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Saturday, July 10, 2021

The Wards of Civilization

There is a distinctively Orwellian note in the official slogan, "Build Back Better." This is the slogan that follows on the heels of the state-enforced halting of the economy, the cessation of social interaction, the suspension of schooling. "Building Back Better" is often described laced with racial and sexual tribalism. The slogan also vies for ubiquity with the slogan "Defund the Police," to the extent that one wonders if the two ideas are not part of the same program, so that one wants to know: building back to what?

The White House says it has no intentions "to build back to the way things were." So despite the fact that more Americans than ever are unable to have the American dream of owning a house, restoring that dream would be building back "to the way things were," and thus, seemingly by definition, not "better," but somehow worse.

When one is asked to "reimagine" their world and turn it into something new, one cannot help but to look back, if just for a moment, and reflect on what one is being asked to leave behind. That which is new, after all, is not always better. When the Americans threw off the relatively light yoke of George III, a large number of Americans thought it was rather a step backward. T.H. White had King Arthur grumble to Lancelot in The Once and Future King that "It was no good conquering the Dictator unless you and the others do the civilizing part." 

"What is the use," Arthur went on, "if the whole place is fighting mad?" This, I fear, is an apt question for our time. The fighting spirit is the engine of humanity. But it is usually tuned to the key of destruction, always fighting against something. Do we fight for anything?

One can sense something cyclical, if not rather regressive, in the present mood. For this is not the first time we have been fighting mad. We have gone to war before to vindicate a certain ethos, a way of life for this country. Why did we war: For a political agenda? For economic superiority? For military advantage? No, not for these, but for higher pursuits. John Adams had it that "I must study politics and war that our sons may have liberty to study mathematics and philosophy ... geography, natural history and naval architecture, navigation, commerce and agriculture." 

But even these pursuits are merely instrumental. They are pursuits a government ministry might later be installed to study and regulate – and dominate. Domination can never be the end of civilization. Mere domination is not the end: mastery is the end. For as Adams went on, when his children had attained mastery, then their children, in turn, would gain "a right to study painting, poetry, music, architecture, statuary, tapestry and porcelain." The ends of civilization are not the things we do on weekdays. They are the things we give ourselves to on holidays and, perhaps even more, on holy days.

White's King Arthur sensed this too. His knights of the round table, having no higher pursuits to give themselves to after rooting out all the thieves' dens and spreading peace throughout the land, had turned back to fighting against each other. Just so, one would not be too terribly surprised to learn any day now that a member of Congress had been caned on the House floor. (Weighing most anxious on our minds would be questions of the race and sex of the parties involved.) What was needed, Arthur concluded, was a great spiritual quest. So Lancelot and the other knights of the round table went off on crusades. And so have our modern knights of the board room tables.

I have gotten ahead of myself. What I have overlooked – for it is the privilege of the present to assume its inevitability – is how America got from independence to civilization. That was not inevitable. We look to those who drafted our founding documents, and those who fought in our Revolutionary War and Civil War, as the founders of our country. But more precisely, they are the founders of our government. Our country, our civilization, is something apart from its government. And for our civilization we owe credit to many rough fellows, who subdued the wilderness of this country, and who did many unpleasant things, in order to build a great country. The people who carry out the business of civilizing tend to be uncivilized. I do not volunteer to head any committee to erect statues to these uncivilized individuals (for in the present fighting mood they are liable to be torn down anyway). But those of us who value civilization ought to remember them.

Larry McMurtry's Lonesome Dove has a fine passage remembering the likes of those rough fellows. McMurtry, who just passed away earlier this year, did not think his book a "towering masterpiece" or anything, but merely a "Gone with the Wind of the West," which may help calibrate our standards to his rather higher ones. In the book, Gus and Call, who fought in the Civil War and then as Texas Rangers, are now driving cattle up to Montana. In a short bit of dialogue where the characters recall an old Indian they had known, McMurtry sets up a poignant observation:

"I remember him," Augustus said. "It was always a puzzle to me how such a short-legged Indian could cover so much ground." 
"He claimed to have been all the way from the Columbia to the Rio Grande," Call said. "That's knowing the country, I'd say." 
"Well, he was an Indian," Augustus said. "He didn't have to go along establishing law and order and making it safe for bankers and Sunday-school teachers, like we done. I guess that's why you're ready to head off to Montany. You want to help establish a few more banks. ... Every bank in Texas ought to pay us a commission for the work we done. If we hadn't done it, all the bankers would still be back in Georgia, living on poke salad and turnip greens."

Today, of course, there aren't any more cowboys or Indians than there are Sunday-school teachers. But there is no end of bankers. Gus and Call are fictional men, but they stand for real ones. And I doubt many people today want to take credit for their adventures. Yet we have the benefit of them, those of us who are able to live simple and peaceful lives today, for which most of us are grateful. The bankers and politicians and big corporate enterprises, on the other hand, have the greatest benefit of all. And for this, they are resentful. This is something worth remembering the next time you hear these sorts of people launch into sermonizing at you. The wine served at celebrations and ceremonies is taken joyfully and reverently. It is the wine drunk at every meal that collects critics. 

In the end, if you remember, Gus succumbs to an Indian arrow to the leg. He lost the leg, but the gangrene had spread to the other leg. A sawbones was nearby to take it off, but Gus refused. He could still get about by horse as a one-legged man, he figured, but not as a legless one. He was among the last of his kind, and would not give up his legs: for it is a high calling to be a steward of civilization, but a low thing to be its ward. 

Are the stewards of our civilization, like Augustus, who made the world safe for bankers and school teachers, having now discharged the duty for which they were called, passing from the earth? We are the heirs of the bankers and school teachers. But we have become bored. Or like Arthur said, though we could not root out our might, and the desire for conquest, yet we also ran out of things to which to direct our might. John Adams was wrong: painting, poetry, music, architecture, statuary, tapestry and porcelain, did not detain us very long. Adams might have looked to Solomon: Solomon, perhaps because he had seen decay begin to set in even to the great works of Ozymandias, did not ask the Lord for might, but for wisdom. Yet he received might as well, and in the end it defeated his wisdom. Every epoch of human history teaches this: beyond the brief cresting moment upon attaining civilization, when we stand, for a moment, fully upright atop a fleeting domination of the powers of the earth and mastery of its natural forces, in joyful celebration, and having attained stewardship of God's creation, we know naught but the slow but certain bending of our gaze, from up to the heavens, back down to the slime. 

Build back better? I must be permitted to doubt. The builders have nothing but disdain for the stewards of our civilization. They would prefer we settle into the role of their wards, while the new Lords of the earth perfect our souls.

But our new Arthurians are wrong, too: matters of the soul will not detain us either. At least, not in the way we might expect. What finally saved White's Lancelot was neither conquest nor mastery, but ruin, humility, and baptism. Even after he had confessed the sins of his former vainglorious self, Lancelot found he could not return to his old life again. "But if you really were absolved this time!" Guenever cried, to which Lancelot replied: "God was not punishing me by letting the black knight knock me down – he was only withholding the special gift of victory which it had always been within his power to bestow." 

But this is unearthly wisdom: To give up glory? And not get anything back? Lancelot had been victorious as a sinner, so why should he always be beaten when he was heavenly? What then, Guenever wanted to know, did Lancelot do? 

"I knelt down in the water of Mortoise, Jenny, where he had knocked me – and I thanked God for the adventure."

Only God can tame our might, by tipping us over, until we learn: we are not the greatest force in the world – and we kneel in the place where we have been knocked down, and thank God, simply for the adventure. 

And pray that He humble the utopianists.

Friday, July 09, 2021

Banned by the Communist Party of China: A Review of Liu Lianzi’s “Ruyi’s Royal Love in the Palace”

By the way: The Chinese Communist Party sought to ban Ruyis Royal Love in the Palace“The cancelling of ‘Yanxi & ‘Ruyi’ shows that the [Chinese Communist] Party remains unswerving in its vigilance.” Jiayang Fan, “In China, Shows Like ‘Story of Yanxi Palace’ Go Viral, and the [Communist] Party Is Not Amused,” The New Yorker (April 23, 2019), <https://newyorker.com/news/daily-comment/in-china-shows-like-story-of-yanxi-palace-go-viral-and-the-party-is-not-amused>. 

Ruyis Royal Love in the Palace is an 87-episode fictional historical drama based on the lives of 18th century Emperor Qianlong, and his consort, and subsequently his empress, Ruyi, of the Ula-Nara clan. Qianlong was the Qing emperor—the Manchu dynasty which succeeded the Ming. Qianlong was the fifth Qing emperor, and the fourth to rule over China. But the plot is not really about Qianlong—it is about Ruyi. The series was shown on Chinese television in 2018. I only came across it a few months ago on Youtube. You can find the first (45-minute long) episode, with English subtitles, here: <https://www.youtube.com/watch?v=FwGz8S24A4M>.

If I were pressed to suggest an analogue, only The Tudors or Wolf Hall comes to mind. But the scale of Ruyi is much grander than the two Tudor dramas. That is, in part, because of the vastness of Qianlong’s multi-ethnic Manchurian/Mongolian/Chinese empire: by population and size, in its time, the Qing empire was probably the largest nation in the world. And it was, according to good historical authority, during Qianlong’s reign, 1711-1799, in which that empire reached its zenith—in terms of military security and cultural greatness.

One can only be transfixed by Ruyi’s set design and costumes. The scale of the scenes is reminiscent of Cecil B. DeMille’s films. The musical score was haunting, and the acting—superb, notwithstanding that much is, no doubt, lost through translation and subtitles. Albeit, some of the English subtitles put forward helpful historical explanations or explained references to classic or ancient Chinese literature. There are several points where characters write in Chinese—I am sure that something is lost when their logographs were left unexplained.

I will make a few quick points about this series. First, I cannot remember the last time that I have been moved to tears by film. I cannot remember the last time I saw a film with so much genuine ambiguity about various characters’ conduct, leaving one contemplative, knowing that there is (and can be) no real closure to come. I do not really know if these moral conundrums emanate from Buddhism, or from Confucian or Daoist philosophy—or from the author’s imagination—or, perhaps, should be best understood as universal problems of the human condition, merely set amidst an eighteenth century Chinese historical plot. I cannot remember the last time I saw a film with multiple unexpected plot twists.

Second, this series portrays women as developing close relationships and loyalties with one another, affecting both the development of their personal character, and the political future of their polity. For example, Ruyi and Hailan (another of Qianlong’s consorts) have a complex and intellectual relationship. The truth is: I cannot think of any analogue in Western film, at least, not any analogue about women.

Third, I will describe one very affecting scene. Ruyi falls victim to a plot. Essentially, she is framed by two other members of Qianlong’s harem for killing two of Qianlong’s children (by other wives). Qianlong, not quite believing the evidence, sends Ruyi to Cold Palace—a palace in the Forbidden City. Although it is a “palace,” it has been allowed to fall into decrepitude, and so is used as an internal open-air prison for abandoned consorts, concubines, and female servants of the imperial family. Many of the prisoners are mentally ill. Ruyi languishes there, with a faithful servant, for three years. By that time, sufficient evidence emerges which casts doubt on Ruyi’s guilt. As a result, Qianlong permits her to leave Cold Palace, and before returning to her new home, Yikun Palace, she walk along the ramparts of the Forbidden City.

Ruyi looks out over the Forbidden City’s many palaces. Her facial expression is difficult to gauge. When I first saw this scene, and when I first heard its musical score, I saw it as uplifting—as one, short happy moment when virtue and right overcome injustice and evil. But having watched this scene now many times, I am not so sure. Could it be that Ruyi, although glad to be out of Cold Palace, and pleased to have her reputation restored, realizes that she has only traded one prison for a more glorified one? The whole of the Forbidden City is a prison. All the people, from the smallest to the greatest, who live there are trapped by the calculations, schemes, and machinations of others seeking advantage, for themselves, their families, and their clans. Or is the point, that this “trap” is the human condition, and all one can do is endure, while doing as much good as we can until we must leave? See Episode 27, <https://www.youtube.com/watch?v=-Uyfa8ljuMA> (at 25:00 to 34:00ff); see especially at 28:02 (where the logographs on the courtyards gate are translated).

Ruyi’s Royal Love in the Palace gets full marks.

Seth

Seth Barrett Tillman, Banned by the Communist Party of China: A Review of Liu Lianzi’s “Ruyi’s Royal Love in the Palace,” New Reform Club (July 9, 2021, 11:17 AM), <https://reformclub.blogspot.com/2021/07/a-review-of-liu-lianzis-ruyis-royal.html>; 



Saturday, May 22, 2021

"You Read What You Want to Read. I Don't Know Why."

"...I think because you never had to see what I have seen." 

The miniseries Centennial, based on James Michener's novel, is excellent. It is one of the few adaptations that, in my humble opinion, surpass the original (you, too, will be grateful to the screenwriter who shaved some 5 billion years and 100 rather ridiculous pages off the beginning of Michener's book). Centennial is a biography of a place, namely, Centennial, Colorado. It begins in 1797, and progresses through the mid-20th century. Watching these mere 12 episodes will give you a sense of the continuity of our country and its people that I have not experienced in any other work.

Michener was a Democrat. He even ran for Congress once (which he regarded a serious career mistake.) He was an FDR Democrat, and a JFK Democrat. For younger readers, that is the kind of Democrat that embraced the principles of Martin Luther King, Jr., and would not readily understand why 21st century Democrats feel the need to distance themselves from those principles. 

Racial tension and reconciliation is a major theme in Centennial. America has had problem with these things. But Michener also offers perspective. For Michener, there were worse things than commonplace racism. Things like brutal tyranny, violence, and war.

I love the following scene about Tranquilino, growing old in the 1930s, but who was once a young man bitter at his uncle Nacho for leaving his home Santa Ynez for Colorado in the years leading up to the Mexican Revolution, living under military occupation, his people forced to work in the mines. Tranquilino even shot a man in a firing squad when demanded of him by the general. But he refused to shoot women, and so he fled. And then found good but friendless Centennial farmer Hans Brumbaugh, and he worked hard for Hans, and they became fast friends, and when Tranquilino left to fight in the Revolution and away from his adopted home of Colorado and his friend Hans, it broke Hans's heart, and when Tranquilino came back to find his friend had just passed away, it broke his heart, too.

And that sets up this moving scene at his son Triunfador's cantina, having returned after a white man harassed Triunfador's sister in town and the sheriff almost arrested Triunfador for stepping in:

Father: "I'll get my money when I finish my work."

S: "A burro's work. And that's the only reason they let us stay here. We make them rich, and the little money they pay us, they steal back from us by raising prices at the stores. Our money is welcome, but we are not."

Mother: "Triunfador, you make it sound so bad."

S: "It is bad."

F: "There is no war." 

S: "There's a war against us." Pulls out newspaper clipping and reads: "Hilario Guttierez, a Mexican farmer, on a farm near Eagle Pass, made approaches to a white woman, and was duly lynched." 

M: "If he hit the woman and threatened her--"

S: "Mama, he didn't hit her. He smiled at her. Maybe he said, 'Ay, ay, ay, muchacha.' Not even as much as the--as the Anglo said to Soledad. And for that--for that, he was lynched." 

F: "In Colorado, he should know not to say nothing like that to Anglo women. " 

S: "The word I'm talking about is 'duly.'"

M: "'Duly.' What does it mean?"

S: "It means, in the natural order of things. Because he was a Mexican, he was naturally lynched. Naturally lynched!" 

F: "I don't know this Guttierez. I don't know what he did to this woman."

S: "Papa--"

F: "Neither do you. You read what you want to read. I don't know why. I think because you never had to see what I have seen."

S: "You don't see what's going on around you."

F: "I have seen women like our sister and mother turned into savages--killing with guns and knives to keep from being killed. I have seen them buried in holes in the ground. 200, 300 who went to war. I have seen your own brother blown up into so many pieces, I don't know how to begin to bury him. They don't blow up the trains in Colorado."

S: "Papa--"

F: "Here, there is no need for war. We do not work like a slave, seven days a week in the darkness in the mines, in the darkness, only to make Don Porfirio more rich...and General Terrazas more powerful. In Colorado, we can see the sun rise, the sun goes down. We do not step in the gutter when the strong man comes around. I don't care, not even for the sheriff. And we get paid. In Colorado, you can have a place like this, a place for all of us in the winter when the work is done in the fields. Good food. Musica. A place to be together and warm when the snow is outside and in the street. A place, Triunfador, to make winter the best time of the year. The best time."

S: "I don't see how you can see the good in everything." 

F: "I'm always looking. You will see, mijito, you will see. It is good here, and it will be even better. This place, your place--this will make it better. You will see."

_____

You may choose to see the bad in anything. It is easy if you try. But if we wish to find anything good, we must first cultivate the desire and skill to look for it. The younger generations will always give us vigorous and angry Triunfadors, who scour the news looking for injustices, and struggling against those they perceive to stand against a more perfect world, which we can achieve if only we had a little imagination. But the Triunfadors depend on an older generation of Tranquilinos, who have learned that those who think things can't get any worse, have no imagination at all.

Tuesday, April 20, 2021

Chauvin: A jury of his peers?

NPR, March 11:  Several members of the jury pool in the Derek Chauvin case have said they fear retribution if they were to render an unpopular verdict




Regardless of the merits of the case against Derek Chauvin, there is certainly reasonable doubt about the makeup of the jury: The smart ones begged off--only those already disposed to convict would have readily agreed to serve in the Trial of the Century:

PROSPECTIVE JUROR 1: "The case itself is just very - this whole thing is just very divisive, and I'm not a divisive person. I don't - I just feel like - I'd just rather not be a part of something that's so two-sided."

 
And I certainly wouldn't risk myself and my family because my name got out that I voted not guilty. 

PROSPECTIVE JUROR 2: "With a high-profile case, I know everything becomes public. So depending on what's ruled, that could be the problem later on down the line or even in the process."


Epilogue:  GUILTY ON ALL COUNTS

____________________

LATE ADD [Denouement]:

Alt. juror in Chauvin trial on mob: ‘I was concerned they would come to my house’



KARE-TV 11’s Lou Raguse shared online that the jurors were so intimidated that they didn’t even share their real names with each other.

He tweeted: “This was shocking to me, but Christensen told me she and the other jurors didn’t even share their real names and occupations with each other. Just called each other by juror number. Got along but mostly made small talk. Concerned about saying too much.'”


“I had mixed feelings,” she said. “I did not want to go through rioting and destruction again, and I was concerned about people coming to my house if they were not happy with the verdict.”




Monday, April 19, 2021

A modest proposal re: our Constitution's flaws

Yes, by all means--

It may take a century or two, but tat-for-tat, eventually a 435-member Supreme Court. Pack the HELL out of it.


And in the meantime, let's admit DC and PR and Guam and Samoa and then split up the rest of the states and get a 435-member Senate. 

Then let's elect 435 presidents.  It's only fair.

Although then we might have to expand to 870 of each to keep it fair.  That would be even more democratic. But first things first.  One constitutional miracle at a time.

Friday, April 16, 2021

Tweets that Aged Well, and Tweets that did not Age Well

 



Seth Barrett Tillman, Tweets that Aged Well, and Tweets that did not Age Well, New Reform Club (Apr. 16, 2021, 4:29 AM), <https://reformclub.blogspot.com/2021/04/tweets-that-aged-well-and-tweets-that.html>;

Monday, April 05, 2021

Is it Believable?

 

Natsu Taylor Saito, Indefinite Detention, Colonialism, and Settler Prerogative in the United States, in Special Issue: Genealogies of Indefinite Detention, 30(1) Social & Legal Studies 32–65 (February 2021):


Tens of thousands of civilians in northern and border states were interned and many more banished without any specific showing of disloyalty. In one Missouri county, for example, by late 1863 only 600 people remained out of a population of 10,000 (Brownlie, 1958: 126, 163). Congress subsequently authorized suspension of the writ in 1871 to help suppress the Ku Klux Klan in the Reconstruction South, in 1902 to facilitate the colonial conquest of the Philippines, and in 1900 to preclude threats to the annexation of Hawai‘i (Klein and Wittes, 2011: 120–122). 

Why tell us that the population was reduced from 10,000 to 600 unless the bulk of that decrease arose in connection with habeas-related, internment-related, and/or banishment-related policies? And if this meaning was intended by the author, is it believable?

Seth

Seth Barrett Tillman, Is it Believable, New Reform Club (April 5, 2021, 2:23 AM), <https://reformclub.blogspot.com/2021/04/is-it-believable.html>; 


Friday, March 26, 2021

A Letter to Politico

 



re: Karl Racine, Brian Frosh, and Norman Eisen, We Sued Trump for Emoluments Violations. That Fight's Just Getting Started, Politico (February 8, 2021, 04:30 AM EST), <https://www.politico.com/news/magazine/2021/02/08/donald-trump-emoluments-presidential-corruption-466484> 

The most significant claim made in Karl Racine, Brian Frosh, and Norman Eisen's article is now hopelessly out of date. And your readers should be made aware of this. Their article repeatedly states that Judge Messitte's trial court decisions, for the United States District Court for the District of Maryland, established the "law of the case" in regard to the Foreign Emoluments Clause, and that Judge Messitte's decisions are "still in force." Those trial court decisions were implicitly set aside by the Supreme Court on January 25, 2021, and they were expressly vacated by the Fourth Circuit on March 9, 2021. It is all there in black-and-white in the Fourth Circuit's order. See Order, App. No. 20-1839, 2021 U.S. App. LEXIS 6888, 2021 WL 913925 (4th Cir. Mar. 9, 2021), ECF No. 28 (4th Cir.), ECF No. 196 (D. Md.). On March 17, 2021, lawyers for Frosh, the Attorney General of Maryland, and for Racine, the Attorney General of the District of Columbia, sent a letter to the clerk of the Fourth Circuit seeking "guidance" in regard to the court's March 9 order. The clerk of the Fourth Circuit responded on March 25, 2021. The clerk's response, without any equivocation, stated: "[T]he [C]ourt [of Appeals] has asked me to advise you that the court has received your correspondence and that the orders entered March 9, 2021, will remain as written.”

After nearly 4 years of their repeated dilatory conduct over the course of this case, the two Attorneys General have nothing to show for their titanic waste of government and private resources, including federal judicial resources--all done for raw political purposes. They accomplished nothing. They never succeeded in getting a final judgement against former President Trump. They never succeeded even in getting any discovery against the former president. 

Interestingly, the Attorneys General brought two claims against former President Trump: an "official capacity" claim and an "individual capacity" claim. The former was moot once Trump was out of office. But the status of the latter claim was unclear. For reasons they have never explained the Attorneys General dropped both claims. They could have continued to litigate the individual capacity claim, but they chose not to do so. And, now, after nearly 4 years of litigation, they have nothing to show their fellow citizens, voters, and taxpayers for all the money, effort, and resources their offices used in this litigation. Their article in 'Politico' argued that their victory was establishing the law of the case as a precedent for future use. But ALL the binding appellate precedent has been vacated. And ALL the District Court decisions--which are only persuasive precedent--were expressly vacated on March 9, 2021. If this counts as victory, what would be defeat? 

The two Attorneys General achieved nothing substantive. What they did achieve relates only to photo opportunities and political fund raising. They occupied the time of four courts and, in doing so, delayed the meritorious litigation of countless citizens and taxpayers while they went after their great white whale: former President Trump. But the fact is: Attorney General Frosh and Attorney General Racine should have taken a lesson from Captain Ahab.

Seth

Seth Barrett Tillman, A Letter to Politico, New Reform Club (Mar. 26, 2021, 10:05 AM), <https://reformclub.blogspot.com/2021/03/a-letter-to-politico.html>; 

Monday, March 22, 2021

The Future of U.S. News and World Report’s Law School Rankings: A Letter from A Friend (UPDATE)

 

I would definitely recommend that you include your HeinOnline ScholarRank [in your materials]…. [T]he most important thing to know is that each faculty member’s ScholarRank score is like golf. The lower the better. Cass Sunstein is currently at the top with a ScholarRank of #1. The ScholarRank scores go as high as #45,000.

Your ScholarRank score is #4492 …. You’ve been cited 238 times [in the last 12 months] in HeinOnline journals….

And the ScholarRank score is about to become the single most important metric in American legal academia. Starting next year, 40% of each American law school’s U.S. News [and World Report] ranking will be based on HeinOnline’s cumulative ScholarRank of the school’s faculty (which apparently will consist of the combined faculty score divided by the number of tenured and tenure-track faculty). It’s going to have a huge impact on our field. Interestingly, however, most law school faculty (at least in my neck of the woods) seem unaware of ScholarRank.

Interestingly, 20% of the ScholarRank score is based on HeinOnline downloads in the past 12 months. Accordingly, I think ScholarRank is going to kill SSRN, at least as a platform for legal scholarship. People are soon going to realize that posting on SSRN is counterproductive because SSRN downloads don’t count toward a scholar’s ScholarRank score, whereas HeinOnline downloads directly factor into your ScholarRank score.


Seth Barrett Tillman, The Future of U.S. News and Wold Reports Law School Rankings: A Letter from A Friend (UPDATE), New Reform Club (Mar. 22, 2021, 9:44 AM), <https://reformclub.blogspot.com/2021/03/the-future-of-us-news-and-wold-reports.html>; 

UPDATE: Paul Caron, at Tax Prof Blog, was in contact with U.S. News & World Report. His correspondence indicates that my information above is not correct. 

Monday, March 08, 2021

Footnote From my Next Paper

 “Y Dyn Na Fu Erioed,” in Aberbargoed, Borough of Caerphilly, Wales, United Kingdom War Memorial, <https://tinyurl.com/43z4ym3a>. See generally Ewen Montagu, C.B.E., K.C., The Man Who Never Was (Philadelphia, Penn.: Lippincott, 1954) (publicizing the details of Operation Mincemeat: including the story of Glyndwr Michael, who posthumously served as Major William Martin, RM); Ronald Neame, director, The Man Who Never Was (Sumar Productions, 1956); Operation Mincemeat Documentary, Youtube, <https://tinyurl.com/5kxb39bn>. Montagu was elected president of the Anglo-Jewish Association in 1949, and he became president of the United Synagogue in 1954. Year Book of the Anglo-Jewish Association 1951, 5711/5712 (London: Office of the Anglo-Jewish Association, n.d.), 93-94; “VE Day 8 May 1945 Commemorations,” Gazette 2020/Wadham College, University of Oxford, 53, 55, <https://tinyurl.com/y6pf62tf>. After the war, Montagu served as Judge Advocate of the Fleet, recorder, and judge. See R v Long, Queen’s Bench [1960] 1 (Court of Criminal Appeal 1959) 681, 682 (Lord Parker, CJ) (reporting Montagu as recorder during trial proceedings in Southampton Borough Quarter Sessions); Lord David Hacking, “From Cambridge into the Law and the World of Arbitration,” Arbitration 82(3) (2016): 281, 286 (noting that Ewen Montagu was the presiding judge at Middlesex Quarter Sessions in Parliament Square, and “to us at the Bar, [Montagu] was ‘The Judge who Bloody Well Is’.”); “Hon. Ewen Edward Samuel Samuel-Montagu,” The Peerage, <http://www.thepeerage.com/p58982.htm>.


Seth Barrett Tillman, Footnote From my Next Paper, New Reform Club (Mar. 8, 2021, 7:42 PM), <https://reformclub.blogspot.com/2021/03/footnote-from-my-next-paper.html>; 

Monday, February 22, 2021

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>; 



Saturday, February 13, 2021

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?

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:
 

 

Thursday, February 11, 2021

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.

Monday, February 08, 2021

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>; 


Saturday, January 23, 2021

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.