Category: constitutional law

First weekend of Spring

Give it back!

Raphael Glucksmann, a member of the European Parliament, feels that America has reneged on the values that led to the statue being gifted. “We’re going to say to the Americans who have chosen to side with the tyrants, to the Americans who fired researchers for demanding scientific freedom: “Give us back the Statue of Liberty,” he said at a convention of his center-left party, Place Publique, Sunday. “We gave it to you as a gift, but apparently you despise it. So it will be just fine here at home,” Glucksmann added.

Daily Beast via The Morning Dispatch

Incel Integralists

The Harvard Law School chapter of the Federalist Society was taken over last week by “Common Good Constitutionalism” disciples of Professor Adrian Vermeule (i.e., wokesters of the Right). The chapter’s former president, Sarah Isgur, has some thoughts about the incel Integralists and their pyrrhic victory:

Freedom is turned on its head. Individual freedom does not exist if it does not enhance the general welfare (again, defined by them). To break it down: Speech that is good is protected. Speech that is bad is not. And the government gets to define what is good.

But they misunderstand Fed Soc’s strength. So let me explain: It came from its size and its diversity of thought. When you shrink it down to only those people who agree with you on outcomes, you have stripped it of its source of power.

The Vikings can be resentful that we didn’t let them into our club. They can even burn down the club. But they still won’t be in the club. They’ll just be standing over its ashes, still sad, and confused, and angry, and without clerkships, and without girlfriends.

History is littered with the stories of young men who are frustrated and can’t get chicks. They’re called “Jacobins.”

(A combination of Twitter, and the Advisory Opinions podcast.)

Regrets

Trigger warning: Do not read the following with your mouth full of scrambled eggs or hot coffee. I speak from experience.

In Oedipus Tex, the mathematician-composer P.D.Q. Bach’s 1990 comedic answer to Stravinsky’s tragic oratorio, the titular hero discovers the truth of his situation—that he has married his mother, Billy-Jo Costa, Queen of the Rodeo—and, fulfilling the requirements of tragedy, he takes the rhinestone-covered barrettes out of her hair and gouges out his eyes. At which point the chorus sings:

“And immediately after he’d put out both his eyes, he … kind of wished he hadn’t.”

Everybody has regrets. Nations and their governments do, too. When things are upside down in the state, you end up with Oedipus Rex, Macbeth, or the Trump administration. 

Mahmoud Khalil is a Palestinian activist involved in the Columbia protests who was arrested in a Keystone Kops-level caper launched by Marco Rubio’s incompetent State Department, which proposed to revoke a student visa that Khalil doesn’t have. Khalil is, in fact, the holder of a green card, meaning that he has been given permanent resident status in the United States by the U.S. government. Which is to say, Khalil is in this country as a permanent resident thanks to a decision of the U.S. government, which, after looking back on what it had done, kind of wished it hadn’t.

Kevin D. Williamson

My regret is that I cannot read Kevin D. Williamson or Nick Catoggio more regularly without breaking my promise to myself not to wallow in politics during the Trumposcene, but rather to enjoy the inumerable things that humans can enjoy even under the governance of jackasses or jackboots.

The corrupting effect of corrupt rulers

In Democracy in America, Alexis de Tocqueville, in a section on corruption and the vices of rulers in a democracy, warned:

In a democracy private citizens see a man of their own rank in life who rises from that obscure position in a few years to riches and power; the spectacle excites their surprise and their envy, and they are led to inquire how the person who was yesterday their equal is today their ruler. To attribute his rise to his talents or his virtues is unpleasant, for it is tacitly to acknowledge that they are themselves less virtuous or less talented than he was. They are therefore led, and often rightly, to impute his success mainly to some of his vices; and an odious connection is thus formed between the ideas of turpitude and power, unworthiness and success, utility and dishonor.

Tocqueville’s concern was that if citizens in a democracy saw that unethical and corrupt behavior led to “riches and power,” this would not only normalize such behavior; it would validate and even valorize it. The “odious connection” between immoral behavior and worldly success would be first made by the public, which would then emulate that behavior.

That is the great civic danger posed by Donald Trump, that the habits of his heart become the habits of our hearts; that his code of conduct becomes ours. That we delight in mistreating others almost as much as he does. That vengeance becomes nearly as important to us as it is to him. That dehumanization becomes de rigueur.

Peter Wehner, Trump’s Revenge Campaign

Thumbnail history of the GOP since 2008

David French, reflecting on his (supportive) relationship to the Tea Party movement and cautioning Democrats against trying to reproduce it in the Democrat party:

But it all turned bad, and the reasons it turned bad are directly relevant to Democrats today.

Republicans built a movement around both anger and ideology. My mistake was in believing that the ideology was more important than the anger, but it was the anger that gave the Tea Party its political momentum, and that anger eventually swallowed the ideology. Rage is now the defining characteristic of Trump’s Republican Party.

…

My first interpretation of Tea Party anger was precisely that it was in service of higher values, specifically a return to founding constitutional principles and an embrace of free markets and fiscal responsibility. But that was wrong. The ideology mattered only if it could serve the anger.

Another way of putting it is that Tea Party members embraced constitutional conservatism and libertarianism as a tactic, not as a principle, and the instant that a different, Trumpist ideology emerged — a better vehicle for the party’s raw rage — they welcomed it with open arms.

What’s your hurry?

Could this be the meta-explanation of what the ochre emperor is doing?:

DOGE is in a race with the courts. From the first days of the administration it was all shock and awe. Take an agency everyone knows is a problem, such as USAID, and kill it. Tell employees to go home, put a guard outside and lock the door, cover the agency’s name in gaffer’s tape, have a functionary send an email terminating employment, then disable email accounts. Staffers can’t reach each other, can’t find the reporter’s address—confusion kills the will to resist. Other agencies watch, and it puts the fear of God into them.

It’s all a race to get as much accomplished now as possible. Once something goes to the Supreme Court, there will be clear limits. Until then, maybe months, maybe a year, get it done.

Peggy Noonan. More:

Here I confess my conservative lizard brain likes seeing unhelpful and destructive parts of any organism, very much including government, cut and sometimes obliterated, and for the usual reasons. But the non-lizard parts—those that are analytical, involve experience, and have observed human nature and seen who’s doing the cutting, and at what size and speed—recoil, and see great danger ahead.

Judiciary 101

“The good news here is, we did put 235 judges, progressive judges, judges not under the control of Trump, last year on the bench, and they are ruling against Trump time after time after time,” Senate Minority Leader Chuck Schumer said a few days ago.

You do the judiciary no favors talking like that, Sen. Schumer.

  1. “[C]onservative judges, judges (supposedly) under the control of Trump,” are ruling against him, too — just as they did with his b*llsh*t 2020-21 election challenges.
  2. No federal judge is “under the control” of the President who appointed him or her. That’s kinda the point of life tenure on good behavior.

Miscellany

  • “If you weren’t outraged that the law and due process weren’t followed when Biden let 10+ million people into the country, don’t expect voters to be outraged by accusations Trump isn’t following due process when he deports them,” – Mark Hemingway.
  • “I still can’t get over the power of negative polarization where liberals genuinely convinced themselves that the lab leak was the racist theory of Covid origins, but the ‘it’s just the disgusting hygiene and superstition of Chinese wet market customers’ was the non-racist theory,” – Michael Brendan Dougherty.
  • Colin Wright: “‘Christ Is King’ Is the Woke Right’s ‘Black Lives Matter.’”

All via Andrew Sullivan

Sullivan’s main essay is on how Anthony Fauci intentionally misled us about the origins of Covid.

Why on earth would panicked scientists believe that Covid was probably a lab leak and then write a landmark paper “trying to disprove” it? It’s the essential question. One obvious answer is that Fauci realized that if his beloved gain-of-function research had led to the death of millions in a plague, he might not go down in history as a medical saint.

I have no need of any other hypothesis.

I suffer more from the humiliations inflicted by my country than from those inflicted on her.

Simone Weil, from a letter to Georges Bernanos.

[N]one of the things that I care about most have ever proven susceptible to systematic exposition.

Alan Jacobs, Breaking Bread With the Dead

I don’t do any of the major social media, but I have two sub-domains of the domain you’re currently reading: (a) You can read most of my reflexive stuff, especially political here. (b) I also post some things on the only social medium I frequent, because people there are quirky, pleasant and real.

Trump rants 3/19/25

The stripping away of illusions

President Trump does not seem to notice or care that if you betray people, or jerk them around, they will revile you. Over the last few weeks, the Europeans have gone from shock to bewilderment to revulsion. This period was for them what 9/11 was for us — the stripping away of illusions, the exposure of an existential threat. The Europeans have realized that America, the nation they thought was their friend, is actually a rogue superpower.

In Canada and Mexico you now win popularity by treating America as your foe. Over the next few years, I predict, Trump will cut a deal with China, doing to Taiwan some version of what he has already done to Ukraine — betray the little guy to suck up to the big guy. Nations across Asia will come to the same conclusion the Europeans have already reached: America is a Judas.

This is not just a Trump problem; America’s whole reputation is shot. I don’t care if Abraham Lincoln himself walked into the White House in 2029, no foreign leader can responsibly trust a nation that is perpetually four years away from electing another authoritarian nihilist.

David Brooks

Anti-Constitutional

An anti-constitutional act is one that rejects the basic premises of constitutionalism. It rejects the premise that sovereignty lies with the people, that ours is a government of limited and enumerated powers and that the officers of that government are bound by law.

The new president has, in just the first two months of his second term, performed a number of illegal and unconstitutional acts. But the defining attribute of his administration thus far is its anti-constitutional orientation. Both of its most aggressive and far-reaching efforts — the impoundment of billions of dollars in congressionally authorized spending and the attempt to realize the president’s promise of mass deportation — rest on fundamentally anti-constitutional assertions of executive authority.

…

There is much to say about the administration’s decision to seemingly ignore a court order to halt or reroute deportation flights for these people and return them to United States. For now, let’s focus on the Justice Department’s initial defense of the president’s order, in which government lawyers argued the following: “Beyond the statute, the President’s inherent Article II authority is plainly violated by the district court’s order. As a function of his inherent Article II authority to protect the nation, the President may determine that [Tren de Aragua, a criminal gang] represents a significant risk to the United States … and that its members should be summarily removed from this country as part of that threat.”

In other words, according to the Justice Department, the president of the United States has an “inherent” power to summarily deport any accused member of Tren de Aragua (and presumably, any foreign national accused of membership in any gang) without so much as a hearing. What’s more, under this logic, the president can then direct his administration to send that person, without due process, to prison in a foreign country.

This is a claim of sovereign authority. This is a claim that the president has the power to declare a state of exception around a group of people and expel them from the nation — no questions asked. It is anti-constitutional — a negation of the right to be free, in Locke’s words, of “the inconstant, uncertain, unknown, arbitrary will of another man.”

There is nothing in this vision of presidential power that limits it to foreign nationals. Who is to say, under the logic of the Department of Justice, that the president could not do the same to a citizen?

Jamelle Bouie, Trump Has Gone From Unconstitutional to Anti-Constitutional (shared article).

If Congressional Republicans took their oaths of office seriously, they’d be impeaching Trump and removing him from office. He has already destroyed many of our most important international relationships (see David Brooks, above), and by “destroyed,” I mean that we face a long period of repair even if he were removed this afternoon.

Dems and Damon in the same headspace?

[M]y assumptions and style of analysis bring me back again and again to a feeling of fatalism rooted in the conviction that the time to stop Trump was in November 2016, in the immediate aftermath of the January 6 insurrection (via conviction in his second impeachment trial), or in November 2024. I don’t want to succumb to the feeling that it’s already too late to stop him. It’s just that I’m still trying to figure out how to break out of that cul-de-sac.

Damon Linker

How to create a legal banana republic

To collapse the structure of American justice and replace it with a proper banana republic, each pillar holding it up needs to be weakened.

The president spent most of his first two months in office focused on a single pillar: law enforcement. He purged officials at the Justice Department and FBI and replaced them with clownish toadies like Pam Bondi, Kash Patel, and Dan Bongino. That was a sensible way for an authoritarian to prioritize: Of the institutional players I’ve mentioned, corrupt cops and prosecutors can do the most damage. As long as the DOJ is willing to behave like a secret police force, Donald Trump doesn’t need to send Liz Cheney or Mark Milley to prison to make their lives miserable. Investigations are punishment enough.

His Castro-esque speech on Friday to Justice Department officials reflected his priorities. The president labeled political enemies like former special counsel Jack Smith “scum,” claimed that CNN and MSNBC are behaving “illegally” somehow, babbled about the supposedly rigged 2020 election, and insisted that the January 6 defendants he pardoned were “grossly mistreated.” The speech ended with the song “YMCA,” as you might hear at one of his political rallies.

Watching it felt like watching a dog mark his territory.

Nick Catoggio

Trying not to try

I may not have said this before: Trump’s shock and awe assault on norms, perceived enemies, constitutional limitations and the independence of “independent agencies” are so comprehensive, and so blur together in news coverage, that I couldn’t keep up, and couldn’t cogently predict which actions will ultimately be found unlawful, even if I tried.

And I’m trying not to try.

Oh, I still listen to legal podcasts, and they typically cover some of the cases brewing. If you get an opinion from me on a case, I’ll probably be regurgitating some of them, lightly post-processed.

I don’t feel responsible for Trump. He’s something I’m suffering along with everyone else — and my situation means I’m not personally suffering all that much except anxiety for my living descendants.

I don’t think Trump is the eventuality of true conservatism, though he may be the eventuality of the Moral Majority and other Religious Right activism starting in the 70s. I was never on board with them; I’m even less on board with them since becoming an Orthodox Christian; and I’m pleased to contemplate a knife fight between the New, Improved Religious Right (The New Apostolic Reformation! All you loved about the Moral Majority, but now with added Charismatic flakery!) and the Catholic Integralist “Common Good Constitutionalism.”

(Thoughts prompted by my deciding not to read a Wall Street Journal article on a Federal District court ruling against the demolition of USAID.)

Inflicting trauma

Russell Vought, a graduate of Wheaton College, now describes himself as a “Christian nationalist.” He also says:

“We want the bureaucrats to be traumatically affected,” he said. “When they wake up in the morning, we want them to not want to go to work because they are increasingly viewed as the villains. We want their funding to be shut down so that the EPA can’t do all of the rules against our energy industry because they have no bandwidth financially to do so.

“We want to put them in trauma.”

He may be a nationalist, but he puts his Christianity open to serious question by such hateful intentions. (Mark 8:36.) He’s rather unpopular at Wheaton, too, which is much to its credit.

Free speech lies

The president brags about ‘ending censorship’ while describing negative coverage about him as ‘illegal.’

Jonah Goldberg’s subheadline to his recent The Trump Administration’s Free Speech Hypocrisy. The whole (relatively short) thing is worth reading.

Weaponizing government

War is Peace. Freedom is Slavery. Ignorance is Strength. And Donald Trump is “Ending the Weaponization of Government”

David Post, Paul, Weiss Next on the Chopping Block

I suffer more from the humiliations inflicted by my country than from those inflicted on her.

Simone Weil, from a letter to Georges Bernanos.

[N]one of the things that I care about most have ever proven susceptible to systematic exposition.

Alan Jacobs, Breaking Bread With the Dead

I don’t do any of the major social media, but I have two sub-domains of the domain you’re currently reading: (a) You can read most of my reflexive stuff, especially political here. (b) I also post some things on the only social medium I frequent, because people there are quirky, pleasant and real.