Wednesday, 8/24/22

Are all the laws but one to go unexecuted, and the Government itself go to pieces …?

On January 6, 2021, from a parking garage under the Capitol Visitor Center, then–Vice President Mike Pence ordered the military to defend the Capitol against a violent insurrection. According to a taped deposition of General Mark Milley, the chairman of the Joint Chiefs of Staff, Pence “issued very explicit, very direct, unambiguous orders” to him and Secretary of Defense Christopher Miller: “Get the military down here. Get the Guard here. Put down this situation.”

…

In ordinary circumstances, Pence’s actions would be unconstitutional. Indeed, a vice president who usurped the president’s constitutional authority, and the Cabinet and military officers who followed his orders, could be committing an impeachable offense. …

…

Jefferson also insisted, the officer who exercises emergency power must justify his actions to “his fellow citizens generally.” For Jefferson, “the good officer” must throw “himself on the justice of his country and the rectitude of his motives.”

From his title (Mike Pence Owes the Country an Explanation) and the first paragraph, I easily figured out where George Thomas was headed and why: he wants Pence to say he perceived an emergency if only because Donald Trump was failing to put down the rump insurrection.

What I didn’t expect was that he would bring Jefferson and Lincoln into it and would persuade me of his case — and by inference to repent of my former judgment on Lincoln for his ultra vires acts.

Yup, the world is messy sometimes. This once was one of my favorite quotes, in part because it challenged my purity fetish:

Purity … is not the one thing needful; and it is better that a life should contract many a dirt-mark, than forfeit usefulness in its efforts to remain unspotted.

William James, Varieties of Religious Experience Lectures 14 and 15, via here.

Sorting out a jumble

[W]e have no ideal path forward. We’re damned if Attorney General Merrick Garland goes forward with a Trump prosecution and damned if Garland holds off. But the latter path should nonetheless be treated as a viable Plan B because it permits the Democrats to continue beating Trump in the political arena by the widest possible margin. That involves all kinds of risks as well, but it’s less risky than the legal option.

Damon Linker, summarizing the case against prosecution that he’s been trying to make.

To use the full powers of federal law enforcement during a Democratic administration to indict, try, convict, and punish this man would drive large numbers of Republicans even further into Trump’s arms …
The goal should be his political defeat—turning him into a loser in the court of public opinion—not using an extra-political workaround to try and exile him from political competition. If you think making Hitler and Chamberlain analogies clarifies these issues, good for you. I think it’s pretty idiotic.
For the sake of argument, I’ve been happy to concede the point and assume Trump is guilty of … something. But is it true? [] After reading a highly illuminating exchange between widely respected legal scholar Jack Goldsmith and journalist Josh Marshall, I’m honestly not sure.
Could it be that all of the sound and fury I’ve seen online from the left about the imperative of punishing Trump’s self-evident criminality is based on nothing more than a feeling, a conviction, a moral certainty that he simply must be guilty of something? If so, that would be a further sign that loathing for the former president is a fundamentally political impulse, not a legal one.

Maybe I’ll take a position on “prosecute or nolle prosequi” when someone convincingly shows that Trump committed an actual crime, and that prosecution will be a slam-dunk. Considering the proportion of Trumpists in the land, I’m not sure you’ll ever impanel a jury without one or with one that will vote to convict.

Why colleges are failing

The present model of colleges and universities is failing, for in the first place they have forgotten or even turned against their original mission; in the second, they have picked up a whole lot of unrelated sidelines, none of which they do very well, such as universal job certification; and in the third, the public is beginning to catch on that they cost far too much, and that other institutions can usually do each of these sidelines better. Barring root and branch reform – for which we must never give up hope — it’s entirely possible that in the not-so-distant future, serious humanities teaching will have to migrate to other settings than colleges and universities.

J Budziszewski

Detritus

In a nutshell

Democracy disconnected from liberalism will not protect diversity, because majorities will use their power to repress minorities.

Francis Fukuyama, Liberalism and Its Discontents

Be careful what you ask for …

History is a prankster. You order a Gray Champion, and cosmic room service sends up a casino developer and New York real estate mogul with a laughable hairdo…

James Howard Kunstler, Living in the Long Emergency

How low can we go?

Hillary Clinton versus Donald Trump seemed like some kind of nadir, but the Florida panhandle is showing that we can go even lower: Matt Gaetz versus Rebekah Jones

Institutions trumping instinct

But it is in fact individualism and not sociability that developed over the course of human history. That individualism seems today like a solid core of our economic and political behavior is only because we have developed institutions that override our more naturally communal instincts.

Francis Fukuyama, The Origins of Political Order

One thing leads to another …

I was good at menial jobs like parking cars but went into radio because it was Minnesota and vacuum tubes give off heat. It was public radio where all the announcers sound like Methodist ministers except not as friendly and there is no Jesus, and I distinguished myself by telling jokes and stem-winding stories about a small town. People liked it; go figure.

Garrison Keillor

American exceptionalism plus

It’s American exceptionalism but goes beyond that. It says that we are the next version of Israel from the Old Testament, that we are God’s chosen nation, and that is a special covenant — a two-way agreement with God. We can’t break it, and if we do, what happened to Israel will happen to us: We will be overrun by whatever the next Babylon is, taken into captivity, and He will remove His blessing from us.

Zack Stanton, It’s Time to Talk About Violent Christian Extremism – POLITICO

Maybe a bit harsh

I would rather have gonorrhea than a record of passionate and convinced #MAGA tweeting.

Graeme Wood, What to Do With Trumpists – The Atlantic.

Maybe a bit harsh, but then it’s dated 1/19/21, the day before Joe Biden officially became President despite Trump’s lawless efforts to retain the Presidency.

[S]ubordinating truth to politics is a game which tyrants and bullies always win.

Jonathan Rauch, The Constitution of Knowledge

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Clippings and comment, 1/22/19 pm

1

David Brooks:

[I]n the age of social media [polarization is] almost entirely about social type. It’s about finding and spreading the viral soap operas that are supposed to reveal the dark hearts of those who are in the opposite social type from your own.

It’s about finding images that confirm your negative stereotypes about people you don’t know. It’s about reducing a complex human life into one viral moment and then banishing him to oblivion.

You don’t have to read social theory on this phenomenon; just look at the fracas surrounding the Covington Catholic High School boys.

… [I]t’s important to remember that these days the social media tail wags the mainstream media dog. If you want your story to be well placed and if you want to be professionally rewarded, you have to generate page views — you have to incite social media. The way to do that is to reinforce the prejudices of your readers.

… The crucial thing is that the nation’s culture is now enmeshed in a new technology that we don’t yet know how to control.

…

It’s hard to believe that people are going to continue forever on platforms where they are so cruel to one another. It’s hard to believe that people are going to be content, year after year, to distort their own personalities in service to a platform, making themselves humorless, semi-blind, joyless and grim.

I want Brooks’ story to “be well placed” and Brooks “to be professionally rewarded” for his synthesis of the weekend incident and his framing of the problem it reveals.

2

[T]he vilification of Mrs. Pence makes prophetic Justice Samuel Alito’s prediction in his dissent in Obergefell v. Hodges, the Supreme Court decision throwing out all state laws against same-sex marriage. Justice Alito saw a perilous future for those who still embraced the view Mr. Obama once claimed to hold. “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes,” he wrote, “but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”

In the larger sense the faith-shaming of Mrs. Pence exposes an inversion of tropes. In history and literature, typically it has been the religious side that can’t tolerate the slightest disagreement from its dogma and behaves like outraged 17th-century Salemites when they think they have uncovered a witch.

Now look at the Immanuel Christian School. Those who run it know they and those who think like them are the big losers in America’s culture war. All they ask is to be allowed, within the confines of their community, to uphold 2,000 years of Christian teaching on marriage, sexuality and the human person.

When Obergefell was decided, it was sold as live-and-let-live. But as Justice Alito foresaw, today some sweet mysteries of the universe are more equal than others. In other words, it isn’t enough for the victors to win; the new sense of justice requires that those who still don’t agree must be compelled to violate their deepest beliefs ….

William McGurn

3

A very good point:

But for the sake of arguing let us assume that the boys did just what the initial story alleged them to do. They went and harassed a Native American while that Indian made his protest. What then? Is what they did terrible? Yeah. Should they be punished? Absolutely. Should that punishment be that they are doxed, tarred as a racist, and casted out of respectable society for the rest of their lives? Once again, have you ever been 16? Or to put it another way do you want to be judged for the rest of your live by the worst thing you have ever done?

My point is that even if the initial story was correct this overreaction says a lot about what we have become. Do we really think that we should not forgive them? Criminals who break into our homes can get forgiven, but not 16 year old kids. Assault them? Dox them? Did people actually listen to what they are saying, or read what they are writing, when they decided to dehumanize these boys? Or did it just feel good to have a villain that we can treat like dirt?

[L]et us not let the elephant in the room go unnoticed. The boys made for convenient villains because they were wearing MAGA hats. They also white males who are likely heterosexual and Catholic. For certain groups in our society individuals with such characteristics should not have a place in our public square. Therefore, we are allowed to dehumanize individuals with these characteristics. There is a narrative whereby we should not be concern with “white tears.” After all even if whites are mistreated, it is nothing compared to how they have mistreated, and continue to mistreat, other right? This argument gives some people license to ignore any complaints from white Christian males.

4

While the petition now before us is based solely on the Free Speech Clause of the First Amendment, petitioner still has live claims under the Free Exercise Clause of the First Amendment and Title VII of the Civil Rights Act of 1964 … Petitioner’s decision to rely primarily on his free speech claims as opposed to these alternative claims may be due to certain decisions of this Court.

In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), the Court drastically cut back on the protection provided by the Free Exercise Clause, and in Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977), the Court opined that Title VII’s prohibition of discrimination on the basis of religion does not require an employer to make any accommodation that imposes more than a de minimis burden. In this case, however, we have not been asked to revisit those decisions.

Statement of Justice Alito, joined by Thomas, Gorsuch and Kavanaugh, respecting the denial of certiorari in Kennedy v. Bremerton School District, 586 U.S. ____ (January 22, 2019). Eugene Volokh thinks this signals willingness of these justices to reconsider Employment Div. v. Smith, and

What’s more, Justice Breyer had earlier (in City of Boerne v. Flores (1997)) made clear that he thought Employment Division v. Smith was indeed wrongly decided and should be overruled.

Reading the two first-quoted paragraphs in context, I emphatically agree with Volokh about what they signal. So there may be a majority ready to restore a more robust free exercise clause, which I’ve supported ever since Employment Div. v. Smith emasculated (can one still say that?) free exercise (or at least lowered its testosterone level dramatically).

Unlike either of the stereotypes Volokh describes regarding who favored broad free exercise right in the past versus now, I have always favored them, with little concern for government efficiency (is that an oxymoron?). But I must admit that the people getting the short end of parsimonious free exercise rights these days are more like me (Christian, traditional on sexual behavior and marriage, etc. — see item 2, above) than free exercise claimants used to be, and that would make broadening particularly congenial.

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