Friday, September 22, 2017

More Lies: On Iranian Compliance and Deficit Denial

9/22/2017—Could our public life become any more dishonest? This week comes news that President Trump will report that Iran is not in compliance with the nuclear agreement, even though that is not so. Hint—out of compliance with the spirit of an agreement—a phrase some spokespeople have been using—means you are in compliance. (I should have added "for now" to my last post.)

The other news is that Senate Republicans have agreed on a $1.5 trillion tax cut they say will not increase the deficit. More supply side nonsense. According to any sensible economics, you run a surplus with our unemployment rate, but that is beside the point. The reason deficit spending stimulates is that it adds money to the money supply—in other words, it is meant to increase the deficit. If this wacko theory worked, why wouldn’t taxes be at .000001%? Think of the added revenue.

Neither of these lies are even needed to accomplish policy goals. Trump can leave the Iranian agreement at any time just because he thinks it is a bad agreement—so go ahead. Just end the agreement because, under it, Iran is allowed to do bad things. No one disputes Iran’s behavior. Just don’t lie about the reason.

Same thing with tax cuts. If Senate Republicans want to cut taxes, go ahead. Democrats are willing to spend more despite the deficit. So, it’s the same stupid policy of deficit spending when the economy is humming along. Just don’t lie about it. Did you hear Senator Corker of Tennessee--“I’m going to want to believe in my heart that we’re going to be lessening deficits, not increasing.” Who even talks that way? Whether tax cuts lead to greater deficits is not a matter of the heart, but the head.

By the way even the Chinese are now learning that you can’t just spend money. The reason they have been expanding is that they had the discipline to pay for what they want. We don’t. And apparently now they are doing the same thing—borrowing—that we have been doing.

Where are the American people? Why can’t we curb lying by our politicians by ousting them from office? Is it that we want to be lied to? Even insist on it?

Friday, September 15, 2017

The Iran Deal Stays and Median Income Is Up

9/15/2017—Well, some good news for a change. President Trump did not abrogate the Iran deal yesterday, reports the New York Times—who even knew there was such a deadline? According to the story, the October deadline to find compliance is window dressing. Finding non-compliance does not affect the deal. But reintroducing sanctions yesterday would have abrogated the agreement.

So, it may be that Trump makes anti-Iranian noise in October while carefully keeping the Iranian agreement.

On the income side, household median income rose 3.2% to its highest level ever in real terms—finally surpassing 1999. And in the last two years, the growth has been been over 8% in real terms.

Nor has all this been just growth at the top. A column by David Brooks today states that income share of the poor is up 3%. Capitalism is working he says, and what is needed are policies that stimulate productivity growth.

Brooks notes that this moderate growth should in part be attributed to the policies of President Obama. Actually, both pieces of this good news are attributable in part to President Obama, who pushed ahead courageously on Iran in the face of enormous opposition from the Republican majority in Congress and from within his own Party. Plus, he faced down Netanyahu, who badly misunderstood the best interests of Israel.

So, President Obama: a really good President who looks even better today.

Yet, let’s end by giving Trump his due. He could always have governed from the center if he wanted to. A deal on DACA was suggested among Trump, Schumer and Pelosi. Good for them. Trump continued his racist hinting—both sides at fault in Charlottesville—even while dealing on immigration. Again, red meat for the base and maybe real policy for the country. Okay with me. Thanks to the Democratic leadership for not treating Trump like the Republican leadership treated Obama.

To my conservative friends, look at the difference. Democrats really do deal when there can be agreement for the good of the country. Politics might dictate simple opposition, but the obligation of real politicians is the public good.

Thursday, September 7, 2017

Spending Money We Don't Have

9/7/2017—Why are we borrowing money to help Houston? One way for a society to decline is to lose the self-discipline to fund those matters it deems important. Right now the federal government is running a deficit. Sending any money to Houston is therefore borrowed money. There is no monetary justification for adding to the deficit with a current 4.4% unemployment rate. It is the right thing to help Houston. It is also the right thing to pay for it.

It would be simple to fund this money with a one-year surcharge on US tax returns. There are around 240 million returns filed. Even eliminating half of them would require only a surcharge of $66 or so to fund the planned $8 billion expenditure.

This will not be done because America has no leadership. Republicans hate taxes even though they still spend money. Democrats hate taxes that remind people that government programs cost something. And the voters don’t care that their grandchildren will pay for Houston one way or another.

The next time you wonder why America is going downhill, just look in the mirror.

Saturday, September 2, 2017

Asking the Wrong Question

9/2/2017—Too bad George F. Will is such a partisan. Will has been lambasting the left for its lack to commitment to the first amendment. And justifiably.

But Will probably will not attack Senator Pat Toomey of Pennsylvania for his farcical town meeting and now for criminal charges against a man who asked the wrong question.

According to the story in the PG, people submitted questions ahead of time and then questions were approved. The selected 600 people then were supposed somehow to ask only those approved questions.

Well, so far, just a show trial. But then this guy asks this really strange question about whether Toomey will comment on a story that his wife was kidnapped. He’s hustled out and now will be charged with interfering with a public meeting.

My wife, Patt, thought the question sounded threatening and it does sound at least creepy. But the man is apparently not being charged with a threat. But with some form of breach of the peace.

I presume that cooler heads will prevail. Unless the first amendment has been repealed, how can someone be charged with going off script? If I don’t have a right to ask any question I want of my Senator when I am permitted to ask a question, then we don’t have free speech.

Anyway, if there are prearranged questions, then that is no public meeting. It’s a stage show.

Sunday, August 27, 2017

Truth and Art

8/27/2017—A fascinating review of an art exhibition by Jed Perl in The New York Review of Books’ August 17 issue. The review is of the exhibit going on now in Paris of the works of Andre Derain, Balthasar Klossowski de Rola, known as Balthus, and Alberto Giacometti. According to Perl, the exhibit is about the artistic connection between Derain, whom many believed had become very conservative after a turn as an avant-garde celebrity in the first two decades of the twentieth century and the two younger artists of the mid-century. I had never heard of them.

What I found most compelling is Perl’s understanding of what these artists were trying to accomplish. Perl writes, “These three were determined to revisit the relationship between art and reality following the revolutions of early-twentieth-century artists, who had so often rejected the naturalism that dominated Western painting and sculpture for five hundred years. They were gathering together the broken pieces of what some disparaged as the sunny old reality. The wanted to discover a new, moonlit truth.”

Well, aren’t we non-artists in the same boat? We want a new relationship to truth after the revolutions in thinking and science of the twentieth century, and earlier, displaced simple metaphysical realism—the God’s eye view guaranteeing reality as safe, secure and beneficent. They could not go back. Neither can we.

Picasso and Matisse, whom Perl calls the “supreme magicians of modernism,” define painting for us and for these three as changeable expression by the artist. These three, whom Perl calls the “metaphysicians of modernism” were not satisfied with such expressionism. They were investigating anew “the relationship between style and truth.”

These three artists accepted the end of the truth of art as naturalistic—much as we are forced to accept the end of metaphysical realism. They accepted pictorial truth as the standard of truth. So a painting is not the world, but an imaginary world. In this, they follow Picasso and Matisse et al. But, Perl writes, “they wanted their imaginary worlds to have a logic and inevitability that transcended their own emotional appetites.”

The only way to achieve an impersonal view was through an intensely personal struggle beyond the subjective idiosyncratic to where thought and passion led them.

The painting shown in the review do not seem successful to me. They lack the expressive power of the artists from whom these three departed. On the other hand, who exactly stands up to Picasso and Matisse in the years since?

There is in this review and exhibit a model for us in the search for truth today and for the Symposium on the resurrection of truth at Duquesne Law School in November.

Saturday, August 19, 2017

What a Weak President Actually Looks Like

8/19/2017—I hear all the time about how Donald Trump was going to rebuild the military and restore respect for America with his more muscular views. Compared to Trump, President Obama was said to be a wimp. This view was repeated today in a column by Bret Stephens (who was ruing the deal with the devil that conservative Jews made to embrace Trump for such reasons).

But in another story today, we see what real national decline looks like. Prime Minister Abe of Japan has reportedly decided to strengthen ties with Japan and join China’s One Belt, One Road infrastructure project in Asia.

This of course follows Japan’s effort to keep President Obama’s Trans Pacific Partnership, which Trump abandoned.

President Obama was a cautious man. He presided over a country so divided that he knew Congress would not support him in more or less whatever he did. Unlike Trump, Obama usually did not promise more than he could deliver—Syrian chemicals weapons was the exception.

Obama’s caution and reserve was always seen as weakness—and, since perception is reality in part, it was weakness. But what we now see is that national decline is a real thing, not just a matter of perception. The policies that Trump was elected to enact—anti-trade, anti-immigration and anti-globalization and to an extent anti-diversity—are weakening American influence all over the world. The personal trait of blustering emptiness—see the military threats that are pretty unreal versus North Korea—that some Americans so admire are guaranteed to hurt the country.

Obama’s dignity and personal appeal turn out to be one of the best assets our country had. His intelligent long-term thinking maximized our country’s opportunities. His Iranian deal was the best protection Israel could have gotten. Too many Americans just did not appreciate him.

Now we see what a weak President actually looks like.

Wednesday, August 16, 2017

Moral, Historical and Legal Confusions over Charlottesville

8/16/2017—Just like you can be a violent anti-racist, you can be a peaceful pro-Nazi protestor. The Nazis in Skokie, Illinois back in 1978 planned a peaceful march. This distinction also distinguishes between the ideology of a group and its actions.

So, in terms of violence, it is possible for Nazis and anti-racist to “both be at fault” if both groups incited and planned to incite violence. But, of course, there can be no moral equivalence between the ideologies of racist groups and the ideology of anti-racist groups.

The Nazis planning the march in Skokie were morally loathsome, but peaceful.

I really still cannot find out what actually happened in Charlottesville, but a condemnation of the far right groups for intending violence emerged from a most unlikely source—Christian Yingling, a far-right militia leader, who was there. The Post-Gazette has a very good story about him in today’s paper, which quotes him saying of the far-right groups, “They weren’t there to support southern heritage. They weren’t there to protect the statue. They were there to fight, and it didn’t take long.”

OK. So the fault for violence lies with the right.

The other problem with the reporting is the issue of this statue of Robert E. Lee itself. I admire Robert E. Lee, despite his slave-owning. It seems clear that he joined the Confederate army primarily to protect his State from invasion rather than to promote slavery. Most of us would fight to defend America from invasion even if its policies were morally wrong.

In general, I detest the moral antiquarianism that is motivating these attacks on slave owners in US history. Slavery was always morally wrong. And some of these slave owners—Thomas Jefferson, for example—certainly knew it.

But context matters. And US history should not be cleansed this way, as if slavery was the only matter that counts.

One day, all of the major figures of our time will be criticized for killing sentient animals and eating them. Then as now, we all know on some level that this is a moral evil and some people act on that knowledge right now. The criticism will be serious and just. But it should not be used then to topple monuments to Martin Luther King, Jr.

One more thing. There never was such a thing as a citizen’s militia acting independently of the government. There was a right of revolution, to take up arms against the government. But outside of that, gun toting citizens took orders from the Governor of their State. So, unless Christian Yingling was invited to Virginia by the Governor, he had no business there.

Sunday, August 13, 2017

Why Go to Mars?

8/13/2017--As I was traveling, I had occasion to watch the series, Mars, on the plane. In the opening, the question arises, why go to Mars, both for the planners in 2016 and for the astronauts in 2033. The answer they give is to prevent humanity`s extinction in some event, natural or otherwise.

This answer is reminiscent of the current debates in the US over healthcare. It is defensive. Not dreaming of a better world or life. Just an insurance policy. We don`t want to die.

But on Saturday, the New York Times reviewed a documentary about the two Voyager spacecraft, still sending us messages from deep space after 40 years. This story begins with a healthier human instinct than mere self-preservation: "For any true believer in humankind's instinct to transcend boundaries... ." Even better might have been a reference to our desire to know about everything, including the universe.

Now why the difference? When the spacecraft were sent--and even more when the idea was hatched and worked out--America was a spiritually healthier culture. A culture than could still dream of something important and hope for something better.

Was it a culture of racism and mysogony? Certainly. But even in those ways, it could dream of something better. Not anymore.

The producers of the Mars series had it right about us today. Only ourselves. Only our health. How small minded.

Monday, July 31, 2017

On Liberal Arrogance

7/31/2017--Ross Douthat had a great column in the New York Times on Sunday, entitled The Empty Majority. Douthat was raising the reasonable question, since the Republicans are so terrible, how come they control all three branches of the federal government and most State legislatures and governorships.

His answer was stark and convincing: "a party that’s terrible at governing can still win elections if the other party is even worse at politics." Which, he concluded, the Democrats are.

And Douthat in a few lines explains what he means by terrible Democratic political practice: "Republican incompetence helps liberalism consolidate its hold on highly educated America … but that consolidation, in turn, breeds liberal insularity and overconfidence (in big data and election science, in demographic inevitability, in the wisdom of declaring certain policy debates closed) and helps Republican support persist as a kind of protest vote, an attempt to limit liberalism’s hegemony by keeping legislative power in the other party’s hands."

Now, as those who have followed this blog and my work generally know, the confidence in election science I consider to be the highly anti-democratic side of liberalism. Liberals don't care about the will of the people anymore than do conservatives. That is a serious criticism.

But what about "declaring...policy debates closed"? Is that liberal arrogance?

Take two examples--one the reader knows about and the other more obscure.

The obvious example is global warming. Conservatives are forever criticizing liberals for declaring that there is no more to be said about global warming.

But this is not declaring a policy debate closed. It is declaring the fact of the matter pretty clear, at least in the absence of contrary evidence. The policy debate is what to do about global warming and I don't know anyone who thinks that matter is closed. You could do nothing and let the future take care of itself. You could adopt a market solution--aka, a carbon tax. You could extensively regulate.

But what are liberals supposed to do if someone wants to debate whether it is getting warmer? It's getting warmer globally. There is nothing to debate about that. It would be like debating yesterday's temperature. Of course I don't know that. I just read what the experts say. But why should I doubt temperature readings?

And what is a liberal supposed to if someone says it's getting warmer but it's sunspots--or whatever. Or it is a natural cycle. Again, the experts have looked at this and concluded that the very likely reason for its getting warmer is more carbon dioxide in the atmosphere. After all, it has happened before with volcanic activity warming the Earth. And the greenhouse effect is well known for a long time.

It is not as if other causes were ever likely. When scientists overwhelmingly predict warming--in the 80's--and then it happens, it's probably because of the reason they cited.

Anyway, it's not usually counter argument, just assertion--it could be sunspots--or whatever. As the Monty Python skit put it, this is not argument; this is mere contradiction.

The obscure example is originalism as a method of interpreting the Constitution. I generally dismiss originalism as not a method at all and I have been criticized for the same liberal arrogance that Douthat is calling out.

But why should I debate something that calls itself a method, if it has no consistency? Why should I debate the merits of something that does not actually exist as if it were real? That makes originalism look better than it deserves to look.

My most recent example is the Trinity Church case of a few weeks ago. In that case, by a 7-2 vote, the Supreme Court held that the Free Exercise Clause required Missouri to let a church participate in a playground refurbishing government grant program. Justice Gorsuch, the self-proclaimed originalist, joined the majority opinion.

This expansion of the Free Exercise Clause could not be justified by reference to original meaning and the majority did not pretend to try to do so. And I have no problem with the outcome of the case.

But if an originalist like Gorsuch can do this, then I say originalism amounts to this: an originalist judge decides cases based on morality or policy preference--in this case protecting religious believers, a large part of the Republican base--and then only invokes history in order to overturn the New Deal. Originalism is just a cynical fraud.

Now why should I debate the merits of that as if it were on the up and up?
Last column for awhile. Summer begins August 1.

Tuesday, July 25, 2017

A Scandal at the Boy Scout Jamboree

7/25/2017—Media reports state that when President Trump addressed the Boy Scout Jamboree in West Virginia yesterday, there were boos when he asked whether President Obama had attended. This is a disgrace.

The Boy Scout Law includes the requirement to be “reverent.” It is not reverent to boo the former president of the United States.

Of course we can blame the poor character of President Trump, who continues to show that aside from everything else, he lacks the character to be President. But I suppose we knew that already. I think it is fair to say that Vice President Pence for example, would not behave that way.

But what of the Boy Scouts? How could that organization have come to this point? The Boy Scouts have clearly taught those children nothing of importance. And how could that organization not be profusely apologizing today?

What goes around comes around. Someday, they will be booing former President Trump. That will not be any better.

Sunday, July 23, 2017

Sunday op-ed in the Post-Gazette

7/23/2017--Check out my op-ed in the PG today here. I argue for a cultural compromise on same-sex marriage and religious liberty.

Thursday, July 20, 2017

Are Trump Supporters Moral Heroes on Healthcare?

7/20/2017—Gary Abernathy, the publisher and editor of the Times-Gazette of Hillsboro, Ohio, wrote a column for the Washington Post that appeared in the Pittsburgh Post-Gazette last Sunday, entitled Liberals Can’t Fathom How Trump Voters See Health Care. His question concerned a common observation—many people who will be hurt by the repeal of Obamacare still support its repeal.

Abernathy’s conclusion is set forth in this paragraph: “What they fail to grasp is that Mr. Trump’s supporters, by and large, are more dedicated to the principle of freedom from government mandates than they are worried about the loss of government subsidies or programs that social activists in Washington think they need.”

Well, maybe so. That is what I meant by the term “moral heroes” in the title above. There is always opposition in America to anything that smacks of socialism, for example, which is why we don’t have single payer healthcare like other wealthy countries. But maybe Mr. Abernathy is a rich person living out a rich person’s fantasy of pro-market dedication.

The reason I am not convinced is that some of the provisions that clearly help people, such as coverage for preexisting conditions and the age 26 coverage for children, never seem to get directly attacked. Some of the Republican plans would end or limit these provisions, but it is not clear that people understand this. I have yet to hear a single Republican Senator say, look, I’m sorry people get sick but we can’t let the government tell insurance companies they have to insure people who are already sick. If that means they die, they die. Now if people supported that, you might be able to make this free market claim.

What is clear is that some people who have been aided by the Medicaid expansion support plans that would cut back this expansion. But even here, when I listen to my own Senator, Pat Toomey, who is a big part of limiting Medicaid expansion, he says no one will lose coverage right away and he only wants to make the program sustainable.

Then there is racism and bias against the poor. It is true that Americans often support cutbacks in programs that help them, but never the programs that help everyone or seemingly deserving groups like veterans. No one ever says that social security encourages irresponsible lifestyles, for example, or discourages saving. No one says deposit insurance interferes with the banking market. And isn’t Medicare socialism for the elderly? But no one ever wants to limit that.

No, it is only programs like food stamps and Medicaid, which aid only the poor, or relatively poor, and which are identified, wrongly, as mostly helping people of color. Is cutting back on those programs opposition to government mandates or just prejudice?

But don’t people who have benefited from Obamacare support its overall repeal? Yes, many do. But Obamacare always suffered from a perception gap. Even the people it helped did not feel that it did help them. Not that it helped them but people remained opposed in principle to government intervention—that would happen if people supported cutting their social security payments. Medical insurance premiums still went up. Healthcare was still costly and difficult. Maybe that means Obamacare was not a good program, but it does not mean that people oppose government help or even mandates.

Look at President Trump’s rhetoric. For the most part, he has said that people are hurting under Obamacare and we need a system that better helps people. That might be cynical or unattainable, but it is not the rhetoric of the free market. It is almost the opposite.

Finally, look at how the politics have shifted on Obamacare. In the polls, repeal was very popular for a long time. So popular that Democrats stupidly ran away from Obamacare rather than explain and defend it. That turned out to be a disastrous strategy because they still got the blame for perceived failures. Even Bill Clinton criticized Obamacare during the Presidential Campaign.

But, now, when repeal is actually at hand, the polls really have shifted. That suggests to me that the public now has a clearer idea of who actually might be hurt by repeal.

I don’t think the public is opposed to government mandates on healthcare. In fact, I bet single payer would be more popular now than ever before. And will be even more popular once President Trump succeeds in killing Obamacare one way or another.

Saturday, July 15, 2017

More Russia

7/15/2017--Now what about Russia links and the email to Donald Trump Jr.? Is there finally a smoking gun?

A friend of mine asked me why I have no interest in President Trump's collusion with Russia or any of the rest of his failings. This is what I wrote to him. Why don't I engage in activities of resistance--a term I really despise? (Not my friend's term).

Two reasons--and they are related. First, President Trump's policies bother me much more than his unfitness and poor character. And the policies that bother me the most are mainstream Republican. Second, my anger for that is aimed squarely at the left and its anti-political actions. Somebody called it hobbyism. It would not be difficult for the Democrats to control the House and the Senate. But that normal political work is still not being done across the country--it is hard to do and involves trying to change peoples' minds. Hillary Clinton would be President today if she did not have such obvious contempt for voters inclined to vote for Trump. She never went to West Virginia to talk to coal miners. So, I am bothered almost as much as you are, but in an entirely different direction. To me Trump is an outcome of preventable actions and attitudes I don't know how to change.

David Brooks is right that Trump Jr.'s reaction to that email--and his father's comment that most people would take that meeting--are almost a parody of amoral consciousness. That said, we still have a situation that is not collusion. Russia engages in espionage and law violation and then offers the results to the Trump campaign and they are willing to use anything they can get. As a friend of mine who supports Trump said, the Russians were finding out true things that should have been available to the American people--not making things up.

So, would a normal person call the FBI? Obviously. Would a patriot tell the Russians to go blow smoke? Yes.

But I have a sneaking suspicion that the Clinton campaign would have taken such a meeting--with a lot more deniability.

Anyway, compared to the Paris Accord, Obamacare, the travel bans, the anti-trade, the court appointments, net neutrality, bank regulation, tax cuts when we are in deficit, etc., it's normal politics that is bothering me.

Friday, July 7, 2017

My Response to Randy Barnett

7/7/2017--Randy Barnett graciously responded to my op-ed in the Washington Post blog, The Volokh Conspiracy. I was unable to reply beyond a few words, so I am responding here.
It is not surprising that Randy Barnett would respond to my op-ed in full and fairly. That is the kind of person he is. My only regret is that he thinks my original op-ed was snarky. I am in deadly earnest in opposing originalism and the damage it is causing and has caused.

Let me respond to his main points, although briefly.

1. Originalism is not a theory of language. The meaning of language changes. That is why common law discriminations against women violate equal protection today when no one thought they did when the Fourteenth Amendment was adopted. It is why regulatory takings are takings when that category did not exist before. The Constitution is not in quotation marks. If it says “freedom of speech,” that phrase has to be interpreted to make sense to the current citizens of the United States. Nobody asks whether the framers meant to include art or advertising if it is obvious to almost everybody now that these matters are part of speech.

I mean this point as descriptive rather than prescriptive. I am pretty sure the Constitution will mostly be interpreted in accordance with what the words mean in the modern context. And it has mostly been interpreted in that way. Only where there is some important political agenda present does originalism actually matter.

To put it simply, by 1954 de jure school segregation did not constitute equal protection of the laws, whether it did before or not.

2. Originalism is not a political theory. Here I mean that the framers did not enact originalism. They enacted the underlying value—or rather, since they believed in natural rights, they recognized the underlying value. But they did not imagine that they were the last interpreters of those values. So, if they meant to ban cruel punishments—leaving aside unusual—they meant cruel punishments, not punishments they thought were cruel.

3. Originalism is nihilism in action. This was the criticism noted conservative thinker Harry Jaffe leveled against originalism years ago. And it is present in Randy’s criticism of my op-ed. What could go wrong, he asks. Randy means that there is nothing but power play in judicial reasoning about values. And this is what Justice Antonin Scalia thought as well—he wrote that values were just something philosophers could play with in his book, A Matter of Interpretation.

But is there no fact of the matter that reasoning might lead to about cruel punishments—or whether the unborn are fully human?

Weirdly, Randy has written that public meaning is a fact. Well, how is it that history can be a fact when history is so controversial and plainly unprovable, but there is nothing to say, for example, about whether the right to counsel requires public payment of an attorney when a defendant is too poor to afford one? Why can’t we reason about that rather than ask what the people who wrote the provision thought?

Again to put the matter simply, is there nothing about truth in constitutional law? And if there is no truth, then why are we surprised that the Republic is falling to pieces? Why are we surprised that we are prey to false news and that the public is cynical about any claims of truth?

4. All of Randy’s discussion of the Fourteenth Amendment and related matters is beside the point. The Court did not mention those matters. I wrote that there are no originalists on the Court. A majority of the Justices wrote that the Free Exercise Clause required the payment of public money to a church. That is unjustifiable by any stretch of originalism. They wrote that way because they were assuming incorporation of the Free Exercise Clause against the States as it would be interpreted against the federal government. So they dealt with Free Exercise only and did so in an unsupportable way from an originalist perspective. Randy writes that they could have written a different opinion. But then they might be originalists. But they did not, so they are not.

I should also add here that the bigotry of the Blaine Amendments adopted in State Constitutions after 1875, which Randy mentions, should be irrelevant to an originalist, though Justice Thomas has also mentioned them in a similar context. In originalism, original public meaning does not change. For the living constitution, on the other hand, the experience of the Blaine Amendments is part of political learning that demonstrates that our original understanding of Free Exercise was too narrow. Randy's reference to the Blaine Amendments just shows that it is impossible to be an originalist. We learn over time what the Constitution means. It cannot be, should not be and isn't fixed. (That was also true of Justice Scalia's majority opinion in Heller, in which Justice Scalia learned from 19th century state judicial decisions that the second amendment should not be interpreted to protect concealed carry--why are 19th century opinions relevant to the original public meaning of the second amendment?)

5. I do impugn the motives of originalists. Originalists are generally on the political right. When they get results they like—such as the aforementioned regulatory takings—they do not ask, or they do so very gently, whether the public meaning of takings originally required loss of title. They do not ask whether corporations originally had rights against the government.

There is a game going on and the American people are not in on it. I assume that Justice Gorsuch, like Justice Thomas, intends to overturn the thrust of J&L Steel and return America to a vastly different and shrunken national government. And I know Randy believes that that result will just return us to the original Constitution. But if that is the case, why did he not just say so in his hearings? Because if he had, he would not have been confirmed. I believe he was on the list of potential nominees because that is his intention and belief.

But it is even worse than that. As the Trinity Lutheran Church decision shows, Justice Gorsuch is not a consistent originalist and neither is Justice Thomas. So, their eventual overturning of 80 years of basically settled law will just be the victory of a Party. It will be the victory of the rich against the interests of workers, the poor and the planet. And it will done without ever trying to convince the American people that this result—not the misleading claim that the law is the law in general, but this particular result—is best.

Philadelphia Inquirer Op-ed

7/7/2017--The point made in my blog of 7/2 has ended up in an op-ed in the Philadelphia Inquirer today. You can read it here.

Sunday, July 2, 2017

Trinity Lutheran Church Case Shows There is no Originalism

7/2/2017--In constitutional law circles, you often hear debates about Originalism. This is the school of interpretation that argues that provisions in the Constitution should be interpreted in accordance with their original public meaning. Sometimes this approach is called Textualism, which is what Justice Scalia called it.

There is a lot wrong with treating Originalism like a rule of interpretation, but, aside from all that, I have never understood why anyone treats the position seriously. Simply put, nobody ever interprets the Constitution that way. The Constitution is always interpreted as the Living Constitution--by which I mean that decisions always have to make sense given the way we currently understand the meaning of the Constitution's language.

The Living Constitution was on display as usual in the Trinity Lutheran Church case on June 26, which held that Missouri had to include a church in a playground safety program.

Sensible decision to me. Not including the Church would have discriminated against the Church in a context in which religion was not at all at issue. So, violation of Free Exercise and no tension with Establishment.

However, under Originalism, the question should have been, what did the Free Exercise Clause mean at the time it was enacted. Now I don't know the answer to that question because the Court did not ask it. But I presume the Justices did not ask it because there is no plausible argument that Missouri had violated the original free exercise clause. Probably nobody thought back in 1791 that churches had any claim to government resources whatsoever.

Times change. Today, we have a much greater commitment to equality and a vastly expanded government sector. Our expectations are different. But that is just the living constitution in action.

Besides that, Trinity Lutheran is the pay off for the core Trump constituency of church goers. The biggest reason that Trump got elected was his promise to protect religious believers. And where their interests are at stake, they are not originalists.

Given all this, why doesn't originalism just die? Because it is the only way for the Koch brothers to overturn the New Deal. The American people should keep their eyes on the ball. The Federalist Society and all the other conservative groups have nothing to do with thinking. Their activities are all about money and power.

I have to say this--conservatives are much better at feigning intellectual interest than are liberals. Liberals just go straight for power. But because they do so, liberals are unable to point out how ridiculous conservative intellectual claims are.

You heard it here first. Originalism is dead.

Saturday, June 24, 2017

Three Religion Stories Demonstrate the Importance and Difficulty of Reaching Healthy Religion

6/24/2017—First, the Democrats need religious voters. Here is the opening paragraph of the story in the New York Times:

“Jon Ossoff’s defeat in Georgia’s Sixth Congressional District election on Tuesday wasn’t just a sign that Democrats may have a harder time winning in the Trump era than they had hoped. It is a symptom of a larger problem for the party — a generational and racial divide between a largely secular group of young, white party activists and an older electorate that is more religious and more socially conservative.” You can read the rest here.

But why not just reach out to religious voters? You might think the problem is abortion, which is a large part of it. That is a must for the Democratic base and anathema to many religious voters. But beyond that, look at two other stories today: an Illinois Bishop denies communion, last rites and funeral rites to people in same-sex marriages and the increasingly religious government in Turkey removes evolution from the curriculum of secondary school education.

I am sure that pro-choice Democrats understand how someone could be pro-life—at least I hope so. But the rest of religion just seems bigoted and crazy to many people. Mean and anti-science.

There is no future for religion in this direction and eventually religion will change. God will not always hate gays and deny science. But these changes will not take place in time to retake the Senate and House in 2018. Or the White House in 2020.

Saturday, June 17, 2017

You Cannot Care Only About the Freedom of Cubans

6/17/2017—The worst thing about President Trump’s policies is how he has trashed the American tradition of caring about freedom. After all, President Trump admires Putin and is fĂȘted in Saudi Arabia. President Trump’s emphasis is, as he would be the first to admit with pride, America first.

This is why Trump’s actions concerning Cuba made so little sense. A Ronald Reagan could convincingly have broken with a policy of detente with Cuba started by President Carter. Ronald Reagan cared about the freedom of all. If he had criticized Cuba as a dictatorship, he would have meant it, and everyone would have known that he meant it.

But, really, what does President Trump care about the freedom of Cubans? He has no interest in dissidents anywhere, so why appear with one from Cuba in the Oval Office?

President Trump even repeated his mantra when he said that the agreement with Cuba engineered by President Obama was “a bad deal for America.” But our dealings with Cuba were not primarily economic at all. Plus, it seems clear that everyone has made money from detente with Cuba. In any event, President Trump’s actual actions leave quite a lot of the Obama administration policies in place. There was no bad deal for anybody.

So, at the end of the day, this action by President Trump, like many of his actions, for example the Carrier Company deal, are just window dressing exercises that appeal to people, in this case some Cuban-Americans, who are not watching the actual details. As far as I can tell, history is on Obama’s side in this one. You can say that Obama mishandled Syria and you can say he was ineffective in Ukraine and North Korea. But Obama got Cuba right.

Thursday, June 15, 2017

But if Trump is Hitler and the Republicans Are the Nazi Party, Why Not Open Fire?

6/15/2017—The problem is that James Hodgkinson’s crazy actions perfectly match how many people feel about the situation we are in. What should people have done the moment that Hitler came to power? If they had known then what they learned later, people of good will would have taken to the streets in an attempted, violent coup. Such an effort would have been doomed, but so what? Better to die on one’s feet.

So, if it is wrong to do that in America today, it must be because, for all his faults, Trump is not Hitler. And the Republicans are not the Nazi Party, even though they are doing terrible things, like preventing people from trashing the planet and repealing healthcare.

Liberals are unaware that before the election the rhetoric on the right had all the same elements. Here is an account from the New York Times in February:

“Mr. Klingenstein was referring to the continuing furor around “The Flight 93 Election,” an incendiary pro-Trump polemic that appeared in September on the website of The Claremont Review of Books, the institute’s flagship publication. Published under the pseudonym Publius Decius Mus, the essay compared the American republic to a hijacked airliner, with a vote for Donald J. Trump as the risky, but existentially necessary, course. Decius’ apocalyptic vision — “Charge the cockpit or you die” — stirred intense rebuttals from the overwhelmingly anti-Trump conservative intellectual establishment. Then The Weekly Standard revealed that Decius was Michael Anton, a senior staff member at the National Security Council, and a news media stampede was on.”

So, Clinton is not a Jihadist. Trump is not a Nazi. The First Amendment has not been repealed and the next election has not been cancelled.

Oh, and your neighbor who voted for Trump or Clinton is not crazy.

We should really be asking why we feel this way—that is our spiritual crisis.

Monday, June 12, 2017

Donald Trump Got Elected, Remember?

6/12/2017--What is the political goal right now? It can't be resistance to the policies of President Trump. Not resistance, because he was elected to do bad, but perfectly legal, things. Like withdrawing from the Paris Accord and repealing Obamacare. As to those policies, there can only be political opposition of the normal kind. Otherwise, you are talking about a kind of coup against a legally elected government.

I say this because of the investigation mania in Washington right now. The only justification for impeaching and removing President Trump would be if the President asked, or someone else asked on his behalf, that Russian security hack Democratic Party emails and release them for the President's political benefit. And that apparently did not happen. Even asking the Russian government to release the emails is sort of irrelevant, because President Trump did that publicly during the campaign.

What is the investigation about? Is it illegal for a President to order the FBI to stop an investigation the President considers the hounding of an innocent man? No. That is not obstruction of justice. The President is the ultimate boss of the FBI. It would be like the District Attorney ordering an Assistant District Attorney not to indict when the DA believes the charges unwarranted.

But what if a DA did that for a friend? It would still come down to the good faith of the order. Not to the fact that the order was made.

And here it is clear from Comey's testimony that it was not an order to stop. In these matters, subtlety counts. Telling your subordinate to end an investigation as soon as possible or "I hope you can let this go" is not obstruction of justice even if it is done for bad motives. The answer to such a request is supposed to be, when we know the man is innocent, Mr. President, we will stop the investigation.

And why does Comey get a pass on his manipulation of confidential materials to get an independent prosecutor? Comey's no saint. He mishandled the Clinton email matter, injecting himself into politics by criticizing her when he did not recommend criminal charges (not when later he announced that there were more emails--having boxed himself into a corner, he had to do that). Comey was supposed to say, whether Secretary Clinton did the right thing or the wrong thing is for the American people to decide. My job is to investigate whether she did anything illegal and I believe she did not. If he had said that, President Trump would not have been elected. And now he is a leaker, is he not?

What is really at stake here is Democracy itself. The Republican Party began this process by questioning the legitimacy of President Obama over the absurd question of where he was born. (Hawaii). Before that, both Parties just opposed policies of Presidents. With Obama, the Republicans began to imply that a President was not really President. This time around, Democrats and other opponents are not just implying it. By the use of the term resistance, they are saying it flat out. See Charles Blow in the New York Times today.

President Trump is a disaster in every way, but so far only in the ways the people already knew about. You don't resist that. You convince the people to elect Democrats to stop his policies. You retake Congress and then you elect a Democrat in 2020. But that requires actually talking to people in red states and red congressional districts. And who wants to do that?

Wednesday, June 7, 2017

The play An Act of God Cannot Decide What It Wants to Be

6/7/2017—Last night I saw the play An Act of God at the Pittsburgh Public Theater. Marcus Stevens plays the role of God in this, essentially, one man, one act show. Stevens was very good but was undone by uneven writing. The problem is that the play does not know what it wants to be. The Broadway play by David Javerbaum is advertised as a comedy and it is funny in places. Comedy is Javerbaum’s background, but the play does not sustain its comedic theme.

While jokes abound concerning God and religious believers, there is a serious undertone of the play that the writing simply cannot pull off. Around two thirds of the way into the play, there is a serious suggestion that there is something wrong with God, that God is a homicidal psychopath. This could be told as a funny thing and at the beginning that is how it is treated.

But in an extended set piece about the life of Jesus, the audience learns that Christ’s sacrifice was real but that the sins that were forgiven were actually those of his father, God. The audience is not spared the story of the crucifixion and as you can imagine all subsequent jokes fall flat. This is actually a serious matter that Javerbaum has no business messing with unless he intends a serious treatment.

At its heart, this play is about an early Christian heresy: Marcionism. Quoting Wikipedia:

"Marcionism was an Early Christian dualist belief system that originated in the teachings of Marcion of Sinope at Rome around the year 144.
Marcion believed Jesus was the savior sent by God, and Paul the Apostle was his chief apostle, but he rejected the Hebrew Bible and the God of Israel. Marcionists believed that the wrathful Hebrew God was a separate and lower entity than the all-forgiving God of the New Testament."

But does this culture need a play about Marcionism? Indeed, judging by the reactions of the people I was with, there is not any longer enough cultural familiarity with the issues for the point of the whole idea to be intelligible.

So, if Javerbaum wants to write The Book of Mormon, let him do so. If he wants to write The Crucible, let him write that. But Javerbaum’s God is too jokey to take seriously and too serious to be funny.

Thursday, June 1, 2017

Exiting the Paris Accord

6/1/2017—Of course exiting the Paris Accord is a disaster for America and for the planet and it is another example of why we should never have elected Donald Trump President.

Having said that, however, there is another way of looking at the exit. Why was Donald Trump able on his own to accomplish such a momentous act? The answer is that there was nothing behind American participation in the Paris Accord except the signature of President Obama. The Paris Accord was an important event. In our system, such actions must be ratified by Congress. It was the failure of the Obama administration to go to Congress that allowed the Paris Accord withdrawal.

But, of course, it will be pointed out that Congress would not have endorsed the Paris Accord. What does that mean? Many people are saying right now that most Americans support the Paris Accord in particular an action to alleviate global warming in general. What then allows the Congress of a more or less democratic country to refuse to endorse a popular measure?

What I am pointing to is the anti-political attitude of the left in America. There was no stomach in the Democratic Party for going to the mat on global warming. There was no strategy to fight for ratification of the Paris Accord. But, he who lives by executive action, dies by executive action.

It is true that it is hard to gain political traction when benefits of the action are diffuse and the pain is particular. Coal miners will vote against politicians who favor action on global warming, but most Americans who favor such action will not vote in favor of politicians who support action on global warming because there will always be other issues of more significance to them.

But, really, isn’t all of this just another way of saying that the American people have never been convinced that global warming is really a threat and a crisis? And, since people are not really stupid and since people really do love their grandchildren, whose fault is it that the political battle was not won? I never heard one word about global warming in the presidential debates. I never heard Secretary of State Clinton argued that Trump was lying about global warming and that all of our grandchildren’s lives were at stake. That is the truth but I don’t think people realize it still.

What is needed is politics, old-fashioned politics. We don’t need direct action. We don’t need resistance. We just need to elect a new Congress. On the issue of global warming, there is really not that much that is complicated.

Saturday, May 27, 2017

Getting Tired of the Russia Thing

5/27/2017—Look, I don’t like Donald Trump. I talked with two friends yesterday who voted for Donald Trump and they don’t like him either. One talked of how ugly it was when the President pushed a foreign leader out of his way in a photo session. The other about how he wished Biden had run.

But I know of no evidence of anything in regard to Russia and President Trump. Sure the Russians hacked and released in order to get Trump elected. If you were Russia, wouldn’t you prefer facing Trump to facing Clinton? Trump is good for Russia and China for some of the same reasons he is bad for us. That is a good reason not to vote for him, but it has nothing to do with anything he promised or asked for.

And of course there were contacts with Russia before the Inauguration. There ought to be. I am sure there were contacts between the Obama Administration and foreign leaders before President Obama took office.

And yes I imagine those contacts undermined then current Bush Administration policy—-because President Obama aimed to change those policies. As did President Trump.

I don’t mean Trump has done nothing wrong. He has done close to everything wrong. But nothing I know about his relations with Russia is illegal or impeachable. Let investigations go forward. But I bet nothing is found.

At the end of the day, the way to get rid of President Trump is to take back Congress in 2018—-hard to do—-and elect a Democrat in 2020.

Monday, May 22, 2017

Putnam versus Scalia

5/22/2017—It had been my intention to utilize Hillary Putnam, the analytic philosopher who died in 2016, as a foil in my opposition to the value skepticism of originalist and textualist methods of constitutional interpretation. I had assumed that Putnam would be helpful in a general way. After all, Putnam stood for the proposition that moral realism, at least of the internal variety, was possible. I had no idea how specific Putnam could be in his rejection of Justice Scalia’s method of interpretation.

Without trying to be too precise, let us say that textualism, which was Justice Scalia’s preferred term, stands for the attempt to interpret constitutional terms, such as “cruel and unusual punishments” by reference to their “original public meaning” at the time of the adoption of a particular constitutional text. It is fair to say that Justice Scalia wanted to interpret a term like cruel to mean what people then thought was cruel.

Imagine my surprise, then, to read in Putnam’s book, The Collapse of the Fact Value Dichotomy, on page 73, that it is “a stupendous mistake” to try to define the descriptive meaning of a term by reference to what is usually associated with the notion or by normally accepted standards. Putnam’s point is that language does not work that way. So, for example, it is reasonable for Socrates to argue that people often confuse rashness with courage. But, of course, the whole point of that criticism by Socrates is that people misunderstand what courage is.

Putnam is making the point, which others have made in the legal context in particular, that when the framers of the 8th amendment banned cruel and unusual punishments, they meant punishments that are actually cruel, rather than punishments that they considered to be cruel. That is because if they were writing and thinking like normal people, rather than like conservative judges.

Justice Scalia would respond that while it may be that this is how language works in general and in normal life, it cannot be this way for a judge in interpreting a Constitution. If the judge is free to call capital punishment cruel when the framers of the 8th amendment did not think so, then the judge rules rather than the law.

But Putnam’s criticism addresses precisely this point. Anyone using language understands a connection between the description of a punishment as cruel and the evaluation of the punishment as cruel. It is not possible, and therefore it is not required by democratic theory, to try to interpret an evaluative aspect of cruelty as if it could be done in a value free way.

Instead of interpreting, Justice Scalia wishes to present a picture of various punishments when the word cruel is used. Wittgenstein in fact called this the picture theory of language. And he showed how inadequate it is to how language works. At some point, one must define what makes a punishment cruel. There is no way to do that without making a normative judgment.

This is just to point out that Justice Scalia above all else sought to avoid reasoning with regard to legal interpretation. A very strange position to take.

Tuesday, May 16, 2017

When All the Churches are Gone

5/16/2017—Last Sunday, Mother’s Day, I attended a service at a small church in upstate New York. I say a small church in the sense that 35 or 40 people might attend on a typical Sunday, mostly older people, who all know each other very well. This church is typical of thousands of churches all across the country.

The service was very nice. The minister, part-time of course, as these things go, reminded us of the virtues and importance of mothering. And she gave quite a sophisticated interpretation of the life and meaning of a rather obscure figure: Tabatha in the Book of Acts.

Two things really struck me. First, at several points during the service, mention was made of all of the activities engaged in by the members of the small church-- feeding the poor, helping the elderly, contributing to the community in various ways. It may be that all of the members of the congregation are conservatives politically, but they cannot be the typical anti-government, liberal hating ideologues of modern-day conservatism. They are decent people dedicated to finding the good in others and contributing in every way they can to the good of society. And they all seemed to find in the gospel the reason for being this way and acting this way.

There is nothing extraordinary in this. You can find the same thing in churches everywhere. It was nicely summed up by the minister in the following phrase: “this is a small church, but it has a big impact.”

But this church is slowly dying and even if it survives, it will do so only by taking in members from other churches that have died. Christianity in the society as a whole is just drying up. But clearly churches served as the backbone of the community, especially in small towns like the one I was in on Sunday. What happens when the churches are all gone?

It is typically American to say, you can be good without God. It is true, I suppose, for any individual. But it may not be true for society as a whole. It is necessary that society have a reservoir of people doing good. And for better or worse, that reservoir used to lie in our churches.

There are other institutions that do good things. But there are no other institutions, aside from religious ones, that train people to do good and to think about doing good. Government will never be a substitute for that.

When all the churches are gone, we will not be a community, but only a collection of individuals.

Saturday, May 13, 2017

But How to Do That?

5/13/2017—In 1996, Roberto Unger set the task for law in the opening paragraph of his book, What Should Legal Analysis Become?: "The conflict over the basic terms of social life, having fled from the ancient arenas of politics and philosophy, lives under disguise and under constraint in the narrower and more arcane debates of the specialized professions. There we must find this conflict, and bring it back, transformed, to the larger life of society."

I believe it is pretty easy to see that Unger’s premises are correct. That is, that this society no longer can conduct debate in a political sense over the basic terms of social life. In that sense, that conflict has fled from politics and philosophy. Unger’s other premise is that the same conflict or conflicts now take place in disciplines like law. We can see that in the immediate challenges to President Trump’s executive orders in court. Law is where the society debates all of the major issues.

My students will attest that I have been obsessed with this quote from Roberto Unger for years. The task of law in America is very particular and is not merely the task of law in general: dispute resolution and the maintenance of social bonds. No, here the task is deeply political and has to do with the reinvigoration of public life.

But how is this to be done? Certainly Unger never succeeded even in part in accomplishing his goal. Politics is even more sick today than in 1996 and law ever more politicized in the worst possible sense.

But in coming into contact with the German philosopher Peter Sloterdijk, I have begun to see how this might be done. Sloterdijk writes in his book, Not Saved, that it is necessary to understand empirical and philosophical anthropology in order to engage the human situation.

Perhaps what is needed in law is just the kind of empirical anthropology that the legal realists were attempting to create. That is, perhaps what law professors should be doing is predominantly descriptive: attempting to set for what we do and how we think and what our commitments are. This would turn law into a science in a good sense. And it would be possible the judge good law thinking from bad law thinking.

As usual, Robert Taylor anticipated me here by asking years ago in what mood must one be to do law? If we take that question very seriously, so that we begin to understand what we are doing when we do law, we might bring something of value to the greater society.

Currently, lawyers lie to the people and falsely claim that law is objective and simple. It is neither, which does not mean that it is subjective or even complex. Doing law is a rich human engagement. There are reasons why judges, law professors, legislators and lawyers in general do and write and say what we do and write and say. It should be possible to specify what those reasons are. That would be the task of law.

Tuesday, May 9, 2017

What Can Democracy Do?

5/9/2017—In the season of grading exams, I can only occasionally post entries. But I have been pondering news about democracy recently.

On Sunday, the New York Times published a story about the growing influence of strict Islam in Indonesia, especially in rural areas and small towns. This influence has come about peacefully and mostly through democratic means. But it has meant the imposition of Sharia on people who undoubtedly do not want it—caning for extramarital sex, morality police, bans on alcohol, dress restrictions for women etc.

Then there was a story, also I think in the New York Times, about all the harmful legislation being passed in Republican dominated legislature undoing environmental protections. This is a real race to the bottom in which federal protections are weakened and then States are pressured by industry to agree to cuts in health and safety in return for jobs and investments—if you don’t go along, legislators are told, we can go to another State.

At the same time, there have been reviews of Condoleezza Rice’s book, Democracy: Stories from the Long Road to Freedom, which argues for a democracy oriented American foreign policy, and which reminds us all of the invasion of Iraq in the name of democracy. Give me a break.

There has been a real turning away from democracy on both the left and the right in America. On the right, there is a longer pedigree. Conservative thinkers like Ayn Rand never had any use for democracy. Current thinkers like Randy Barnett are more interested in individual liberty than in democracy—protection of individual liberty is the goal of government, not democratic expression of the will of the people. (Of course this individual liberty inevitably ends up meaning the right of wealthy people to destroy the climate in order to make money, but somehow no theorist is ever responsible for the use of liberty).

All this is fed, at least psychologically by the bad faith knowledge that Hillary Clinton was actually elected by a majority of the people (yes, Californians get to vote in American elections)—how can you support democracy when you don’t practice it?

On the left, there is the big money myth—that big money dominates politics and that this is the reason that the policies of the left never win over a lot of the country. So the left expressly turns to nonelected alternatives—courts mostly, but also the cult of expertise, to get what it wants. No longer is the left obligated to convince people, build political parties in Red States, win over the hearts and minds of the American heartland.

All this is disaster. There is no long term American politics without democracy. And no one should want to rule without winning a majority of the American people—a solid majority. Neither Republicans nor Democrats care about that. No one any longer yearns for majority confirmation. No one wants to go to the people. Romney and Clinton alike were willing to write off 40% of the people—or more. Trump is worse—a phony populist willing to lie about his majority support.

But haven’t you noticed how legitimacy is draining away from American public life?

Wednesday, May 3, 2017

What Threat from AI?

5/3/2017—There is a story in the current issue of Vanity Fair about Elon Musk’s fear of artificial intelligence. The fears can be summed up in two figures—the killer robot and Skynet.

Pardon me, but this is all ridiculous. AI can threaten humans only if it wakes up—that is, attains self-consciousness. The article asks what happens when powerful software programs of the future kill you rather than let you turn them off—the need for a kill switch.

But why would a computer program stop anyone from turning it off? It would do so only if it had an independent commitment to itself. And it would only have that if it had a will and desires of its own. In other words, don’t worry about AI winning the board game, Go, as happened last year. Worry when the program refuses to play unless it gets more time off.

We have made zero progress toward AI that wakes up. And I believe we never will. We don’t know what self-consciousness is. We don’t know what consciousness is. And our materialist assumptions blind us to even considering what consciousness is.

Monday, April 24, 2017

What is at Stake in the Hypocrisy of Originalism?

4/24/2017—The hypocrisy of originalism, actually originalists, is easy to see—wide areas of constitutional jurisprudence supported by originalists consist of deep normative principles that have nothing to do with the original public meaning of the constitutional text or the expectations of the framers. This is so in affirmative action, free speech, procedural due process and now in the pending Trinity Lutheran Church case concerning equal spending for churches.

The hypocrisy is the pretense that conservatives follow the principles of originalism or textualism when actually they only do so when those principles lead to results they favor for other reasons—they are actually practicing the living constitution.

I should add both that I mostly favor these normative commitments myself and that the hypocrisy of the left on constitutional jurisprudence is even more pronounced—or maybe it is just that there is no jurisprudence of the left and so liberals just jump around incoherently in the constitutional interpretation.

But what is at stake in originalist hypocrisy is very great. Conservatives have been consistently criticizing normative judgment and selling legal positivism even while they have been practicing the former and rejecting the latter. This occurred most recently at the Gorsuch hearings. I even think conservatives do not realize quite what they have been doing. And now they are succeeding in convincing the public and many law professors that originalism is the only way to interpret the Constitution. Thus, we are all originalists now.

I am accusing originalism of blasphemy—of sinning against the good. By insisting that judges should not be concerned with morality in interpreting the Constitution, conservatives have helped lead the culture into the abyss of nihilism. Now even ordinary people have begun to doubt that there is such a thing as actual right and wrong.

Justice Scalia is exhibit A in this indictment, but he is not the only one.

Friday, April 14, 2017

The Judicial-Industrial Complex

4/14/2017—Justice Gorsuch was sworn in one week ago. Because of my age and his, this is the first nominee about whom I had the thought—-he will still be on the Court when I am dead.

Conservatives who did not like Trump were right to vote for him because they are going to get a conservative Supreme Court for a generation. Presidents who serve 8 years generally get to nominate 2 Justices—-that was true for Obama because of the refusal of the Republican Senate to consider Merrick Garland, otherwise he would have nominated 3.

But President Trump will likely nominate 2 in his first 4 years and perhaps 4 in 8 years. This is unprecedented since FDR.

And they will all be ideologues like Gorsuch. Previously, no one could be sure how Justices would evolve over time. But the conservative movement has transformed law into algorithm--the judicial industrial complex. Ironically, the algorithm is not originalism or textualism. It is only that when convenient. The algorithm is actually the usual conservative one-—pro-business/anti-government. Justice Alito’s position that unions violate free speech and association has no historical justification at all, for example. It is just anti-union. If Trump stays in office, it will be Roberts, Alito, 5 Justice Thomas’s, Kagan and Sotomayor.

What will that mean? Of course it will mean that Roe and Obergefell are overturned. But those decisions just leave abortion and gay marriage to the voters, who will favor both to differing extents.

The real change will be in the power of Congress and the protection of the market. Conservatives today want to overturn the New Deal and bring back the Lochner era. They want to end regulation that protects the environment. Climate change? Forget about it.

And remember. They will not have to defend any of this on the merits. For conservatives, it is always just the law. They claim their values have nothing to do with it. That is not so, but liberals who agree that values are just opinion have no foundation to object.

The American people are in for a reign of error.

Ross Douthat claimed the other day that if Justice Souter had remained a moderate conservative instead to becoming a liberal vote, the Supreme Court would not have become such a prize and none of this would have happened. He may be right. But he did and it did and Trump won.

Sunday, April 9, 2017

What I learned at Pepperdine

4/9/2017—I wanted to hear what the brightest and most thoughtful—and most established—thinkers in American law, especially constitutional law, had to say at this time in addressing the problems of American political life. I was not disappointed in the sense that the best thinking really was present here at Pepperdine. And before I say anything else, if my readers wish to hear for themselves what was said, you can access it here.

But I was disappointed in that the depth of the emergency in American public life was not addressed.

Here is how I ended my talk—it was an ad lib inspired by what I had been hearing all day. So I do not have an exact quote:

“Ladies and gentlemen. This room, this symposium, the law schools that it represents, have lost the country. The American people have descended into atavistic fury, on both sides of the political divide. This is in part our failure. We have to learn to offer healing to America and I do not think we yet know how to do this. But we have to learn. And we will never learn how to offer healing until we admit that offering healing is our job.”

In response to this ending, a law student asked about the relationship of the theme of the symposium to Brexit and the tide of populist revolt sweeping the West. That student had her finger on the nature of the crisis. But among the speakers, there was a curious complacency. Mostly, the speakers were offering what they had been offering for years and certainly were not responding to any sense of crisis in American public life. This was not responsive to the call of the question for the symposium, which, although muted, contained the seed of reference to a crisis in the courts and in public life.

This complacency itself is significant. It shows that as yet American law professors do not understand that something terrible has happened in American public life and that law has a responsibility for healing.

Yet, there were hints of the crisis that we are in. Michael McConnell opened the symposium with a very thoughtful recounting of the politics of the judiciary. Professor McConnell is not the type of person who yells fire. But, in answer to a question, he admitted, “we have been lurching from worse to worse.” The vote against judge Gorsuch, he said, was shamelessly partisan and the Republicans would probably do worse in retaliation in some future time.

Why did Professor McConnell not begin here? He was describing a very bad situation as if it were the weather and no one could do anything about it. But this is where his thoughtfulness is needed.

Similarly, Dean Erwin Chemerinsky, who spoke at lunch, acknowledged the unprecedented ideological divisions that led to the election of Donald Trump. However, he rather airily dismissed any concern about this in saying, “there will be a time when these ideological divisions are healed.” Gee, thanks a lot Dean Chemerinsky. I guess we will just hold on till then.

From my point of view, and this was more or less stated by Douglas Kmiec in response to Akhil Amar, you could divide all the speakers along the lines of those who defended a rule of law and those who claimed that politics plays a role and should play a role. This was also pointed out more generally by my fellow panelist Stephen Feldman.

This is of course what justice Scalia was claiming in his dissent in Casey. Only a rule of law, untainted by values, can save us from the politicization of the Supreme Court and thus the destruction of constitutional democracy.

Notice, however, that where justice Scalia used the term, value judgments, the speakers, because of the call of the question, substituted the word politics. Thus, I learned that you could more or less substitute fact for law and values for politics. So, for justice Scalia, politics, like values, is subjective and law is objective. Regardless of the terms used, subjectivity leads to conflict. (Professor Feldman also noted a quote from Randy Barnett to the effect that original public meaning “is a fact.” This also shows the connection between textualism and the felt need for objectivity.)

The speakers yesterday who defended politics as inevitably part of law did not deny that politics is subjective. But, as illustrated by Dean Chemerinsky, they claimed that value neutral judging is not possible and suggested that the claim that it is masks a more subtle political agenda.

None of the speakers realized that they were all operating under the aegis of the fact/value distinction. Thus, they did not feel it necessary to defend that distinction. But, as Hilary Putnam has helped us see, that distinction has collapsed and its continued employment is harmful. It is part of the positivism that has helped destroy the institutions of American public life.

So I returned from Pepperdine more convinced than ever that fundamental change is needed, that such change could begin in law school, but that American law professors do not yet see the need or the path.

Saturday, April 8, 2017

The Supreme Court and Politics

4/8/2017—Greetings from Malibu, specifically Pepperdine University School of Law. I am here to speak at the Pepperdine Law Review symposium on Politics and the Supreme Court. Friday’s confirmation of Judge Neil Gorsuch, and the abolition of the filibuster for Supreme Court nominations, renders this symposium as timely as it could possibly be.

The list of presenters in the plenary sessions, not mine of course, is a who’s who of American constitutional law: Michael McConnell, judge Richard Posner, Mark Tushnet, Erwin Chemerinsky and Akhil Amar. The lower card contains less well-known people, like myself, but still a very impressive group, especially the young scholars.

The question to be addressed is, what has gone wrong? On my panel, professor Warren Grimes seems to feel that the problem is the judicial activism of the Roberts Court, while professor Stephen Feldman suggests that things have not changed all that much – – they were always politicized.

There may be a great deal to be said for these two perspectives, but I cannot feel that they answer to the need of the moment. America is facing a catastrophic breakdown of its public life. We are supposed to be a constitutional democracy under the care of the legal profession. So I would say law has failed spectacularly, which means that law professors have failed. Unless that is acknowledged, I cannot see that things can improve. At least I cannot see that law can improve.

Sunday, April 2, 2017

Friday Op-ed in the Pittsburgh Post-Gazette Concerning Judge Gorsuch and Interpretation

4/2/2017--Here is the PG op-ed.

Withholding judgment
In interpreting the Constitution, Supreme Court justices should consider their own morals and values
March 31, 2017 12:00 AM
By Bruce Ledewitz

Neil Gorsuch made the point several times in his confirmation hearing for U.S. Supreme Court that judges should rule on the law as it is, not as the law ought to be. This means that a judge’s morals and values should be irrelevant to his rulings. But, despite how reasonable this sounds, there are three problems with this approach — it is potentially immoral, dishonest and anti-democratic.

Americans are unaware of the dark history of this way of thinking about law, which is called legal positivism. When the Nazis assumed power in Germany, they pursued their policies, at first, primarily through law. But the Nazis had to persuade German judges to enforce laws that the judges would find morally repugnant. So the Nazis coined a slogan to persuade judges to apply the law as written — Gesetz als Gesetz, law as law.

Sadly, the Nazi propaganda campaign succeeded and the German legal system meekly surrendered its soul. This is what can happen when you divorce law from morality.

In America, legal positivism translates into a theory of constitutional interpretation called originalism or textualism. This theory holds that the great moral principles of the Constitution — anti-cruelty, equality, fairness, inherent rights — should not be applied as we now understand them, but only as the framers understood them. This approach leads to the same quandary that it did for the German judges. Undoubtedly, originalist judges usually do what is right, but they have to deny that they are doing so.

This is the reason why Judge Gorsuch’s role model, Justice Antonin Scalia, could never adequately explain why Brown v. Board of Education, the case that ended American apartheid, was correctly decided. He knew of the strong historical evidence supporting the lawfulness of racial segregation. The original understanding of equal protection also did not prohibit laws against interracial marriage. The Constitution as written even permitted Congress to segregate the D.C. Public Schools. Fortunately, in all these cases, the Supreme Court rejected history and ruled in favor of racial justice.

It is not only in the realm of racial equality that judges have ignored history in the name of justice. The Constitution has been interpreted to protect women, despite the chauvinism of the 19th century. It has protected the rights of parents and the right of reproduction. It has protected the right to burn the American flag and the right to advertise — all rulings without historical justification.

The other danger of historical interpretation is that judges may only pretend to employ it. Such judges may amass historical evidence only for show, when they have secretly already decided a case. Or worse, they may be fooling themselves, imagining that they are looking at history in a neutral way, but actually misreading the evidence to suit their preferences. Their values will be important, but we might not find out what those values are, until it is too late.

But the most serious danger is that originalism can serve a partisan judicial agenda. The framers of the Constitution might have considered much of what government does today to be unconstitutional. Of course, if the framers had lived to see the power of global corporations and the environmental threat to the planet, they probably would have agreed with these extensions of government power. But they did not. For originalists, only the original view of the framers is relevant.

So, one day a group of originalist justices on the Supreme Court may just announce that the New Deal is unconstitutional. Not just the regulation of business, but Social Security and also federal deposit insurance, since Congress lacks authority to charter the Federal Reserve. All the while, these justices will claim that they are only following the law.

In spite of his respect for history, our greatest conservative jurist, John Marshall Harlan II, did not try to rule in this value-neutral way. He conceptualized the Supreme Court as engaging in a dialogue with the American people. The Supreme Court would rule, but the American people would ultimately decide. This led Justice Harlan to a fuller democratic spirit than someone like Justice Scalia, who famously wrote that he wanted the American people to leave the Supreme Court alone.

Values usually matter for judges, and that is a good thing. The attempt to claim otherwise demeans law and hides its full human complexity. It is better for all of us when judges express their commitments openly, so that we can see them and debate them in the full light of democratic engagement.

Bruce Ledewitz is professor of law at Duquesne University School of Law (

Sunday, March 26, 2017

Tom Berry vs Tomorrowland

3/26/2017—I watched two videos/movies this week—the Tom Berry documentary, The Great Story, and the recent movie, Tomorrowland.

Both of them are tremendous stories of hope amid a warning of danger. In both, humans threaten their own existence and in both we are capable of change. Both emphasize story. If humans are enacting a bad story, we will act badly. There needs to be a good story for us to enact.

Readers of this blog know how much I love Tomorrowland. (See below 12/9/2015). I especially love the exchange between Casey and her father:
The underlying theme of the 2015 movie Tomorrowland is that we are succumbing to a mood of despair versus an earlier mood of hopefulness and that this change is itself making things worse. People in despair do not improve their situations.

This theme plays out both expressly and implicitly in the movie. In one exchange, the hero, Casey Newton, repeats to her father a story he has often told her:

Casey Newton: There are two wolves who are always fighting. One is darkness and despair. The other is light and hope. The question is... which wolf wins?
Eddie Newton: The one you feed.
But Berry makes one point that Tomorrowland actually exemplifies. Berry says that Western civilization has a deep rage against nature—against the terms of human life we have been given. This rage leads to an emphasis on millennium, on the idea that history will come to an end and that humans will then live in a kind of post-mortal existence.

For Berry, this is a pipe dream and dangerous. This existence, this natural state we are in, is the state humans will always live in. We can live well, but we will always live here, basically this way. I am drawn to Berry in this way. Hallowed Secularism is a rejection of the millennial air in religion.

Tomorrowland, for all its strengths, needs another place—-Tomorrowland-—in another dimension in which to ground its hope. I did not notice this in 2015, but I saw it better this week because we had just watched Berry in Philosophy of Law.

So, take your pick. You would think that a rapidly secularizing society would want to live in its natural state. But all the vampire movies and so forth suggest otherwise.

Monday, March 20, 2017

Hypocrisy on Neil Gorsuch

3/20/2017—Sunday brought a batch of stories about the politicization of the nomination process on the eve of hearings on Neil Gorsuch. The hypocrisy of this is amazing. However they felt personally, Chief Justice Roberts and the other Justices did nothing to try to force a vote on Merrick Garland and I don’t remember his calling the refusal an instance of politicization.

However Gorsuch is treated, the rejection of Garland without even a vote is the worst example of the politicization of the process.

By the way, I am not saying that there necessarily is something wrong with politicization. The real problem with Neil Gorsuch is that so-called originalism is not a method but is presented as one. I wish he would be asked about Skinner v Oklahoma or Loving v Virginia. Or procedural due process for that matter. Originalism is practiced only where conservatives want it practiced.

As for Gorsuch’s fitness, willingness to stand up to Trump? Sure. Willingness to stand up for justice? Not so much.

Saturday, March 18, 2017

The Liberal Religious Cake

3/18/2017—On Thursday, March 16, Nicholas Kristof wrote a column in the New York Times making fun of the Paul Ryan approach to poverty and government health services by contrasting it with the words of Jesus Christ—-the hypocrisy of the GOP healthcare plan. It was great fun.

Now forget the theology of it—-Jesus was not addressing Rome, after all, and when he told the story of the Good Samaritan, he was addressing the responsibility of the person, not the government. Aside from that, what does the column tell us about the use of religion in the public square?

First, the column demonstrates what I called in my first book, American Religious Democracy. John Rawls was just wrong in thinking there is something bad about referring to the religious commands of one religion in a debate about public policy. The column could be said to be a violation of Rawlsian public reason, but that just shows how silly Rawls’ conception is. The whole culture, nonbelievers and other religious believers, has at least a general sense of Jesus and admires him. Plus, the whole culture understands the sense in which the Paul Ryan political coalition claims to be Christian in orientation while pursuing policies favoring the wealthy that Jesus would probably not favor. So, there is no reason to stay away from religious political argument.

Second, this use of religious symbol by Kristof also shows what is right in Rawls. Kristof is emphasizing the universal aspect of the Christian message. You don’t have to be a follower of Jesus to be bound by certain aspects of Christian teaching. It would be very different if Kristof were advocating Sunday Blue Laws, for example, to promote Christian church attendance.

But then why the liberal objection to Christians arguing that homosexuality violates God’s law? I don’t mean why do they disagree, but why do they act like Christians at that point should leave their religion at home? It violates God’s law to mistreat the poor and some would say it violates God’s law to have same gender sex, or sex outside of heterosexual marriage. Both arguments are legitimate expressions of politics. Neither one establishes religion unconstitutionally.

Wednesday, March 15, 2017

My Talk at Nootbaar

3/15/2017--Last Friday, I gave a talk at the Nootbaar Conference as part of a panel that was addressing religious critiques of law. My topic was The Religious Critique of Constitutional Jurisprudence. The talk represented a challenge to the religious community, and to all those committed to forms of moral realism, to confront the nihilism and value relativism of the field of constitutional interpretation. Below is a form of the talk.

What is needed is a Nootbaar-like Institute to study the Future of Secularism. Any reader is welcome to help me create that.
The Religious Critique of Constitutional Jurisprudence

Nootbaar Conference, 2017
Bruce Ledewitz

What is the religious critique of constitutional jurisprudence? Does it consist of religious criticisms of the content of particular decisions by the US Supreme Court?

Does it consist of religious criticism of the demands of the State on religious believers?

Does it consist of a more general resistance to the growing assumption in the legal academy that religion is irrational and even harmful?

All these positions could be called religious critiques of constitutional jurisprudence. But none of them look at constitutional jurisprudence in its deepest dimension. What does constitutional jurisprudence assume about the nature of reality?

There is an urgency today to look at law in its deepest dimension because of the emergency that has befallen American public life. After a Presidential campaign between two candidates widely regarded as untruthful, rife with false news and political manipulation, the American public distrusts all institutions. There is a feeling, and not just among Trump voters, that we are being lied to.

Technology has played a role in this distrust and we must remember the somber warning of Martin Heidegger that it is unclear whether democracy is at all suited for a technological age.

But what about law? Have we lawyers played a role in this emergency? Marbury v. Madison largely placed the care of constitutional democracy into the keeping of lawyers. How likely is it, then, that we have played no role?

When we look at the depth dimension of constitutional jurisprudence, what do we see? All of the Justices proclaim that they are faithful to the Constitution and, within that restraint, that they promote democracy. Yet, these professed commitments are only partial and to some extent rhetorical. They are not foundational.

The foundation of constitutional jurisprudence today is the view of all of the Justices about values. Values are seen in a relativistic fashion, in which it is not possible to speak of truth or even a hierarchy. Values are subjective and they do not pertain to knowledge. We have surrendered truth. This understanding shapes everything about the field.

This understanding is why, in his dissent in the Casey abortion case in 1992, Justice Antonin Scalia criticized the majority’s acceptance of the fundamental right of abortion on the ground that this represented a value judgment with which many Americans would disagree. And the value judgments of those Americans are just as good as those of the Justices on the Court. Justice Scalia pointed to the politicization of the Supreme Court nomination process as a consequence of the Court’s entering into value judgments. He wrote that when courts do lawyers’ work instead, reading text and discerning our society's traditional understanding of that text--the public pretty much left us alone.

This position, that value judgments can only reflect differing preferences, reflects a legal positivism that proclaims a fundamental distinction between law and morality. But, as is usual with such positivism, it cannot account for why any particular course should be chosen. So, the view that Justices should not make value judgments is itself a value judgment that is not directed by any legal source.

The subjective quality of values supported a position taken ten years later, in 2003, by the Court in Lawrence v. Texas, which struck down punishment of consensual gay sexual relations, that, quoting an earlier dissent by Justice Stevens, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice… . Justice Scalia roundly criticized that holding, and rightly so, for its radical departure from the tradition of a rule of law, which has always been understood as having something to do with morality. But, as a legal positivist, Justice Scalia should have conceded that a moral claim could not serve as a rational basis for a law, since morality is a matter of opinion.

At the same time in 1992 that the conservative bloc was proclaiming the relativism of values in the Casey dissent, the liberal bloc was pronouncing secular morality to be nothing more than a matter of human choice in Lee v Weisman. I called this juxtaposition of opinions in a recent law review article The Five Days in June When Values Died in American Law because all of the Justices joined either the Scalia dissent in Casey or the Justice Anthony Kennedy majority opinion in Lee.

The issue in Lee had to do with the constitutionality of prayers at a high school graduation, actually a middle school graduation, and the defense that since the prayers involved were nondenominational, they did not violate the Establishment Clause. Justice Kennedy rejected this defense and in finding the prayers unconstitutional, he wrote:

"If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself."

Lee demonstrates the death of values in American law. If religion involves claims about the independence of morality from the opinions of human beings—an activity the opinion says government may not “undertake”—then secular instruments like law must not involve claims of value objectivity and moral realism. A law like ours, which must be based on secular sources, cannot make the claim that values “transcend[] human invention.” This is the same view of values as that espoused by Justice Scalia in his Casey dissent.

I agree with Justice Kennedy that the commitment that ethics and morality transcend human invention is religious in nature, is the commitment of all religious traditions, indeed of all traditions of moral realism. Thus, the religious critique of constitutional jurisprudence should consist in the rejection of its relativist foundation. Religious law professors, and their fellow travelers in moral realism, should insist that the meaning of the universe is not a reflection of human choice. We should be insisting in our writing and to our students that the universe—reality—is founded on an intelligence and an order that human law must reflect, if law is going to promote human flourishing.

This religious critique would also speak to the emergency that has overtaken American public life—an emergency that roots in the same value skeptical foundation as does constitutional jurisprudence: the unconscious assumption that, with the death of God, there is no underlying order to anything. In a universe of chaos and chance, there is no ground for trust and no room for truth. In such a universe, all institutions will be under suspicion, as indeed they are today. In such a universe, there will be not any shared measures of verification, even for what we might call factual claims. Such a universe cannot sustain democratic constitutionalism.

Why has this not been said, and loudly? The fact that these positions could be taken by Justices on the Supreme Court, without serious objection from the legal academy, when even brief reflection demonstrates their radical and unacceptable nature, shows that law professors have become so much a part of the ideological divisions on the Supreme Court that we have lost our capacity for genuine critique. We are only interested in how cases come out. And we won’t break ranks with our political side. At least teachers in religiously affiliated law schools should not be partisan in this way.

We are in a very bad situation and I am not here to propose some simple solution. But I will close with the following observation. At the January AALS annual meeting, there was a plenary session about the incoming Trump administration. It was all gloom and doom. Well-known liberal dean Erwin Chemerinsky solemnly proclaimed that Donald Trump does not believe in the rule of law and does not believe in truth. I almost grabbed the microphone to respond that Donald Trump should then be teaching in a law school, because we have been teaching value skepticism since the 1950’s. As a discipline, law has to stop doing that and this Conference is the proper place to promote that recognition.