March 9, 2020

Constitutional Cynicism

There seems to be much confusion and little consensus on any political issue at present, so I suppose that it shouldn’t be surprising that the Constitution has become controversial, at least in some circles.  The cover of an issue of Harper’s a few months back asked, “Do We Need the Constitution?”   The article’s title put the question this way: “Constitution In Crisis: Has America’s founding document become the nation’s undoing?”  I have thought that our problems regarding the Constitution are that Trump is ignoring it and the Roberts Court is misinterpreting it. 
   
More sophisticated minds see deeper issues.  The magazine assembled a panel to “consider the constitutional crisis of the twenty-first century,” and published its discussion.  Because most of the panel’s comments are surprisingly negative, and because the panelists presumably are knowledgeable about the Constitution, I have quoted them at length.

The editorial introduction described agitation that I somehow have missed:

America’s Constitution was once celebrated as a radical and successful blueprint for democratic governance, a model for fledgling republics across the world. But decades of political gridlock, electoral corruption, and dysfunction in our system of government have forced scholars, activists, and citizens to question the document’s ability to address the thorniest issues of modern political life.

That led to consideration of remedies:

Does the path out of our current era of stalemate, minority rule, and executive abuse require amending the Constitution? Do we need a new constitutional convention to rewrite the document and update it for the twenty-first century? Should we abolish it entirely?

Some of the issues listed are not Constitutional in nature;  the reference to executive abuse and the suggestion that the Constitution be abolished are contradictory; what is unique about the current century?   That lack of clear focus carried over into the discussion.¹

The moderator, Rosa Brooks, struck a provocative note:

Let me tell a story about what I do in my constitutional law classes at Georgetown. In the very first session, I say to my students, “The United States has the oldest continually operative written constitution in the world. How do you feel about that?” . . . After everybody has a chance to talk about how great it is that the United States has this very, very old written constitution, I ask them how they would feel if their neurosurgeon used the world’s oldest neurosurgery guide, or if NASA used the world’s oldest astronomical chart to plan space-shuttle flights, and they all get quiet.

(The students apparently are too polite to point out how meaningless the comparison is). She continued, offering a variation on the theme which at least avoided dubious analogies:

How did it happen that the United States, which was born in a moment of bloody revolution out of a conviction that every generation had the right to change its form of government, developed a culture that so many years later is weirdly hidebound when it comes to its form of government, reveres this piece of paper as if it had been handed by God out of a burning bush, and treats the Constitution as more or less sacred? Is it really such a good thing to have a document written almost 250 years ago still be viewed as binding us in some way?

In what way are we “weirdly hidebound” as to our form of government? What form does she advocate?
 
To my knowledge, an every-generation theory was not espoused by the Founders, apart from Jefferson, who did not participate in writing the Constitution.  Never mind; he’s the authority, according to David Law: “Thomas Jefferson would be rolling over in his grave. He thought that every generation should rewrite the Constitution. It should be revised every nineteen years.” Then another misplaced analogy: “here we are, bragging about the fact that we’re running Windows 1.0.”  Our ancient operating system is in such bad shape that “we have these nine superannuated people — Supreme Court justices — appointed for life to keep patching it.”  I’ll applaud nearly any criticism of the current Court, but “patching” doesn’t describe its work. 

Analogies are useful to illustrate or liven up a discussion, but overuse suggests that the argument is weak, and here came another: “This is a little like the inhabitants of a really old apartment building pledging their undying loyalty and allegiance to a blueprint that must never be changed, and so when you want to renovate your bathroom people dig out the blueprint and ask themselves whether the bathroom renovation is in accordance with the spirit of the blueprint.”

According to Louis Michael Seidman, the Constitution is illegitimate.  The delegates to the Philadelphia convention had been sent there to amend the Articles of Confederation.  Instead, they drafted a new document.  “So, from the beginning, the Constitution was in some sense illegal. It’s a neat trick to get from that to a time when people feel bound to respect the document.”  The neat trick was ratification.

To Mary Ann Franks, the Founders committed fraud.

We have not, as a country, fully confronted the fraudulent nature of the Constitution and the founding itself. The revolutionary spirit was always, from the very beginning, a limited one. It was a revolution for some people, and this idea that we threw off the yoke of tyranny was immediately constrained by the idea that you didn’t want to throw it off too much. The founders didn’t want to throw it off for slaves, and they didn’t want to throw it off for women. They wanted to have this very contained revolution.

The Constitution indeed did not empower women or free slaves.  Do we throw the document out?  That seems to be the implication:

The mythology is that there is this grand moment of revolution, when we decide that we stand for equality and justice and all the rest of it. But we also know that the mythology includes all these asterisks, because the people who made all those decisions were the most privileged members of society, and even though they sought, for themselves, not to be oppressed and not to be exploited, they immediately denied that right to everybody else. . . . [W]e have lived with this mythology for so long, and we don’t quite experience the cognitive dissonance that it ought to generate within us, because every word of the Constitution — starting from this premise of “we the people” — is a lie.

That conclusion is nonsense, and as to the argument that the founding documents are fraudulent, or hypocritical, consider the very different, and much more useful, attitude of Martin Luther King, Jr.: “When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir.”²  Progress is possible.  Progress can be guided by principles not fully honored when laid down, but nonetheless valid.  

However, there is yet another problem; Lawrence Lessig thinks that the Constitution has been captured by  “experts,” who somehow keep it out of the reach of ordinary folk. “There is a huge gap between the kind of democracy people want and the kind the Constitution and our political culture currently allow for.”  He added later:

When there have been constitutional, grassroots movements, movements that have tried to say, “We should be involved in making our Constitution reflect us,” there have been organized efforts, on the left especially, to say, “Shut up. Get out. This is not for you; it’s for the experts. It would be disastrous if the people got close to touching their own Constitution! It would be chaos.”

I can’t say that his history is familiar to me, but here’s the conclusion he draws from it: “Do you expect people to rally around a document that has no connection to the democracy of today, or yesterday, or even forty years ago?”  Are people that estranged from the Constitution, or is that a projection of the cynical views of the panel?

Never mind; the Constitution, in addition to its other shortcomings, is irrelevant.  Ms. Brooks, faced with a ploy by Trump, would respond:

Why would that [whether or not it’s constitutional] change anything for anyone? If we think something is evil and a bad idea, then it’s evil and a bad idea without regard to whether or not it is constitutional. Why should that have any relevance to a set of policy questions and moral questions that the United States is facing now?

Just say it’s evil and a bad idea and the problem will go away; no authority need be cited. 

Here’s a more sensible view, by Donna Edwards:I think part of the reason that today feels like a crisis is because the legislative branch is not functioning.  . . . And maybe it’s because I come out of the legislative branch, but it pains me to see Congress in such inertia that it gets in the way of us trying to at least preserve the elements and spirit of a Constitution that I think does bind people to a set of shared ideals, whether or not they know the details. 

Ms. Franks later took a more measured approach than in her opening statement, having discovered a part of the constitution that, apparently, is not a lie:[T]here’s a constant tension between whether you can try to dismantle a bad practice from the inside or if you have to blow up the whole thing and start over. . . . The position that I’ve taken as a preliminary step is to think, “Well, is there anything in the Constitution that is meaningful here, in a larger sense?” And for me I think the Fourteenth Amendment’s equal protection clause is where a lot of our efforts might be focused and energies spent.

However, having said earlier that the entire Constitution is a lie, and now having focused on one provision, she proceeded to offer this:

The way politicians and legislators interpret and use the Constitution today is like taking a scripture and using all the parts that validate the way they want to see the world and ignoring everything else. Because if we took the Constitution seriously as a whole, then we could have a lot of interesting discussions.

Perhaps Mr. Seidman was as baffled by all that as I am, for he then suggested a way to preserve the Constitution, but not be required to analyze it:

Maybe the right way to think about the Constitution is not as a legal document at all, not as a lease or a will or something like that. Instead, think of it as poetry. As a poem, or symphony. And if you think about it that way, it can be a symbol that unites the country. . . . Now, nobody would say that you have an obligation to obey a poem or a symphony; you can be inspired by it. . . . It causes us to have certain emotions, but you don’t obey a poem. And poetry doesn’t settle arguments. We can all be inspired by the same poem and reach different conclusions about what we ought to do.

We could set it to music.

Lessig noted a flaw in that theory: “But the problem is that we have a president who treats it like a poem, or a dirty limerick—he treats it like something he doesn’t have to respect or follow, and I don’t think that’s a good idea.”   That should have put the discussion onto a more constructive track, but Seidman was undeterred:

The very last way we want to confront Trump is with the Constitution as a legal text. That is a way of turning this argument over to lawyers, to people with technical expertise, who are elites, who are arguing about things like, “Gee whiz, what is the exact meaning of the word ‘emolument’ in the eighteenth century, and how does it relate to foreign powers?” and a lot of stuff that is beside the point when it comes to Trump.

Trump’s violation of the Constitution hardly is beside the point, and blaming “elites” is another sign of  a weak argument. 

Mr. Lessig properly dismissed it: “There is no ‘the problem’ with Trump. There are many problems with Trump. And one of the problems is that he is violating the core anti-corruption principle inside our Constitution as it’s supposed to constrain him.”  However, he returned immediately to his argument that the Constitution doesn’t belong to the people.  “I am happy to have one hundred lawyers go and try to take that on, but that doesn’t address the larger problem, which is, ‘How do we bring the Constitution to a place where people feel like it’s theirs again?’ And the only way we get there is to imagine a process for changing it.” 

Ms. Edwards provided an example of the supposedly absent popular connection to the Constitution.  Her reference was the Supreme Court’s decision in Citizens United.  She had proposed a Constitutional amendment to reverse it.

It took several years from almost no one signing on to every single Democrat being in favor of an amendment to deal with the problem of money in politics. And I don’t think that was a sea change brought about by legislators. It was a sea change that was brought about by people in communities who were tired of the system. There is a willingness on the part of the people to change the Constitution for the better, to bring it more in line with democratic principles.

The trashing of the Constitution continued.  Mr. Law saw “Americans trapped within a box, unable to transcend the constitutionalist way of thinking. Countries actually don’t need written constitutions. The United Kingdom doesn’t really have a constitution.”  However, that’s not so.  The UK Supreme Court recently declared the prorogue of Parliament engineered by Boris Johnson to be invalid.  It described the situation as follows:

Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development. Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles  of  our  constitution  and  making  them  effective.³

That is a “constitutionalist way of thinking.”  As one commentator put it, “In essence, what the Supreme Court decided . . . is that the UK does, after all, have a real constitution that its prime minister has a legal obligation to obey.”⁴

Law went a step further:

To be honest, I think America might be better off as a monarchy. In Canada, you have a symbolic king or queen—a nonpartisan head of state onto whom people can attach their loyalties—alongside elected leaders, who actually do the hard work, and then you can criticize the government and the constitution without appearing to be disloyal or a bad citizen. And we don’t have that. In America, people declare their loyalty to this ancient document instead.

That doesn’t make sense, even superficially. 

He conceded this much: “If you’re in a revolutionary moment and you need to decide on a new set of arrangements, which is where we were in the late eighteenth century, then okay. A constitution is helpful.”  Seidman disagreed:

I don’t think we need the Constitution even in times of change. We need to forget about constitutionalism entirely. Or at least forget about the constitutionalism of rules and detail—of arguing over what exactly the framers meant in this or that passage. . . .  What keeps the country together, in the end, isn’t the Constitution. It is a bunch of sub-constitutional or extra-constitutional norms about behavior, things like “you don’t default on the national debt,” or “you don’t say we’re just going to block any Supreme Court justice who is nominated.”

If that’s the principle, we’re in trouble. Neither of the supposed rules is honored by Republicans.  

Lessig responded: “It’s one thing to say we can fix it by just imagining our norms to be in the right place, but I think a lot of people have been imagining norms and not getting very far.”  He again expressed his concern that the “Constitution is not producing a democracy that’s responsive to the people. And that is a gap that we have to find a way to fix.”  Later he gave some general substance to his remarks by referring to a “corrupted process for selecting our representatives and our president,” but he provided no details, perhaps because he despaired of amending the Constitution.  He advocated calling a constitutional convention under Article V, which sounds democratic, but would be a circus and faces super-majority problems, just as amendment does.

In arguing against that. Seidman improved on his theory of extra-constitutional norms: “What keeps the country together—to the extent it is still together—is a much looser sense that we’re all in this together, that we sink or swim together, and some very loose ideas about tolerance and equality. If you try to put that into a legal text, things are going to come apart at the seams.”  I see no basis for the last comment, but it’s true that a sense of being in it together is not primarily a legal issue; ultimately it is one of leadership.

Although there were a few sensible comments, most of the discussion was aimless and negative.  Even constrained by the label applied in the editorial introduction, “the constitutional crisis of the twenty-first century,” the discussion could have been useful if it had focused on the assault on constitutional government by the Trump administration, abetted by Republicans in Congress.  The course the panel followed was not helpful.  With an authoritarian in the White House, undermining respect for the Constitution is the last thing we need now.

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1.Some of the panel’s comments quoted below are not in the order presented in the article.

2. I Have a Dream speech, Washington D.C.,August 28, 1963

3. https://www.cnn.com/2019/09/24/uk/uk-supreme-court-parliament-judgment-in-full/index. html

4. https://carnegieeurope.eu/2019/09/25/what-does-uk-s-supreme-court-ruling-mean-for- brexit-pub-79919

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February 15, 2020

Urban decline, and guns
I’ve just read Bill Bryson’s latest book, The Road to Little Dribbling, in which he wanders around Britain, commenting on what he sees.  The themes are first, how beautiful and varied are the landscape and many towns, neighborhoods or places — those which look as they did years ago — and second, the negative effect of “progress,” on other places or facilities, and finally, the ineptitude and stinginess of government in maintaining them.  It would not be difficult to apply that theme to this country.  We aren’t as well supplied with quaint towns, but many of our cities are in decline and, as to the landscape, consider what Trump and other barbarians want to do to public lands.

While I’m applying my leisure activity to politics, I’ll offer two quotes from a movie I watched a few nights ago, The American President.  The fictional executive was having difficulty finding votes for a crime-prevention bill.  His rueful comments: “You cannot address crime prevention without getting rid of assault weapons and handguns,” but “For reasons passing understanding, people do not relate guns to gun-related crime.”  Have matters improved since the film was made in 1995? 

Well, no. On January 15, the Transportation Safety Administration reported that 4,432 firearms were discovered in carry-on bags or on passengers last year, an average of more than 12 per day.  That was an increase of approximately 4.5% from 2018, and a record high.  Eighty-seven per cent were loaded.  An email from Senator Schumer on December 17 noted that “in the seven years since Sandy Hook, there have been at least 2,322 mass shootings,” but that “President Trump, Sen. McConnell, and Senate Republicans have failed to act on the issue of gun violence, bowing repeatedly to the NRA and the hard right by choosing inaction or half measures over real, meaningful legislation.” 

Here’s an illustration of the consequences of the glut of guns: A mass shooting usually is defined as one in which at least four are shot, not including the perpetrator.  Seattle experienced such an event on January 22; one woman was killed, seven others were shot, including a nine year old boy. “At the shooting scene, police recovered 11 .380-caliber casings;” one of the shooters, now under arrest, “had used cash to purchase an extended magazine clip for a .380-caliber handgun 4½ hours before the Jan. 22 shootings.”¹⁶

The site of the mass shooting was described thus by The Seattle Times: “The area around Third Avenue and Pine Street has long been one of the grittiest in downtown Seattle.”  By “gritty,” the author meant this: “The corridor is no stranger to violence,  . . and open-air drug dealing is common there. Wednesday’s shooting happened near another shooting on Nov. 9, 2016, when five people were wounded outside a 7-Eleven on Third between Pike and Pine.”  Also, “On Tuesday, a 55-year-old man was found dying from a gunshot wound in a stairwell at Westlake Center, less than a block away from Wednesday’s mayhem.”¹⁷ That history was almost as shocking to me as the report of the latest shooting.  

I have lived in the suburbs for many years and now rarely am in downtown Seattle, but  I grew up in Seattle and had an office there for many years.  Third and Pine is in the commercial district; Macy’s is located at that intersection; when I knew it, it was not part of a zone of danger or dissolution.  It is true that Seattle’s core, like many others, is in decline — Macy’s will close soon — but the shootings are a mark not merely of decline but of collapse.

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16. https://www.seattletimes.com/seattle-news/crime/girlfriend-of-third-and-pine-shooting-suspect-charged- with- rendering-criminal-assistance-is-now-wanted-on-a-250k-warrant/

17. https://www.seattletimes.com/seattle-news/crime/police-responding-to-shooting-near-4th-avenue-and- pine- street-reports-of-multiple-victims/

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February 8, 2020
Trump’s impeachment defense

In a posting about eighteen months ago, I wondered how low the Trump administration could go.  The answer I suggested was its cruel practice at the border, separating children, including infants, from parents.  That still would stand as a benchmark for reprehensible policy. Now, in the arguments of his advocates at the impeachment hearing in the Senate and the behavior of his supposed judges, Trump’s minions have set the standard for political irresponsibility.

That the Senate hearing would be a farce was made clear by Mitch McConnell’s statement, unbelievable in any prior era: "Exactly how we go forward, I'm going to coordinate with the president's lawyers."  To ensure that we got the point, he added, "The case is so darn weak coming over from the House. We all know how it's going to end. There is no chance the president is going to be removed from office. My hope is that there won't be a Republican who votes for either of these articles of impeachment."¹

Senator Lindsey Graham demonstrated his objectiveness as a juror thus: “The best thing for the American people is to end this crap as quickly as possible;” he hoped that "nobody will be called as a witness" and warned Republican Senators against “believing that Democrats want to get to the bottom of Trump's decision to delay Ukraine aid.”² 

The presentation by Trump’s lawyers was an exercise in obfuscation.  Ken Starr, when the Clinton Independent Counsel, displayed no qualms about impeachment though he was pursuing a matter unrelated to presidential policy or competence.  Now, in defense of Trump he pronounced — with no sense of irony — that "the Senate is being called to sit as the high court of impeachment all too frequently. Indeed, we are living in what I think can aptly be described as the age of impeachment."³  
  

He added: "How did we get here, with presidential impeachment invoked frequently in its inherently destabilizing as well as acrimonious way?"  Might he have contributed to the supposed trend, by making an impeachment referral against Clinton, in 1998?  No; the immediate cause of the supposed cascade of impeachments is “the Independent Counsel provisions of the Ethics in Government Act of 1978," under which he was appointed.

However, the core problem, he argued, is the Constitution; it shouldn’t contain an impeachment provision because nasty Democrats will abuse it.   Impeachment, he told us, is dead in Britain.  “Yet here at home, in the world’s longest standing Constitutional Republic, instead of a once in a century phenomenon, which it had been, presidential impeachment has become a weapon to be wielded against one’s political opponent.”  As to his once-in-a-century rule, is he forgetting the Clinton episode, or is the Nixon case ignored because he resigned, or can’t Starr count? Is there a quota? 

Alan Dershowitz brought much more impressive credentials, along with an appearance of impartiality arising from his vote for Hillary Clinton.  However, the Trump miasma settled over him.  He joined the chorus of defenders claiming that only a criminal offense can be grounds for impeachment and removal: “Purely noncriminal conduct including abuse of power and obstruction of Congress are outside the range of impeachable offenses,” he declared.⁴  Starr had advised the Senators that “the commission of a crime is by no means sufficient to warrant the removal of our duly elected president.”  Therefore a crime is necessary, but not sufficient.  How convenient.  

Dershowitz acknowledged that his present position is new: “During the Clinton impeachment, I stated in an interview that I did not think that a technical crime was required, but that I did think that abusing trust could be considered.”  That view would, of course, undermine Trump’s defense.  Happily for his client, he has “gone back and read all the relevant historical material as nonpartisan academics should always do and have now concluded that the framers did intend to limit the criteria for impeachment to criminal type acts akin to treason, bribery, and they certainly did not intend to extend it to vague and open-ended and non-criminal accusations such as abuse of power and obstruction of Congress.”  So there.
  

His new study, judging by the source he cited repeatedly, consisted less in examining the Founders’ views than in those of an attorney who represented Andrew Johnson in his impeachment trial, not an objective source. 

Dershowitz conceded that “the academic consensus” is that no crime is necessary.  We also might consider the Nixon impeachment inquiry.  Here is a comment by Elizabeth Holtzman, a member of the House Judiciary Committee which drafted the articles:

President Trump’s defense lawyer Alan Dershowitz — my professor at Harvard Law School — is flat-out wrong in his assertion that abuse of power is not a basis for impeachment. . . . [H]is assertion flies in the face of the articles of impeachment voted against President Richard M. Nixon by the House Judiciary Committee — of which I was a member — in 1974. . . . Not one of the three articles adopted by the Judiciary Committee mentioned a criminal statute, charged Nixon with violating any criminal statute or described how his conduct met the standards set forth in any criminal statute.⁵

(Here is another rebuttal to Dershowitz’ argument, not authoritative but, like so much of this farce, ironic: “Doesn’t even have to be a crime. It’s just when you start using your office and you’re acting in a way that hurts people, you’ve committed a high crime.”  That was Lindsey Graham, as House prosecutor against President Clinton).⁶

Dershowitz quoted the description of impeachment in Federalist 65, by Hamilton:

The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to society itself.

That describes the charges against Trump, but Dershowitz attempted to explain them away: “Those are Hamilton’s words. They’re often misunderstood as suggesting that the criteria authorizing impeachment include the misconduct of public men or the abuse or violation of some public trust. That is a misreading.”  What Hamilton said is a “misreading.”  To justify that claim, he again inserted into the Constitution a requirement of a crime.  Adding that requirement is a logical problem in that, at the time of the drafting of the Constitution, there were no federal statutory crimes. Dershowitz acknowledged that, but attempted, unconvincingly, to explain it away.

As to the referral by the House, he drew a distinction between articles of impeachment and the details (“specifications”) within them.  He asserted that the “specifications are themselves vague, open-ended, and do not charge impeachable offenses. They include such accusations as compromising national security, abusing the power of the presidency, violating his oath of office.”  Why are those not grounds for removal?  Apparently we’re back to the crime issue. 
  

In any event, there is a fallback position: “it’s the actual articles on which you must all vote, not on the more specific list of means included in the text of the articles.” That, he said dooms the House position because “the actual articles . . . charge abuse of power and obstruction of justice, neither of which are in the Constitution.”  Only offenses listed in the Constitution may be grounds, he argued, and all of those listed are crimes.  He is mistaken, as demonstrated by the “academic consensus.” 

The Constitution provides, in Article II Section 4, that the President “shall be removed from Office on Impeachment for and  Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  All of his argument that a crime is necessary to impeachment is based on a misreading of the phrase “high crimes and misdemeanors” which, in historical context, refers to the offenses against the state referred to by Hamilton in Federalist 65, not to crimes in the law-enforcement sense.

In arguing that abuse of power cannot be a ground of impeachment, Dershowitz claimed that the Founders, by “expressly rejecting maladministration [as a ground] . .  implicitly rejected abuse.“ That is simply illogical; the two are different concepts. 

What would add up to impeachable conduct in his view?  Well, probably nothing related to re-election; for that Dershowitz offered this stunning argument, plucked out of the air: “If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”  If a president believes, however ludicrously, that his election will be in the public interest, he may make any corrupt bargain which appeals to him.  Could we name a president whose ego and lack of ethics would lead to such behavior?

Dershowitz addressed the factual basis of the charges only in one passage, which evaded the issue.  He began with this statement: “Here I come to a relevant and contemporaneous issue. Even if a president, any president, were to demand a quid pro quo as a condition to sending aid to a foreign country, . . . obviously a highly disputed matter in this case[,] that would not by itself constitute an abuse of power.”  That is a meaningless comment, as it omits the personal, political gain which was the quid pro quo in the Ukraine matter.
   

He then posed, irrelevantly, a hypothetical which involved no such personal gain, and added, with equal absence of meaning, “Quid pro quo alone is not a basis for abusive [sic, abuse of] power.”  He added a little later, “you cannot turn conduct that is not impeachable into impeachable conduct simply by using words like quid pro quo and personal benefit.”  Of course, that is not what the House did.  It charged Trump with subordinating the national interest to his desire for assistance in re-election, of withholding monetary aid authorized by Congress to pressure a foreign country into providing that assistance.

Dershowitz, then offered yet another defense; it’s all subjective: “The claim that foreign policy decisions can be deemed abuses of power based on subjective opinions about mixed or sole motives that the President was interested only in helping himself demonstrate the dangers of employing the vague subjective and politically malleable phrase, abusive [sic, abuse of] power, as a constitutionally permissible criterion for the removal of a president.”  Apparently that is intended to state that the motives must be ignored, that there can be no proof of them, only opinions .  Nonsense; in the criminal law of which he is so fond, intent often is an issue.

Several Republican Senators said foolish and irresponsible things, but Senator Lamar Alexander took the prize for the most eloquent summary of the cynicism and illogic of their position:

There is no need for more evidence to prove that the president asked Ukraine to investigate Joe Biden and his son, Hunter; he said this on television on October 3, 2019, and during his July 25, 2019, telephone call with the president of Ukraine. There is no need for more evidence to conclude that the president withheld United States aid, at least in part, to pressure Ukraine to investigate the Bidens; the House managers have proved this with what they call a 'mountain of overwhelming evidence.'

                                                          ***

It was inappropriate for the president to ask a foreign leader to investigate his political opponent and to withhold United States aid to encourage that investigation.

Right; the case has been proved, and Trump should be removed.  Oh, no:

The question then is not whether the president did it, but whether the United States Senate or the American people should decide what to do about what he did. I believe that the Constitution provides that the people should make that decision in the presidential election that begins in Iowa on Monday. . . . Our founding documents provide for duly elected presidents who serve with “the consent of the governed,” not at the pleasure of the United States Congress. Let the people decide.⁷

His statement acknowledges proof of the offense then rewrites the Constitution, expunging the bothersome impeachment provisions.  His call to let the people decide is, in addition to being a mechanism of avoidance, yet another irony, given that the Republican Party is diligent in denying fair elections.

     Senator Romney took his responsibility more seriously.  He disposed of the claims that a crime must be proved and that all grounds for impeachment must be listed:

The historic meaning of the words “high crimes and misdemeanors,” the writings of the founders and my own reasoned judgment convince me that a president can indeed commit acts against the public trust that are so egregious that while they’re not statutory crimes, they would demand removal from office. To maintain that the lack of a codified and comprehensive list of all the outrageous acts that a president might conceivably commit renders Congress powerless to remove such a president defies reason.

     He summarized the case against Trump in the first count, abuse of power:

The president asked a foreign government to investigate his political rival. The president withheld vital military funds from that government to press it to do so. The president delayed funds for an American ally at war with Russian invaders. The president’s purpose was personal and political. Accordingly, the president is guilty of an appalling abuse of public trust . . .Corrupting an election to keep oneself in office is perhaps the most abusive and destructive violation of one’s oath of office that I can imagine.⁸

     Sadly but unsurprisingly, Senator Romney stood alone in his Party in voting for conviction on that count. Lacking principles, backbones or both, his Republican colleagues avoided responsibility and gave Trump a pass, thereby approving the misuse of office for personal gain.  All the Republicans voted against count two, obstruction of Congress, continuing their pattern of subordination to the executive branch.  Together, the votes empower a rogue administration and pave the way for a future authoritative regime which may be headed by someone less foolish and ignorant, and therefore more dangerous, than the present incumbent.

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1. https://abcnews.go.com/Politics/mcconnell-work-total-coordination-white-house- impeachment-trial/story?id=67707430

2.  https://thehill.com/homenews/senate/478526-graham-urges-brief-impeachment-trial- end- this-crap-as-quickly-as-possible

3. Starr quotes are taken from: https://www.rev.com/blog/transcripts/trump-impeachment- lawyer-defense-argument-transcripts-monday-january-27-ken-starr-purpura-raskin

4. Dershowitz quotes are taken from https://www.rev.com/blog/transcripts/alan-dershowitz- defense-argument-transcript-trump-impeachment-trial-january-27

5. https://www.washingtonpost.com/opinions/alan-dershowitz-willfully-ignores-the precedent- of-nixons-articles-of-impeachment/2020/01/29/73c8e6a6-42cb-11ea-aa6a-083d01b3ed18_story.html

6.https://www.usatoday.com/story/news/politics/2020/01/23/impeachment-trial-nadler- plays-clinton-trial-video-lindsey-graham/4555925002/

7. https://www.cnn.com/2020/01/30/politics/lamar-alexander-impeachment-witnesses-vote/index.html

8. https://www.nytimes.com/2020/02/05/us/politics/mitt-romney-impeachment-speech-transcript.html

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January 21, 2020
A conservative sensibility

I read George Will’s latest book, The Conservative Sensibility, for two reasons.  I was interested to know what that “sensibility” might be.  I was hoping to find a more rational approach to conservatism than that provided by modern Republicans, especially since their captivity by Trump. Although Will is no fan of Trump, I was disappointed.  Will’s conservative sensibility is in fact a political argument in which one must take sides.  It offers little in the way of meaningful political insight.

My reaction to Mr. Will’s book is not that of an old foe.  For many years I admired his columns, even when I disagreed with him.  That ended when he took an abrupt right turn in the early 1990s, abandoning a philosophy he had expressed many years earlier, a "belief in strong government, including the essentials of the welfare state."¹  (The abruptness of the change is illustrated by his views on term limits.  He dismissed the notion in a column in January, 1990, but adopted it as a necessary change in a book published in 1993).² At times over the past three decades he seemed to be pulling back from an anti-government stance, but  he has embraced it in this book.

My reaction also is not that of an annoyed leftist.  I am, by temperament and inclination, conservative.  I am a political liberal — a progressive in Will’s terminology —  by conviction. That being the case, I accept liberal ideas on their merits, but am sympathetic to views which are genuinely conservative.  I suspect that many people share that mixture of ideas and impulses. 

The book’s purpose, Will tells us, “is to suggest how to think about . . . the proper scope and actual competence of government.”[xvii]³  His view is narrow, consisting primarily of a desire for limited government. The Founders, Will says, learned from philosopher John Locke this peculiar lesson: “government exists for the modest purpose of protecting liberty, understood primarily as freedom from government.”[291] 

In appealing to the Founders, Will tells us how far we have moved — strayed— from their project of limited government, a government, as he sees it, not simply limited but small and quiescent, “maintaining order, protecting property, and otherwise staying largely out of the way of individual striving.”[65] There is now, and has been for a century, he argues, a “conflict. . . between the founders’ vision and the progressives’ explicit repudiation of this . . . .”[xxxvii] 

Will stresses natural rights.  He cites Locke’s theory of such rights, and claims that the “American project, distilled to its essence, was, and the conservative project is, to demonstrate that a government constructed on the assumptions of natural rights must be a limited government.”[xxix]  “Any government is legitimate if it secures natural rights and rules by the recurrently expressed consent of the governed.”[149] A “properly engaged judiciary is duty-bound to declare majority acts invalid when they abridge natural rights.”[160] He refers to those rights listed in the Declaration of Independence: life, liberty and the pursuit of happiness.   

“Government’s primary purpose is to secure pre-existing rights.”[23] The purpose of “the Constitution’s architecture . . . is to protect liberty.”[214]  Is the right to liberty limited by race, or does it pre-exist in suspense and somehow come into being for different people at different points in history?  How would people without rights acquire them?  In the real world, it’s by government action; rights are what the law enforces.  Will insists on the natural variety: “Government does not create rights; it does not dispense them.”[23] 

However, in a discussion of the evolution of the federal government, he bumps up against the fact that blacks did not have those natural rights in the Founders’ day, and fudges the description of how they came to acquire them.  The Civil War “affirmed equality of natural rights” he tells us;[290] more accurately, the government created rights for those who previously did not have them.

Mr. Will denounces, on principle and as a departure from the Founders’ model, the increased power of the executive branch at the expense of Congress.  “The ever expanding powers and pretenses of the presidency have become a menace to America’s Madisonian balance of separate powers.”[105]   In the age of Trump, there is merit in criticizing unchecked presidential power, and in Will’s call for a larger role for Congress; it has, for example, ceded war powers to the President.  However, most of his argument about “the swollen presidency”[101] and the fading of Congressional power is in aid of his desire to dismantle the administrative state, to which too much, he believes, has been delegated.  

Although Will thinks that Congress should be more assertive, he continues to favor term limits,[140-41] which would make it less so.  He  acknowledges that term limits would rob Congress of “institutional memory,” and that it would require more Congressional staff to fill the void.[141]  He supports such an expansion even though the unelected expert staff resemble those at the administrative agencies he denounces. 

Will opposes “rent-seeking,” i.e. influencing government programs to gain private advantage:

As [the] government has become ever more important in the allocation of wealth and opportunity, it has become an ever more enticing target of rent-seeking factions, which are incited by the government’s interventionist behavior. The necessary, and probably sufficient, cause of this misuse of government was the death of the doctrine of enumerated powers.[xxxi]

Political contributions are a vehicle for seeking favors, but he opposes limiting those contributions.[86 ]

His favorite branch is the judiciary, specifically the Supreme Court, which he, unlike most conservatives, wants to be activist.  Again, his aim is cutting back the power of government, by imposing the limitations he sees in the Constitution. The “judiciary’s primary duty is to defend liberty.”[163]  The government bears the burden of persuading the Court “that its action is both necessary and proper for the exercise of an enumerated power.”[163] (emphasis in the original)  “[A]ll government interventions in the process of society’s spontaneous order are presumptively of dubious legitimacy.”[208]

In his discussion of “the judicial supervision of democracy,” Will asserts that “Lockeans stress rigorous judicial protection of individual rights, especially those of private property and the freedom of contract that define and protect the zone of sovereignty within which people are free to act as they please.”[159] He thus declares, in effect, that the protection of property and contracts is essential to liberty.  That, he says, has become part of our governmental structure, because the “Constitution is John Locke’s political philosophy translated into institutional architecture.”[171] “It is from Locke that Jefferson and other Founders derived their understandings of the natural rights to life, liberty and property,”[171] now using Locke’s formula and dropping the Declaration’s substitution of the pursuit of happiness for the last term.  

The Founders “understood that the right to property could not be severed from an implied corollary right: the right to contract to create arrangements important to the acquisition and disposition of property.”[172]  Did they so understand?  Never mind.  Will, in disapproving of government regulations, is promoting a long-abandoned theory of property and contract rights, in the process declaring his approval of Lochner v. New York,⁴ an infamous 1905 decision which upheld the “right” of workers to “contract” for — submit to — unlimited overtime work.[164-72]

In a chapter on economics, Will speaks of the advantages of a market system, which most of us would concede, and advises us that the USSR and the National Industrial Recovery Act were failures, as if anyone proposed copying them.[248-50]  He claims that “a commercial republic — a market society — promotes the habits (virtues) of politeness and sociability.”[228]   I must admit I hadn’t noticed that.  He is concerned about deficits and national debt, which is entirely reasonable, but what should be done?  

In the Introduction, referring to “the unsustainable trajectory of the welfare state” Will said, “Everyone understands what must be done: a mixture of increases of taxes and reduction of promised benefits.”[xxx] He is consistent in his criticism of welfare, but it’s not clear where the tax increase would cone from, for  he dislikes the progressive income tax. [269-79 ]  He denounces the swollen size of government, but doesn’t suggest which agencies, functions or programs should go, except to note that the effect of “redistributive ideology is to legitimate the existence and activities of the agencies of redistribution.”[282]

Will credits Lincoln with reconnecting the nation to “the Founders’ premises,”[151, see 517] but those premises apparently no longer included limited government, for the government headed by Lincoln was as active and intrusive as it is possible to be, using military power to prevent states from seceding, from achieving what they no doubt saw as their liberty.  Will acknowledges that the “Republican Party’s commitment to minimalist government could not survive the first Republican presidency.”  However, he sees that development not in the war itself, not in such acts as suspending habeas corpus,  but in the freeing of the slaves

As the Civil War changed from a war to restore the Union as it had been to a crusade for a “new birth of freedom,” the federal government came to be regarded differently.  It was seen less as a threat to freedom and more as a provider and enlarger of freedom. The proximate cause of this change was the Emancipation Proclamation, which was made possible by the Union victory at Antietam [Creek in Maryland]. In a sense, John Locke died at Antietam.[291]

The last two sentences are  baffling, and this adds to the puzzle:

Reconstruction in the South, and government-driven economic development in the North and West, reflected a redefinition of American freedom as something to be served by, not threatened by, government power. . . . The post-Civil War Republican Party normalized vast government interventions in the nation’s economic life.”[291-92]

The death of Locke presumably is a metaphor of a major change of philosophy in which natural rights and limited government fade from the picture.  The Constitution no longer would be his philosophy as “institutional architecture”  All this from emancipation?  Surely Will does not consider the Proclamation to have been a mistake, so why does he go out of his way to suggest that the big, activist government he disdains flowed from it? 

Five pages after declaring the death of Locke, Will indicates that the conservatism of the present day is a recent construct: “Contemporary conservatism was born in reaction to the New Deal and subsequent excessive enlargement of the state.”[296] Does that mean that conservatism now is unconnected to Locke?  According to the index, he is mentioned twelve times on subsequent pages.  Each of those references could be classified as merely historical, but Will continues to appeal to the Founders, who were, he says, taught by Locke.  See the reference below to his “Borne Back” chapter and his summary in the Introduction.[xxix].  Perhaps Locke is to be resurrected.

Somewhat inconsistently with his praise of Lincoln, Will thinks that greater power in the states would be better; he would return the election of Senators to state legislatures.[140]  However, in attacking hyperactive government, he criticizes certain regulations as corrupt, but all of his examples are from states. [209]

Mr. Will deplores, with cause, the condition of the culture: “Today’s culture is a reason for thinking that perhaps people should be a bit more circumscribed by manners and mores. . . . America’s normally sunny disposition has become clouded by anxieties about the uses to which freedom is being put.”  Is liberty, after all,  not an unmixed good?  “When norms come to be considered optional or, worse, repressive, liberty degenerates into license, which is not a blessing.”[348-49]  What is to be done?  Perhaps government, for all its faults, might contribute: “a function of law is to use incentives to point people toward worthy ways of living, thereby strengthening what the polity considers essential virtues.”  Of course, our government has done the opposite: “It has done much harm by destigmatizing and encouraging dependency.”[351]  Again: “Today, . . conservatives correctly argue that our government has become a deforming force, corrupting the country’s character.”[528]

He makes valid points about the excesses of liberal identity politics.  He regrets, appropriately,  the lack of common purpose, but his emphasis on individual liberty seems to run counter to that. He refers to “the progressive project of diluting the concept of individualism,” which is “a prerequisite for advancement of a collectivist political agenda.”[338]

In a chapter entitled “Welcoming Whirl,” Will sets forth his views on religion, which are negative. He disposes of the myth that the United States was founded as a Christian nation.  He describes himself as an “amiable atheist;” with or without amiability, that is an unusual stance for a conservative.  He seems to be advancing a theory that conservatism is better off without a religious foundation — or, at least, does not require one — but advises those who want limited government to look to religion for support.[473]

That chapter includes a section entitled “Cosmology and the Conservative Sensibility,” which emphasizes the contingency of life and continues his critique of religion. “Conservatism,” he thinks, “should embrace and cultivate a cheerful, even exuberant acceptance of the unplanned and the undersigned [undesigned?], in the cosmos and in society,” and in “the unplanned complexity of the whirl . . . .”[486]  I wonder how many conservatives would be attracted to that free-floating view.

In that and the following section, Will discusses science but, notably, fails to mention contemporary climate change, the science of which he questions.⁵  He finds Darwinism useful in supporting his preference for an “order produced by lightly governed individuals consenting to arrangements of their devising.”[503] 

In the final chapter, “Borne Back,” he reiterates that theme: “The Founders bequeathed to posterity a republic that throve under a limited government that provided social space for the creativity of society’s spontaneous order.”[516] We must recapture that: Lincoln’s “public life was devoted to reconnecting the country to the principles of the founding. That is conservatism’s core purpose today.”[517]  On the last page, 538, Will asserts that “the past has become a reproach, judging the present for its departure from the Founders’ blended patrimony of philosophy and prudence. So the question now is: Can we get back not to the conditions in which we started, but to the premises with which we started?” 

Debates regarding the proper functions and limits of government will go on as long as the nation exists, and are healthy if carried out in realistic and specific terms.  Not all of the arguments for limitation come from the right, and the advent of the imperial presidency is neither a new nor a distinctly conservative insight. Administrative regulations can become overly complex.  However, it contributes little to a search for good solutions to argue that everything wrong or annoying about the federal government exists because progressives have abandoned a narrow interpretation of fundamental American principles.

Much of the philosophy set forth in The Conservative Sensibility is difficult to take seriously, not only on the merits, not only because of inconsistences in the argument, but because Will seems to mean less that what is said.   In the passages noted thus far, in discussing natural rights he seems to be referring to something real, a set of principles which may be discovered by reason.  He underscores this by declaring that there is a universal human nature.[35]  He states that the Declaration “affirms” natural rights, that the Constitution’s purpose is to “secure” inalienable rights.[150] He provides examples of those rights: life, liberty and the pursuit of happiness (or property).  However, none of that can be taken at face value; it is an extended rhetorical device.  To be fair, he has hinted early on that, perhaps, natural rights doctrine is not to be taken literally.

In the Introduction, Will starts out seeming to adhere to the reality of natural rights: “Such rights. . . are natural because they pre-exist acts of collective human will and cannot be nullified by such acts.”[xxxvi]  Again, in the first chapter, (“The Founders’ Epistemological Assertion”): “A limited government — a government whose powers are limited because they are enumerated — presupposes a reservoir of rights that pre-exist government.”[10]

However, he soon calls that into question: “Some Americans [of the founding era] thought their rights derived from history; others thought their rights could be read in the book of nature. . . . Both sets of Americans were, without quite knowing it, rule utilitarians. That is, they were saying that certain behaviors, practices and conventions are, as a general rule, conductive to happiness and flourishing.”  So, is natural rights theory of any real consequence?  “It is . . difficult, and perhaps pointless, to distinguish between, on the one hand, natural law and natural rights reasoning and, on the other hand, the reasoning of rule utilitarianism. Both. . . are recommending behaviors and arrangements they consider, as a general rule, most useful to creatures with our natures.”[12]

That might still allow him to claim that there is some reality to “natural rights reasoning.”  However, in an interview⁶ following the publication of the book, Will went a step further, eliminating any distinction between the two approaches.  The interviewer said, “The concept of natural rights is easier for me to understand as a legal fiction that imports certain ethics and standards . . . that are manifestations more of what we ought to have than of human nature.”  Will replied: “I agree with that. Those of us who believe in natural rights without a theological underpinning are essentially rule utilitarians. Societies flourish when they acknowledge, respect, and follow certain rules.”  In other words, natural rights are not a reality, merely a useful concept.

In that interview, he also said this (referring to economist Friedrich Hayek):

Progressives said that as society becomes more complex, there is more urgency for government to intervene and supervise it. The Hayek view is that this is exactly wrong and that the more complex a society becomes the more perilous it is for governments to intervene. As a society becomes more complicated, governments know less of what there is to know and markets—which are simply information-aggregating mechanisms—should be allowed to work.

That comment parallels the book.  Then he was asked: “Is [protecting individual rights] incompatible, though, with a government building highways or providing Medicare for all?  He replied:

Not a bit. Madison’s idea in Federalist 45 that the powers granted to the federal government would be few and defined is no longer the case. The interstate highway system started as the National Defense Highway Act. I went through Princeton’s graduate school supported by a grant provided by the National Defense Education Act. In the Elementary and Secondary Education Act of the 1960s, the federal government moved into an area of state and local responsibility, and No Child Left Behind was a subsequent iteration of that.

Then what is all the talk about limited government and enumerated powers about?

        My conservative sensibility is not opposed to ameliorative government. It is perfectly fine for the American people to decide collectively in 1935 that they want Social Security, or to decide collectively in 1965 that they want Medicare. In 2025, maybe that will be single-payer health care. Those are all within the broad parameters of reasonable democratic choice.

After the last two statements, little remains of the argument about abandoning the Founders’ model, or of his criticism of progressivism and big government. 

Here, also from the interview, is a statement by Will of the issue as he then saw it : “We need to have a conversation about the proper scope and actual competence of government. Progressives have an enormous stake in this. Everything progressives want to do depends on strong government, and that depends on confidence in government.”  That is a valid point, but it overlooks the problem that any current lack of confidence may be the result of years of attacks on government by conservatives, to which The Conservative Sensibility contributes.

In the book, Will ignores Trump, presumably on the ground that he is not really a conservative.  Trump may not be one in a philosophical sense, but he is the product of the evolution of the conservative party.  Any discussion of  conservatism should face that fact.   Will, to his credit, left the Republican Party over its likely choice of the Donald, declaring: “If Trump is nominated, Republicans working to purge him and his manner from public life will reap the considerable satisfaction of preserving the identity of their 162-year-old party. . . .”⁷   That is a worthy and important aim, but how much of that identity remained, even before 2016?

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¹ “ Statecraft as Soulcraft, p. 12 (1983)

² The column is collected in Suddenly, pp. 235-36 (1990); the 1993 book is Restoration: Congress, Term Limits and the Recovery of Deliberative Democracy

³ The bracketed numbers are citations to pages in the book.

⁴ 198 U.S. 45 

⁵ https://www.washingtonpost.com/wp-dyn/content/article/2009/02/13/AR2009021302514_pf.html

⁶ https://www.thedailybeast.com/george-will-conservatives-would-win-if-trump-loses

⁷ https://www.washingtonpost.com/opinions/if-trump-is-nominated-the-gop-must-keep-him-out-of-the-white-house /2016/04/29/293f7f94-0d9d-11e6-8ab8-9ad050f76d7d_story.html

January 7, 2020

Loss of control
A news report on Saturday used the phrase “out of control.”  The reference was to the fires devastating Australia, but it could be applied as aptly to the US government.  Trump, weak and insecure, wanted to show that he is strong and decisive. Panicked by impeachment, he needed to change the subject.  Solution: risk war by assassinating an Iranian general.  Whatever the latter’s sins, it wasn’t bright to, at a stroke, unite fractured Iranian and Shiite communities against us.  Trump criticized Obama for withdrawing troops from Iraq.  Reacting to Trump’s act, its parliament now has demanded that we get out completely.

Trump’s benighted followers think he is making America great again, but virtually everything he does weakens it.  His latest gambit has disrupted actions against ISIS.  His war-crime threat to bomb cultural sites has been rejected by his own Defense Department.  He played fast and loose with military aid to Ukraine, thus aiding Russia, in an attempt to corruptly influence the next election.  He has been played for a fool by North Korea, responding to its newest threat by babbling that Kim likes him.  Despite the fires in Australia, he will reject climate science and make matters worse by supporting use of fossil fuels.

Risking war is merely the latest manifestation of loss of control, of minimal rationality, in this dysfunctional administration.