April 22, 2019   

The awful Notre Dame fire struck me as the loss of a friend, a haven, a symbol of permanency in a time of flux, a symbol of values in a time of self-absorption.  (A tourist taking a selfie in front of the cathedral is the perfect, mocking, image of the new age).  Damage to an architectural wonder of the past is sadly appropriate to a world which knows nothing of beauty and parades nonsense as art and violence as entertainment.

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I dislike hanging crepe with every post, but it’s difficult not to see disaster on the horizon.  Consider the inevitability of increasing climate-related damage and the physical and social turmoil it will bring.  Add the hostile, separatist, violent attitude of many on the right, and the ready availability of weapons, and it becomes easy to imagine civil war or armed chaos.  We are politically blocked from preventing the ecological disaster, and predisposed to a primitive response to it.

Look at the state of government.  Andrew Wheeler, a former coal-industry lobbyist, recently was confirmed by a docile, irresponsible Senate as Administrator of the Environmental Protection Agency, having been Deputy, then Acting, Administrator  since April 2018.  That would have been time enough to learn about the climate crisis, if he had any intention of doing so.  One lesson might have been the most recent National Climate Assessment, which found that “The impacts of climate change are already being felt in communities across the country.”  Wheeler will have none of that: “Most of the threats from climate change are 50 to 75 years out.”  There have been no fires and no flooding; the seas haven’t risen or become more acidic; all is well.  Wheeler is, of course, in step with his leader. 

David Bernhardt was confirmed as Secretary of the Interior this month, having been acting Secretary since January. Already he is the subject of an investigation by the department’s inspector general, following various allegations of ethical violations.  His former role as a lobbyist for industries regulated by Interior lies behind the charges.

Trump nominated hacks to positions on the Federal Reserve Board, in an attempt to end its independence. Another appointee recently confirmed, William Barr, has demonstrated that his first duty is to protect the boss.  Trump first hailed the Mueller report as exoneration, but later decided it was an “Illegally Started Hoax.”  He has one of the great memories of all time, but repeatedly responded to Mueller’s written questions by pleading lack of recall.  He vents continually on Twitter, reportedly 50 times in 24 hours Monday and Tuesday.     

Ukraine just elected a comedian as president.  We have a bad joke.

April 13, 2019 

The death penalty, apart from its questionable morality, bias in its application and the possibility of wrongful conviction, is an historical relic. This was made clear by the Supreme Court in Bucklew v. Precythe, decided April 1. The appeal involved a claim by a prisoner that the form of execution in his state violates the Eighth Amendment, which prohibits cruel and unusual punishments. His principal argument was that, because of his unusual medical condition, the lethal injection would cause great suffering before taking effect. The majority opinion, written by Justice Gorsuch, rejected the claim, along the way not only validating the death penalty but deciding that the infliction of pain in the process raised no Constitutional issue. 

The Bucklew decision did not appear from nowhere. Justice Gorsuch relied on two prior decisions, Baze v. Rees, 553 US 35 (2008) and Glossip v. Gross, 576 U.S. ___ (2015). The lead opinion in Baze was signed by only three Justices. However, Glossip treated the plurality opinion as if it were precedent, referring to it as the “controlling opinion.” Baze relied in turn on Gregg v. Georgia, the lead opinion of which was, again, that of only three member of the Court. It’s difficult to discern a well-considered theory of capital punishment in all of this. Bucklew follows their lead, but the defects in Gorsuch’s opinion go beyond following flawed predecessors. 

Much of the Bucklew opinion is devoted to the question of whether an alternative, less painful method, of execution is available. Baze and Glossip establshed rules which placed the burden of identifying an alternative method on the prisoner and made it difficult to carry that burden. 

The death penalty itself poses no problem for Gorsuch because the “Constitution allows capital punishment. . . . In fact, death was ‘the standard penalty for all serious crimes’ at the time of the founding.” The internal quote is from a book on the history of the death penalty published in 2002.[32] It appears to have been a primary source for Gorsuch, cited seven times in his opinion. However, the Constitution does not “allow” capital punishment; it simply recognizes its existence. True, the Baze plurality opinion cited “the principle, settled by Gregg, that capital punishment is constitutional.” However, the Gregg lead opinion stated only “that the punishment of death does not invariably violate the Constitution,” which is not quite the same concept. 

There would seem to be no impediment to the Court’s declaring capital punishment a violation of the Eighth Amendment, but Justice Gorsuch thinks otherwise. The Court, in his view, would lack the power or authority to declare it unconstitutional: “the judiciary bears no license to end a debate reserved for the people and their representatives.” It will be interesting to see whether he is so reticent when an issue he feels strongly about arises. 

As to the merits, Gorsuch would not find that the death penalty is barred as cruel punishment. For authority, he cited a case from 1890 which declared that “the punishment of death is not cruel, within the meaning of that word as used in the Constitution. [Cruelty] implies . . . something inhuman and barbarous, something more than the mere extinguishment of life.” [33] It’s stunning that a Supreme Court opinion in 2019 could refer, even by way of citation, to the “mere” extinguishment of life. 

An enlightened approach would be to interpret the Constitution against the background of present conditions, including less brutal attitudes, rather than treating it as holy writ, ending progress in 1791. That the latter is Justice Gorsuch’s theory is made clear. The opinion’s argument relies on such phrases as “at the time of the framing,” “consistent with the Constitution’s original understanding,” “at the time of the Amendment’s adoption,” “the original and historical understanding of the Eighth Amendment.” 

The Court has not always felt bound by the view of life at a time long past. In 1958, Chief Justice Earl Warren expressed an interpretation which has been generally accepted: "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[34] That was reaffirmed in 2002, in Atkins v. Virginia, an Eighth Amendment death penalty case: “A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of Rights was adopted, but rather by those that currently prevail." [35] No longer, apparently. Presumably the present Court would find the fact that twenty states and the District of Columbia now do not impose the death penalty,[36] an indication of evolving standards, to be irrelevant. Perhaps if a few more states evolve, capital punishment will become “unusual.” No, that wouldn’t conform to the understanding at the time of the Amendment’s adoption, which underlies Gorsuch’s interpretation. 

“[W]hat unites the punishments the Eighth Amendment was understood to forbid, and distinguishes them from those it was understood to allow, is that the former were long disused (unusual) forms of punishment . . .” Apparently a new form of barbarity would not be banned as unusual. As to the other element, the Amendment barred anything that “intensified the sentence of death with a (cruel) superadd[ition] of terror, pain, or disgrace.”[37] Therefore, the added, possibly avoidable, pain in the execution of Mr. Bucklew isn’t prohibited on the ground of cruelty either, as it isn’t intentional torture, just part of the process. 

As to the prisoner’s argument about the pain he would, uniquely, endure, Gorsuch advised us that, in the bad old days, prisoners were subjected to barbaric practices such as drawing and quartering, and those were the cruel punishments contemplated at the end of the Eighteenth Century and therefore barred by the Eighth Amendment. Pain imposed by execution couldn’t be an issue because the preferred method of execution at the time of its adoption was hanging and, although hanging often resulted in significant pain, its use “was virtually never questioned,” quoting his favorite source. 

What does his history lesson disclose as to the proper interpretation of the Eighth Amendment? “For one thing, it tells us that the Eighth Amendment does not guarantee a prisoner a painless death—something that, of course, isn’t guaranteed to many people, including most victims of capital crimes.” In that remarkable statement, he excused the infliction of pain on historical grounds, then leaped to an-eye-for-an-eye excuse. 

If defense of the death penalty, and the suffering it inflicts, requires as convoluted an argument as this opinion, there must be something fundamentally suspect about it. 

Postscript: 

As I was about to post this note, I came across an article reporting a decision in a similar case from a different state, but again involving a death-row prisoner’s request for an alternative to lethal injection. The Supreme Court decided 5-4 that the execution could proceed as planned. The article stated that the “high court’s order and dissenting opinion underscored the divide between the court’s conservative and liberal justices over 11th-hour execution challenges,” noting also the dispute in the Bucklew case. 

However, it isn’t sufficient description, or enough justification, to label the Gorsuch opinion, or its predecessors, or any defense of the death penalty simply as conservative views. Conservatism, insofar as it is the tendency to honor tradition and resist hasty or ill-considered change, not only is respectable, but is necessary to preserve continuity and to prevent mistakes and disruption of social fabric. However, when it it becomes unthinking opposition to change or defense of the indefensible, it prevents progress, and when it is, as here, an unwarranted worship of the past, it binds civilization with rusty chains.

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32. S. Banner, The Death Penalty: An American History
33. In re Kemmler, 136 U. S. 436, 447 (1890)
34. , 356 U.S. 86 (1958)
35. 536 U. S. 304, 311 (2002)
36. Moratoria are in effect in another three states. https://deathpenalty.procon.org/view.resource. php?resourceID=001172
37. Quoting the concurring opinion of Justice Thomas in Baze, [internal quotes omitted].

March 15, 2019

 In January, I commented on the failure of leadership in contemporary American politics, and skipped over the contribution by the people to that sad state.  Before addressing the latter issue, let’s try an intermediate analysis: does the problem lie with our political or social structures?

Historian Page Smith, in his book Redeeming the Time, said this: “I believe that the tendency of history, of all human institutions is downward, toward complacency, decadence, obtuseness, and coldness of heart, and that we are saved only by the often obscure but heroic efforts of men and women whose passion it has been to redeem the world.”[29]  The statement that we are saved by individual effort might suggest that the lack of individual leadership was the original problem.  However, it could be that institutions, as structures, have an inherent tendency toward obsolescence and failure.

The Roman Empire, The Holy Roman Empire and the various European colonial systems provide examples, as does the medieval Catholic Church, of institutional senility and collapse.   The United States began with a built-in trigger for dissolution; the conflict between free and slave states. The Constitution, brilliant achievement that it was, fudged on the issue of slavery.  The two regions competed for control of new territories and states, and eventually went to war.  The South, in seceding, chose one institution over another, adhering to slavery and declaring the Union to be obsolete.  

In the aftermath of the war, the Constitution was repaired and improved, and later additions, including votes for women, came peacefully.  However, it is showing its age again in the distortions of the electoral college. 

Capitalism is an institution which works well for society, but  only under the right conditions.  The rise of organized labor and establishment of its rights, and the imposition of reasonable regulations created a better system, but both of those controls have weakened and capitalism is another institution in an unhealthy condition.  

Now return to the role of the people.  The increased tribalism of American society turns differences of view into conflicts.  There are troublesome attitudes on the left, but the more disruptive ones come from the other side.  The attitude of the right toward government, ranging from Ronald Reagan’s disdain (“The most terrifying words in the English language are: I'm from the government and I'm here to help”) to  Grover Norquist’s fantasy (“reduce it to the size where I can drag it into the bathroom and drown it in the bathtub”) makes a search for consensus solutions next to impossible.   The outer fringe, such as militias and “patriot” groups threaten violence.  Even those with some sheen of respectability join in.  Here’s  Joseph diGenova, former U.S. Attorney: “We are in a civil war. The suggestion that there’s ever going to be civil discourse in this country for the foreseeable future is over.  . . . It’s going to be total war.”  His advice: “I vote, and I buy guns. And that’s what you should do.”[30] 

One survey after another reveals that Americans know little about the world, current affairs or science. There is an indifference or hostility on the part of many  to such “elitist” pursuits as reading newspapers or heeding experts.  Part of the blame again is institutional, as schools and even colleges seem not to teach such basics as U.S. history and civics, and mainstream media sometimes fail to educate, for example as to the extent and effects of climate change.  Any natural tendency toward misinformation is greatly exacerbated by the internet.  In effect, we have created an entity which, while it could have developed better citizens through greater dissemination of facts, threatens to destroy other institutions through rumor, propaganda, fantasy and falsehood.  The Russians used the web to influence the election, but we’re doing rather well at self-destruction without help.  Fear and resentment of others is built into most of us but, again, those tendencies can be minimized or exacerbated by leaders and institutions.

Allowing for all of that, the people are part of the problem.  Trump’s 90% approval rating among Republicans is proof enough.  Even one who receives political information from Fox or the dregs of the internet would have to close his eyes and cover his ears in order not to be aware that we are led by a buffoon and a liar.  Ignorance may be excusable; wilful ignorance is not.

All of this anti-government sentiment implicates another systemic weakness: “Our political institutions were not built to handle a highly polarized situation in which one side is hostile to the system itself.”[31]

So: Are the American people at fault for the present situation, or are we confronted by institutional failure?  Yes to both, but the real question is where do we go from here, which returns us to the need for, and present lack of, constructive leadership.  Perhaps 2020 will bring some improvement.  We’d better hope so.    

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29. A People's History of the United States, vol. 8 (1987), p. 1140

30. https://www.washingtonpost.com/politics/in-america-talk-turns-to-something-unspoken-for-150-years -civil-war/2019/02/28/b3733af8-3ae4-11e9-a2cd-307b06d0257b_ story.html?utm_term=.c87d3f657d86

31. Hacker and Pierson, American Amnesia, p. 320 

March 3, 2019

I offered descriptions of Donald Trump a few days ago.  Here are some others, along with some comments on the state of his Party:

Michael Cohen, in his testimony to the House Oversight Committee, offered this observation about his former boss: “He is a racist.  He is a con man.  He is a cheat.”  The term “boss” is mine, but it’s apt, given its organized-crime connotation, for Cohen told the committee “Mr. Trump called me a ‘rat’ for choosing to tell the truth – much like a mobster would do when one of his men decides to cooperate with the government.”  In a more measured comment, he said, “Mr. Trump is an enigma. . . . He has both good and bad, as do we all. But the bad far outweighs the good, and since taking office, he has become the worst version of himself.”[26]

The last phrase applies as well to the Republican Party.  Once it was a respectable political party with a proud history.  Now it is indeed the worst version of itself, ignoring the welfare of ordinary people, serving the wealthy and powerful, immune to new ideas, opposed to government regulation of business, and now reduced to toadying to one who should be shunned for driving the Party, already in decline, still further down.  Cohen made that clear: “I did the same thing that you're doing now for 10 years. I protected Mr. Trump for 10 years."[27]

An example of Republican decline and servitude to Trump is the Senate’s confirmation of a former coal lobbyist, Andrew Wheeler, to replace Scott Pruitt as head of the Environmental Protection Agency.  “Republicans said they have been delighted to discover Mr. Wheeler is as enthusiastic about repealing environmental regulations and promoting coal as Mr. Pruitt was, and are looking to him to cement Mr. Trump’s legacy as a warrior against what they see as regulatory overreach.”  In the face of increasing evidence of the effects of climate change, “Mr. Wheeler has moved to dramatically weaken two of former President Obama’s signature climate change initiatives, cutting emissions from power plants and from automobiles, while also proposing to make new coal-fired power plants easier to approve.”[28]  Senator Susan Collins of Maine was the only Republican to show the courage and good sense to vote against confirmation. 

The reaction to Trump’s emergency powers is showing  a slightly different pattern.  The House, with the support of 13 of the 195 Republicans, voted  to overturn Trump’s declaration, and speculation is that 4 of the 53 Republican Senators will join Democrats, with the same result.  That is encouraging and important, but hardly a repudiation of his administration. 

As long as we’re collecting  descriptions of Trump and his abettors, here’s one by way of metaphor:  The January 17, 2019 issue of the New York Review of Books includes a review of Thomas Cromwell: A Revolutionary Life by Diarmaid MacCulloch.  The reviewer, Keith Thomas, sums up a description of service under Henry VIII as follows: “Henry’s court was a fearfully dangerous place where courtiers jostled for the favor of a capricious monarch. . . . MacCulloch portrays the king as ‘terrifyingly unpredictable,’ given to ‘destructive whims’ and ‘habitually erratic’ decision-making, ‘a thorough coward when it came to personal confrontations,’ and ‘almost impossible to serve successfully.’ ”  Does that remind us of any other famous leader?  Thomas adds that “MacCulloch tactfully declines to draw an analogy with any modern head of state, though some of his American readers may be tempted to do so.”

Indeed.

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26. https://www.nytimes.com/2019/02/27/us/politics/cohen-documents-testimony.html

27.https://thehill.com/blogs/blog-briefing-room/news/431843-cohen-warns-gop- lawmakers-protecting- trump- i-did-the-same-thing

28. https://www.nytimes.com/2019/02/28/climate/andrew-wheeler-epa-confirmation.html

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February 24, 2019

 There are two ways to evaluate Donald Trump as President.  We can tote up his lies, boasts, evasions,  fabrications and delusions, note his impulsiveness and dangerously bad ideas, then add the evidence of foreign influence and possible collusion leading to his semi-election, and reach the unavoidable conclusion that he should be removed from office.  Alternatively, we can shorten the list, simplify the task and reach the same result by recognizing that Trump is intellectually and emotionally a child, attempting to get his way through tantrums.  (The Nation ran a column entitled “Trump at Two,” referring to the midpoint of his term, but it could as well describe his level of maturity).

Making all reasonable allowance for party loyalty, political ambition and fear of reprisal, how can Congressional Republicans not conclude that, under either analysis, leaving Trump in charge is an unacceptable risk?

His current tantrum is the declaration of a national emergency to allow him to take funds from other programs, which he has discovered have money to spare, to build a wall.  He is so incompetent that he has declared that the wall isn’t urgently needed: “Well, I got $1.4 billion. . . .  I was successful, in that sense, but I want to do it faster.  I could do the wall over a longer period of time.  I didn’t need to do this.  But I’d rather do it much faster.”[20] He’d rather do something wasteful and unnecessary, requiring condemnation of private land and prompting multiple law suits, faster; that’s the basis for his seizure of more power.

The current plan is to spend the $1.375 billion authorized by Congress, plus these transfers from other funds: $600 million from the Treasury Department’s drug forfeiture fund, $2.5 billion from drug interdiction activities of the Department of Defense and $3.6 billion from the military construction budget.[21]  All this  to build a wall we don’t need. 

The national-emergency ploy was bad enough when Trump pretended that there was an urgent need for the wall.  Now that it’s just his whim, Congress should be in revolt.  Some Republicans indeed may rebel, but not all the movement relative to Trump has been away.  In 2015, Senator Lindsey Graham called Trump a “race-baiting, xenophobic, religious bigot,” and said that the way to make America Great again was to “tell  Donald Trump to go to hell.”[22]  In February 2016, Graham said of Trump “I think he's a kook. I think he's crazy. . . . He's not a conservative Republican, he's an opportunist. He's not fit to be president of the United States." [23]  In March 2016, Graham offered this prediction: “We're going to lose. You'll never convince me that Donald Trump is the answer to the problem we have with Hispanics. . . . Here's what I want to tell people when we lose to Hillary: I told you that the immigration issue is killing us. We're doubling down on the problem we have with Hispanics. We went from self-deportation to forced deportation. . . . So here's what I'm going to say in November when we lose: I told you so."[24]

The new Graham has seen the light: recently he tweeted, “If White House and Congress fail to reach a deal then President @realDonaldTrump must act through emergency powers to build wall/barrier.”  One segment of funds to be lifted from the military construction fund was to have built a new Fort Campbell Mahaffey Middle School in Kentucky.  Graham’s response: “I would say it’s better for the middle school kids in Kentucky to have a secure border. We’ll get them the school they need, but right now we’ve got a national emergency on our hands.”[25] 

Apparently the fact that Trump — unexpectedly — won transformed him from a race-baiting, xenophobic bigot into a statesman who recognizes that “the problem we have with Hispanics” is that there are too many of them, that any more would bring the country to its knees, that hordes are poised to pour across the border  and that only a wall will save us.  Graham is an extreme example of the attitude that has kept Congressional Republicans in line.

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20. From his rambling, incoherent Rose Garden press conference February 15.

21.https://abc3340.com/news/connect-to-congress/white-house-says-emergency-declaration- gives-trump-8-billion-for-border-wall

22. https://www.cnn.com/videos/politics/2015/12/08/lindsey-graham-donald-trump- xenophobic-bigot-interview-newday.cnn/video/playlists/lindsey-graham-2016/

23.https://thehill.com/blogs/ballot-box/presidential-races/269675-graham-republicans-will-get-slaughtered-if-trump-nominee

24.https://www.cbsnews.com/news/lindsey-graham-were-gonna-lose-to-hillary-clinton-with- donald-trump/

25. https://www.cbsnews.com/news/transcript-sen-lindsey-graham-on-face-the-nation-February-17- 2019/ 

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February 17, 2019

    There are two strong, dangerous trends today, climate change and the concentration of wealth.   Let’s look at the latter issue.
    The usual way to limit the accumulation of large fortunes is through taxation.  An automatic reaction from the right is to claim that high taxes will stunt growth.  That complaint is based on the notion that those receiving high income will invest and drive the economy, to everyone’s benefit.  If that trickle-down theory needed further debunking, the recent tax cuts provided it: much of the additional net income went to dividends and stock repurchases, further enriching the wealthy.
    The other standard response on the right is that redistribution is ethically wrong, but redistribution upward somehow isn’t included in the ban.  That attitude is, unfortunately, an American tradition.  Cordell Hull, who advocated income and estate taxes in the early twentieth century, put it this way: "An irrepressible conflict has been waged for thousands of years between the strong and the weak, the former always striving to heap the chief tax burdens upon the latter."
    There is no plausible reason that the wealthy should not pay more: more than they have recently and more proportionately than those less well off.  That is not punitive.  As Hull put it, “I have no disposition to tax wealth unnecessarily or unjustly, but I do believe that the wealth of the country should bear its just share of the burden of taxation and that it should not be permitted to shirk that duty. . . .[T]he chief burdens of government have long been borne by those least able to bear them, while accumulated wealth has enjoyed the protection and other blessings of the Government and thus far escaped most of its accompanying burdens.''[19]  That lesson, from a century ago, has been forgotten.
    Economic inequality is not simply an offense against fairness, it is a negative force.  Democracy is in peril because, among other reasons, wide economic divisions destroy any sense of our being in it together; wildly uneven distribution of wealth creates separate societies and separate political priorities.  Instead of the divisive “nationalism” of MAGA, we need a true national bond. 
    Can anything be done?   Elizabeth Warren has proposed a wealth tax.  In her formulation, it would be a yearly tax of 2% on household net worth above $50 million,  3% on net worth above $1 billion. My first reaction was negative; we should tax income, not property. 
    There are legitimate arguments in favor of a wealth tax.  One is that it would discourage the growth of family dynasties, but that can be addressed by restoring the estate tax to reasonable levels.  A better argument is that inequality in wealth has grown, in part because income and estate taxes have been slashed, and only a wealth tax will address that problem.  That there is huge and growing inequality is undeniable, as is its negative effect.
     However, I think that a wealth tax would be unmanageable.  It would require valuing a myriad of assets — annually — many of which have no realistic market value, such as art works, and it would be easy to avoid by, for example, splitting family assets into units falling below the tax threshold, assigning those units to various family members or other nominees.  There also is some concern that a wealth tax would be unconstitutional.
    A better plan is to overhaul the income and estate tax codes, raising rates and eliminating the lower income tax rate for capital gains, which are a vehicle for the rich to get richer.

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19. Hull quotes are at http://www.taxhistory.org/thp/readings.nsf/ArtWeb/F6769F770B0FC 289852 5803700432EE1?Open Document   (53 Cong. Rec. 10652)  

b>February 12, 2019

            Apparently I had been bad, for my resident conscience insisted that we watch the State of the Union address.  Which of my sins could have been so serious as to deserve such punishment?  I must reflect.

            A columnist had suggested recently that the S of the U was obsolete and should be scrapped.  I thought that to be extreme, but after watching about forty minutes of this one, I am tempted to agree.  True, not every President will be as pathetic as Trump, but the standing ovations, not merely ritualistic but signifying support for or at least tolerance of his delusions, indicated that the Congress is a group not to be subjected to stress.  Clearly it is not strong enough to resist assaults on its intelligence, and needs to be protected.

            Thinking about the fallen state of the nation, the metaphor, barbarians at the gates, came to mind, but Trump has seized and misused that image, so let’s just refer to our decline and fall; the former is well under way and, far from making us great again, Caesar Donald is pushing us toward the latter.