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.

Trump's fall explained

Much more about us than him.

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:  

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. 

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.

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. 

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 39–45 (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 Year’s 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.

Merry Christmas from the Moon

 

It was on Christmas Eve 1968 that the astronauts of Apollo 8, Frank Borman, Jim Lovell, and Bill Anders, became the first of mankind to see an earthrise from the orbit of the moon, and looking back on us, they spoke these words:

Anders: "We are now approaching lunar sunrise. And, for all the people back on earth, the crew of Apollo 8 have a message that we would like to send to you...

"In the beginning, God created the Heaven and the Earth. And the Earth was without form, and void; and darkness was upon the face of the deep. And the Spirit of God moved upon the face of the waters. And God said, Let there be light; and there was light. And God saw the light, that it was good; and God divided the light from the darkness."

Lovell: "And God called the light Day, and the darkness He called Night. And the evening and the morning were the first day. And God said, Let there be a firmament in the midst of the waters, and let it divide the waters from the waters. And God made the firmament, and divided the waters which were under the firmament from the waters which were above the firmament; and it was so. And God called the firmament Heaven. And the evening and the morning were the second day."

Borman: "And God said, Let the waters under the Heaven be gathered together unto one place, and let the dry land appear; and it was so. And God called the dry land Earth; and the gathering together of the waters He called Seas: and God saw that it was good."

And from the crew of Apollo 8, we close with good night, good luck, a Merry Christmas, and God bless all of you, all of you on the good earth."

It is good. God bless us, every one.

A Decent Respect

A person close to me has a taste for modern art, especially non-representational art. The kind of art that is all vague shapes and colors. The kind that defies description. I can relate them to you no better than could my nine-year-old: red and black paint on a really big canvas, is all I can say of one; red and yellow and green and black paint, with scattered blobs piled up with a trowel, and part of a boot-print in one corner, is my best stab at another. 

 

There was a time I scoffed at this kind of thing as non-art. Whatever could be said for these works – interior decor, perhaps, or an alternative to wallpaper, maybe – they were not art. Anyone who thought they were art was deluded. There was no point in discussing the matter. The very point of view was beneath argument. 

As I said, this is a person close to me, so I did my scoffing in silence, for the sake of friendship. But over time, to my surprise, I began to wonder that there was, perhaps, something more to the works than mere paint and boot-prints and trowel-marks. They began to capture my interest, and to spark my imagination, and to make me think about unexpected things. This non-art began, in a word, to act upon me in the ways that only art can. I was forced to conclude it was pointless to dismiss them as non-art. They may fall short of great art, or even of good art. But these evaluations would have to be made on the merits. Mere scoffing would not do. 

I realized I had come to the same conclusion as the critic Roger Kimball, who, responding to Ayn Rand's rigid aesthetic, confessed that he, too, did not like much modern art, but that instead of getting mired in formal objections over whether a work "qualifies as art," we should move on to the real question of whether it is any good. The charmless but rigorous aesthetic of a Rand, who rejected such work as non-art, "just doesn't get us anywhere," said Kimball. "What we need," he concluded, "is not definitional ostracism but informed and robust criticism." 

 

Definitional ostracism. That is a phrase that comes to mind often when taking in today's political news. It doesn't get us anywhere in art, and it doesn't get us anywhere in politics, either.

 

Take the 2020 presidential election, for example, whose results indicate the Democratic candidate, Joe Biden, narrowly defeated the Republican incumbent, Donald Trump. The elections results are a kind of modern art: little where it was meant to be, much where it was meant not to be. Bellwether states and counties pointing opposite the presumptive winner. Strange announcements that vote counts would be stopped in the middle of the night, with Republican watchers exited from the facilities, followed by vote dumps and a seeming reversal of count trends. Major changes to mail-in voting norms in many states short months before the election, including allowing votes cast potentially after election day, many of which changes were subject to truncated or still pending legal challenges. The Democratic nominee underperforming his 2016 predecessor in every urban county in the country, yet outperforming the much more historically popular Barack Obama by some 15 million votes. Strong Republican electoral wins overall. Much recent – as in, up to at least 2019 – bipartisan criticism of the reliability of voting equipment, suddenly becoming unipartisan. And a history – a very long history – of grassroots voter fraud throughout the country (as in, for instance, over 300,000 dead people on voter rolls, and the number of putative registered voters exceeding actual eligible voting-age citizens in 352 counties across 29 states – not by a little, but by a lot: about 1.8 million total). Indeed many precincts reported historic turnout, some over 100%, a result counter-indicated both by the low enthusiasm of Biden's base, and by mathematics. And then there is the influence of social media giants who heavily support Biden, and the election-season media blackout on negative Biden press, which is now being confirmed only after the election. And against all this, a result featuring exceptionally close margins, in several states measuring in the low tens of thousands. 

A great electoral heist? Or the cleanest election ever? Both of these extremes are mere scoffing or boasting. None of these circumstances, either alone or together, self-evidently establish targeted voter fraud. But they do arouse a desire for explanation. And the ongoing lack of explanation impairs, in the person with normal functioning curiosity, the formation of belief that the outcome was on the level. 

Yet where explanation is looked for, only scoffing is to be found. When I expressed my desire for an explanation of Biden's apparent win in light of these extraordinary circumstances, a friend of mine, a neocon – or a neoliberal; who can tell the difference these days? – offered no explanation at hand. Instead, he took to the internet. To search for an explanation? No: he Amazoned me a roll of tin foil, and instructions to make a hat. It is said if you want to make a man laugh, you have to tell him a joke. Did it not occur to my friend that if you want to make a man understand you have to tell him an explanation? 

To man's search for understanding, the standard political discourse only tells jokes, jokes which produce neither understanding nor laughter.

 

A more chilling and mirthless response to American's curiosity about the 2020 election came from the largest information service in the world. In December, Google announced it will censor any inquiry on its YouTube platform. So if you are dissatisfied with the quality of explanation offered by approved news readers, do not bother searching out other explanations. Definitional ostracism is official policy of the world's primary conduit of information. 

 

You are hereby warned: Curiosity is not licit.

But this rule is exceptionally new. Those curious about the surprising outcomes of previous elections were not starved of explanation as they are today. When Democrats made accusations in 2016 of election interference, they were not, as are Republican accusations today, rejected out of hand. And when they continued making them in 2017, Americans still forbore from dismissing them outright. When they persisted in 2018, and in 2019, I must say I began to feel Democrats had begun to impose rather excessively on our credulity. And when their evidence was officially found wanting, I confess I searched, without success, for some expression of gratitude for their fellow Americans' years of patient attention. 

But I maintain that we Americans did the right thing: Our countrymen, though of profoundly different opinions, sincerely believed in their cause. We could not do less than to consider their cause on the merits. If a man "was such a rogue," said Samuel Johnson, "as to make up his mind upon a case without hearing it, he should not have been such a fool as to tell it." As it proved, the Democrats' cause proved to be bosh. But no one could have told them so without first having heard them out. We might have hoped they would make their case in less time than the three years they indulged. But a mind is another country, and who can say how long will be the travels through it. And to their credit, Democrats subjected their claims to the crucible of investigation, evidence, and trial, where it was found disproved, publicly and finally. Together, we reached closure. Consensus, it is to be hoped, will follow.

Just as four years ago, today a similarly large share of Americans have concerns about election interference. They are concerned that corporations leveraged censorship and algorithms to support a certain candidate. They are concerned about strange circumstances surrounding mailed ballots, and about strange circumstances in the vote counting election night. 

Nearly half of likely voters share these concerns. So they are justified in expecting the same respect they afforded their political opposites for nearly four years: that their concerns be taken up, investigated, and considered on their merits.

But that, it appears, is not to be. To the questions about the peculiarities of Biden's putative electoral win, all that is offered is definitional ostracism. Media bias: that is deemed a conspiracy theory. Censorship of conservative voices by social media? that's a conspiracy theory. Election interference? conspiracy theory. Voter fraud? conspiracy theory. Rand's art criticism was charmless, but at least it was rigorous. Political fact checkers have all of her charm, but fall rather short of her rigor. 

That is a shame. We are a country. The men and women of a country are meant to share things in common. Sharing things is not always easy. In fact, it is often very hard. Whether it is art or politics or religion or any of the other facets of life we share together, the project is to seek to understand others, even when – especially when – we do not agree with them. We wield only very lightly the ability to separate truth from nonsense. A mere eighth-of-an-inch is all that keeps the angels from tumbling out of the heavens onto the addled heads of forward-lookers and right-thinkers far below. 

Some humility is in order. How can any of us know what is true and what is nonsense? There is truth, and there is falsehood. But we can know the difference only seldom, and with much difficulty. And perhaps after committing many errors. The most common and most tragic failing of man is a too sure sense that he is right. You cannot dictate common sense by giving its Twitter account a blue check. 

Americans do not want in their politics the endless series of declarations given them by today's "fact check" journalism. Ordinary men, Thucydides observed, usually manage public affairs better than their more gifted fellows. Benjamin Franklin similarly noted that good governance depends not only upon the wisdom and integrity of its governors, but also "on the general opinion of the goodness of the Government." There is wisdom in the opinion of ordinary citizens. 

But even if Americans' opinion is wrong, it deserves a hearing, not mere scoffing. After Donald Trump won the Republican nomination in 2016, Jonah Goldberg took aim at Trump's ideas as nothing but empty populism, comparing him to the early 20th century populist William Jennings Bryan. Goldberg scoffed at Bryan who, when confronted with the question of whether to add silver to support the currency to support the farmers of his state, admitted he knew nothing about the issue. Yet Bryan had gone on to advocate the policy merely on the grounds it was supported by the opinion of the ordinary people of his state: “The people of Nebraska are for free silver and I am for free silver. I will look up the arguments later.”

Like Goldberg, I too scoffed at this. Of what relevance, I wanted to know, was the opinion of yokels to the subtleties of governance? 

But I was wrong. To this day, I freely admit I still do not know whether the "free silver" position was good policy or bad policy. All I know is that it was a question that ordinary people wanted argued. Now, ordinary people are not entitled always to have their way. But they are entitled to have their say. Even a criminal is entitled to an advocate. Americans deserve no less. If Bryan had not been willing to argue for his people's interests, he would have chosen the wrong vocation: he should not have entered politics, but the military. 

 

Populism and free speech and free exchange of opinions, though less elegant than the approach of, say, a North Korea, can claim credit for bringing about consensus among Americans. Late in the 20th century, polls showed that most American blacks believed OJ Simpson was innocent of murdering his wife, compared with overall American opinion squarely believing he was guilty. But Americans did not censure or censor the opinions of those who disagreed. To the contrary, mainstream Americans accepted race populists like Al Sharpton, who advocate for race-based outcomes, as respectable political voices who deserve a say in our political discourse. Yet by elevating voices that many find grossly antagonistic to their own views, American opinion did not diverge. To the contrary, it came together: 20 years later, the opinion of blacks on OJ's guilt had moved decidedly closer to overall opinion. 

Airing different opinions promotes consensus. Squelching opinions promotes division. 

This principle bore out in the great American religious experiment, too. The Congregational churches of New England were deeply antagonistic toward Unitarians until at least the early 1800s. But Congregationalists were deeply individualistic and dialectical, who in the end found themselves more hostile to hierarchical thinking than to Unitarians. So by the end of that century, Unitarians were not only accepted in New England but became well-respected members of society. 

Had Google been around to censor and censure in the 1800s, Unitarians might still be as ostracized today as are Trump supporters. Google is at once more religious, and less broad-minded, than 19th century Congregationalists.

The modern politician, however, like the modern journalist, believes ordinary Americans have no right to advocacy or even to information that might support an opinion opposite their own.True progress, if anyone were really interested, is not in building things, but in building understanding. But those who say they want progress do not seem in the slightest bit interested in understanding those who stand in their way. They talk a good game about understanding, but in practice the understanding only flows one direction. 

 

These politicians, and journalists, after prompting by Rush Limbaugh, now openly wonder if Americans have an appetite to secede, to break apart our country. Might these politicians and journalists have considered whether they have already broken us apart? Elites are deeply interested in understanding the lives of strange and violent foreigners (even when the reporting is false), but they have no interest in understanding the concerns of ordinary citizens in their own country. Secession, at this point, would be a mere formality: America's leadership has already seceded from its people. They are in a loveless marriage. All that remains is the paperwork. 

 

Mark Steyn says he had been worried there would be a civil war, but that now he worries there won't be. Which I take to mean, there must be either reconciliation, or divorce – but not neither. Definitional ostracism is a desperate feint at neither. It may get us nowhere, but I suspect it will get us someplace much worse than that. 

For the Sake of Democracy

No other western countries run elections as comically ineptly as the Americans have for decades. Election malfeasance and misfeasance have been a persistent phenomenon of American life, ignored. Our country does not have any national elections. We have thousands of local elections on the same day. In many of the precincts, they have practiced fraud, in dozens of forms, for a variety of reasons, in election after election, for generations. It is a proud tradition. Grassroots, even, as though spontaneously occurring in nature. 

A conspiracy, in other words, is unnecessary. Election fraud simply is. The real question is how much.

If there were nothing to that question, the media would cover it. But, the media are silent. More than silent: they are censorious, even to the point of threatening lawyers for engaging in protected petitioning activity (my, but there is a lot of casual destruction of livelihoods this year). I find the silence and the silencing probative. Probative of what, exactly, I cannot say. But silence testifies against the censor. 

The censorship is, of course, for the sake of democracy itself. That is what they tell us. Democracy, they tell us, cannot abide questioning the integrity of our elections – except, as we know, when the election produces a win for candidates named Trump. In such cases, as determined by the media, the integrity of our elections must be questioned – for the sake of democracy. 

 

If the left did not have double standards, they would not have any standards at all.

And of course Dominion and the computer voting phenomenon is an entirely new and different animal, with established problems. A year ago, before questioning the integrity of electronic voting systems was deemed not licit, their integrity was questioned even by Democrats – for the sake of democracy: 

The websites where states post election results are even more susceptible. The event had 40 child hackers between the ages of 6 and 17 attempt to break into a mock version of the sites. Most were able to alter vote tallies and even change the candidates' names to things like “Bob Da Builder,” CNN reported.

"Unfortunately, it's so easy to hack the websites that report election results that we couldn't do it in this room because [adult hackers] would find it boring," event organizer Jake Braun told CNN. ...

"It’s stupid to have the view that states have the right to have poor election security,” [Democratic Congressman Ted] Lieu said.

But now that the software produced a Trump defeat, assenting to the legitimacy of the stupid software is vital – for the sake of democracy. That stupid software tells us that Biden is more popular than Obama. That is what this stupid election requires us to believe, for the sake of democracy. But that is contrary to the common sense of every American of voting age. 

Someone is going to have to come up with an explanation how we can accept election results that are so contrary to common sense. I could accept that there was a lot of fraud yet not enough to change the outcome. That, at least, would not be so insulting. But when statists tell me there is not a smidgen of corruption, as a rule I tend to believe the opposite. That seldom leads me wrong.

But, I expect we will not get an explanation. Those who ask for an explanation will only be scolded. And those who persist, will, for the sake of democracy, be punished.

American History and Today’s Two Americas

 

 

In 1809, Jacob Henry was elected and qualified for a second, consecutive annual term in North Carolina’s lower legislative house: the House of Commons. He was one of two members for Carteret County. According to the standard narrative, Henry was Jewish. On December 5, 1809, another member, Hugh C. Mills, put forward a motion to declare Henry’s seat vacant based on the 1776 North Carolina Constitution’s religious test. (N.C. Const. of 1776, Article XXXII.) The next day, the Commons adjudicated the motion, and the motion failed. Henry kept his seat.

Much of what has been written about these events has been quite odd. My critique of the prior historiography and legal analyses can be found here: 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>.

Here I want to flag how two historians characterized these events.

Jacob Rader Marcus, United States Jewry 1776–1985, multiple vols. (Detroit: Wayne State University Press, 1989), volume 1, page 507:

It must have been quite a shock to [Henry], after he had served for a year in the state legislature and had been reelected for another term, to see one of his colleagues rise and, without warning, ask for his expulsion because Henry, as a Jew, was not entitled to a seat in the Assembly. He had refused to take the prescribed oath affirming a belief in the divine authority of the New Testament. Naturally, as a Jew, he could not and would not take such an oath. On the following day, the 6th of December, 1809, after consulting with eminent Christian jurists, Henry [responded] to his colleagues in the House of Commons. It is a proud justification of his refusal to take the test oath. Tradition has it that his letter was framed, if not actually written, for him by Chief Judge John Louis Taylor of the State Supreme Court, a Catholic. [https://tinyurl.com/y2prjud4]

Jon Meacham, American Gospel: God, the Founding Fathers, and the Making of a Nation (New York: Random House Trade Paperbacks, 2007), page 107:

Jacob Henry, a Jew, was elected to the state house in 1808 but he was blocked the following year because the law required him to be a Protestant and to accept the divine authority of the Old and New Testaments. A standoff ensued, with Christian lawmakers refusing to seat [Henry]. [https://tinyurl.com/y2cwxmkx]

Published in 1989 and 2007, these writings are exemplars of today’s Two Americas.

[See also Jon Meacham, ‘A New American Holy War’ (Newsweek, 8 December 2007) <https://tinyurl.com/3yahyseb> accessed 22 October 2021 (“Taken all in all, religion, like commerce and nationalism and so much else in history, has had its bright and dark hours. In 1808, Jacob Henry, a Jewish-American, was elected to the state legislature of North Carolina, which refused to seat him unless he was (a) a Protestant and (b) conceded the divine authority of the Old and New Testaments.”).]

 

Seth

 

Seth Barrett Tillman, American History and Today’s Two Americas, New Reform Club (Dec. 8, 2020, 6:56 AM), <https://reformclub.blogspot.com/2020/12/american-history-and-todays-two-americas.html>;