Monday, November 25, 2019

Collingwood on Inference: Any Impeachment Relevance?

Not the edition I used for quotes, but the better cover
The following quote from R. G. Collingwood's An Autobiography (1938) comes from his chapter about his archeological fieldwork in Roman Britain. Collingwood promotes and practices a method of question and answer. You must ask a question to receive a fitting answer. In archeology, one works with coins and shards and the like. Historians deal with texts. Collingwood argues that one should not limit one's conclusions to only what the text says (or doesn't say) or what the coin reveals directly. In fact, a text, for instance, may not address an issue at all. For instance, Caesar doesn't state his reasons for invading Britain. So are we hopeless? Collingwood argues that we're not hopelessly stranded; in fact, he provides a mildly mocking parody of such an attitude. He writes: 

People who do not understand historical thinking, but are obsessed by scissors and paste, will say: ‘It is useless to raise the question, because if your only information comes from Caesar, and Caesar has not told you his plans, you cannot ever know what they were.’ These are the people who, if they met you one Saturday afternoon with a fishing-rod, creel, and campstool, walking towards the river, would ask: ‘Going fishing?’ And I suppose that if they were serving on a jury when some one was tried for attempted murder because he had put arsenic in his wife’s tea on Monday, and cyanide of potassium in her coffee on Tuesday, and on Wednesday broke her spectacles with a revolver-bullet, and knocked a piece out of her right ear with another on Thursday, and now pleaded not guilty, they would press for his acquittal because as he never admitted that he meant to murder her there could be no evidence that he did mean to. 
Collingwood, R. G.. An Autobiography . Read Books Ltd.. Kindle Edition. 

To bring a text to life, I like to challenge myself to think of contemporary examples. For example, instead of Caesar, whom we might consider an example today? In place of "attempted murder," and the indicia of attempted murder, might we use "bribery, extortion, or attempting to leverage private gain by sacraficing the national interest"?

I've attempted to be a bit coy in my thinking in hopes of loosening the sticky locks we find on some minds. What Collingwood is arguing is that we make reasonable inferences about intent (purpose) based upon the evidence. Such inferences are vital in the law and play a role in many cases. Rarely, if ever, would a jury not receive instructions from a judge about determining intent based upon inferences constructed from the testimony and exhibits and the "circumstances surrounding the act" (i.e., context). As an example, here is the standard Iowa jury instruction about finding "intent" in a criminal case: 

200.2 Specific Intent - Definition And Proof.
"Specific intent" means not only being aware of doing an act and doing it voluntarily, but in addition, doing it with a specific purpose in mind. Because determining the defendant's specific intent requires you to decide what [he] [she] was thinking when an act was done, it is seldom capable of direct proof. Therefore, you should consider the facts and circumstances surrounding the act to determine the defendant's specific intent. You may, but are not required to, conclude a person intends the natural results of [his] [her] acts. [Emphasis added.]
I make a point of this because many of President Trump's defenders in Congress, having heard the testimony taken in front of the Intelligence Committee and statements made in public (such as admissions by Mulvaney and Guiliani) have nevertheless argued that there is no direct proof, no smoking gun, and other such arguments to prove President Trump's intent to coerce Ukraine to investigate his rival and pursue a theory that pins 2016 election interference on Ukraine instead of Russia. There may be direct evidence in the issue of intent, but because of the refusal of the WH and State Department and various individuals to comply with congressional subpoenas (a form of obstruction of justice, right?), we can't act on that information. So further decisions by the House and probably the Senate will have to make some inferences, and the question will be whether those inferences are reasonable, or instead prove the equivalent of "Going fishing?"

Sunday, November 24, 2019

Better Know the Impeachment Process 11.24.19


The final role of the House of Representatives is to appoint “managers” to present in the Senate the case for conviction and removal on the Articles of Impeachment. The House, in effect, is the prosecuting party at the Senate trial, and the managers are the House’s counsel. 
Black, Charles L., Jr. & Bobbitt, Philip, Impeachment: A Handbook, New Edition (p. 10). Yale University Press. Kindle Edition. 
This is a brief quote but a crucial subject. The appointed representatives of the House (and the text discusses how they may be chosen) make the case for removal from office. At this point, the president has been impeached and the issue is removal from office. In the current impeachment investigation, if the House votes to impeach (which I consider likely), then the managers appointed by the House will act as prosecutors in the Senate trial. I anticipate House Intelligence Committee Chairman Adam Schiff will be one of the appointees. I anticipate his chief counsel, Daniel Goldman will serve in some capacity as well. Both the Chairman and his Counsel have conducted themselves quite well during the hearings and both appear to know their case and the issues quite well (a crucial ingredient of their success). The choice of case managers in the Senate trial will prove one of the crucial tactical decisions in the impeachment process. The case managers will have to attempt to persuade 2/3 of the Senate, which means that they would have to persuade a bunch of Republican senators to abandon the party line. But of greater importance will be the task of proving to the American people the validity of their case. If they do this, they could fail to remove the president by impeachment, but nevertheless prevent his reelection in the fall. 

Saturday, November 23, 2019

Better Know the Impeachment Process 11.22.19



One thing that both the committee and the House leadership will try to avoid is a close vote along party lines—a vote whereby Republicans and Democrats divide as such. An impeachment voted that way would go to the Senate tainted, or at least suspicious, and would be unlikely to satisfy the country, because party motives would be suspected. This desire for bipartisan backing will expectably result in there existing some leverage on the part of the minority members of the committee and of the House—in our times the Republican members. In other words, some compromise will be sought which can win the adherence of at least a fair number of them.
Black, Charles L., Jr. & Bobbitt, Phillip, Impeachment: A Handbook, New Edition (p. 10). Yale University Press. Kindle Edition. 

My, how 1974 seems like a dream to us now, almost idyllic, as Republican Senators, led by Barry Goldwater, went to the White House and told Nixon that he would be removed in an impeachment trial. Nixon resigned two days later. 

Friday, November 22, 2019

Andrew Yang, Collingwood, Technology, Prospero, & the Sorcerer's Apprentice: Random Thoughts & Questions

Micky, the Sorcerer's Apprentice, eases his burden & all seems good 
Just thinking out loud after listening to an interview of Democratic presidential candidate Andrew Yang by Ian Bremmer and then coming upon the quote bellow from R. G. Collingwood.
Consider this quote:
I knew that for sheer ineptitude the Versailles treaty surpassed previous treaties as much as for sheer technical excellence the equipment of twentieth-century armies surpassed those of previous armies. It seemed almost as if man’s power to control ‘Nature’ had been increasing pari passu [with equal step; hand-in-hand] with a decrease in his power to control human affairs.  
R. G. Collingwood, Autobiography (1939)
Regarding the second sentence of the quote, please consider & comment upon the following questions and propositions:
1. Do you agree or disagree with Collingwood's assessment?
2. Collingwood lived during the First World War & the Treaty of Versailles (he worked in the Admiralty during the war), and he wrote this piece on the eve of the outbreak of the Second World War. Do you think if he was writing today, his conclusion would be different? State the grounds that support and that challenge your answer.
3. Has humankind displayed "moral progress" throughout history? Or, as Rousseau contended, have our morals declined from those of "noble savages?"
4. Are you optimistic about the ability of continued technological change to improve the lot of humankind, or do you fear for the future because of the increased powers that it places in human hands? Explain and justify your conclusion.
5. Prospero the magus in Shakespeare's "The Tempest", decided to "abjure" his "magic" (power) and
"break my staff,
Bury it certain fathoms in the earth,
And, deeper than did ever plummet sound,
I’ll drown my book."
Gielgud as Prospero: could we "break our staff" & "drown our book" even if we wanted to? 
Could humankind, or at least a thoughtful majority, simply bury our technological magic or even just the most lethal possibilities that it creates? Or are their constraints that prevent us from taking this action as a species? Provide the grounds for your conclusion.
6. I have referred to technology as a form of magic. Is this an appropriate means by which to describe technology? Is this an appropriate metaphor or analogy, or is the relationship inherent in our understanding of what constitutes magic? State your grounds for agreeing or disagreeing with the designation of technology as magic.
7. The "Sorcerer's Apprentice" (think Micky Mouse in "Fantasia") loses control of his
magical technology (the hands-off floor cleaner). The apprentice loses control of the process because he doesn't know the proper spell to stop it. The run-away process is only brought to a halt when the wizard returns and provides the proper incantation to break the spell. If humankind is Micky, who is the Wizard? God, Nature, Enlightened Humanity? Or is there a Wizard or higher power that can rescue us from any folly that we might perpetrate with our technological magic? And if a "higher power" intervenes, will that higher power act as gently and beneficently as the Wizard does toward Micky, or will the Wizard (for instance, "Nature") respond in an angry, aggrieved manner? Consider and respond to these propositions.
Happily, no one has qualified me as a teacher, and if you've read to the end of this, I"m surprised and I'm more than happy that you've done so. Hell, I'd give you an "A" for simply getting this far. And if it's caused you pause to stop and think a bit, all the better. Enjoy the day.
The Wizard returns, peeved but no punitive. Will we be so lucky?

Monday, November 18, 2019

Better Know the Impeachment Process 11.18.19



The committee to which this task is confided [by the House of Representatives] must hear evidence—great masses of it in a complicated case. At this stage it seems certain that no technical “rules of evidence” apply. (Indeed, I shall argue later that they do not apply even in the Senate trial.) Evidence may come from investigations by committee staff, from grand jury matter made available to the committee, or from any other source. Testimony before the committee, and the production of documents or other objects, may be compelled by subpoena—which is an order for appearance, or production, under the threat of criminal penalty. In addition to evidentiary matters, the committee must also consider whether the acts shown probably to have been committed are “impeachable” within the meaning of the constitutional text (of which much more will be said in Chapter 3). What part is to be played at this stage by lawyers of the person under investigation would seem to rest in the sound discretion of the committee. Where the committee concludes, on the facts and on the law, that one or more impeachable offenses are shown with sufficient clarity to justify trial, the committee reports, to the full House of Representatives, its recommendation that one or more “Articles of Impeachment” be adopted.

Black, Charles L., Jr. & Bobbitt, Phillip, Impeachment: A Handbook, New Edition (2018) (pp. 8-9). Yale University Press. Kindle Edition. 

Despots or Tyrants, Thought & Action; Laziness or Sanity

Contains my subject essay


Perhaps it’s a sign of advancing age, or perhaps it’s merely the continuation of a nearly life-long infatuation, but certain persons and events of the 1930s fascinate me. 

As a Baby Boomer, I became aware of the Second World War, and to a lesser extent the First World War, while in early grade school. Perhaps this exposure along with an innate desire to make sense of events and persons--at least their chronology--that I imagine first spurred my fascination with history in general. But as I grew older and more sophisticated in my historical understanding (even to a modest degree), the war as war--as a military struggle--held less interest for me than the events that led up to the war, the political decisions, cultural trends, and ideas that led to the great conflagrations of the twentieth century, the First and Second World Wars. How could (presumably) rational people get into such horrific situations? What accounts for all of this folly? Who can make sense of it? 

In addition to a fascination with the players and events leading up to the Second World War, I also find myself drawn to thinkers who wrote between the wars. A few of them have resonated deeply with me. Max Weber’s “Politics as a Vocation,” was written in 1919, at the close of the First World War (the installment of the Long War that ran hot and cold between 1914 and 1989). This essay became one touchstone of my thinking about politics. Among other topics, Weber wrote about the “ethic of moral conviction” and the “ethic of responsibility,” a fundamental and sometimes tragic contrast between two ways of approaching political decisions. One of Reinhold Niebuhr’s works from the 1930s, Moral Man and Immoral Society (1932) sets forth an Augustinian (Christian) political realism for the twentieth century by looking at the trends afoot in the world around him in the early 1930s. Niebuhr was at once a Christian and a hard-headed realist. Another compelling source from this era, although she didn’t publish her major works until after the war, is Hannah Arendt. Her earliest published book is The Origins of Totalitarianism (1950) and was written and published after the war. But its inception is grounded in the time leading up to the war. And my most recent “discovery,” R.G. Collingwood, the Oxford philosopher, published significant reflections on political and cultural developments in the waning years of his life (d. 1943). He increasingly turned his attention to political developments in the 1930s while continuing his formidable (non-political) philosophical writing. I've already posted extensively about another Collingwood essay from this period, "Man Goes Mad" (1936). (Part 1-13 of quotes with commentary).

It is to Collingwood again to whom I want to turn, to share his brief but suggestive essay about politics that he wrote sometime around 1941. Returning to my opening theme, Collingwood’s words are rooted in this pre-war and early war era, although, as he often does, he draws heavily upon Plato and the Greek tradition. But the most salient points of the quotes below drew my attention because these words strike me as eerily prescient as I write this in 2019. My nation and much of the world have rekindled a romance with the worst sort of leaders and politics. I believe we can all learn from reflecting on Collingwood’s essay. 

The essay I’m referring to is entitled “The Three Laws of Politics,” and it’s included in Essays in Political Philosophy by R.G. Collingwood, Edited with an Introduction by David Boucher (Clarendon Press, Oxford 2004), 207-223. Collingwood drafted the essay as his Hobhouse Lecture to the London School of Economics. Collingwood, because of his declining health, was unable to deliver the lecture in person. In addition, he adopted the lecture from the larger project he was working upon at the time, The New Leviathan (1943), the final book that he completed before his death in January 1943. (Chapter 25 of the New Leviathan is entitled “The Three Laws of Politics,” but it isn’t as comprehensive or persuasively written as the Essay.) Below is an extended set of quotations from near the end of the essay that struck me. After the quotes, I offer my reflections on Collingwood’s argument. 

Collingwood’s Words

Sec. 4 The Third Law of Politics
Whatever qualities are thus exhibited [by the ruler] in the course of ruling are exhibited as models for imitation. The ruler as pathfinder is the ruler as setter of examples.. . . . I think that nobody will deny that the position occupied by a ruler is such that the characteristics displayed by him in the course of his activity of ruling will in fact tend to be imitated by those over whom he rules; that the tendency will be stronger in proportion as the bond between ruler and subject is closer; and that the fact of this imitation, which in any case will to some extent occur even unconsciously, will be replaced in proportion as the ruler becomes master of his trade by his deliberately offering examples intended to be worth following. 
 

Sec. 7. The Third Law, continued. . . . 
What I suggest is that, whether or no this is recognized by the accepted or Greek theory of human intelligence, there are two kinds of unintelligence in the world, and these have different functions. There is what may be called negative unintelligence, which is the thing of which Plato says that its proper object is nothing at all; a person in this frame of mind, trying to grab something, grabs nothing; he comes away from all mental effort empty-handed. The other kind of unintelligence is a creative unintelligence, creative of chimeras and nightmares; unintelligence of this kind creates these things more profusely according to its own fecundity; this fecundity being a positive power in so far as it creates, but a mere absence of power in so far as what it creates is nothing at all. The world is in no sense the richer for all its creative efforts. And in this sense it is all one whether you talk about this positive unintelligence or that other negative unintelligence which I mentioned first; in either case there is nothing. 
The question with which we are dealing is this: how can a man, without being intelligent, acquire that mastery over men which the Greek theory of life ascribes to intelligence?
. . . . 
The answer is that there are two ways of being a fool: you may be foolish to stupidity, so that your mental hands grasp nothing of what they try to grasp; or you may be foolish to craziness, so that your mind creates illusions or hallucinations about the things of which you are trying to think. These two kinds of foolishness occur in practice much confused together. The stupid fool, in politics as elsewhere, creates nothing;  the crazy fool creates much although this much, being crazy, comes to nothing. 

But in the meantime, not having been weighed, the crazy fool presents us with the aspect of being a formidable producer. This is in general terms the explanation of things like Nero, of which Tacitus and the whole of Roman history had not a word to give by way of explanation. Small blame to Tacitus; even the greatest brain of Greece had not gone deeply enough into the theory of error to offer him the blueprint of a solution. Plato had an inkling of the truth; but not more than an inkling; Aristotle had not even that. 

The crazy type of fool can pretend to be wise the fertility of his diseased mind gives him an initiative, futile it is true, over his fellow men. He has just as much initiative as a man who is really intelligent; in one sense even more, for he has less to fear. The intelligent man offers himself to an equal wrestling bout of minds; he stands up to all comers, and faces criticism; he does not know from what side criticism is going to come, or that will not prove him to have made a mistake. The crazy type of fool with his psychological hold over his audience will easily convict him of being a fraud which, strange though it may appear, is rather a feather in his cap than a thing to be ashamed of. [Collingwood’s note: “A thing I noticed in Italy in 1939.]. . . . 
 
Sec. 8 The Platonic Tyrant
Plato, in the ninth book of the Republic, has given his readers and memorable description of what he calls a tyrant. By a  tyrant he does not mean what we call a despot, or ruler who rules for personal motives and with considerable display of cruelty, arrogance, and other qualities valuable to him chiefly in their enhancement of his personality. The despot, with all this emphasis on his personality, may have something to emphasize; the laws which he administers with cruelty may be wise and justly administered. There may be a barbaric swagger about him, but it may serve to lend eclat [French: glow] to a genuine political performance.  

The tyrant, on the other hand, puts up no political performance. He is merely so much jetsam, floating on the surface of the waves he pretends to control. His qualities, according to Plato’s scale of values, are not the qualities of a free man, let alone those which would enable him to be the ruler of free men, but the qualities of a slave. He is not the sort of man who can triumph over his own weaknesses; more like the sort of man who would yield to them on every occasion; his progress through the world is a rake's progress supported by burglary, pocket-picking, and other low forms of predatory activity, preparing the way, says Plato, for higher forms of thieving such as robbing temples; or, as we should say, confiscating deposits in banks. His rise to the position of tyrant is consequent on a class movement; it is concurrent with the rise of the lowest social class in the city to the position of gangsters patronized by himself; it is not his own strength or energy that lifts him to a position of tyrant but, so to speak, his low specific gravity. It is in his capacity as so much jetsam that he rides effortless over the waves of politics.

. . . .Sec. 9 The Reversed Action of the Third Law of Politics
The disease works by what I call a reversed action of the Third Law of Politics. Like every other political law, this one does not enforce itself automatically; men must take trouble to obey it. Its direct action begins with a body politic composed of what we call sane men; the result is that they accept the leadership of sane. Where, you may ask, does all this labour go to, all this running to keep in the same place? The answer is: it is the work done by the community in keeping itself sane. It is much easier for any kind of man known to me to doze off into daydreams which are the first and most seemingly innocent stage of craziness. If labour-saving  is what do you want, give up all this trouble about thinking: go mad and have done with it. That is what the tyrant has to offer mankind--an end to the intolerable weariness of sanity. 

The reversed action of the Third Law of Politics is precisely this cessation, on the part of the body politic, of the effort after sanity. The engine has slipped into reverse; and the whole thing, with delicious absence of exertion, is sliding downhill. It is much easier to speak and act and write crazily than to do it intelligently; you just let yourself go, and there you are. This is the first phase of the reverse action. The next phase is the resulting ‘democracy’ (as Plato and Hitler, strangely united for once, agree in calling it) creates leaders for itself, leaders from its own members, leaders of fashion in the temporary freaks of craziness, under whose tyranny the whole body politics lets itself go completely more than ever; for to shout with the mob (that is to obey the tyrant of the moment) is the easiest thing anybody can do. . . . . 
Our relation to the future is not that the future, while it is still future, is to be foreknown by us; the future can be known only when it has become the present; but that it has to be made by us, by the strength of our hands and the stoutness of our hearts. (223) 

Commentary


About whom may Collingwood have been writing? As one can discern from this essay and his other writings, Collingwood was a true classicist and a student of modern history as well (and, as he is best known, one of the foremost voices in the philosophy of history). But Collingwood addresses the political crisis at the time that he writes, so it’s no surprise that Hitler and “Italy” (Mussolini) received specific mention. But as I want to address the political crisis of my time. I could identify a growing number of figures on the current world stage that might fit Plato’s definition of a “tyrant” or that of a despot. But there is one figure who fills my mind because he’s the president of my nation, and he embodies the characteristics of a despot and a tyrant as described by Collingwood. In fact, the first order of consideration is whether we best describe Trump as a “despot” or a "tyrant". 

Collingwood distinguishes Plato’s “tyrant” from “what we call a despot.” Let me repeat Collingwood’s description of a “despot” as one who

rules for personal motives and with considerable display of cruelty, arrogance, and other qualities valuable to him chiefly in their enhancement of his personality. The despot, with all this emphasis on his personality, may have something to emphasize; the laws which he administers with cruelty may be wise and justly administered. There may be a barbaric swagger about him, but it may serve to lend eclat [French: glow] to a genuine political performance.

The application of this description doesn’t demand a subtle analysis. Trump entered the fray with little hope of winning the nomination, let alone the presidency. Given his history of attempting to buy and curry favor with candidates and officials from both parties, and his lack of any policy analysis or sophistication, to contend that his candidacy and presidency are foremost a vanity project is more than justified. To the extent he has carved out a policy legacy, it’s been in the area of immigration, judicial appointments, and tax cuts for the wealthy. As to immigration and migrants, Trump has promoted gratuitous cruelty within a context of what might otherwise be lawful (even if controversial) processes. But everything that is done within his administration that he can control is done with an overweening emphasis on his “personality.” And to contend that there is a “barbaric swagger” that Trump practices also seems beyond the need for proof here. To suggest that this adds a “glow” to his “political performance” provides an interesting turn of phrase to describe his sense of showmanship cultivated by his apprenticeship in the world of professional wrestling, beauty pageants, and “reality'' TV. But a glow--or radioactivity--he does have. Trump has certainly cultivated a cult of personality, which, combined with a well-earned reputation for intimidating, threatening, or smearing any critic or potential rival, makes him a unique figure in the history of the American presidency. So I’m inclined to say that he’s a “despot,” albeit one checked--at least to some degree so far--by the institutions and norms established by the Founders to check such figures and heretofore honored in the American republic. 

But doesn’t Trump fit Plato’s definition of a “tyrant” as Collingwood describes it? Let’s review Collingwood’s description before we move on: 

The tyrant . . . puts up no political performance. He is merely so much jetsam, floating on the surface of the waves he pretends to control.

I question Collingwood’s contention that a tyrant “puts on no political performance.” Is this possible? Even the most absolute and compelling tyrants of the twentieth century, Hitler, Stalin, and Mussolini didn’t forego elaborate shows of public pageantry (although I’m less sure of Stalin’s displays). But perhaps this makes them only despots. Perhaps a tyrant can act behind the scenes as a sort of wizard of Oz. I suppose that this may fit dictators in less-developed nations, where military officers and political insiders can climb to the top of the heap and then rule without much in the way of public acknowledgment. And, as Collingwood goes on to suggest, the tyrant doesn’t seriously attempt to manipulate political tides, although this contention, like the one about no political performance, seems counter-intuitive, at least if judged on an absolute scale. Even the most powerful dictator depends on some fellow elites, even if only a Praetorian Guard, to maintain office and life itself.  

But once we move beyond this element in the making of a tyrant, we see something that certainly rings true of Trump. 

His qualities, according to Plato’s scale of values, are not the qualities of a free man, let alone those which would enable him to be the ruler of free men, but the qualities of a slave. He is not the sort of man who can triumph over his own weaknesses; more like the sort of man who would yield to them on every occasion[.]

In this part of the description, the person who is a slave to one’s desires isn’t a “free man,” but is truly a slave. Given the outsized appetites that Trump exhibits, for sexual conquest, publicity, security, fealty, and food, he fits perfectly for this part of the description of a tyrant. Trump is a poster boy for uncontrolled desires, an embodied antithesis of the classical model. All humans suffer weaknesses, but most of us try to minimize or hide these weaknesses. Trump bares himself to the public, perhaps ingratiating himself to those who believe themselves overcome with such otherwise shameful failures. His very slavishness becomes a part of his public spectacle. 

The complement of the tyrant’s slavishness is the tyrant’s grasp for easy money. Collingwood describes the trait:

[H]is progress through the world is a rake's progress supported by burglary, pocket-picking, and other low forms of predatory activity, preparing the way, says Plato, for higher forms of thieving such as robbing temples; or, as we should say, confiscating deposits in banks.

Trump’s money-making ventures have been marked by bankruptcy, fraud, stiffing contractors, tax fraud, and most recently, stealing money from a charity that he controlled. The degree of continuing and unabated unscrupulousness of this man beggars belief. No one comparable had become a contender--and certainly not president--before his arrival on the political stage in 2015. Of course, Trump would not take money directly from the U.S. treasury because that would alienate the plutocratic elite upon which Trump (in part) depends, all of his faux-populism notwithstanding.  

Now Collingwood turns briefly to the political support that brings the tyrant to power: 

His rise to the position of tyrant is consequent on a class movement; it is concurrent with the rise of the lowest social class in the city to the position of gangsters patronized by himself; it is not his own strength or energy that lifts him to a position of tyrant but, so to speak, his low specific gravity. It is in his capacity as so much jetsam that he rides effortless over the waves of politics.

Trump certainly rose to power on a “class movement,” although Americans don’t like to think of “class.” And most Americans hold a suspicion of “movements” although popular movements play a huge role in American history (abolitionism, prohibition, women’s suffrage, union organizing, civil rights, gay rights--to name only a few). And while today America we have some of the most significant disparities of income and wealth in our history, the identity of the “class” that brought Trump to power cannot be delineated solely based on income, wealth, or job status. Geography (rural-small town vs. urban-suburban) and educational attainment (scaled from high school or less on up to the doctoral level) must be added to more traditional identities such as age, race, and traditional party loyalties when attempting to understand the current wide rift among American voters. These factors, in addition to the mix of motives and reasons held by each individual voter, provide most of the explanation for the success of Trump. His win (in the Electoral College) doesn't stem from his talents as a politician. (Scott Adams’s “master persuader” argument notwithstanding). In short, as Collingwood and Plato suggest, a tyrant is more a symptom than the disease, and so it is with Trump. Demagogues, would-be tyrants and despots, only flourish in a receptive climate, one where otherwise cautious voters with an innate tolerance for the status quo become willing to take exceptional risks in choosing leaders and office-holders. When conditions become bad enough on a relative scale, that is, a scale based on perceptions of social, political, or economic inequities (and not absolute deprivations), social upheaval becomes a reality wave that can carry someone like Trump into office (with help from a non-democratic electoral college). 

As you read near the beginning of his essay, Collingwood addressed what I will label the twin evils of “unintelligence” delineated as “negative unintelligence” (inability to grasp an idea; some measure of dumb) and “creative unintelligence,” which is the ability to spin-out ideas that have no foundation in reality. It is this latter description (creative unintelligence) that I want to explore more fully, for it seems the defining species of “unintelligence” in our time. To paraphrase the Gospels of Mark and Mathew, the mentally poor will be with us always; to wit, those who don’t have the time or capacity to think deeply about public affairs. Democracies will always need to contend with this shortcoming and seek to alleviate it as best they can. But those who spin fantasies, or who purvey what Princeton philosopher Harry Frankfurt has labeled “bullshit,” are those today who pose the greatest risk to democracy and sound policy. “Fake news” is a concept bandied about today as a weapon, but it’s just a successor to “disinformation campaign,” “dirty tricks,” and propaganda from days of yore. Yet, there is one problem with this “creative unintelligence”  designation that I don’t think that Collingwood addresses; that is, what if it’s an intentional form of thought and action. In other words, some may be misguided, but others are the (intentionally) misleading. 

My thoughts, I must admit, are prompted by watching members of Congress attempting to defend President Trump in regard to his actions concerning Ukraine and the resulting impeachment investigation. I venture into these thoughts (and this entire essay of mine)  with the knowledge that I’m biased against Trump, and for a long time. I see almost everything about him and his administration as confirmation of my earliest perceptions of his as a potential president. (Here, and yes, Plato gets in on it at the beginning.) So I’m at high risk for a bad case of confirmation bias. And with over four decades in the law, I know that sometimes you have to defend a position that doesn’t provide any attractive explanations and that tests the limits of creativity and reasonableness in attempting to defend a client. However, notwithstanding popular perceptions, most lawyers--myself included--follow the rules and don’t suborn perjury or make arguments that we cannot make in good faith. Everybody (should) have limits when arguing on behalf of a client. (Some don’t, and they are rightly prosecuted; e.g., Michael Cohen.) But with these warnings stated, I’m prepared to move forward.

Are Republicans deluding themselves that they have reasonable, colorable (under the law) arguments? As to the ultimate issue, as to whether impeachment is warranted, even if all the facts are as they seem to be that Trump attempted to shake down the Ukrainian government for an unjustified investigation to implicate his chief political rival (at present), I suppose one can make the argument (demur) that this does not merit impeachment. But as to a true subject of Trump’s requested “investigation” of the Bidens or Ukrainian involvement in the theft of Clinton or DNC emails, I can find no substantive basis. I can find no substantive grounds for the bullshit* defenses offered to date by Republican members of the House. The degree of bad faith, of intentional wrongdoing in the sense of promoting frivolous and misleading argument would, in most courts of law would draw a firm reprimand (or worse) from an impartial judge. In short, “crazy foolishness,” as Collingwood describes it, maybe crazy like a fox. The henhouse and not the truth is the object of the venture. And we should note that while none of this “unintelligence” (intentional or no) is either new or unique, it is no less reprehensible. 

Before we close, we should turn one last time to Collingwood’s discussion of the role of the body politic in promoting and tolerating a tyrant or despot. Collingwood attributes a break-down in political judgment to laziness. “Sanity” is an effort, “daydreams” are a breeze. If we don’t want to make the effort, we can take up the tyrant’s offer: “an end to the intolerable weariness of sanity.” Collingwood anticipates the post-war work of Hannah Arendt when he calls upon us to act to shape our future by thought and speech. 

In the throws of the early days of the war against Nazi Germany and after the fall of France, Collingwood offers his readers, his nation, and those who share the values that he promotes, a different path. Collingwood, the great philosopher of history, calls upon us to eschew Hegalian and Marxist fantasies of “scientific laws” that foretell our future. Instead, he calls upon us to be the actors and not mere props in the play of our future: 

Our relation to the future is not that the future, while it is still future, is to be foreknown by us; the future can be known only when it has become the present; but that it has to be made by us, by the strength of our hands and the stoutness of our hearts.


Saturday, November 16, 2019

Better Know the Impeachment Process 11.16.19



The Senate “tries” all impeachments—it determines, on evidence presented, whether the charge in each Article of Impeachment is true, and whether, if the charge is true, the acts that are proven constitute an impeachable offense. Such an affirmative finding is called a “conviction” on the Article of Impeachment being voted upon. A two-thirds majority of the senators present is necessary for conviction. 

Black, Charles L., Jr. & Bobbitt, Phillip, Impeachment: A Handbook, New Edition (pp. 7-8). Yale University Press. Kindle Edition. 

Thursday, November 14, 2019

Better Know the Impeachment Process 11.14.19

A fundamental guide



Strictly speaking, “impeachment” means “accusation” or “charge.” The House of Representatives has, under the Constitution, the “sole Power of Impeachment”—that is to say, the power to bring charges of the commission of one or more impeachable offenses. These charges are conventionally called “Articles of Impeachment.” The House “impeaches” by simple majority vote of those present.

Black, Charles L., Jr. & Phillip Bobbitt, ImpeachmentA Guide, New Edition. (p. 7). Yale University Press. Kindle Edition. 

Tuesday, November 12, 2019

Better Know the Impeachment Process 11.12.19



[W]e ought to try to take the same stance of principled political neutrality that we hope to see taken by the House and the Senate as they go about their work. This is not easy, particularly as to questions that have no certain answers; it is always tempting to resolve such questions in favor of the immediate political result that is palatable to us, for one never can definitely be proved wrong, and so one is free to allow one’s prejudices to assume the guise of reason. The best way to combat this tendency is to ask ourselves whether we would have answered the same question the same way if it came up with respect to a president toward whom we felt oppositely from the way we feel toward the president threatened with removal. One further point: it is the cardinal principle at least of American constitutional interpretation that the Constitution is to be interpreted so as to be workable and reasonable. . . . Applying it to doubtful questions regarding impeachment, in this book for the laity, I shall give chief emphasis to arguments of a practical cast.

Black, Charles L., Jr. Impeachment: A Handbook, New Edition (p. 5- 6). Yale University Press. Kindle Edition. 



Monday, November 11, 2019

The Better Know the Impeachment Process Post 11.11.19: Black & Bobbitt

The Better Know the Impeachment Process Post 11.11.19

From Phillip Bobbitt's preface to the New Edition about the importance of Black's work:
Allowing Black’s book to gather dust on the library shelves would be far more than simply a loss for the literature on impeachment, which in any case would build on his insights. It would remove a foundation stone from the intellectual edifice that is perhaps the most important advance made in constitutional law during my lifetime: the development of what might be called the “standard model” that enables legislators, citizens, and journalists as well as judges to resolve constitutional questions when there is no authoritative judicial precedent, and to assess judicial opinions when there is a precedent. Black’s tour de force is as important to this development as Weinberg and Salam’s equations are to the Standard Model in physics.

Black, Charles L., Jr. & Bobbitt, Phillip Impeachment A Handbook, New Edition, Yale University Press. Kindle Edition.

Sunday, November 10, 2019

Better Know Your Impeachment Process: Black & Bobbitt, Pt. 1

Better know your impeachment process episode # . . . whatever.

Today I'm going to start sharing quotes from some of the outstanding legal scholars who have addressed the topic of impeachment. I'll start with "Impeachment: A Handbook, New Edition," by Charles Black (1974) & Phillip Bobbitt (2018). The late Charles Black was an outstanding constitutional scholar back when I was in law school. He wrote the original edition of this book in 1974, as Richard Nixon was nearing impeachment (he resigned before he was actually impeached). In 2018, constitutional scholar Phillip Bobbitt (Columbia) updated Black's work, keeping Black's original text intact but updating in light of the Clinton impeachment and other legal developments. I'll regularly share pertinent quotes from this & other works to allow readers to get an overview of the parameters of the impeachment process from some of the best minds who've written on the topic.

The following is a quote from Black's original 1974; thus, the "I" is Black and the president to whom he refers is Richard Nixon:
To countervail (as I hope) my lifelong political set against just about all of this president’s positions, I confess to a very strong sense of the dreadfulness of the step of removal, of the deep wounding such a step must inflict on the country, and thus approach it as one would approach high-risk major surgery, to be resorted to only when the rightness of diagnosis and treatment is sure.
Black, Charles L. Jr.. Impeachment (p. 4). Yale University Press. Kindle Edition.

Black next considers the role of we citizens in this process. Read & consider his words carefully:
This book is for the citizen. What part ought the citizen to play in the process of impeachment and removal? My own answer would be that, for the most part, our attitude as to any impeachment ought to be that of vigilant waiting. The impeachment process, whether “judicial,” “nonjudicial,” “criminal,” or “noncriminal,” resembles the judicial criminal procedure in that it is confided by the Constitution to responsible tribunals—the House of Representatives and the Senate—and in that these bodies are duty-bound to act on their own views of the law and the facts, as free as may be of partisan political motives and pressures. In this process, a snow of telegrams ought to play no part.
Id., p. 5.