Our problems remain epistemological.

Friday, December 24, 2021

What Did Alexander Hamilton Mean?

 


In Federalist No. 77, Alexander Hamilton wrote: “The consent of [the Senate] would be necessary to displace as well as to appoint.” What did Hamilton mean?

Compare Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting) (“In order to prevent arbitrary executive action, the Constitution provided in terms that presidential appointments be made with the consent of the Senate, unless Congress should otherwise provide; and this clause was construed by Alexander Hamilton in The Federalist, No. 77, as requiring like consent to removals.” (emphases added)), Ray Raphael, Constitutional Myths: What We Get Wrong and How To Get It Right 118–119, 277 nn.34 & 36, 278 n.38 (2013) (affirming that Hamilton’s “displace”-language addressed removals, and characterizing the contrary view as “purely legalistic” and “subtle”), <https://tinyurl.com/2p8jhwkc>, and Jeremy D. Bailey, The Traditional View of Hamilton’s Federalist No. 77 and an Unexpected Challenge, 33 Harv. J.L. & Pub. Pol’y 169 (2010) (arguing that Federalist No. 77’s “displace”-language was akin to “remove”), <https://ssrn.com/abstract=1473276>, with Reply Brief for the Respondent [Consumer Financial Protection Bureau (“CFPB”)] at 10, Seila Law LLC v. CFPB, No. 19-7, 140 S. Ct. 2183 (2020) (brief filed on Feb. 14, 2020 by Francisco, S.G.), 2020 WL 774433 (“In The Federalist No. 77, Hamilton said only that the Senate’s consent ‘would be necessary to displace’ principal officers . . . not to ‘remove’ them. Replacing an officer would of course require Senate confirmation of the replacement—which is all Hamilton may have meant.”), <https://tinyurl.com/y4fbdh2x>, 3 Joseph Story, Commentaries on the Constitution of the United States §§ 1532–1533, at 390 (Boston, Hilliard, Gray, & Co. 1833) ("§ 1532. [I]n an early stage of the government, [the power of removal] underwent a most elaborate discussion [in Congress]. The language of the constitution is, that the president ‘shall nominate, and, by and with the advice and consent of the senate, appoint,’ &c. The power to nominate does not naturally, or necessarily include the power to remove; and if the power to appoint does include it, then the latter belongs conjointly to the executive and the senate. In short, under such circumstances, the removal takes place in virtue of the new appointment, by mere operation of law. It results, and is not separable, from the [subsequent] appointment itself. § 1533. This was the doctrine maintained with great earnestness by the Federalist [No. 77] . . . ." (emphases added)), <https://tinyurl.com/a5hsn8zr>, Seth Barrett Tillman, The Puzzle of Hamilton’s Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149 (2010) (arguing that Federalist No. 77’s “displace”-language was akin to “replace,” and was not addressing “removal” per se), <https://ssrn.com/abstract=1331664>, Ilan Wurman, The Removal Power: A Critical Guide, 2020 Cato Sup. Ct. Rev. 157, 197 (“Hamilton’s entire paragraph [in Federalist No. 77] is about ‘the business of appointments.’ Thus, he speaks of ‘displacing’ an officer after a new president is elected. This seems most logically to be a reference to the advice and consent of the Senate to a new appointment.”), <https://tinyurl.com/2p9xzn8s>, and Letter from Professor Forrest McDonald to Seth Barrett Tillman (Feb. 14, 2009), <https://tinyurl.com/2ueurpx4> (“Your argument [that is, the view regarding the meaning of Hamilton’s “displace”-language] is, in my opinion, irrefutable.”). See generally, e.g., Removal Power of the President, [16 June] 1789, Founders Online (last accessed Dec. 12, 2021), <https://tinyurl.com/rtvtdccx>:

[James Madison, in the House of Representatives’ Committee of the Whole:] Where the people are disposed to give so great an elevation to one of their fellow citizens, I own that I am not afraid to place my confidence in him; especially when I know he is impeachable for any crime or misdemeanor, before the senate, at all times; and that at all events he is impeachable before the community at large every four years, and liable to be displaced if his conduct shall have given umbrage during the time he has been in office.

Id. (emphasis added).


Seth Barrett Tillman, What Did Alexander Hamilton Mean?, New Reform Club (Dec. 24, 2021, 5:30 AM), <https://reformclub.blogspot.com/2021/12/what-did-hamilton-mean.html>; 


See also Seth Barrett Tillman, Non-Textualism and the Duck Season-Rabbit Season Dramaturgical Dyad: A Response to Professor Cass Sunstein (and others), 20(2) Geo. J.L. & Pub. Pol’y (forth. circa May 2022), <http://ssrn.com/abstract=3910416>.



Wednesday, December 15, 2021

Monday, December 13, 2021

Friday, December 10, 2021

Some Uncomfortable Thoughts About the Smollett Prosecution

 


 

Let the jury consider their verdict,’ the King said, for about the twentieth time that day.

No, no!’ said the Queen. ‘Sentence first—verdict afterwards.’

 —Lewis Carroll, Alice’s Adventures in Wonderland (1865)

Dave Chapelle knows it. See <https://tinyurl.com/4j2wj259>. I know it. And you know it too. There was no hate crime; it was a hoax. And there have been many hoaxes in recent history. It is a long, long list. Smollett’s actions have (inadvertently) exposed the race hoax industry, and its regular accessories across the U.S. news-media-&-entertainment-industry complex. The media will purport to believe anything. The beast has to be fed—copy has to be sold—clicks have to be inflated—even if the ultimate result is racial violence grounded in a hoax.

But we should still take a good, hard look at the Smollett prosecution. The latter has also exposed the seedy underside of the legal world of criminal prosecution. It is not a pretty picture. The prosecutor, Kimberly M. Foxx (the State’s Attorney for Cook County, Illinois) and her office made some mistakes. They started a prosecution of Smollett, and then stopped it—with little explanation or transparency. Foxx also (arguably) made technical or administrative errorswhen she informally recused herself from the Smollett case and then directed one of her subordinates to take over the case.

As a result, the matter was shifted into Judge Toomin’s court. He had discretion to appoint a special prosecutor to take over the Smollett prosecution. His exercising that discretion depended on whether Foxx and her office had violated the law controlling the administration of justice. Toomin’s decision hinged (or should have hinged) on Foxx’s conduct, not Smollett’s. A judicial resolution of Smollett’s guilt or innocence would only follow a jury’s verdict after a trial, should a newly appointed prosecutor choose to bring a prosecution. This is all basic. You don’t have to go to law school, or even watch Matlock reruns, to understand this, right? Actually, no, some people do not understand this most basic principle. And some of these people are our judges. 

In his decision, which granted the motion to appoint a special prosecutor, Judge Toomin wrote:


Rather, in perhaps the most prominent display of [Smollett’s] acting potential, Smollett conceived a fantasy that propelled him from the role of a sympathetic victim of a vicious homophobic attack to that of a charlatan who fomented a hoax the equal of any twisted television intrigue.

[Judge Michael P. Toomin, In re Appointment of Special Prosecutor (Jussie Smollett), No. 19-MR-00014 (Circuit Court of Cook County, Illinois, Criminal Division, June 21, 2019) (slip op. at 2), <https://tinyurl.com/2s37y247>.] Lewis Carroll’s Red Queen would have agreed with Judge Toomin’s sentiment: here, guilt is announced before trial. This sort of pronunciamento does not leave much residual discretion for the prosecutor. With his only having one case to sort out, the prosecutor has every reason: to bring the case to trial; to enjoy the perquisites of his temporary government appointment; and to rack up any concomitant media attention. See Morrison v. Olson, 487 U.S. 654 (1988) (Scalia, J., dissenting). And, here, a judge has already tipped his hand as to the accuseds guilt—so, a decision to prosecute looks unusually safe.

If you believe, as I do, that none of this makes any sense … that is because none of this makes any sense.

Seth

Seth Barrett Tillman, Some Uncomfortable Thoughts About the Smollett Prosecution, New Reform Club (Dec. 10, 2021, 7:19 AM), <https://reformclub.blogspot.com/2021/12/some-uncomfortable-thoughts-about.html>; 



 

Sunday, December 05, 2021

The Teepee and Trump Tower: The Environmentalist Vs. Christendom

Let me tell you about an essay I just read by a friend of mine. The essay is ostensibly about global warming theory. I say the essay is about "global warming" theory because my friend prefers "global warming" over the theory's hazier new name, "climate change." Many of the exponents of "climate change" theory bristle upon being reminded their theory went, until recently, by the more forthright name "global warming." That is probably because the globe has not actually warmed since the '90s, and because in the 4 billion or so years of existence our globe has warmed – and cooled again – rather a lot of times, even before there were humans around emitting carbon or carbon theories. But rest assured, my friend's essay is not partisan, and in fact his essay stipulates to the principal tenets of global warming. Or climate change. Whatever. 

I also said the essay is ostensibly about global warming. I say "ostensibly" because the essay really is about something else. And about that something else I would like to say more, because it is a provocative point. My friend delays gratification about the something else to page twenty-something of his essay. But being a more promiscuous essayist I give it away right up front. Here is the something else: 

Yes, the global-warmists hate what modern human activity is doing to the planet. That is no act. But there is more to it than just the harmful effects of modern human activity. Much more. In fact, the mere effects of human activity is just the entrĂ©e to the real objective. Icebergs are just an icebreaker. Once you probe deeper, some of the global-warmists will admit it to themselves: this is not just about carbon. Carbon is just a crude symbol of what is wrong with modern human activity. Warmist hatred goes deeper than this. No, their war is not against carbon. Deep down, the warmists don't just want to abolish the effects of modern human activity: they want to abolish modern human activity itself, and remake humanity it their own image. The warmists wrestle not against principalities, against powers, against the rulers of the world, but against flesh and blood. 

In other words, climate change theory is not ultimately an engineering quest, but a religious one. This seemed rather fresh when it first dawned on me, but in fact the environment has always been bound up in human religious and magic traditions. In his classic study of religion and magic, The Golden Bough, Sir James George Frazer observed that the "decay and regeneration" of the earth is "a phenomenon so important, so striking, so universal" that it "readily presents itself to men in every stage of savagery and civilisation." And so it has proved among many of the exponents of climate change theory, carrying on the worship tradition. Charles A. Reich prophesied a "revolution" in The Greening of America, a best-seller in 1970 and '71, which revolution would usher in "a new and enduring wholeness and beauty — a renewed relationship of man to himself, to other men, to society, to nature, and to the land.” Other environmentalists like Arne Naess and Murray Bookchin have preached an egalitarianism of people, plants, and animals, a return to a utopia of primitivism. American activist Jerry Mander argued primitive societies were onto something: they were not ignorant of modernity, but scornful of it. And so, Mander argued, should we be. 

Who are these premillennial mooks, you ask? Why, they don't even have Twitter accounts! On whose authority are we to accept that the modern environmental movement is driven by something like religious impulses? Well, then perhaps you will accept the authority of the man who invented the internet, Mr. Albert Arnold Gore, Jr.? The overarching theme of his The Earth in the Balance is that ours is a "contrived, controlled, and manfactured world," that modernity represents a "moral schism" and "spiritual crisis" that threatens "the loss of our spiritual lives" and "mask[s] our deep loneliness for that communion with the world that can lift our spirits," and that we should instead "walk humbly with nature's God" toward " a larger spiritual purpose." And we should take our cues for life's purpose from the ancients, from the Indians. Gore quotes Chief Seattle, that "man belongs to the earth. All things are connected like the blood that unites us all. Man did not weave the web of life, he is merely a strand in it." Gore offers up the prayer of the Onondaga tribe to the "Great Spirit, whose breath gives life to the world," asking to "help us learn the lessons you have hidden in every leaf and rock," and to "make us always ready to come to you with clean hands and straight eyes, so when life fades, as the fading sunset, our spirits may come to you without shame." (You may think I write this when a sneer. I do not.) 

But I belabor the point. The President himself, taking up Gore's cause, has declared a "battle for the soul of America." Surely we are slow students to have learned, only at this late stage, that environmentalism is not merely a policy proposal but religious evangelization. 

The a-ha moment came for my friend upon reading Mark Lynas's new book, Final Warning. My friend was, at first, confused by Lynas, because Lynas actually is not very supportive of many proposals to reduce carbon emissions. Lynas opposes, for example, “direct human manipulation of the world’s climate and weather systems on a day-to-day basis.” Lynas thinks this a “Faustian bargain.” Why is Lynas, who is deeply committed to climate change toward global unwarming, so dismissive of many of the du jour carbon-cutting proposals? Lynas reveals: "[W]e would gain some version a future, but at the cost of our souls. The planet we would bring into being would not be the earth I love and want to protect.” Yes, says Lynas, maybe we could cut carbon enough to save both the earth and our lifestyle. But don't you see, we would have let the crisis go to waste! For Lynas, we are going about this all wrong thinking of this as an economic and engineering problem. We are treating global warming as the disease, and our lifestyle as the patient to be saved. But this does not ring true for the true believers: global warming is the cure – our lifestyle is the disease. Policies will never be enough. Only prayers and ablutions will ready us to come to the Great Spirit, without shame. 

Again, I say this without a sneer. All those longing for spiritual fulfillment are my brethren. We are on this earth to seek God and honor Him. Always do each of us need improvement and encouragement in this, our highest calling. And often may we find suggestions in other traditions. So let us consider for a moment the Indians. 

I still call them Indians, by the way. The Indian was America's unique moral problem. The term Indian evokes the surprise that the first Europeans must have felt to find the Native Americans on this continent, and not literal Indians. They were not even prepared enough to give them their own name. And throughout our history we never did become prepared to treat them decently. Those Europeans who became Americans might have been forced to acquiesce in co-existing with another way of life had they reached Asia instead of a new continent. This is a project the British mastered through colonialism. We Americans pride ourselves on not being colonialists. But we also cannot claim any credit for peacefully coexisting with any other way of life. The Native American never had greater standing in the eyes of Westerners than when they were thought to be Indians. And we still cannot abide other ways of life. In my own profession, lawyers vex and prod for greater "diversity" on the bench. Yet no one ever means by this that we should look for judges who rent their homes, or who made a living among the trades: our jurists are almost uniformly cosmopolitan. American cosmopolitans have never had greater self-esteem as diverse and tolerant, yet they still don't know what to make of a person who doesn't want a desk job, an iPhone, a stock portfolio, and a vaccine passport. 

So the Indian way of life obviously is romanticized. Al Gore and global warmists and other cosmopolitans do not actually want to live like Indians. (I suspect Mark Lynas wants to want to.) But even the most earnest warmist knows he'll come no closer than maybe re-watch A Man Called Horse. So what he lacks in the way of Indian customs he makes up for with an anti-modern mood. He admires the teepee – it represents a way of life connected to nature, and not aspiring to surpass or dominate it. And if he will not deign to live in a teepee, at least he can fulminate against the gaudier manifestations of modernity. Trump Tower will do nicely. What is Trump Tower but the same glass and steel in which the cosmopolitans and their climate change think tanks are housed, with some gauche ornamentation bolted on for show? The climate, of course, cannot distinguish Trump Tower from the UN building. But the climate activist sees Trump Tower as a trophy awarded to nature's conqueror. And that is the difference: Gore and Trump have both conquered nature, and neither want to give up their lifestyle, but Gore expresses remorse about that, and Trump does not. 

By the way, penitence also drives the approach to other modern problems in recent years. As Shelby Steel and Orlando Patterson have noted, for two generations cosmopolitans have supported Great Society and social justice programs to help blacks but which, by many metrics, actually hurt blacks. The latest and strangest installment of this program is "Defund the Police" and no-cash-bail programs. Telling a cosmopolitan that his program has not made things better tends to baffle him: "But it has worked – I do feel better." 

Again, there is something of the religious about revering nature, and dumping on modernity. It is near the heart of Lucretius's poem "No Single Thing Abides": 

Lo, how the terraced towers, and monstrous round
Of league-long ramparts rise from out the ground,
With gardens in the clouds. Then all is gone,
And Babylon is a memory and a mound.

But what have we learned about living in harmony with nature? After reading James Michener's Centennial and then watching the excellent miniseries based on it (a screenplay that, in several ways, surpassed the novel), it occurred to me that we still haven't learned a fundamental lesson from the United States' shabby treatment of the American Indian. During one of the treaty negotiations, Michener puts these words into the mouth of an Indian chief: 
"We must be permitted to ride the open prairie without the white man’s trails cutting us off from old grounds, for without freedom our spirits will perish." 
And that is why no treaty ever held up. The fundamental assumption of the United States was that the Indians eventually would relent and adopt the Americans' way of life – i.e., modernity, progress. The Americans would never accept coexistence with a way of life fundamentally opposed to progress. (Could they be expected to?) The Americans had a second chance at coexistence, this time with the Mexican. The Mexican, in Michener's telling, was happy to coexist: he settled down and worked as an excellent farmer – hard-working, good instincts. But like the Indian, the Mexican would not be cut off from their "old grounds": they did not prize landownership and enterprise, and instead they followed one crop after another, going wherever the work was good, working in warm weather, spending the winter months in cantinas with their friends and their own music and language. American cosmopolitans never could understand this, and still cannot. Though they claim to be "multiculturalists," the cosmopolitans seem not to actually believe there are different cultures. Once the foreigners receive government benefits and a mail-in ballot, think the cosmopolitans, they will prove they like all the same things we do. And their religion and values? They shan't need those any longer, say the cosmopolitans, for they shall have ours.

Indians had their teepees, in which they lived lives close to nature, and not above it. Westerners had the Garden of Eden, by which they became alienated from nature, and the Tower of Babel, by which they rivaled its Creator, and cathedrals, by which they praised Him. Some, like Jerry Mander in In the Absence of the Sacred, have theorized that primitive societies were not ignorant of modernity: they purposely rejected it. This might suggest that, if the Garden of Eden was a real place, only Westerners were cast out of it, and the Indians remained to live in harmony with nature. (Except for those Indians who piled towers of skulls from human sacrifices.) Or perhaps Eden was never a place, but a way of life, and modern man had been cast out of that way of life, so that even if he should stumble upon that way of life again, it should look so foreign to him that he would do all within his power to destroy it. In fact, the ignorant among the modern men did destroy much of it. It was the sophisticated among the moderns who did much worse to it: they corrupted it, by giving them welfare and casinos.

I don't know if Eden was a real place. But it is worthy of thought. The teepee makes a fine archetype of the life in harmony with nature. The teepee represents a way of life connected to nature, and not in rivalry with it. Trump tower is the opposite of the teepee: it spikes the football in nature's face. That is its sin. 
 
And yet: is it not better to award harmless trophies than to raise up utopianists? The right-winger in his F150 who belches a triumphant blast of exhaust into the ether surely cannot be worse than the left-winger in his Tesla, who keeps children in slavery to mine the minerals needed for his car battery. Can he? No, not as a practical matter. But as a religious matter? The Tesla slave driver's intentions are good. His heart is pure. For the political-religious impusle, that is what matters. 

As in all things, some balance is required. Did the Indians strike the right balance with their teepee? Why should they have built even teepees if nature wanted them to be cold, or to be wet, then oughtn't they be cold, or wet? Or suppose the Indian would have built Trump tower if only he could have done, but they simply had not yet advanced enough to build more than teepees? After all, they built teepees – they did seek to avoid nature to some extent – so why assume they would not have built houses if they could, with electricity and plumbing? If they were truly one with nature, why shelter themselves at all, even in teepees? If God or nature wants you to be cold or wet, does a teepee mock less than a log cabin, or a single family house, or a tenement, or Trump tower, or Al Gore's mansion?

Yet there is a difference. One thing is closer to nature than another. And that itself is significant. Maybe the answer is: laborare est orare – work is prayer. All things are permissible if done reverently. To the Pharisees, Jesus sinned by healing on the Sabbath, the Gentiles sinned by eating unclean meats. To the Indians – and to the modern cosmopolitans who sneer at Trump tower yet live in functionally equivalent modern abominations with only their cold sterility to atone for them – the white man sinned by overbuilding, overpopulating. But Jesus taught that it is what comes out of a man that makes him unclean. Build, or do not build, but do all things prayerfully

What a pitiful lot, we moderns, sniping at each other from our penthouses in our new Tower of Babel. We object to adding another story atop the Tower, each for different reasons, but who among us has standing to object? That is the moral of the teepee – to flee temptation: you cannot add another story on a teepee.

And so we come back to the religious global warmist, the climate change activist who would purge our modern souls of sin by knocking down our towers erected against nature, who would send us back to the teepee. To whom we might respond that, in many ways, we come to the same prescriptions, but by different religions. Christendom taught that man's world will be put, in the end, under God's dominion. The warmists teach that it will be put under nature's dominion. There are lessons to be shared in both religions, such as humility, and good stewardship. But that, I fear, is not enough to avoid a holy war. For a man may give up his heart's desire to do the will of his God, but not to do the will of some other bloke's god. For if all things are permitted so long as they are done prayerfully, what is relevant is not our actions, but our intentions. Not what we do, but who we worship. I confess I am not willing to consent to my world becoming an offering up to whatever gods Gore and Lynas and their adherents serve. No, the warm-mongers will have to give me reasons, not a sermon.

What was supposed to be preferred to immanenting the eschaton – bringing about utopia and moral perfection – was liberalism: that by respecting individual rights and opinions, and limiting government to things like filling potholes and stopping bad guys with guns, government would be kept out of the business of saving souls. I am eager to join those with concern for our souls at an interfaith council. But establishing a national religion out of it only invites a holy war.

How Is This Success?

 



On September 18, 2021: Mexico and U.S. had the same deaths per million rate (2072). This is well after COVID-19 vaccinations were widely available in the U.S.

How is this success? How?

Seth Barrett Tillman, How Is This Success, New Reform Club (Dec. 5, 2021, 6:43 AM), <https://reformclub.blogspot.com/2021/12/how-is-this-success.html>; 

Twitter: <https://twitter.com/SethBTillman/status/1467459827387486213>; 




Friday, December 03, 2021