[I am not the artist. I saw it on Twitter. I do not know who to give credit to—which I would like to do.]
Biden was on capitol hill for over 40 years—which intervention and which war did he vote against?
Which?Question: Does the Constitution impose any limits on the federal government?
In 2009, the Progressives' answer to this question was, and I quote House Speaker Nancy Pelosi: "Are you serious?" But, beginning approximately January 20, 2017, we began learning of a seemingly endless list of limitations on the federal government. And specifically, limitations on one branch of the federal government. And even more specifically, limitations on one person at the head of one branch of government. That person, of course, is the President. The President, we are now told – at least any President who was sworn into office on January 20, 2017 – must be totally transparent about how he and his family earned their personal wealth. The President also, we are now told, must not repeal the Executive Orders of any past President named Obama. The President, further, if his skin is not the correct hue, must not nominate a candidate to fill an empty Supreme Court seat in an election year. Further examples abound.
Perhaps you will notice that none of these limitations on the presidency derive from the Constitution. No, our progressives still are not much interested in constitutional limits. The problem with constitutional limits, or any kind of legal limits, really, is that they have to be written down somewhere. In public. Where people might read them, and bother our rulers about them. Limits can be a useful thing. But, once the progressives restore themselves to the ruling saddle, they become so many stinging flies.
When you Normans invaded England,
you seized our Saxon land,
burned our Saxon homes,
raped our Saxon sisters.
Naturally, you hate Saxons.
Professor Jonathan Adler’s Rashōmon Moment
This is what
Professor Adler wrote:
So far so good. Next,
Professor Adler wrote:
Of course, Justice
Ginsburg did not recuse when such a case came before the Court, and there is a
difference between drawing an inference from a justice’s own explicit conduct
and drawing one from videos produced by third parties. The case for recusal in
the former instance is far stronger.
But what did that enigmatic statement mean?
Did Professor Adler
mean?:
Of course, Justice Ginsburg did not recuse when such a case came before the Court, and there is a difference between drawing an inference from a justice’s own explicit conduct [i.e., Justice Ginsburg’s interview expressing disdain for Trump] and drawing one from videos produced by third parties [such as the White House’s filming Justice Barrett’s participation in festivities]. The case for recusal in the former instance [involving Justice Ginsburg’s speech] is far stronger.
Or, did he mean?:
Of course, Justice
Ginsburg did not recuse when such a case came before the Court, and there is a
difference between drawing an inference from a justice’s own explicit conduct [i.e.,
Justice Barrett’s attending White House festivities] and drawing one from
videos produced by third parties [involving newscasters interviewing Justice
Ginsburg]. The case for recusal in the former instance [involving Justice
Barrett’s conduct] is far stronger.
I am not entirely sure I know what Professor Adler intended here. I think, but again, I am not sure, Adler’s use of the word “conduct” obscures the point he is attempting to make. I also think it likely different readers understood this paragraph very differently from one another. As to its original public meaning?
Seth
Seth Barrett Tillman, Professor Jonathan Adler’s Rashōmon Moment, New Reform Club (Oct. 27, 2020, 4:03 PM), <https://reformclub.blogspot.com/2020/10/professor-jonathan-adlers-rashomon.html>;
Jonathan H. Adler, Should Justice Barrett Recuse from 2020
Election Litigation? (Updated), Volokh
Conspiracy—Reason (Oct. 26, 2020 10:39 PM), <https://reason.com/2020/10/26/should-justice-barrett-recuse-from-2020-election-litigation/>;
I have been hearing some common themes lately. Maybe you have been hearing them too. The themes I have been hearing run along the lines of: Has America reached its sell-by date? And: What does it mean to be an American in 2020? And: Maybe life in America should not return to normal.
The past four years have delivered prosperity we were told was impossible, new peace in the Middle East we thought was hopeless, a respite from new American wars we figured were inevitable, and despite a terrible unprecedented virus inflicted on us by China, a light at the end of the tunnel. Four years of Trump have brought Americans peace and prosperity.
Yet, polls show that a majority of Americans are just not all that interested in peace and prosperity.
Philip S. Foner wrote that Jacob Henry’s 1809 speech in his own defense “made a profound impression on progressive Americans by a brilliant reply to narrow-minded bigots.” Foner, The Jews in American History 1654–1865 (New York: International Publishers Co., Inc., 1945), 34, <https://tinyurl.com/y38nx6xx>. Similarly Attorney General Levi wrote: “In 1809 the North Carolina legislature unsuccessfully tried to exclude Jacob Henry, who, as a Jew, did not subscribe to the Divine authority of the New Testament as required by the state constitution.” The Honorable Edward H. Levi, “Bicentennial Address of the Attorney General at Touro Synagogue,” Rhode Island Jewish Historical Notes, 7 (November 1976): 320, 322, <https://tinyurl.com/t4v2ju3>. One notes Attorney General Levi’s hyperbole: it was not the legislature (as a whole) which was involved, but only the lower house, i.e., the North Carolina House of Commons, and the Commons did not “try” to exclude Henry, it was (as far as we know) only one member—Hugh C. Mills, from Rockingham County.
Is it just possible that Article XXXII’s religious test, in the 1776 state constitution, was not rooted in parochialism and bigotry directed against non-Protestants? North Carolina Const. of 1776, art. XXXII. One might consider Article XXXII’s constitutional neighbor, Article XXXI, which provided: “That no clergyman, or preacher of the gospels of any denomination, shall be capable of being a member of either the Senate, House of Commons, or Council of State, while he continues in the exercise of the pastoral function.” North Carolina Const. of 1776, art. XXXI. “In 1801 the Reverend John Culpepper and the Reverend William Taylor were declared ineligible and expelled from their seats in the State Senate. In 1820, the Reverend Crudup met the same fate.” James Michael Hurley, “The Political Status of Roman Catholics in North Carolina,” Records of the American Catholic Historical Society of Philadelphia, 38 (September 1927): 237, 271. What we see here is “the peculiar state of affairs [by modern sensibilities] into which political life in North Carolina had drifted.” Ibid. On the record we have, the only people who were actually expelled from the North Carolina legislature based on a religious test were three Protestant ministers. For this reason and others, we should consider the possibility that, in 1776, the higher purpose of Article XXXI and Article XXXII was not essentially exclusionary. Rather, the goal may have been simply to model the newly independent state of North Carolina’s revolutionary-era constitution as closely as possible on the extant British constitution, taking into account the loss of royal officers and different circumstances in the New World. This might explain why men like William Gaston (a Roman Catholic), although they opposed Article XXXII, did not feel aggrieved or moved by it in any strong or deeply personal sense. Compare William S. Powell, North Carolina Through Four Centuries (Chapel Hill, University of North Carolina Press, 1989), 275 (“[M]any able North Carolinians of the time, though not actually guilty of religious bigotry, had no quarrel with the provision.” (emphasis added)), with Henry G. Connor and Joseph B. Cheshire, Jr., The Constitution of the State of North Carolina Annotated (Raleigh: Edwards & Broughton Printing Company, 1911), xxvii (asserting that Article XXXII was an “attempt to discriminate against Christians, other than Protestants”), and Milton Ready, The Tar Heel State: A History of North Carolina (Columbia: University of South Carolina, 2005), 173, <https://tinyurl.com/y2o72lc4> (“At the heart of the issue lay the ancient animosity between Protestants and Catholics.”).
To put it another way, political disqualification—based on a religious test—is wholly un-American, as we now conceive American identity. But, the constitution of North Carolina, in 1776, with its House of Commons, and its two House members (elected county-wide) for each county (or “shire”?) and its separate representation in the House for each town (or “borough”), and its exclusion of the clergy from the Commons, was modelled, in part, on an older English identity (even if, perhaps, it was only an English-identity of the North Carolinian imagination). Ready, The Tar Heel State, 170 (describing the “borough franchise” as “an ancient English custom kept by North Carolina’s revolutionary founders”). Consider the participants in the Henry proceedings and the names of the counties they hailed from—see how many of these place names were connected with English and wider British transatlantic history: Anson, Carteret, Craven, Cumberland, Duplin (based on “Dublin”), Halifax, Martin, New Hanover, Onslow, Pitt, and Rockingham counties. Still, in North Carolina, in 1776, and even as late as 1809, the transition had not yet been completed from the older English identity to the political mores which we 21st-century Americans now take for granted.
Seth
Seth Barrett Tillman, Rethinking Our Past, New Reform Club (Oct. 22, 2020, 12:50 AM), <https://reformclub.blogspot.com/2020/10/rethinking-our-past.html>;
The passage above is from my forthcoming publication: Seth Barrett Tillman, A Religious Test in America?: The 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat—A Re-Evaluation of the Primary Sources, 98(1) North Carolina Historical Review (forth. circa Jan. 2021) (peer reviewed), <https://ssrn.com/abstract=3498217>.
There have been four Emoluments Clauses cases working their way glacially through the federal courts. Three of the four cases were so-called official-capacity claims—the actual defendant was the United States government. Although President Trump was the named defendant, he was only a nominal defendant—a defendant in name-only. In an official-capacity case, because the actual defendant is the United States government, the Department of Justice (“DOJ”) represents the defendant. Blumenthal v. Trump was one such case. The President prevailed before the D.C. Circuit. Plaintiffs filed a petition for certiorari—that is, plaintiffs sought discretionary Supreme Court review. The Supreme Court DENIED certiorari. And so, that case is now over. The President has prevailed.
There are two other official-capacity cases before the Supreme Court: Trump v. Citizens for Responsibility and Ethics in Washington, which had been heard in the Southern District of New York, and then in the United States Court of Appeals for the Second Circuit, and Trump v. District of Columbia and Maryland, which had been heard in the District of Maryland, and then in the United States Court of Appeals for the Fourth Circuit. In both of these cases, plaintiffs prevailed in the intermediate court of appeals, and the DOJ filed a petition for certiorari. In both of these cases, plaintiffs had the advantage of having prevailed in the court of appeals. In both of these cases, plaintiffs’ opposition briefs were due in October. In both of these cases, there was some possibility that the Supreme Court might decide the case before the election. And, in both of these cases, plaintiffs—not Trump, not the DOJ—sought extensions, which were granted. Plaintiffs’ briefs are now due after the election. Timely resolution before the election is no longer possible.
The final case, District of Columbia and Maryland v. Trump, is the only individual-capacity claim against the President. The President is being defended by private counsel, apparently, at his own expense. It is being heard in the United States Court of Appeals for the Fourth Circuit. The President’s brief was filed. Plaintiffs’ opposition brief was due in October. There was some possibility of judicial resolution prior to the election. Here too, plaintiffs sought an extension, which was granted. Plaintiffs’ brief is now due after the election. Timely resolution before the election is no longer possible.
Not only did plaintiffs cause these and other delays, but they complain to the media that Trump has caused the delays. See Josh Gerstein, Trump poised to run out political clock on emoluments suits, Politico (July 9, 2020, 11:34 PM EDT), <https://politico.com/news/2020/07/09/trump-emoluments-suits-355787>. Such claims are simply not true, but the media publishes these allegations, and they are subsequently recirculated on social media. Plaintiffs—not Trump, not the DOJ—have asked for extensions in each of the still ongoing cases. All the while, plaintiffs complain to the media that Trump is blocking judicial review.
For nearly four years, plaintiffs have told the story that Trump’s outside business interests are illegal, unconstitutional, a threat to national security, and put the interests of plaintiffs and nation at real risk. Yet, at every turn, it is plaintiffs who seek to delay timely judicial review.
And the national news media has not a word to say.
Seth Barrett Tillman, A Pre-Election Update on the Emoluments Clauses Cases, New Reform Club (Oct. 21, 2020, 4:53 AM), <https://reformclub.blogspot.com/2020/10/a-pre-election-update-on-emoluments.html>;
Yesterday, I documented how the Alliance for Justice’s (“AFJ”) letter, and its associated press release—are no longer available on the AFJ’s website. That letter, from 350 academics to Senate Majority Leader McConnell, explained that it was the Senate’s “constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.”
One reader has suggested that there was nothing untoward here. It may have been nothing more than “records management.” Now, at the old link, where the AFJ letter had appeared, the AFJ website now states:
With voting already underway, now is not the time to ram through a
Supreme Court Justice. Alliance for Justice pledges to fight this nominee with
everything we can.
Nothing to see here folks—just move along.
Seth
Seth Barrett Tillman, The ‘Alliance for Justice’ Again, New Reform Club (Oct. 21, 2020, 4:01 AM), <https://reformclub.blogspot.com/2020/10/the-alliance-for-justice-again.html>;
My prior posts on this topic:
Seth Barrett Tillman, The Alliance for Justice’s 2016 Letter to McConnell has gone Missing!, New Reform Club (Oct. 20, 2020, 3:53 AM), <https://reformclub.blogspot.com/2020/10/the-alliance-for-justices-2016-letter.html>;
Seth Barrett Tillman, The Two Discourses: How Non-Originalists Popularize Originalism and What that Means, New Reform Club (Mar. 28, 2016, 9:22 AM), <https://reformclub.blogspot.com/2016/03/the-two-discourses-how-non-originalists.html>.
In 2016, the Alliance for Justice posted, on its website, a letter from 350 academics to Senate Majority Leader McConnell explaining that it was the Senate’s “constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.”
The Alliance for Justice’s letter was posted here: <https://afj.org/wp-content/uploads/2016/03/Law-professor-SCOTUS-vacancy-letter.pdf>. But it is no longer there! Why is that? The press release was posted here: <https://www.afj.org/press-room/press-releases/over-350-lawprofessors-urge-senators-to-fulfill-their-constitutional-duty>. It too is no longer there! Why is that?
I discussed the letter here: Seth Barrett Tillman, The Two Discourses: How Non-Originalists Popularize Originalism and What that Means, New Reform Club (Mar. 28, 2016, 9:22 AM), <https://reformclub.blogspot.com/2016/03/the-two-discourses-how-non-originalists.html>.
I have posted a copy of the original letter here: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3715342>. It is funny how things disappear from the web.
Seth
Seth Barrett Tillman, The Alliance for Justice’s 2016 Letter to McConnell has gone Missing!, New Reform Club (Oct. 20, 2020, 3:53 AM), <https://reformclub.blogspot.com/2020/10/the-alliance-for-justices-2016-letter.html>.
PS: Here is another copy: <https://perma.cc/WY7Y-8JJ4>.
From “Debunking Howard Zinn: Exposing the Fake History That Turned a Generation against America” by Mary Grabar. This excerpt originally appeared at The College Fix and is reprinted here by permission of the author.
Howard Zinn rode to fame and fortune on the “untold story” of Christopher Columbus—a shocking tale of severed hands, raped women, and gentle, enslaved people worked to death to slake the white Europeans’ lust for gold.
Today, that story is anything but untold. Zinn’s narrative about the genocidal discoverer of America has captured our education system and popular culture. The defacement of statues of Columbus with red paint had already become an annual ritual in many places.
Zinn is the inspiration behind the current campaign to abolish Columbus Day and replace it with “Indigenous Peoples’ Day.” High school teachers cite his book in making the case for the renaming to their local communities. In October 2018, San Francisco, Cincinnati, and Rochester, New York, joined at least sixty other cities in replacing Columbus Day with Indigenous Peoples’ Day. Six states also do not recognize the holiday as Columbus Day. Many articles reporting on this trend cited Howard Zinn’s role in the change in attitude.
Stanford anthropology Professor Carol Delaney, who was quoted in a Courthouse News Service article to provide a counter-narrative, informed reporters that Columbus acted on his Christian faith and instructed his crew to treat the native people with kindness. But such inconvenient facts are inevitably drowned out by the Columbus-hate that Howard Zinn has succeeded in spreading.
Presumably extrapolating from the “many volumes” he had read, Zinn found the inspiration for the dramatic opening sentences of “A People’s History of the United States” [presented in full at the link by the aptly-named historyisaweapon.com—Ed.]:
“Arawak men and women, naked, tawny, and full of wonder, emerged from their villages onto the island’s beaches and swam out to get a closer look at the strange big boat. When Columbus and his sailors came ashore, carrying swords, speaking oddly, the Arawaks ran to greet them, brought them food, water, gifts. He later wrote of this in his log: ‘They . . . brought us parrots and balls of cotton, and spears and many other things, which they exchanged for the glass beads and hawks’ bells. They willingly traded everything they owned. . . . ’”
The quoted passage from Columbus’s log continues with Columbus’s description of the Arawaks. They are “well-built” and handsomely featured. Having never seen iron, they accidentally cut themselves on the Europeans’ swords when they touch them. The passage ends with Columbus’s now infamous words: “They have no iron. Their spears are made out of cane. . . . They would make fine servants. . . . With fifty men we could subjugate them all and make them do whatever we want.”
The ellipses in this passage are Zinn’s, not mine. Those omissions are essential to Zinn’s dishonest retelling of the Columbus story. By leaving crucial words out of the quotation, Zinn makes Columbus say something very different from what he actually said.
It’s unlikely that he even read as much of “Columbus’s journals” or the works of “Las Casas, the great eyewitness” as he claimed. The truth is that Zinn’s description of Columbus’s first encounter with the American Indians is lifted from “Columbus: His Enterprise: Exploding the Myth,” a book for high school students that Zinn’s friend and fellow anti-Vietnam War activist, Hans Koning, first published in 1976.
Zinn perpetuates Koning’s smears. In Koning’s telling and in Zinn’s, Columbus set out to enslave a uniformly gentle people for the sole purpose of enriching himself with gold. In fact, that is far from the truth. European efforts to find a sea route to Asia had been going on for hundreds of years. As William and Carla Phillips point out in “The Worlds of Christopher Columbus,” Columbus’s voyages of discovery were a continuation of Europeans’ ventures of sailing to Asia—at first, around Africa—that had begun in 1291. For centuries before Columbus, Portuguese and Spanish explorers had also ventured farther and farther out into the Atlantic Ocean.
Thus, Columbus’s mission was multi-faceted and inspired by several different motivations: “to reach the East Indies, so as to take Islam in the rear, and to effect an alliance with the Great Khan—a mythical personage who was believed to be the sovereign of all that region, and favorable to the Christian religion—and finally . . . to diffuse Christianity throughout that unknown continent and trade with the traditional sources of gold and spices.”
Desires to find new lands for more resources and to escape enemies and persecution are not impulses unique to Europeans. The natives of North America “in prehistoric times” themselves came from Asia and “crossed the land bridge across the Bering Strait to the lands of the Western Hemisphere.”
When he encountered naked natives instead of the Asian merchants he was expecting, Columbus did not jump to thoughts of working them to death for gold as Zinn, following Koning, suggests. For example, in his log entry for October 12, 1492, Columbus wrote, “I warned my men to take nothing from the people without giving something in exchange”—a passage left out by both Koning and Zinn.
But Zinn’s most crucial omissions are in the passage from Columbus’s log that he quotes in the very first paragraph of his People’s History. There he uses ellipses to cover up the fact that he has left out enough of Columbus’s words to deceive his readers about what the discoverer of America actually meant. The omission right before “They would make fine servants” is particularly dishonest. Here’s the nub of what Zinn left out: “I saw some who bore marks of wounds on their bodies, and I made signs to them to ask how this came about, and they indicated to me that people came from other islands, which are near, and wished to capture them, and they defended themselves. And I believed and still believe that they come here from the mainland to take them for slaves.”
In his translation of Columbus’s log, Robert Fuson discusses the context that Zinn deliberately left out:
“The cultural unity of the Taino [the name for this particular tribe, which Zinn labels “Arawaks”] greatly impressed Columbus…. Those who see Columbus as the founder of slavery in the New World are grossly in error. This thought occurred to [Samuel Eliot] Morison (and many others), who misinterpreted a statement made by Columbus on the first day in America, when he said, ‘They (the Indians) ought to be good servants.’ In fact, Columbus offered this observation in explanation of an earlier comment he had made, theorizing that people from the mainland came to the islands to capture these Indians as slaves because they were so docile and obliging.”
Zinn’s next ellipsis between “They would make fine servants” and “With fifty men we could subjugate them all and make them do whatever we want” covers for Zinn’s dishonest pretense that the second statement has anything at all to do with the first. The sentences that Zinn joins here are not only not in the same paragraph—as he dishonestly pretends by printing them that way on the very first page of A People’s History— but they’re not even in the same entry of Columbus’s log. In fact, they’re from two days apart.
Zinn’s highly selective quotations from Columbus’s log are designed to give the impression that Columbus had no concern for the Indians’ spiritual or physical well-being—that the explorer was motivated only by a “frenzy for money.”
But literally the explorer’s first concern—the hope that he expressed in the initial comment about the natives in his log—was for the Indians’ freedom and their eternal salvation: “I want the natives to develop a friendly attitude toward us because I know that they are a people who can be made free and converted to our Holy Faith more by love than by force.”
Zinn just entirely omits the passage in which Columbus expresses his respect and concern for the Indians. Zinn also suppresses—and, where he doesn’t suppress, downplays— the evidence from even the sympathetic Las Casas that the Indians could be violent and cruel. Zinn has to admit that they were “not completely peaceful, because they do battle from time to time with other tribes.” But, like Koning, he is eager to explain their violent behavior away, arguing, “but their casualties seem small, and they fight when they are individually moved to do so because of some grievance, not on the orders of captains or kings.”
In Zinn’s telling, the Arawaks—or black slaves, or Cherokees, or New York Irish, or whoever—must always be persecuted innocents and the condemnation of their sufferings must be absolute. The officially oppressed cannot be blamed even for any crimes they themselves commit, which are inevitably the fault of their oppressors.
According to Zinn, there’s no such thing as objective history, anyway: “the historian’s distortion is more than technical, it is ideological; it is released into a world of contending interests, where any chosen emphasis supports (whether the historian means to or not) some kind of interest, whether economic or political or racial or national or sexual.”
Once ideology has become a moral virtue, Zinn can discount standards of scholarship—such as those of the American Historical Association—as having to do with nothing more important than “technical problems of excellence”—standards of no importance compared to his kind of history, which consists in forging “tools for contending social classes, races, nations.”
Thus it would seem that the noble political purpose behind Zinn’s history justifies him in omitting facts that are inconvenient for his Columbus-bad-Indians-good narrative.
Debunking Howard Zinn is available from Regnery Publishing.
"There are three powers, three powers alone, able to conquer and to hold captive forever the conscience of these impotent rebels for their happiness—those forces are miracle, mystery, and authority. Thou hast rejected all three and hast set the example for doing so. When the wise and dread spirit set thee on the pinnacle of the temple and said to thee,“If thou wouldst know whether thou art the Son of God then cast thyself down, for it is written: the angels shall hold him up lest he fall and bruise himself, and thou shalt know then whether thou art the Son of God and shalt prove then how great is thy faith in thy Father.” But thou didst refuse and wouldst not cast thyself down.
—Fyodor Dostoyevsky, 'The Grand Inquisitor' from The Brothers Karamazov (1880).
‘Come, Gandalf, tell us how you fared with the Balrog!’
...
"We fought far under the living earth, where time is not counted. Ever he clutched me, and ever I hewed him, till at last he fled into dark tunnels. ... In that despair my enemy was my only hope, and I pursued him, clutching at his heel. Thus he brought me back at last ...."
—J.R.R. Tolkien, The Lord of the Rings: The Two Towers (1954).
My own hunch is Trump has in mind for himself a role something like that of Gandalf the Grey: to go away for a while and defeat the Covid Balrog, and to return in our darkest hour, having forced us to consider seriously the prospect of "a Harris administration, together with Joe Biden"; to wander toward ruin; to weep in our despair.
Trump is beleaguered on the Chinese virus, which has undermined his two great strengths: that he was right all along about our economy, and that he was right all along about China. I think he means to return to us as Trump the White, with renewed authority to fight on our behalf against those who would kill our economy, and against those who would kill our people. He has, after all, and for the first time, aroused sympathy among his enemies. Upon his return, that sympathy will turn into awe -- and, perhaps, even into love.
The left means to rule by mystery and authority. Through "social justice," "experts," "fact-checkers," and crisis fiat governance, their project is all but achieved. But Trump may have one of the ancient tricks still up his sleeve: to perform a miracle.
