that (at least) one of the two of us (Professor AAA and me) is wrong on this issue. All this discussion of escalation (and the purported loss of Queensbury [rules in the political sphere]) in regard to expanding the Supreme Court should only be a worry if the Congress and the President act absent democratic consultation at election time. But where there is a change in party control and candour at election time, then it is not a vice to implement the electoral programme the electorate supported. Characterizing carrying out a constitutionally permitted programme with a democratic mandate as mere “deference to electoral politics and what is legally allowed to Congress” strikes me as near tragic, if not actually tragic. It strikes me that if the programme is constitutional and has sufficient democratic backing to get past all our Constitution’s veto points, then norms to the contrary ought to give way. Might I point out that no one gets to vote on these so-called norms, and that judges and academics claim a near unique privilege in specifying the content of these norms? What Professor AAA sees as vice or abuse or an incipient danger, I see as virtue. Pure and simple.

If we have multiple rounds of Supreme Court expansion, and the Court goes from 9 to 11 to 15 to 21, or even to 33 members, the Republic will survive. The Treasury will find salary and pay for staff. The Court will find office space for its new members, clerks, and other staff. The Court (like the former UK House of Lords) might even find a way to meet in panels less than the complement of the whole Court. I don’t see this leading to radical transformation of American life or norms. It might be the only people who will face any profound effects will be Supreme Court practitioners and federal courts experts. Maybe not even them. I don’t see a radically expanded Supreme Court leading us to a dystopic future—at least, an enlarged Supreme Court will not (in my view) lead us there any more quickly than we are already heading. All this language of “escalation” is akin to Professor BBB’s (former) “fascism” language—it is misplaced hyperbole, rooted in the loss that is threatened by change—change which we do not support and cannot control. But not all such change is illegitimate, legally or morally, and not all such change should be feared.

There are some things which I do think are genuinely dangerous. Should the American people be told directly by the leadership of the two major parties, that an election can be held, a programme for reform be put forward, and that that programme is legal & constitutional, yet in the wisdom of the [permanent] bi-partisan leadership, the programme ought not, will not, and indeed, cannot be implemented because of so-called fears and norms … fears rejected by the electorate [e.g., Brexit], and norms that no one ever voted on … then I think certain very undesirable consequences are more likely than not to follow.

It is a question of your willingness to actually share your political fate with the “rider on the Clapham omnibus” or, to mix metaphors, the “first four hundred people in the Boston phone book.”

Seth

[Above I am quoting, Patrick Devlin and William F. Buckley Jr.]

Seth Barrett Tillman, Escalation, New Reform Club (Dec. 5, 2018, 5:48 AM),
<https://reformclub.blogspot.com/2018/12/escalation.html>.

<https://twitter.com/SethBTillman/status/1070268988205215744>

Welcome Instapundit readers!

Tuesday, December 04, 2018

Conlawprof, Normal Politics, and Fascism

One participant on Conlawprof wrote:

Democrats have been bad—probably equally bad—about gerrymandering when they had the chance. Republicans got most of the chances after the 2010 census.

I’m not aware of any examples of Democrats trying to strip the governorship of its powers when the Republicans elected a governor, or attempting to legislatively rearrange the separation of powers in some other way for similar reasons. These efforts in North Carolina, Wisconsin, and Michigan seem to be a new escalation. Maybe someone knows of prior examples; I am certainly not in any position to claim that there are none. But so far, no one on the list has been able to remember any.

(emphasis added).

My response:

Amendment Seventeen of the Constitution provides: “When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” In Massachusetts, prior to 2004, state law provided that the governor could make a temporary appointment to the U.S. Senate in the event of a senate vacancy. When Senator Kerry won the Democratic nomination for President, the state legislature (Democratic) changed the law and repealed the authorization providing for a temporary appointment by the governor. The governor at that time was Romney: a Republican. As to subsequent developments: In 2009, “[f]ollowing [Senator] Kennedy’s death from brain cancer . . . , the Legislature [again, Democratic] tweaked the law to give Democratic Gov[ernor] Deval Patrick what they had denied [Governor] Romney, the ability to appoint a temporary senator to fill the seat for a few months until the special election.” <http://www.wbur.org/news/2013/01/20/senate-vacancy-law> (emphasis added). Query: What do you think of the media’s use of “tweak[]” here?—Is this evidence of bias? Doesn’t Professor QQQ consider just this sort of “tweaking” evidence of “fascism”? See December 3, 2018 post. If Professor QQQ is right, then this is bias, right? Or, if this media report is correct, then what do we think of Professor QQQ’s “fascism” language?

For a modern New Jersey example…of attempted (but failed efforts) by a Democratic legislature to change the power status quo vis-à-vis its Republican Governor, see <https://eu.northjersey.com/story/news/new-jersey/2018/07/23/democrats-launch-bid-strip-gov-phil-murphy-key-power/818613002/> (“The [N.J.] Legislature once before approved legislation to force governors to collaborate with it on predicting revenues, but the measure was vetoed by [Governor] Christie [a Republican] in 2016. Unlike the proposed constitutional amendment, that bill would still have left it up to the governor to certify the final revenue figures.”).

On a more historical note…as Reconstruction was winding down and in its immediate aftermath…Republican governors were sometimes confronted with Democratic legislatures—the latter would strip powers from the former. That’s what happened in Texas circa 1872. See <http://www.austincc.edu/lpatrick/his1693/reconstr.html> (“Democrats regained control of the Texas legislature in late 1872 as a result of elections in which Texans vented their wrath on the Republicans. Almost immediately the Thirteenth Legislature repealed most of the ‘radical’ legislative program enacted by the previous body and removed some of the governor’s most significant powers. In December, 1873, Texans removed Governor Davis from office in favor of an unreconstructed Democrat, Richard Coke.”). I suppose I could find other examples from that period, but why bother? This type of statutory power grab [in the former confederate states in relation to Reconstruction politics] ended once the Democrats excluded Black Americans, Cajun Americans, and other loyal Americans from the polls, thereby securing for their party all state-wide offices for several generations. But that is a history we all know.

Seth

PS: Welcome Instapundit readers. Stay and have a look around New Reform Club—my co-bloggers do good work.

Seth Barrett Tillman, Conlawprof, Normal Politics, and Fascism, New Reform Club (Dec. 4, 2018, 4:19 AM) <https://reformclub.blogspot.com/2018/12/conlawprof-normal-politics-and-fascism.html>.

<https://twitter.com/SethBTillman/status/1069883917908566017>

(Spelling error correct per Professor Reynolds.)

Saturday, December 01, 2018

John Locke on Romans 13 and the duty to obey the government

Today, John Locke is held to be an Enlightenment philosopher, "Enlightenment" used as rationalism in contradistinction to religious faith and the Christian Bible. However, the Founders largely considered him simply a very smart and elegant Christian thinker. What is not largely known even among scholars is that Locke's final life project, after the [anonymous!] publishing of his historic Two Treatises of Government, was a study of Paul the Apostle's Epistles.

Re Romans 13:1,

"Let every soul be subject unto the higher powers. For there is no power but of God; the powers that be are ordained of God. Whosoever, therefore, resisteth the power, resisteth the ordinance of God; and they that resist shall receive to themselves damnation."

this passage was and is the most troublesome political passage in the New Testament, and was responsible for literally millions of words exchanged on the question of political liberty. Men like John Calvin largely took it as an absolute prohibition against anything resembling revolution or revolt against even the meanest of rulers.

John Locke's treatment of Romans 13 is pretty straightforward: Christians are not exempt from obeying lawful authority just by virtue of being Christian. They have to obey the same laws as everybody else.

But on what is "lawful authority," Locke says Paul the apostle "is wholly silent, and says nothing of it," because for Paul or Jesus "to meddle with that, would have been to decide of civil rights, contrary to the design and business of the Gospel"---which of course was the business of salvation, of preparing for the next world, not this one.

Locke notes that it was Paul's intention and prudence, that such "sauciness, sedition or treason" was, in those times of Roman "insolent and vicious" rule, a "scandal to be cautiously kept off the Christian doctrine!" [The exclamation point is Locke's.]

Thus Paul's admonition is not one of political or theological right, but merely of prudence.

Founding era preacher William Ellery Channing made a similar argument about why the New Testament didn't explicitly ban slavery: "a religion, preaching freedom to the slave, would have shaken the social fabric to its foundation, and would have armed against itself the whole power of the state." Jesus didn't preach violent revolution, that his church would be arming itself against the whole power of the state. Indeed, we recall that many were disappointed he wasn't that kind of Messiah.

But that is not a Biblical endorsement of slavery either:

The perversion of Scripture to the support of slavery is singularly inexcusable in this country. Paul not only commanded slaves to obey their masters. He delivered these precepts: "Let every soul be subject unto the higher powers. For there is no power but of God; the powers that be are ordained of God. Whosoever, therefore, resisteth the power, resisteth the ordinance of God; and they that resist shall receive to themselves damnation." This passage was written in the time of Nero. It teaches passive obedience to despotism more strongly than any text teaches the lawfulness of slavery. Accordingly, it has been quoted for ages by the supporters of arbitrary power, and made the stronghold of tyranny.

Did our fathers acquiesce in the most obvious interpretation of this text? Because the first Christians were taught to obey despotic rule, did our fathers feel as if Christianity had stripped men of their rights? Did they argue, that tyranny was to be excused, because forcible opposition to it is in most cases wrong? Did they argue, that absolute power ceases to be unjust, because, as a general rule, it is the duty of subjects to obey? Did they infer that bad institutions ought to be perpetual, because the subversion of them by force will almost always inflict greater evil than it removes?

No; they were wiser interpreters of God's Word. They believed that despotism was a wrong, notwithstanding the general obligation upon its subjects to obey; and that whenever a whole people should so feel the wrong as to demand its removal, the time for removing it had fully come. Such is the school in which we here have been brought up. To us, it is no mean proof of the divine original of Christianity, that it teaches human brotherhood and favors human rights; and yet, on the ground of two or three passages, which admit different constructions, we make Christianity the minister of slavery, the forger of chains for those whom it came to make free.

Thus Romans 13 can turn Christianity into the ally of tyranny by its acquiescence to it. Further, sayeth Locke, the "lawful authority" question must be decided by worldly standards, to be "determined by the laws and constitution of their country."

And so, if a legal argument to separate from Britain's constitutional monarchy could be made---and indeed the 27 "repeated injuries and usurpations" in the Declaration of Independence like "For imposing taxes on us without our consent" (taxation without representation) was such an attempt---then there was no theological impediment per Romans 13 to such a separation.

Further, Locke asserts "the doctrine of Christianity was the doctrine of liberty," using for his example that Christians were "freed" from observing the "Mosaical" law.

In other words, Locke is dispensing with any supernatural argument that unlawful rulers should be obeyed because it's God's will because Romans 13 says so. According to John Locke, it doesn't say that.

From Locke's A paraphrase and notes on the Epistles of St. Paul to the Galatians, First and Second Corinthians, Romans, and Ephesians:

[ HT to Ben Abbott for the citation and link.]

CHAP. XIII. 1—7.↩

This section contains the duty of christians to the civil magistrate: for the understanding this right, we must consider these two things:

1. That these rules are given to christians, that were members of a heathen commonwealth, to show them that, by being made christians and subjects of Christ’s kingdom, they were not, by the freedom of the gospel, exempt from any ties of duty, or subjection, which by the laws of their country, they were in, and ought to observe, to the government and magistrates of it, though heathens, any more than any of their heathen subjects. But, on the other side, these rules did not tie them up, any more than any of their fellow-citizens, who were not christians, from any of those due rights, which, by the law of nature, or the constitutions of their country, belonged to them. Whatsoever any other of their fellow-subjects, being in a like station with them, might do without sinning, that they were not abridged of, but might do still, being christians. The rule here being the same with that given by St. Paul, 1 Cor. vii. 17, “As God has called every one, so let him walk.” The rules of civil right and wrong, that he is to walk by, are to him the same they were before.

2. That St. Paul, in this direction to the romans, does not so much describe the magistrates that then were in Rome, as tells whence they, and all magistrates, everywhere, have their authority; and for what end they have it, and should use it. And this he does, as becomes his prudence, to avoid bringing any imputation on christians, from heathen magistrates, especially those insolent and vicious ones of Rome, who could not brook any thing to be told them as their duty, and so might be apt to interpret such plain truths, laid down in a dogmatical way, into sauciness, sedition, or treason, a scandal cautiously to be kept off from the christian doctrine! nor does he, in what he says, in the least flatter the roman emperor, let it be either Claudius, as some think, or Nero, as others, who then was in possession of that empire. For he here speaks of the higher powers, i. e. the supreme, civil power, which is, in every commonwealth, derived from God, and is of the same extent everywhere, i. e. is absolute and unlimited by any thing, but the end for which God gave it, viz. the good of the people, sincerely pursued, according to the best of the skill of those who share that power, and so not to be resisted. But, how men come by a rightful title to this power, or who has that title, he is wholly silent, and says nothing of it. To [405] have meddled with that, would have been to decide of civil rights, contrary to the design and business of the gospel, and the example of our Saviour, who refused meddling in such cases with this decisive question, “Who made me a judge, or divider, over you?” Luke xii. 14.

The Quiet People

---------- Forwarded Message---------

From: jameswilson75

Date: Fri, Nov 30, 2038 at 9:24 PM

Subject:

<Truncated Message> was in#vitable. The air was filled with millions of id#as. Every id#a, really. All the correct opinions were r#pr#s#nted already. What was there l#ft to do? Adding more voices only swelled the volume. You cannot bring a tune out of a cacophony by adding still more notes. You must begin taking notes away. The most effective way to change the c#nv#rs#tion is not to add cumulative voices, but to remove the complementary ones. I suppose rather I am thinking of the way light works: We see a color only when its complement is removed. Blue is revealed by removing orange. For violet, take away yellow. Purple needs the absence of green. A painter begins by choosing the right colors for h#s palette. And excl#ding the wr#ng ones.

You asked where Fr##m of Sp#ch was in all of this? You had read about the Massachusetts farmer who read the C#nstit#tion and "did not go to any lawyer to ask his op#nion," but "formed his own op#ni#n and was pleased with this C#nst#t#tion." Such lovable bumpkin l#gic was how r#ghts were once understood but it suffered during the following centuries under progressively trivial provisos, qualifications, and quodlibeta. Any discussion of the subject resulted in a logorrhea that piled mountains of arg#ment on trivial points, until the public's op#nion became quite irrelevant.

Once the very concept of fr## sp##ch became uncertain it was vulnerable to risible challenges. The m#dia giants themselves never exercised a r#ght to sp#ch detectable to humans. They never expressed any m#ssage other than platitudes at confrères and corpobabble on their own platforms. But they got their m#ssages out crystal clear by sil#ncing very specific sorts of people. So a person's fr#dom of sp#ch gave way to the m#dia giants' fr#dom of c#ns#rship. It was still true the r#ghts of the string section were equal to those of the brass and woodwinds, but none could deny the conductor's r#ght to play the piece of his choosing.

It has become more difficult to explain all this without detection by the giants' flt#rs. We had little to fear early on, when there were so many more popular voices targeted ahead of us. But even aunt Sh#nnon's gl#ten-fr## baking page was deleted just last week! Now all the troubl#makers have been made quiet, what a sore thumb we Quiet People are to speak now, with or without our vowels!

Friday, November 30, 2018

Brexit And The "Flailing" United Kingdom

[Tillman responds on Conlawprof to Professor QQQ, an academic in the United States.]

Professor QQQ,

You wrote: “It’s hard to say these days that Ireland is worse governed than the flailing United Kingdom.” I don’t know which is better or worse governed: Ireland or the UK. But it is difficult for me to see why you (Professor QQQ) think the UK is “flailing.” The UK is a magnet for immigration and investment. Its economy is growing—above expectations since the Brexit vote—and at a rate higher than most of the countries of Europe.

What, I think, you mean by “flailing” is that its legislators and people are having precisely the sort of constitutional debate [in regard to Brexit] you seek (and perhaps rightly so) for the American people about the shape of our society. What you see in the UK is what that sort of debate looks like in a world where the “Philadelphia” convention cannot meet in secret and in a culture where norms of deference have been largely superseded by democratic norms of transparency and wide public participation. I think you (Professor QQQ) should be applauding what you see in the UK—the fact that you are not doing so is more than a bit disturbing.

Seth

Welcome Instapundit readers! Stay & Have a look around New Reform Club. My co-bloggers do good work.

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

<https://twitter.com/SethBTillman/status/1068430929117528064>

Why I Post On The Emoluments Clauses Cases

‏

@cterbeek

Replying to @SethBTillman

Seth, why do you care so much about this issue [the Emoluments Clauses cases] and spend so much of your time on it?

9:29 pm - 29 Nov 2018

Seth Barrett Tillman, Why I Post On The Emoluments Clauses Cases, New Reform Club (Nov. 30, 2018, 1:30 AM), <https://reformclub.blogspot.com/2018/11/why-i-post-on-emoluments-clauses-cases_30.html>. 

<https://twitter.com/SethBTillman/status/1068392030206869504>