Thursday, April 8, 2021

AALS Gets It Backward--This Week's Column in the Pennsylvania Capital-Star

 4/8/2021--You have to excuse my taking an author's prerogative. The AALS is putting on a program about the 2020 election and its lessons. See here. But the emphasis seemed to me to be backward. Democracy had to be "rebuil[t]." But democracy was just another way to criticize Republicans. Actually, democracy did pretty well in 2020. 

In contrast, the AALS feels that the rule of law merely needs to be "strengthen[ed]."

I argue in this week's column that the rule of law is threatened by the belief, most notably in law professors, that judges rule by party, or want to. That there really are Obama judges and Trump judges, just as Trump once said.    

I tried to raise this issue by becoming a speaker at the conference, without success. Of course maybe I just don't express the issue well. Or I am flawed in other ways. But judging by how the conference turned out, I would say the AALS just doesn't want to look at law professors and our role in what's wrong.


Sunday, April 4, 2021

Happy Easter

4/4/2021—C.S. Lewis used to say that Christianity is one great miracle. This is true and important because it measures the difference between religion and the secular very precisely.

Lewis meant the incarnation, not the resurrection, but they are all one story, as he also said. The divine comes into nature and then rises, bringing nature, including us, with it.

I have a stubborn streak—like Dr. McCoy in Star Trek. I cannot accept miracles—any interruption in the usual causal natural processes.

This is not a logical position. The Big Bang was a miracle. We don’t really understand anything about it. So, I have to admit that I don’t want to accept the possibility of a miracle.

Nor is this really experiential. I have experienced inexplicable interventions in my life—spiritual events without any sensible explanation other than divine action. But forgiveness of sin is not a miracle.

Accepting this stance as a choice not to believe is helpful because I now have no reason to look down on religious believers. We have all made commitments, just different ones.

The argument for the resurrection rests on a lot of evidence actually, not the least of which is the fact that 20 or 30 years after the death of Jesus, Jews are eating pork—about as likely as the Taliban putting on cocktail parties.

But it’s not for me. Nor for many others. In fact, we now live in a secular culture.

The question going forward is a simple one—how to build secular civilization instead of the mess America is now. The answer is simple too but hard to do. First decide what flourishing secular civilization has to be—it has to be hallowed. (Hence the blog and book). Second make peace with religion as part of the resources to do that. (Hence American Religious Democracy), Third, accept that building secular civilization is a communal task, not an individual one. (Hence Church, State and the Crisis in American Secularism). Fourth, commit to a positive view of the universe as the basis of secular civilization—my upcoming book. Fifth, design a new secular life—with an eye toward calendar, the ritual of daily life, prayer and repentance. (my next book) Finally, adopt love as the basis of all life. This last step brings the secular right back into the neighborhood of religion.  

Wednesday, March 24, 2021

Learning to Love One-Party Rule

 3/24/2021--this week's column in the Pennsylvania Capital-Star.

Tuesday, March 9, 2021

The Future of Mail-in Voting in Pennsylvania--the week's column

 3/9/2021--Republicans really misunderstood the lawsuit challenging mail-in voting after the 2020 election. They supported it, but the conservative Justices on the USSCt would have had to oppose it under the independent state legislature doctrine. 

It's an unhistorical doctrine to be adopted by originalists, but we appear stuck with it. 

So, what is the future of mail-in voting in Pennsylvania--this week's column in the Pennsylvania Capital-Star.

Saturday, March 6, 2021

A Hallowed Secularism Way of Life

 3/6/2021--In a New York Times column, Leigh Stein today raised the issue of a non-believers way of life--The Empty Religions of Instagram. Millennials who have abandoned organized religion are getting spiritual guidance from the Internet. And it's bad guidance.

Stein cannot resolve the issue of course. She's not going back to any actual church. She refers vaguely to "something like church."

I had the same problem in Hallowed Secularism--the book. What will a hallowed secularism way of life look like? There are, for example, Humanist groups that operate like churches. They don't seem to be growing, but maybe they will.

There is a cultural Judaism organization. 

People with children especially need a structure to be part of.

None of that seems sufficiently holy or challenging to me. I've been drifting since I left Judaism more than fifteen years ago.

Once my new book comes out--The Universe Is On Our Side--I intend to return to this issue. Even my wrong answer might be part of answering this next big question.

Wednesday, February 24, 2021

It Is Not Clear Whether Republicans Really Believe the 2020 Election Was Stolen--This Week's Column

2/24/2021--I tried to take a nuanced view of the Myth of the Stolen Election in this week's column in the Pennsylvania Capital-Star. Many do. But research shows that losing partisans often feel elections were unfair, even without specific showings of fraud. We do need to be vigilant. One place to emphasize that the election was lawful is in the coming debate in the General Assembly over election integrity.  

Wednesday, February 10, 2021

The San Francisco School Board Was Wrong to Remove Washington and Lincoln--this week's column in the Capital-Star

 2/10/2021--The SF School Board forgot that we are all subject to the crimes of the age. My column.

Tuesday, February 9, 2021

God and the Pandemic

 2/9/2021--It has gone out of style to conceive of God as sending COVID-19 as a way of punishing humankind. We don't believe in that kind of God anymore--which means we don't believe in God at all. A God who could never do that no matter what is just not God. A culture that believes in only natural processes is no longer in the Biblical tradition.

If we were going to think of God that way, however, what sin would the virus be punishing us for? Karl Barth used to say that God punishes simply by leaving us along to do as we will. If so, we have so degraded the natural world that the emergence of a novel virus seems a fitting natural response. 

But try a different idea. What if God were showing us just what virtual life is really like. In other words, we wanted to live online and now we do. 

It turns out that what we really need is human contact. What is the virus signals the beginning of the end of our fascination with the Internet and social media? Now that would be a creative God. 



Friday, February 5, 2021

New York Review Letter to the Editor Concerning Originalism

 2/5/2021--Back in December, I read a review of The Essential Scalia in the New York Review. The review was by Harvard Law Professor Noah Feldman. I sent the letter to the editor below to the Review. Professor Feldman even tried to help me get it published, but the NYR publishes hardly any letters to the editor anymore, let alone one by a non-famous person.

The point of the letter was that originalism gets much too much credit as a theory of interpretation. In practice it is not. That is the point that needs to be emphasized.


To the Editors:

Professor Noah Feldman felt he was stuck with the self-professed terms of Justice Scalia’s jurisprudence in his review of The Essential Scalia [NYR, Dec. 17]. Nevertheless, it was a mistake for him to treat Originalism as if it were an actual theory of constitutional interpretation. In practice there are no “principles” of Originalism.

It is easy to see this. As Professor Feldman points out, a major promise of Originalism is that it constrains judges from imposing their policy preferences on the rest of us in the guise of interpreting the Constitution. Therefore, if conservative Justices abandon originalism in pursuit of ideological commitments, Originalism would lose any claim of legitimacy, or even coherence.

In practice, this is what conservative Justices, including Justice Scalia, have routinely done. Just as examples, Originalism plays no role in free speech jurisprudence, anti-affirmative action cases or the crucial rules regulating who can sue for what, known as justiciability. These examples could be multiplied.

Probably the most dramatic example of the selective invocation of Originalism is the line of Free Exercise cases, beginning with Trinity Lutheran Church v. Comer, requiring states to include religious institutions in government spending programs. As Professor Feldman has shown in his academic writings, this line of cases amounts almost to anti-Originalism. 

The danger of treating Originalism seriously as a theory of interpretation is that it allows conservatives to pretend to neutrality rather than defend their ideological commitments on the merits. As a living constitutionalist myself, I agree with many of the above decisions. But Originalism they are not.


Thursday, January 28, 2021

MIke Kelly Got Closer than People Think to Stealing the Election for Trump

1/28/2021--Pennsylvania Representative Mike Kelly tried to pull a fast one and then complained when it didn't work. This week's column in the Pennsylvania Capital-Star. 

Wednesday, January 20, 2021

Peter Gordon Fails to Come to Grips With the Problem

1/20/2021—Now that the Trump era is behind us, we can go back to trying to figure out how we arrived at our state of nihilism.

A good starting point is Peter Gordon’s review of Charisma and Disenchantment, which is a new translation of two lectures Max Weber gave in 1917 and 1919—Scholarship as a Vocation and Politics as a Vocation.

Here is Gordon’s key attribution to Weber:

To be a scholar one must acknowledge that in the modern age an irreparable chasm separates facts from values: facts are objective, values are not. Weber stated this point as early as his 1905 essay on objectivity: “the fate of an epoch which has eaten of the tree of knowledge” is that “we cannot learn the meaning of the world from the results of its analysis.” The highest ideals are formed “only in the struggle with other ideals,” and we must abandon our hope for their reconciliation. Weber portrays this predicament as a final consequence of the millennia-long process of disenchantment that has gradually stripped the cosmos of any objective meaning. For the individual who wishes to pursue scholarship as a calling, this process has a paradoxical consequence. If the heavens are empty, one can no longer speak of a caller behind the call; one can make one’s career into a calling only by a sheer act of will.

Gordon criticizes Weber’s sharp distinction between facts and values on two grounds. First, values cannot just be an act of will if society is to survive and prosper:

The distinction between fact and value left Weber with a one-sided image of social rationalization. He failed to grasp the crucial point that a rationalized society is not necessarily a rational one; the latter demands not only a formal rationality of systems and procedures but also a substantive rationality in the values we endorse because they are right.

Second, and sort of inconsistently, Weber was wrong to ascribe sheer objectivity to facts:

No less questionable is Weber’s trust in the solidity of facts, seeing them as a hard and obdurate reality that intrudes upon the latticework of our value-commitments as if from the outside. An effective teacher, he declared, is one who makes the student look unflinchingly at facts even when they are “uncomfortable” or push against one’s partisan opinions. But in an age that is now drowning in “alternative facts,” the old distinction between facts and values may have lost its credence. Values not only frame facts, as Weber knew; they also lend facts their authority, propelling them into the public sphere where they are taken up into our political deliberations. But a fact can only count as a fact if society treats it as one. Today’s demagogues are not content with reshaping political values; they also seek to reshape facts, turning debate over policy into a struggle over what is real.

But Gordon himself participates in the distinction between facts and values in his review. Gordon says “we cannot blame him for failing to anticipate our modern tilt into the relativity of facts.”

We can. Because, as Gordon well knows, and says, facts depend on values. So, if values are acts of will, so are facts. This is the point Hilary Putnam makes in The Fact Value Distinction.

Gordon is sharp but at least in this review he takes the easy way out. The question is, how do we get to the substantive rationality that enables us to discourse about values. That source has to be grounded in the real, in the universe.

This will be my point in my upcoming book—The Universe Is On Our Side: Restoring Faith in American Public Life.

Monday, January 11, 2021

Pa. Senate Republicans Need to Seat Dem. Jim Brewster--this week's column in the Pennsylvania Capital-Star

 1/11/2021--I have not been writing on this blog for awhile, because of my column. This week's column addresses a local issue in the Pennsylvania State Senate: the decision of the Republican majority not to seat the winner of a State Senate election because of a disagreement over ballot counting. You can read the column here.

Tuesday, December 29, 2020

What Democrats Can Learn From Trump's Narrow Loss

12/29/2020--this week's column in the Pennsylvania Capital-Star.

Friday, December 25, 2020

Merry Christmas to All

 12/25/2020--Merry Christmas to all, especially to all of us nonbelievers. Christmas is the message of new hope that we need. Now if only we could frame myths for our own time.

Wednesday, December 16, 2020

Monday, December 7, 2020

The Refusal on the Right to Condem the Stolen Election Narrative

 12/7/2020--Yesterday, Ross Douthat was given a whole page in the New York Times to discuss the willingness of millions of Americans to accept the idea that the 2020 election was stolen. And it was very good and helpful. He is on the right, but he admits he is not the person who can be helpful in debunking this narrative because he works for the New York Times.

Bill Barr, our Attorney General, could be helpful. That is why his quoted comment to the AP, “to date, we have not seen fraud on a scale that could have effected a different outcome in the election” and, on allegation that Dominion voting machines switched votes from Trump to Biden, the feds “have looked into that, and so far, we haven’t seen anything to substantiate that” are infuriating.

These namby-pamby not quite denials are cowardly and dishonest. They are the kind of comments that lead Steve Kelley, in a cartoon in the Post-Gazette about giving change, to write, "Maybe there are some counterfeit bill, but not enough to matter."

Any fraud is a crime. So how about quotes like these, We're still investigating but we haven't found any fraud yet. If we do, we will put anyone involved in jail. Certainly there was no national conspiracy for Biden. And the machines were fine. That allegation is not true. 

That is actually the substance of what he said, but he did not want to anger Trump anymore than he had to.

And it's not just Barr. I have been disappointed in the silence of influential people on the Right who say they care about the Constitution--law professors like Randy Barnett, Josh Blackman* and Michael McConnell--Federalist Society bigwigs, to denounce these claims. To say simply, they're not true, Biden was elected and it's dangerous to promote these lies.

Because it is dangerous. If millions of ordinary Americans believe the election was stolen, why would they not support a military coup or an assassination? Wouldn't it be the patriotic thing to do? People on the Right ran a great risk in electing Donald. They did it because they could get things--the Supreme Cour, deregulation, the end of the Iran deal. They thought the Constitution would endure, that those of us afraid that Donald would destroy it, were paranoid. 

Well, he's destroying it right now, in front of our eyes and they are dong nothing to stop him.  

*Not that Josh reads this blog, but today, 12/10, he was quoted calling the Texas lawsuit frivolous. I'm sure the Justices did not need him to say it, but that is surely the end of it. So, Josh at least gets off my list of those who would not defend constitutional democracy.  




Wednesday, December 2, 2020

Reform the Electoral College

12/2/2020--This week's column in the Pennsylvania Capital-Star. Not only is the Electoral College impossible to get rid of right now, it has its good points. But it is dangerous in its current form.  

Saturday, November 21, 2020

The 75th Anniversary of Justice Jackson's Opening at Nuremberg.


The 75th Anniversary of the opening at Nuremberg (From the Jackson List of John Barrett)

At 10:00 a.m. on Tuesday, November 20, 1945, Lord Geoffrey Lawrence of the United Kingdom, president judge of the International Military Tribunal (IMT), commenced its trial of the principal Nazi war criminals.  The trial occurred in Courtroom 600 in the Palace of Justice in Nuremberg, in the United States occupation zone of the former Nazi Germany.

           The World War II Allied nations—the U.S.A., the United Kingdom of Great Britain and Northern Ireland, the government of the Union of Soviet Socialist Republics, and the Provisional Government of the French Republic—had created the IMT in their August 8, 1945, London Agreement.

In October 1945, prosecutors from the Allied nations filed with the IMT an indictment charging twenty-four Nazi prisoners and six Nazi organizations with four international crimes:  common plan, agreement and conspiracy; waging aggressive war; committing war crimes; and committing crimes against humanity.

The trial opened on November 20 with prosecutors reading the extensive Indictment.  French assistant prosecutor Pierre Mounier read a portion of Count Three, charging defendants with committing particular War Crimes in France.  The charge included—Mournier stated in court—the word “genocide.”  This was the first official public utterance of this new word, which had been coined by Polish lawyer Raphael Lemkin and, at his urging, added by the Americans as they finished drafting the Indictment.

Seventy-five years ago today, on November 21, 1945, twenty individual defendants—Hermann Goering, Rudolf Hess, Joachim von Ribbentrop, Wilhelm Keitel, Alfred Rosenberg, Hans Frank, Wilhelm Frick, Julius Streicher, Walter Funk, Hjalmar Schacht, Karl Doenitz, Erich Raeder, Baldur von Schirach, Fritz Saukel, Alfred Jodl, Franz von Papen, Arthur Seyss-Inquart, Albert Speer, Constantin von Neurath and Hans Fritszche—announced to the IMT their pleas of not guilty.  The four other defendants were not present—Ernst Kaltenbrunner was absent due to illness, Martin Bormann was being tried in abstentia, Gustav Krupp von Bohlen und Halbach had been declared incompetent to stand trial, and Robert Ley had committed suicide.  The IMT permitted no defendant to make a speech—the USSR had agreed to begin the trial only on that condition because its chief prosecutor, General Roman Rudenko, had not yet arrived in Nuremberg.

Justice Robert H. Jackson, U.S. Chief of Counsel, then delivered his opening statement, which he had been writing and honing for over a month.  The first five paragraphs, here as he spoke them, explained the entirety of the Nuremberg trial undertaking:

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility.  The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated.  That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason.


Now me—here in one phrase, “the most significant tribute[] that power has ever paid to reason” is the clearest expression of our sickness. We no longer believe in reason as the foundation of law or anything else.

Wednesday, November 18, 2020

We Need a National Party

 11/18/2020--This week's column in the Pennsylvania Capital-Star.

Tuesday, November 10, 2020

How I Reacted Last Time to Demands for Recounts

11/10/2020--The great thing about a blog is that you have a record of how you reacted in the past to see if you are consistent. So, I looked back and I am proud of my column on Nov. 27, 2016. I wrote that I was sorry Hillary Clinton joined the recount effort. I made fun of the claims of irregularities. So, the fact that I am outraged by Trump's nonsense and the viciousness of other GOP leaders is not hypocrisy on my part.

Sunday, November 27, 2016

Perfect Paranoia—-Jill Stein’s Recount




Sunday, November 8, 2020

Joe Biden Wins

 11/8/2020--I'm keeping the 4 a.m. day-after-the-election blog entry. I'm happy to say I always thought Biden would win Pennsylvania. But obviously I did not realize that the same things would happen elsewhere. When I saw Wisconsin tip blue at 4 a.m., I knew there was a chance for Biden. Before that, there was no chance even with Pennsylvania.

It was a pretty good election for me. Trump is gone, which was a necessary element of any progress, but Democratic progressives were not successful. Woke culture does not sell politically. What does it mean going forward? See my next column. And, since Dems are unlikely to win both Georgia Senate seats, no Court packing.

Thursday, November 5, 2020

Count All the Pennsylvania Ballots--Conservative Justices Are Seeing the Ghost of Bush v. Gore

 11/5/2020--This week's column in the Pennsylvania Capital-Star suggests that Justice Alito is misreading what the Pennsylvania Supreme Court did in the 3-day ballot extension. He is refighting Bush v. Gore. But this decision was not 2000 all over again.

Wednesday, November 4, 2020

Looks Like President Trump Was Reelected

11/4/2020—I just looked at a map and checked my arithmetic. Even if Joe Biden wins Pennsylvania, which I still expect considering how many mail-in ballots remain to be counted, President Trump will still have been reelected. In fact, he will have done better in the popular vote than in 2016.

Considering that he is a terrible man who has done a terrible job, it is hard to understand. Certainly Biden ran the race he meant to run. The American people did not reject this President.

I cannot even really blame the Electoral College. Even though Biden did win more votes, it was not as decisive as in 2016. Trump did much better than last time. And Biden in the end could not win North Carolina, Georgia, Michigan or Wisconsin. That is a pretty representative group of states.

If the country did not reelect him, exactly, it did not reject him. And that is very strange to me. 

*Hold the presses. Wisconsin now leans blue. Pennsylvania may still be in play. But even if he loses, how did Donald get this close again?