are you now or have you ever...

Thursday, January 21, 2021

Trump's fall explained

Much more about us than him.




Sunday, January 17, 2021

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

Two friends contacted me recently, telling me something I thought strange. Both felt the need to tell me Trump was lying to me about the 2020 election. 
 
When the second friend asked me this question, I told him it made me wonder that, if he thought that I believe what politicians tell me, does he believe what politicians tell him? No, no, he assured me: he, too, believes all politicians, naturally, are cheats and liars; but it is only that Trump's lies about the election, and about Covid, are so unique.
 
The courts and the experts have spoken, after all. My friend wants to know, and asks very politely (more politely than this): why don't I shut up and get with the program?

I wrote him this response, slightly edited:  

Thursday, January 14, 2021

Restoring Election Integrity in One Easy Step

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

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

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

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

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

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

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

The Democrat wins. 

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

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

Tuesday, January 12, 2021

Freedom Is a Luxury Progress Cannot Afford

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


― H.L. Mencken 

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

Friday, January 08, 2021

Peace Is a Miracle

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

But even when it did work, there was no real reason to assume it should go on working. Yet, Americans saw it go on working. Perhaps there was something exceptional about America. Who knows? 
 
In fact, the peaceful continuation of American democratic governance went on working so well, and for so long, that Americans began to take it for granted. They began to see peace as a sort of natural state of their political life. And political violence as something, strange, foreign. Something that, if ever we should observe it, could be explained only as something that must have been imported. 
 
Violence, we came to assume, was not among America's gross domestic products.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, January 03, 2021

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

 

From:  A Reader

To:       Seth Barrett Tillman [via Jurist

January 1, 2021

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

-----------

From:  Seth Barrett Tillman

To:       A Reader

January 3, 2021

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

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

One of the most famous of such famous incidents involved NY’s [royal] Governor Cosby and Councillor/President [Rip] Van Dam. See John F. Burns, Controversies Between Royal Governors and Their Assemblies in the Northern American Colonies 320 (1923) (“[Prior to 1733, Governor] Cosby [of New York] took part in the deliberations of the Council while acting in a legislative capacity. Thus as a member [!] of the Council he had one vote, as executive he had final veto power, and in case of tie he cast the deciding ballot. Always two, and sometimes three, votes were at his command.”).  You can find the primary documents on the Cosby-Van Dam dispute, which was the genesis of the celebrated John Peter Zenger trial, here: 6 Documents Relative to the Colonial History of the State of New York 3945 (E.B. O’Callaghan ed., Albany, Weed, Parsons and Co. 1855). The legal issues you raise were at the heart of the Zenger trial. Zenger was if not the most famous, at least, one of the most significant pre-1763 trials in the British New World colonies. Thus it seems likely that lawyers and the educated lay public circa 1788 would have been aware of Anglo-American legislative bodies permitting multiple voting in, at least, certain specific circumstances.

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

Seth

Seth Barrett Tillman, Lecturer*


_______________________________________

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

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

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

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

 

No One Escapes a Purity Mob

Last week, a man lost his livelihood after a short video clip of of his altercation with a Chinese woman in a parking lot went viral. He angrily told the woman to "go back to China," while the woman, filming the exchange with her phone, told him to "keep going, keep going." He then called her a racial epithet, got out of his car and began walking toward her (for a purpose that was not clear in the video), and, just before leaving, sneered, "thanks for giving my country COVID." 

The man was a personal trainer. After the viral video was picked up on many media outlets, it is likely that he will not be able to continue his business. Angry people on social media doxxed the man, sharing not only his name but his home address, presumably so that more personal and violent punishments may be exacted.

Some colleagues of mine who knew the man shared the video with me. None of them came to his defense. His actions, of course, were indefensible. Then again, most criminal defendants' actions are indefensible, too. And yet they are given a defense. Not because we sympathize with the defendant. But because we fear the power of the prosecutor, and so we seek to cabin the power he wields to establish a public fact, and to exact punishment for it, according to his own lights. This, we acknowledge, is a terrible power, and it needs limits.

Strange, then, that more of us do not similarly fear the terrible power of a mob to do the same, yet without any limits on the standards of its sense of justice, and without any limits on the punishments it may exact.

Strange, too, that none of my colleagues who knew the man seemed to acknowledge the existence of a role other than that of prosecutor-judge. I do not know if any of my colleagues considered themselves a friend to this man. Indeed, some of them shared they had suspected something amiss when they had known him. But surely there are roles in our social communities – not to be confused with "social media" – other than as prosecutors, judges, and executioners. Even should we not feel the compunction, or the courage, to stand against the mob, at least we might exercise a bit of stoicism and refrain from joining it: to not lightly leap, as Epictetus advised, to meet things that concern us not. 
 
We may imagine that those we know and who know us are filled with nothing but the milk of human kindness. But we know it is not so. Were we to cast each other out into the outer darkness for that which is just beneath the surface, without hope of mercy or understanding, we should all be, each of us, utterly alone. 
 
I should not like to find out what is beneath the surface. Much less to see every person pay the terrible and final wages that justice would demand for what lurks there. "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." I suspect many good men have uttered contemptible things at our neighbors in moments of "road rage," for instance. And as Jesus taught, we do not stand condemned merely for the ugliness that we allow to pass our lips, but even for the ugliness that we allow to inhabit our thoughts.

I feel sorry for this man, for, ugly and contemptible as he showed himself to be, now if he were to acknowledge his sin, what does a mob hold for him? In the law there is punishment, a debt which may be paid. Among his friends and family there may be understanding. In God there may be mercy. But in a mob there is only the promise of anger and hate. 
 
A mob, whether with pitchforks or with keyboards, brings only darkness and fear. It is not less than this sinner deserves. But there is darkness and fear for those who wear the executioner's hood, too. We should not eagerly volunteer for the position.