Wednesday, December 13, 2017

Good News from Alabama

12/13/2017--Good news from Alabama, where Doug Jones defeated Roy Moore in a close race. First, a genuinely bad person will not be in the US Senate. Second, the alt-right will be discredited in the Republican Party--after all, Moore's opponent would probably would have won. Third, it will be harder to discredit women who tell their stories of sexual harassment--of course in Moore's case, it was actually criminal conduct.

Then there is the issue of abortion. The pro-choice movement will say that it finally arrived with the win of a clear pro-choice Senator from the deep South. I believe that Jones won despite being pro-choice and that it was only that factor that caused Moore to come so close to winning. But who can be sure of that?

With any luck, the Alabama Senate race will be the beginning of the Post-Trump era.

Sunday, December 10, 2017

When Can Due Process Be Dispensed With?

12/102017—President Trump makes the point about Roy Moore, the Republican candidate for Senate and the subject of sexual predation allegations, that his denials also have to be taken into account. Of course, President Trump is making no effort to resolve these conflicting claims and so one must be suspicious of his real motive for saying this, which is unquestionably to get Moore elected and worry about sexual predation later.

But Garrison Keillor similarly claimed to have been fired without a chance to tell his side of the story about allegations of sexual harassment and he plainly wanted a full investigation.

So, the question remains—when is it appropriate to dispense with due process—not as a legal matter but as a matter of fairness?

The seemingly obvious answer is never, but that is not right even when due process is legally required. For example, sometimes denials are not relevant to the issue at hand. If a law professor on a team trip invited a student to a hotel room and had sex, the claim later that the sex had been consensual would be irrelevant. (It would be relevant to a criminal prosecution for rape of course). The faculty member would be fired for having sex with a student. Consent is irrelevant to that question.

More to the point in a lot of these cases is that the denials are equivocal. That suggests that something like this happened but maybe to somebody else. Judge Alex Kozinski says of allegations that he showed porn to law clerks, “I have no recollection of that happening.” This is not a denial, it is an evasion. The only appropriate response would have been, “I know that did not happen because I have never done anything like that in my life.” That is what I would say if a former student alleged I had shown her porn on my computer.

But the fact that Democrats are not immediately calling for Kozinski’s resignation shows how much politics are involved in even this wave of maybe finally cleansing the workplace of sexist hostility toward women. While liberals like Masha Gessen of the New Yorker calls the half of the country that voted for Clinton—of course more than half—“morally superior”—that is by no means apparent. Both sides have forced out congressional representatives—Republicans forced out Tim Murphy in October when evidence showed he urged his lover to get an abortion and Trent Franks is resigning now over urging aides to become surrogates bearing his child.

And neither side has yet shown it is willing to do so when there would be a serious political consequence. I believe the reason Judge Kozinski has not yet faced calls on the left to resign is because President Trump would replace him with a conservative judge. Eventually the hypocrisy of this double standard will be too much and the Judge will be forced out, but the immediate lack of reaction is pretty telling.

On the Republican side, there is the now common denial of trust that permits decent people to mouth things that are not true. Most people voting for Moore are claiming to believe that the allegations are not true. But how they could not be true is never made clear—just how does a 30 year old man date a fourteen or seventeen year old girl without committing the crime of sexual assault of an underage person? Here is an example where due process would really be helpful since it would finally show what a predator Moore is. Anyway, voting for Moore, like wanting to keep the Judge, shows how sick America is when it comes to partisanship.

Friday, December 8, 2017

The Hypocrisy of the Democratic Party

12/8/2017—For eight years, the Democratic Party argued that the debt limit and keeping the government running were not policy decisions, but basic responsibilities of Congress. Increasing the debt limit essentially allowed the government to pay for spending that had already happened—it was simply paying bills. So was basic funding legislation. The place to decide policy issues was elsewhere—whether money should be spent in the first place, for example. Therefore, President Obama repeatedly argued, this kind of legislation had to be “clean,” without unrelated and usually controversial provisions. Threatening to shut down the government or default on paying debts was dangerous blackmail.

Well, now, of course the shoe is on the other foot. Now Democrats lack any access to pass legislation and are threatening to shut down the government if a dreamer provision—legislation to protect immigrants illegally brought to the US as children—is not included in the funding legislation.

I believe this legislation is a good thing, but that could not be more irrelevant. Previously, and for years, the Democrats were not arguing that Republican proposals were bad ideas—they thought they were—but that good or bad they did not belong in bills like these. Obviously, all that is now out the window.

This is how decline happens. One Party—not always the Republicans (see the end of the filibuster)—engages in irresponsible conduct and then the other Party, when it gets the chance, does the same thing. For example, the Democrats are certain to block any Supreme Court nominees by President Trump if they get the chance.

Things will not get better this way. When you fight fire with fire, the whole world burns. When you forgo principle, you lead your nation to chaos.

Saturday, December 2, 2017

The Criticism of Mark Lilla They Don't Want You to See

12/2/2017--I have been frustrated in trying to get my criticisms of Mark Lilla's attacks on liberal identity politics out to the public. Here my latest failed example in a proposed letter to the Editor that the New York Review of Books did not publish.
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To the Editor:

Jonathan Rauch wrote a fair and restrained review of Mark Lilla’s book, the Once and Future Liberal: After Identity Politics (NYR November 9) about how identity politics have hurt the Democrats politically. But neither the review nor the book actually have much to do with why Hillary Clinton is not the President today, nor with the primary way that Democrats lost touch with ordinary people. Donald Trump was elected with the overwhelming support of religious believers. For years, the Democrats have been associated with a relentless attack on religion in general and on religious believers in particular. Rauch does not mention religion at all and it is obviously not a focus of Lilla’s analysis of what is wrong with identity politics.

The most dramatic symbol of Democratic hostility to religion was a suggestion in oral argument in the Obergefell same-sex marriage case that religious institutions might lose their tax exempt status if they failed to adapt to a judicial decision constitutionalizing same sex marriage. When I visited Regent Law School before the election, that comment had turned the 2016 election into almost a last stand for religious believers and had overcome the enormous distaste that many believers had for Donald Trump. In the Washington Post, David Bernstein called this The Supreme Court Oral Argument that Cost Democrats the Presidency, and in a narrow loss, that is exactly what it was.

There is a reason that Lilla cannot raise the issue of attacks on religion as a reason Democrats have lost touch with ordinary people. Lilla himself was one of the New Atheists who attacked the role of religion in political life. His 2007 book, The Stillborn God, argued that religion was an irrational force that was best kept out of public life. Lilla shared the hostility toward religion that has cost Democrats so dearly.

But Lilla’s attack on religion demonstrates an even deeper flaw in his current analysis of identity politics. In 2007, Lilla was attacking not just religion, but any conception of the common good in public life. In order to ward off irrational and dangerous political movements, politics should be truncated and restricted to individualistic competition for limited goods. He wrote, “[W]e have chosen to limit our politics to protecting individuals from the worst harms they can inflict on one another, to securing fundamental liberties and providing for their basic welfare… .” This is a basically anti-political stance and demonstrates Lilla’s narrow conception of the public good.

The New Atheists who argued that all values were merely individual choices never could conceive of a robust politics, which must involve competing conceptions of the good life, rationally promoted. They thought that kind of politics was impossible and dangerous. But Lilla should not now complain that this shrunken view of political life leads to an over emphasis on group identity. In the absence of a conception of the common good, what is left to a person who is dissatisfied with Lilla’s individualism but group politics?

The New Atheists, Sam Harris, Christopher Hitchens, Richard Dawkins, Lilla, and all the rest, never admitted their responsibility for the decline of American public life. Their relentless attacks not just on religion but on the whole notion of the good, and of a meaningful universe, left us with nothing but a politics of zero sum games between hostile groups. They led us here.

A different kind of politics used to be possible. When Martin Luther King, Jr. engaged in what might be called identity politics, he did so in the name of all of us. He said, “The arc of the moral universe is long, but it bends toward justice.” That justice for one group was a common good that benefited all people—even the racist would benefit in the end. That is the kind of identity politics that can bind rather than divide. But, as in King’s case, it requires a commitment to a moral universe that is totally beyond Lilla’s conception. Here is where a political rejuvenation of America is possible.

Wednesday, November 29, 2017

The Acting Director and the Rule of Law

11/29/2017—If the rule of law is to mean anything, and it is not clear that it any longer does, there must be instances in which the law commands things people don’t like.

So it should have been with Senator Elizabeth Warren and the question of who is the acting Director of the Consumer Financial Protection Bureau.

It is clear that President Trump is about to dismantle everything that agency was supposed to stand for, but that is the consequence of electing him. As President, he has certain powers, constitutional and statutory. One of those statutory powers is generally appointing acting Directors of Agencies upon resignation of the Director.

The issue here is purely statutory, since there is no constitutional authority to appoint acting Directors.

Senator Warren claims that the current Deputy becomes acting Director because of language creating the Agency that the Deputy is acting Director in the "absence or unavailability of the Director." But that language could not apply since there is no Director. The Director has resigned. So, the President is free to use his default powers.

If the statute meant to deny the President this authority, it was not written clearly. That language looks like simple housekeeping in case the Director has a cold or is abroad.

All of this actually shows something else. We are used to making policy not in Congress but in Administrative Agencies. This gives enormous authority to people who are not themselves elected and are not really bound by statutory standards. That means policy depends on Presidential appointment. You cannot really have independence from elections in making policy in the long run. Nor should you. Even the Fed will change because Trump did not reappoint Yellen.

I guess we should consider law, as Justice Scalia might say, so that policy will not instantly change when we lose an election.

Thursday, November 23, 2017

David Brooks Gets the Need for Hallowed Secularism

11/23/2017—Happy Thanksgiving. Thanksgiving has always stood as the one religious holiday that secularism has been able to assume. This is surprising, since giving thanks is an essentially religious attitude. Thanks has to be given to someone or something. For the early actors in the holiday, that would have been the author of life—God or the Great Spirit. And now?

The hallowed secularist has no problem giving thanks for this universe we did not create that gave us life and sustains us. That kind of deep cosmology is not supernatural and is only put off by the atheism and materialism that insists the universe does not care about your purpose.

Why take that attitude? The universe made beings who have purpose. So, don’t assume the universe does not care. As CS Lewis might have said, the universe went to a lot of trouble to create you like that.

This is reconstruction of the culture. David Brooks wrote yesterday in the PG, here, that elites do not get the need for moral formation. We are losing those institutions—primarily caring, loving, stable families. The elites provide those but then insist that individualism is all that is necessary—economic individualism on the right and lifestyle individualism on the left. This is called naked liberalism.

Brooks wrote that the young know this is not enough, but people over 40 don’t know it. Brooks should get out more. People at Duquesne know it, which is why we could have our symposium there. And it was in that spirit that I wrote hallowed secularism.

But, returning to my story above, Thanksgiving reminds us that it is cosmology, not morality, that is needed. Those moral institutions themselves must rest on something. Brooks does understand this--he talks about re-enchanting these formative institutions, but it is clear that he does not have a feel for how this happens.

Tuesday, November 21, 2017

The Revenge of Ruth Ann Dailey

11/21/2017—Duquesne University has an apparent policy—I have never seen it written down, but I have seen it in practice often enough. The policy is, to call the police. When there is an alleged sexual assault, the University brings in the Pittsburgh police.

This policy serves to distinguish between crimes and matters for University discipline. Crimes are not appropriate for a non-governmental entity to deal with. They are for the authorities that investigate crime. Rape is rape, whether committed by a stranger or a fellow student.

Ruth Ann Dailey wrote a column in yesterday’s Post Gazette that reminded me of Duquesne’s policy. In it, she said, you should distinguish between crimes on the one hand and inappropriate behavior on the other. If you are not clear in your distinctions, real victims will not be served.

And, in addition to not addressing victims, we will be back at the helpless woman stage. A woman generally can be expected to tell a guy she is not interested in to leave her alone.

Dailey’s own example of inappropriate but not criminal behavior was an older guy she did not know putting his hand on her backside while waiting in the rain. She was willing to say that is just gross behavior not rising to the level of sexual assault. This is the kind of gross behavior—groping strangers—that Trump and Franken have engaged in. There is no excuse for it, but it probably does not rise to the level of a crime. It would certainly cause me to lean to not voting for someone. But if not a pattern, I cannot see throwing someone out of the Senate for it. (Although if this had been her boss, I’m sure she would say that at least the civil law has to address such workplace harassment).

Compare that to statutory rape. That is what Moore is guilty of if there was any kind of touching of a fourteen year or sixteen year old girl. Similarly for any kind of touching of an underage boy. The statute of limitations has run on these actions, but criminals are criminals and have no place anywhere.

Where does that place Bill Clinton? Consensual sex in the workplace with an adult woman is not a crime. But it is a violation of the civil law because the law sees that genuine consent is not likely and because even the invitation to it creates a hostile work environment. This is similar to the prohibition on law professors having any kind of romantic involvement with students. It is bad for everyone and would get me fired. That does not deny that workplace relationships have led to happy marriages on occasion. It is just a dangerous practice on many levels.

But, of course, as Ross Douthat wrote on Sunday in the New York Times, Clinton was a serial predator who used government resources to pimp and then bribed witnesses to lie or obstruct justice—a lot more there than one instance of oral sex with an intern. Douthat has changed his mind about removal of Clinton after his impeachment. Maybe the rest of us should too.

But, Dailey’s point is that behavior like some of that attributed to Glenn Thrush, the New York Times reporter, does not belong in this conversation. Laura McGann wrote an article in Vox describing Thrush engaging in unwanted touching with three unnamed women. About that I don’t know any of the details, but in one reported incident, Thrush was a bar with a young reporter and he came on to her, she rejected his advances and was left in tears.

There was certainly a power imbalance there as the woman was in her 20’s and Thrush, as the article said, would be good to know as a seasoned media star. But he was not her boss and had no direct financial role in her life.

Other instances were different and amounted to groping out of the blue.

It seems to me that all this has to be treated on a cultural level. The rules are not that difficult. Crime is crime and consent, or lack of consent, is not that hard to discern—or in the case of children, not possible. No one should be subjected to unwanted touching of any kind. If it is sexual touching, it can rise to the level of assault. Power imbalances have to be addressed institutionally and not case by case—-banned in the workplace and in professional relationships, like lawyer and client or doctor and patient.

That leaves the fundamental problem of the woman who thinks that a man respects her work and it turns out he is just interested in her sexually. Personally, I believe this is best dealt with by getting involved only with people you like and respect. But I’m not sure I know much about the world. I never went home with anyone from a bar.

Saturday, November 18, 2017

Resurrecting Truth at Duquesne University School of Law

11/18/2017--I was too busy to blog about the extraordinary Symposium at Duquesne these last two days: Shall These Bones Live?: Resurrecting Truth in American Law and Public Discourse. The Symposium took shape with the Time Magazine Cover question back in April, Is Truth Dead. There was a tremendous cast of speakers. The event can be watched by accessing the Symposium webpage here.

The keynote on Thursday was Louise Antony, well-known philosopher at UMass. On Friday, there were two panels and a plenary session. The first panel consisted of Justin Dyer, University of Missouri, Kinder Institute on Constitutional Democracy,Lawrence Solan, Brooklyn Law School, me and, as moderator, Jennifer Bates, Duquesne University Department of Philosophy. The second panel consisted of Heidi Li Feldman, Georgetown University Law Center and co-convener of the Symposium, Alina Ng, Mississippi College School of Law, Bradley Wendel, Cornell Law School, and, as moderator, Elizabeth Cochran, Duquesne University Department of Theology. Will Huhn, visiting professor of law at Duquesne, moderated the plenary session in which he put a serious question to each speaker.

These are extraordinary people and the program was a serious exploration, mostly non-partisan, of some of the deep sources of democratic disease in America and what can be done about it.

I did not know any of the participants before, but the combination of discipline, style and approach was very helpful in elucidating where we are and where we might go. Several people told me they had never seen an academic gathering so seriously focused,not without humor,on a single problem.

I felt, and I'm sure some of my students did as well, that this is what a law school should be doing today. But I don't know of another one that is. I am grateful for the support, planning and participation by the Dean of Faculty Scholarship at Duquesne, Jane Moriarty and for the institutional commitment by Dean Maureen Lally-Green, who cut short a trip just to be present at the Symposium. Lots of people worked very hard to pull this off. Duquesne is a special place.

I was remiss in not mentioning and thanking Robert Taylor, retired professor of law, during the program, but it would not have made much sense to outsiders. People who know Duquesen could see his fingerprints all over this event. He held ones like it and he stretched the Law School during his time there beyond what law schools are usually capable of. And then there is his ongoing impact on me... .


Tuesday, November 14, 2017

Going After a Defeated Political Opponent is the End of Democratic Life

11/14/2017—Well, I did wonder how President Trump would turn out to be Mussolini. That is the charge I put on my door at school in the days before the 2016 election. I wrote that everyone had an obligation to vote for Hillary Clinton because Trump might be the last President elected.

But then I thought for a long time that I had overreacted. President Trump has enacted many policies I disagree with and proposed many more, but he had not in any way taken aim at democracy.

Now he has. President Trump has now apparently convinced the Attorney General to appoint a special prosecutor to investigate Hillary Clinton’s handling of the State Department.

Let me add that my concern has nothing whatever to do with evidence of corruption by Secretary Clinton. There has been a lot of evidence supporting allegations of pay-to-play surrounding the Clinton Foundation and the government.

So, this entry is not about innocence. I am not defending Clinton.

Her guilt or possible guilt in anything has nothing to do with it. In other countries, a change of Party Administration means that opposition figures will be prosecuted. Those countries quickly lose their democratic qualities.

In America, politics has never been a blood sport. You leave the former President alone and honored. You don’t investigate his associates. You don’t jail your opponent.

Because if you do, then next time that is what the Democrats will do. You can investigate anybody.

Who is to blame for this descent into authoritarian government? Well President Trump of course is the immediate cause. But aren’t the Democrats trying to destroy President Trump for encouraging the Russians to hurt his opponent?—he did that right out in the open during the campaign. No independent prosecutor was needed. And don’t we all know the Democrats would have done the same in a heartbeat?

And didn’t the Republicans, including President Trump, do all they could to destroy President Obama’s credibility and ability to govern, including falsely, oh so falsely, claiming he was not born in Hawaii? It turns out that payback is a bitch not just for one person but for everyone.

Do I know how to stop this destruction of my country? No. Are we incapable of stopping? Unfortunately, yes.

Tuesday, November 7, 2017

“An Act of Pure Evil”

11/7/2017—President Trump called the Las Vegas shooting on October 1 “an act of pure evil.” He also called Sunday's shooting in a Texas Church “an act of evil.”

The President is not alone. Lots of people refer to shootings like these as “evil.” What is the meaning of calling these kinds of acts evil, as opposed to deranged or the act of a mentally disturbed person?

The first instance I remember of calling terrorism “pure evil” was its invocation by President George W. Bush in reference to the 9/11 terror acts. In that instance, the motif quickly became political. President Bush was willing to call these acts pure evil but some Democrats or liberals were not.

I remember thinking at the time that terrorists thinking they were defending Islam from attack and willing to die in that defense should not be called purely evil or cowardly. They were doing an evil thing, but they were not motivated by a pure desire for the death of others. These terrorists were like a lot of other terrorists—willing to kill the innocent to achieve a greater good. A terrible thing, but not pure evil.

That is not what is going on in cases of domestic American terrorism. (Should it be called Christian terrorism as opposed to Islamic terrorism? Are these shooters Christians?) Here, calling these mass shootings evil seems to be a way coming to grips with them without having to think about either public policies that might prevent them or the actual motivations of the shooters, which might help identify such people.

I’m not sure this is conscious. Among politicians I am sure it is a studied rhetorical strategy. Among regular people, it may be quite unconscious.

A talk show radio host was on NPR after the Las Vegas shootings and he said his listeners did not want to talk about policy, but about human nature. This is like the saying of Jesus about the poor—the evil ones you will always have with you.

But there are simple policies most everyone agrees with, some of which are already in place, that might prevent some of these kinds of shootings. For example, the Air Force now admits that its failure to enter the court martial conviction of the Texas shooter into the federal database allowed him to purchase the semi-automatic rifle he used in the shooting. In the case of Las Vegas, the kit to convert a semi-automatic weapon to a fully automatic weapon could be effectively prohibited, leaving fully automatic weapons to be experienced on licensed gun ranges. In theory, I believe the NRA supports both policies.

Similarly, we should be desperately studying these shooters to find out more about them. Granted, the absence of news about them—the public learns relatively little about them—does prevent their glamorization and maybe prevents copy cats. (Who remembers the Connecticut shooter?) But we as a nation should be trying to find out what makes someone end his own life by shooting a large number of people he does not know. Was the Pulse shooting in Orlando really about hatred for gay people, for example? Why didn’t the shooter in Texas target just the people he was angry at? And what lay behind attacking a music concert or five years before that, a movie theater in Colorado?

Calling all these different things “evil” prevents us from learning anything. You might as well say, with Flip Wilson, the devil made me do it.

Finally we get to see the gun fantasy of armed bystanders confronting the shooter, which happened in Texas, and how worthless it is even when it happens. The 26 people were already dead. Prevention is the key. You can't prevent evil, but maybe sometimes you can prevent this.


Saturday, November 4, 2017

America is Recovering from President Obama

11/4/2017—Readers of this blog know what a hero Barack Obama is to me. Yet, I read with approval last week’s column by Tribune columnist Jay Ambrose that America needed to recover from Obama and however badly, Donald Trump is helping do exactly that.

Given all the criticisms that Ambrose piles on Trump—“[his] ignorance, his narcissistic juvenilia, his verbal klutziness, his vulgarity and a sea of tweets”—what is it that Trump is helping us recover from?

President Obama governed by Executive order. He did this not just in areas of traditional Presidential discretion, such as deportation policy, but in areas like healthcare where there is no justification for Presidential lawmaking.

An easy way for a country to lose its power of self-government is to permit strongman rule. That is just what President Obama did over and over again.

It is no answer to say that the Republican Congress was unrelenting in its opposition to anything Obama wanted to do. That is true but irrelevant. Such opposition requires a political response—run against the opposition Congress, as President Truman once did.

Some of these actions were justifiable because they really did not involve law—such as the Paris Climate Accord. But many did.

This is why Trump is so easily dismantling the Obama legacy—he who lives by executive action unfortunately dies by it. It is good to be reminded that law, actually legislation, really matters.

Tuesday, October 31, 2017

Is This Collusion?

10/31/2017—It’s certainly appropriate that on Halloween, Democrats finally get an indictment in the Russia probe. For this whole thing has been about ghosts and goblins all along.

I admit I have a political motive in all this. I don’t want Vice President Pence to become President. Trump is easier to get rid of.

But I could live with impeachment and removal if justified. How, however, can he be impeached for things the voters knew when he was elected? The voters get to choose the President.

It was already known that the Trump campaign was willing to use what the Russian government offered. During the campaign, Trump called on the Russian government to release all the emails it had on Hillary Clinton in an effort to damage her. I was appalled by this, but it was done in plain view.

We also already knew that the campaign was willing to meet with persons with ties to the Russian government who promised dirt on Clinton. We found that out in July with regard to Donald Trump Jr.

What all this shows is that the Trump campaign knew that the Russian government was trying to help it and that the campaign was eager to accept that help.

I would be more outraged if I thought Democratic Party operatives would turn down dirt on political opponents and instead contact the FBI. But I don’t have that confidence.

In any event this is not collusion. It is the Russian government deciding it wanted to help Trump beat Clinton. And a political campaign that had no honor. The voters chose it.

I have the same feeling today I had when President Clinton was being hounded. Political enemies want anything they can find to bring down a President. They don’t want to engage him and they don’t want to convince the country to reject him. An independent prosecutor is so much easier than real politics.

In the end, Trump will stay and his supporters will find all this bitterly anti-democratic. Or, worse, Trump will leave office and his supporters will turn even darker than some of them already are.

Democracy is the loser.

Tuesday, October 24, 2017

Ross Douthat Tries to Get the Democrats to Take Back Congress

10/24/2017—Imagine my surprise on Sunday when conservative New York Times columnist Ross Douthat called on the Democratic Party to adopt some kind of winning strategy to save the country. (Democrats in Their Labyrinth)

Maybe even more surprising was the opening paragraph, in which Douthat implied that there was really only one currently workable Party—the Democrats:

“America has two political parties, but only one of them has a reasonably coherent political vision, a leadership that isn’t under the thumb of an erratic reality television star, and a worldview that implies a policy agenda rather than just a litany of grievances.”

But then Douthat got to his main point—the Democrats are not doing what is necessary to win:

“Unfortunately for the Democrats, their vision and leaders and agenda also sometimes leave the impression that they never want to win another tossup Senate seat, and that they would prefer Donald Trump be re-elected if the alternative requires wooing Americans who voted for him.”

I saw Douthat’s complaint at work last week when I received a fundraising call from a candidate in a congressional campaign in the midst of a Primary. The candidate said Democrats should run “true blue” candidates for Congress in a national strategy. I answered that I don’t give money to Districts outside my own in Primaries because I believe the voters in those Districts should decide. (I still believe the decision of the Party to back McGinty over Sestak cost the Democrats a potential win over Toomey). In any event, I said a “pale blue” strategy in some parts of the country would work better in winning seats.

This was Douthat’s argument. Douthat admitted he would like to see the Party move closer to his own social agenda positions on abortion and immigration. (Douthat said that Doug Jones’ support for unlimited abortion on demand could elect Moore, whom Douthat called “a Senate candidate manifestly unfit for office, a bigot hostile to the rule of law and entranced with authoritarianism.”)

But Douthat then said even if the Democrats stay the course on a social agenda, the Party could come to the center on economic issues rather than ride the single-payer healthcare train to oblivion.

More to the point, Douthat complained that the Party was failing to acknowledge any need to do anything to attract the working class voters who supported Trump and bring them back to the Party. He might have added—the country doesn’t need resistance. The country needs to vote these people out of office. But it takes some give by Democrats to accomplish that.

Tuesday, October 17, 2017

A Communal Spiritual Wasteland

10/17/2017—I am in danger of making Gregg Epstein my bete noire instead of the late Justice Scalia. Epstein is the author of Good Without God.

I should not have negative thoughts about him because in a way, we are involved in same project—attempting to bring to birth a vibrant and flourishing non-religious civilization. Since a non-religious civilization is coming one way or the other, this is a crucial project.

But Epstein symbolizes for me the mistakes one makes in going about this effort. Good Without God, as if the major difficulty in doing without God is to keep from killing each other. A far more relevant title would be Trying to Understand Good Without God, because that is the issue. What does it mean to be a good person? Mostly, Epstein just gives us conventionality—but that bakes basic theistic premises in without acknowledging them.

The Peanuts comic strip on Sunday, 10/8/2017, presumably from sometime in the 1960’s or 1970’s, illustrates my point. The setting is the familiar fall scene of Lucy grabbing the football at the last second when Charlie Brown tries to kick it. At the beginning, Charlie Brown cries out, “How Long, O Lord?” Lucy responds that this quote is from the Sixth Chapter of Isaiah and she proceeds to quote the rest of the line. Then, Lucy gives a theological critique of the section, noting the “note of protest” from the prophet who “was unwilling to accept the finality of the Lord’s judgment.”

OK, not every Peanuts episode was like this, but quite a number were. Remember, Peanuts was popular culture. Charles Schulz assumed that he was speaking to regular people. Not scholars. But that meant that the Bible at that time was a kind of common spiritual inheritance in the culture. This means a kind of common spiritual vocabulary.

How can a society be anything but a wasteland without such a common vocabulary? There is more to living a satisfying life than just not committing murder. Without a way of talking about spiritual life, how can anything beautiful happen in the culture?

Large emotional movements will still occur—-witness the populist explosion in the 2016 election--but they will be without reflection. Who can now speak deeply to a united America as a Martin Luther King Jr. could—even those who disliked him understood him.

This is no lament for the common Bible. But Gregg Epstein has not yet seen the problem. Maybe we need to educate each other in all the great spiritual traditions of humanity to create a new and even broader vocabulary of spiritual life. Have you seen any progress on that front?

Thursday, October 12, 2017

Why Lie About the Iranian Deal?

10/12/2017—The Iranian Agreement is only an Executive Branch action, not a treaty. President Obama entered into it. Therefore, as far as I know, President Trump could leave it today. Trump says it is a bad deal. So, why not leave it just as he left the Paris climate change agreement?

What Trump plans to do instead, apparently, is to report to Congress that Iran is not in compliance with the agreement.

By all accounts, that is a lie. Iran is in compliance with the Nuclear Agreement. Iran has ended its program to produce nuclear weapons.

The reason could be to trigger statutory provisions that enable Congress to reimpose sanctions on Iran. But Trump could leave the deal on his own and then ask Congress for additional sanctions. He doesn’t need to lie.

I think he is lying because he does not think the truth will work. If Trump were to say, Iran is complying with the deal but the deal allows Iran to support terrorism and the lack of sanctions gives Iran more resources to do so—which is the basis of claiming it is a bad deal—any sane person would say that without the deal, Iran will do the same things and will also pursue a nuclear bomb. After all, that is what Iran was doing before entering the deal. Most people would see that leaving the deal would only make everything worse. And that is especially obvious now with North Korea’s nuclear program.

So, lying is better public relations.

But this kind of fantasy world, in which people can say anything they want, even if the facts are otherwise, is the sickness that is affecting us. When I said to a friend of mine who voted for Trump but does not like him that Trump was lying, he was not outraged. Essentially he said, they all lie.

In just this way the truth dies.

In a better world, our politicians could not get away with lies. Disagreements would remain—maybe the Iranian deal is a bad one and it is Trump’s call anyway—but there are things we would agree on.

Monday, October 9, 2017

Jewish Witness on the West Bank

10/9/2017--The October 6, 2017 issue of the Jewish Chronicle in Pittsburgh brings an unusually effective critique of Israeli policy on the West Bank in the person of Ivan Frank, a well-known Pittsburgh peace advocate and former Israeli soldier. Ivan, whom I have known for many years from my Dor Hadash days, visited the West Bank with his wife Malke this past summer. The story he tells of the oppression under which ordinary Palestinians live is truly horrifying. You have to wonder both how there can ever be peace considering the hatred such treatment ensures and also what the Israeli goals really are. Judging from the account, the goal would seem to be to make life so impossible for the native population that they somehow leave and Israeli settlers take their place.

In Hebron, the once thriving market area is closed and Palestinians barred from driving. There are 850 illegal Israeli settlers in Hebron guarded by 600 Israeli soldiers. The settlers honor the late Meir Kahane, whose grave is in Hebron, and Baruch Goldstein, who in 1994 murdered 29 Palestinians praying at the cave of the patriarch. Ivan also traveled to the South Hebron Hills and the Negev. He observed that there are no paved roads, except near Israeli settlements. In the Bedouin villages in the area, no permissions for building homes is ever given and the homes that are built are bulldozed. The fields are often burned by settlers seeking more land. The government is seeking to move villagers away from their traditional homes. The Jewish National Fund is building roads to allow expansion of Israeli settlements.

It is a depressing story that few American Jews know. The people Ivan met were not terrorists and wanted only to be free to live on their own land in their own homes. It should also be noted that among the Bedouin being forced out are veterans of the Israeli Defense Force. That makes no difference.

The Jewish Chronicle deserves tremendous credit for allowing Ivan to tell his story. I can only imagine what the response will be from some segments of the Pittsburgh Jewish community. It has been obvious for years that Prime Minister Benjamin Netanyahu either supports an Israeli takeover of the West Bank or is willing to see it happen by slow increments. He certainly is not going to allow a Palestinian State to emerge.

The real failure here is a religious one. Where is the religious witness from the Orthodox community that sees all human beings as brothers and sisters? In seems that in Israel, the more religious you are, the less humane and loving you are to non-Jews.

Sunday, October 1, 2017

Debate on Originalism

10/1/2017--Last week I had the pleasure of exchanges at Duquesne Law School and at Pitt Law School with Rick Duncan of Nebraska Law School--not actually debates. Professor Duncan is both knowledgeable and forthright and I only wish national disagreements could be entertained as fruitfully. Both the students and I learned a great deal about law and religion and originalism. Here are my remarks on the Lutheran Church case and originalism, which I discussed on this blog in July. My thanks to Pitt Law School and the Pitt Federalist Society, as well as the Duquesne Federalist Society for the invitations.
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Trinity Lutheran Church and the End of Originalism
Bruce Ledewitz

In July, I engaged in an extended exchange with Georgetown Law Professor and, it is fair to say, America’s leading originalist, Randy Barnett on this subject of Trinity Lutheran Church and the end of originalism. Suffice it to say, the exchange went Randy’s way. You can look it up.

But, since, as all law students know, it is possible to lose a debate to a more skilled and more intelligent adversary even though you are actually right, I thought I would try again to explain just what a disaster Trinity Lutheran Church is for the doctrine of originalism and why originalism should have to be retooled in light of that case.

Trinity Lutheran Church held that the State of Missouri was required by the Free Exercise Clause to allow a church to participate in a playground resurfacing reimbursement grant program. The constitutional violation consisted in prohibiting the church’s participation in a government benefits program solely because of the church’s religious character.

From the point of view of originalism, what is noteworthy about Chief Justice Roberts’ majority opinion and the concurrences by Justices Thomas and Gorsuch is the unwillingness of any Justice in the majority even to attempt to justify this result by reference to the original public meaning of the Free Exercise Clause or the original public meaning of the 14th Amendment under some theory of due process incorporation.

There is no way to interpret that original public meaning and come to the conclusion that a government’s refusal to provide public funds directly to a church could violate the Free Exercise Clause. Justices Sotomayor and Ginsburg in dissent conclude that providing funds directly a church violates the Establishment Clause. Whether this is so or not—and there is ample historical justification for their conclusion--nothing about the adoption of the Free Exercise Clause could lead to the opposite conclusion that such direct government funding is required. Government funding of churches was highly disfavored among the founding generation. If the interpretive principle of originalism is that the understanding of the framers and the public must determine the content of a constitutional provision, then the decision in Lutheran Trinity Church is just plain wrong.

Some originalists, including Justice Scalia, have suggested that since our constitutional system is based on precedent, even originalist Justices must be permitted to base decisions on clear lines of precedent. But that approach does not justify Trinity Lutheran Church for two reasons: first, the Court’s precedents have actually recognized the constitutional difference between directly funding a religious institution and providing such funds indirectly, as for example through a parental educational voucher system. On the few occasions when such direct funding has been upheld, it has only been with assurances, not present in the Trinity Lutheran Church record, apparently, and certainly not demanded by the Court, that the government funds will not be used for religious purposes. (and the “next” case of using government funds to rebuild a church sanctuary after hurricane Harvey demonstrates the point that the secular playground context is irrelevant).

Nor can the Trinity Lutheran Church decision be justified as an Equal Protection decision in Free Exercise garb. The majority premises the decision on Free Exercise grounds and expressly fails to reach the Equal Protection issue.

It is fair to ask why anyone should care that Trinity Lutheran Church departs from originalist principles. The reason to care is that Justice Gorsuch is widely regarded, and was in fact selected for the Supreme Court, as an originalist. Indeed, the issue at his confirmation hearing was not whether he was committed to that mode of constitutional interpretation, but whether that commitment would prevent the Constitution from adapting to modern life. Justice Gorsuch’s response to that question was that

“The Constitution doesn’t change,” he said. “The world around us changes.”
Judge Gorsuch said that the principles in the Constitution can adapt to the modern world, citing a Supreme Court ruling on GPS tracking devices. “I’m not looking to take us back to quill pens and the horse and buggy,” he said.

But if the Constitution does not change, the framers’ understanding that the Free Exercise Clause does not require direct government payments to a church would have to control. So, one reason that the case discredits originalism is that one of the Justices in the majority had just joined the Court in order to promote the very originalism that the decision in his first big case does not respect.

Yet, Trinity Lutheran Church is far worse for originalism than just not following that mode of interpretation. The main point of originalism, and the reason for what Randy Barnett calls its gravitational pull, is to eliminate, or at least reduce, subjective and political judicial decisions. Originalism is a response to the perception that by the end of the Twentieth Century, America was increasingly governed by the will of five Justices on the Supreme Court. The recent same-sex marriage case, Obergefell, is a perfect example of what originalists are afraid of. The recognition of same sex marriage jettisons a well-established tradition that marriage is an institution between a man and a woman and renders this change because of a claimed modern alteration in the moral/ethical outlook of only a portion of the American people.

That is precisely what the Trinity Lutheran Church case also does. Protecting religious believers was a central theme in President Trump’s campaign. Religious believers formed a significant part of the coalition that elected him. Trinity Lutheran Church can be viewed as a payoff to that demographic in opposition to pretty clear traditional constitutional principles. If originalism is meant to prevent that kind of subjective, political decision, then the case is a direct repudiation of originalist methodology—a repudiation joined by Justice Gorsuch, its most recent and express devotee.

Furthermore, the failure of the originalist community to condemn Trinity Lutheran Church—Randy Barnett certainly did not do so in our exchange—suggests that even the academic community of originalists are not really committed to the methodology as much as they are to certain case results that originalism usually leads to. They also are willing to pay off religious believers for political benefits.

Ironically, what the Lutheran Trinity Church decision actually illustrates is the utility, even necessity, of the Living Constitution approach to interpretation. For, despite my methodological criticisms, I consider the decision a wise and fair one, just one that contradicts originalism.

While the original public meaning of the free exercise of religion did not include the idea of government directly funding a church, government spending in the late 18th century did not occupy the same role in American life that it does today. For better or worse, we have decided that much of civil society’s activities will be funded by government spending. In our world, lack of access to government funds is a serious handicap to any activity, including religion. So, it is very reasonable today to consider a governmental exclusion from public benefits to represent an unconstitutional interference with religion. And that would include disaster relief.

But the creation of the Administrative State is not the kind of change in understanding that an originalist can acknowledge as justifying a change in interpretation. It is not akin to the invention of a body heat search device the framers could not have anticipated. The framers knew what taxation and spending are and, unless we conceptualize framers who have lived through the changes of modern life, we must say they would have disagreed with the Trinity Lutheran Church result in conception.

The change in the role of government I am referring to is more like the change in scale of violence that might justify very strict gun control laws, or the decline in societal belief in an afterlife that might render the death penalty a cruel punishment. But no self-proclaimed originalist would acknowledge changes like those affecting interpretation of the second amendment or the eighth amendment—and rightly so. For to so acknowledge would obliterate the distinction between originalism and the living constitution approach altogether.

Unexpectedly, considering who made up the majority, the Trinity Lutheran Church decision thus actually demonstrates the superiority of the living constitution method. What we want to know is whether an action by government actually interferes with the free exercise of religion. That interference is what the framers of the Free Exercise Clause wanted later generations to prohibit. If we become convinced that the framers were mistaken in their understanding of what would interfere with the exercise of religion, then we have to depart from their understanding. In other words, only the living constitution approach is faithful to the framers.

I believe that this criticism is a fair, and even theoretically persuasive, one. But, as Hilary Putnam once observed of his criticisms of logical positivism, it will not affect the vitality of originalism in the slightest. There are two reasons for this.

First, there is no principled alternative to originalism today, given our present understanding of reality. The framers were natural law thinkers. For them, the concept of being wrong about a fundamental matter was comprehensible. That is why they could write the Ninth Amendment. There could actually be fundamental rights that might be discovered by a later generation. If so, such a right should be protected by the Constitution. I believe they would consider some of the parental rights decisions to represent exactly such a discovery.

But if rights are not real, if a rights claim can only represent an assertion of human will and power, then the notion of reasoning about rights is an illusion. At that point, there is nothing objective and anything is possible. Original public meaning is at least a starting point that will restrain judges to a certain extent.

I consider this situation to be unsustainable. What we have learned is that the easy invocation of nihilism in a John Hart Ely, in his book Democracy and Distrust, for example, has disastrous consequences for social life. Over time, skepticism is an acid that eats away the rule of law completely. In addition, the work of Hilary Putnam, who spent his life struggling against these forms of positivism, gives us hope that postmodernism is not the last word. I hope we can recover realism about values. We are having a Symposium at Duquesne Law School in November on Resurrecting Truth in American Law and Public Discourse, which will address these issues. But that is for another day.

The second reason for the continued dominance of originalism is not so forthright and honest. There is a strong partisan edge to the current originalist grab for power. You could see it in the shameful treatment of Judge Merrick Garland. You could see it in the nuclear option invoked to confirm Justice Gorsuch. You can see it in the fervent support of President Trump by some leaders who disagree with him fundamentally. They are willing to put up with a lot in order to seize the Supreme Court.

What is behind this partisan push? Fundamentally, it is similar to what was behind the push to seize the Court from the left when it looked like Hillary Clinton was a shoe-in. Mark Tushnet actually put forth a list of proposed decisions.

On the right, the content of the push is not so clear, however. Certainly there is a desire on the right to head off any more attacks on religious liberty. So, the Trinity Lutheran Church decision was very much to be expected.

Beyond that, while overruling Obergefell and Roe might be anticipated by a Supreme Court on which President Trump has replaced Justice Kennedy, I don’t know of any indication that Justice Gorsuch intends to do that. Certainly, he was not put on the Supreme Court with the expectation that he would do that.

What was Justice Gorsch put on the Court to do? What explains the blood lust on the right to take over the Court when the Republican Party already controls the other two branches of the government?

At the risk of sounding like a conspiracy theorist, I believe the purpose of this recent effort is to overturn the Revolution of 1937, in both its Commerce Clause and due process aspects. Justice Thomas has consistently indicated his fundamental disagreement with the thrust of the J&L Steel case and its substantial effect on interstate commerce test. Justice Thomas wants to overturn the New Deal.

While the congressional commerce power was cut back in Lopez and Morrison, the Court in those cases made it clear that the power of Congress to regulate any matters remotely related to economic life was not being disturbed. J&L Steel was accepted even as its extensions were rejected. Now there may be two votes to overturn J&L Steel—Justices Thomas and Gorsuch —and soon there may be more. This is not your Justice Scalia’s judicial conservatism.

The other side of the Revolution of 1937, the due process holding of West Coast Hotel, may be similarly at risk. Randy Barnett has expressed his view that the Lochner Court was not wrong in its understanding of liberty of contract, but erred in following the repudiation of the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House cases. And I imagine Randy will have a say as to who is next nominated to the Supreme Court.

I may of course be mistaken about all this. But if I am right, then many politicians in Congress, including some Republicans, are in for a big surprise. As are the American people, unfortunately. If this judicial revolution is going on, it is going on in stealth.

Since, as the Luther Trinity Church case demonstrates, originalism is not a consistent or coherent method of interpretation, its self-professed devotees should have to defend these changes in constitutional meaning on the merits and not, as they like to pretend, as simply what the Constitution says.

Saturday, September 30, 2017

The Drama of Religious Life

9/30/2017—Today is Yom Kippur, the awesome day of judgment. Millions of Jews all over the world will pray today to be sealed in the Book of Life—they and their loved ones—for the coming year. Who will live and who will die. Who will be happy and who will endure tragedy.

The Unetaneh Tokef prayer says that the severe decree can be averted. The following is from the site, My Jewish Learning:

The prayer of Unetaneh Tokef is climaxed by the culminating verse, which the congregation proclaims as one: “Penitence, prayer, and righteous acts avert the severe decree.”
In some of the older mahzors [holiday prayer books], there appear three other words, above “ , , tzedakah,” [repentance, prayer and righteous acts]in a smaller print: “tzom, kol, mamon“– fasting, voice, money. These represent the means or methods whereby one can practice the three virtues of penitence, prayer, and righteousness. For the ordeal of fasting leads to repentance; the voice is the medium of soul-stirring prayer; and the contribution of money to a worthy cause represents an act of “tzedakah.”

Now, I freely admit that I can no longer live this way. Something in me rebels against this very prayer. Of course human beings in their pride always rebel against God. But I no longer feel that my rejection is unjustified. Nevertheless, that old story is not my reason for raising the matter today, on Yom Kippur.

At the end of the 24 hours—actually a little more—a Jew emerges refreshed and alive. Her soul has actually been cleansed. On a smaller scale, this happens every week after a religious service. This is the drama of religious life. The religious rhythm is one of ordinary life and special occasions. It is a genuinely satisfying way to live. Without it, life is one gray line.

Partly, this rhythm is the result of the pattern of occasions. The secularist can replicate that to an extent. But partly this is the result of contact with ultimate meaning on a regular basis, which can be impossible to experience. The practice by some of substituting politics for religion leads to disastrous results.

The question remains—-how can Hallowed Secularism be lived? I have never answered that question with any conviction. I still don’t know.

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?
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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.
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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.