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