Thoughts on the Law, the Legal Process, Constitutional Interpretation, Rhetoric & Evidence, Originalism, and Dobbs

Some thoughts: 

1. Law is a set of codes & standards of conduct enacted through speech. 

2. To be effective, the law must have legitimacy; to wit, people must recognize the validity of the courts & the state in promulgating & enforcing the laws. Of course, force becomes the final arbiter, but every regime needs to economize on the use of force. 

3. In order for a system of laws to be effective, they must be seen as (in some measure) legitimate, just, & predictable (non-arbitrary). 

4. Courts at all levels write opinions or speak from the bench seeking to justify their decisions (at least in American courts). All of these statements seek to justify a decision, from small claims to the Supreme Court. 

5. Decisions must be justified by reference to the evidence in the case (testimony and non-testimonial exhibits) and application of the law(s) to the particular case; i.e., what is the appropriate law to apply. 

6. Our laws come from acts of the legislature (Congress, state legislatures, city councils, etc.) and from judicial precedent (common law). 

7. Every decision requires an “interpretation” of the law to the circumstances; sometimes it's quite simple because the law (precedent or statute) is quite specific, and sometimes the law is frustratingly vague. But each decision requires an act of interpretation and application of the relevant law. 

8. And while there are some principles & maxims about how to interpret & construct the laws, they are few & not often binding; and this is especially so in matters of constitutional law. 

9. In arguing a legal position, a lawyer or judge is constrained only by the rules of sound rhetoric. The judge or lawyer can call upon precedent, logic, experience, common sense, intuition, or other considerations that the decision-maker (the judge or jury for the lawyer; the parties & the public for a judge) considers legitimate and persuasive. 

10. The consequences of a decision always play a role in the decision-maker's final decision; sometimes those consequences are acknowledged and apparent; sometimes consideration of the consequences is sub-silentio. And consideration of the consequences goes beyond the parties to the lawsuit and considers the public and posterity as well. (E.g., What precedent does this set?) 

11. “Originalism” in constitutional law is an interpretive and rhetorical conceit.  Originalism seeks to fix the meaning and application of a constitutional provision to the meaning and intention claimed to have been held by the original drafters of the provision. In some instances, there is no contention about such a provision; for instance, in order to qualify to serve as president, a person must be at least 35 years of age and born in the U.S. The statement of this provision is precise, concise, and utterly unambiguous. As to “right to bear arms,” “due process of law,” and “cruel and unusual punishment,” to take three familiar examples, the issue becomes more complex. 

12. My preferred argument against an originalist-only interpretation and application of the more ambiguous terms in the Constitution (e.g., “due process” and “cruel and unusual punishment”) is that the Framers—and those who later amended the Constitution—were not so foolish as to believe that their words were not open-ended and therefore would need constant interpretation and application. Would they not have known and even encouraged those coming after them to revise, refine, and further elucidate those concepts? Indeed, would they not consider posterity utterly foolish if posterity did not continue the project of building and refining a constitutional order? The ink was barely dry on the original Constitution before Madison (its primary author) drafted a bill in Congress to amend the document (the Bill of Rights). And Chief Justice John Marshall in the early 1800s went about refining and elucidating the Constitution through Supreme Court decisions. To think that the Framers and their progeny, especially the Reconstruction Congress that drafted and sent to the states the 14th Amendment, wanted us to freeze their concepts in time in an insult to those individuals, an unmerited insult. (The 14th Amendment applies “due process” and “equal protection” provisions to the states.) 

15. In fact, for law in general, and for constitutional jurisprudence in particular, there is no definitive mode or method of interpretation and application of constitutional provisions. The standard is one of persuasiveness within the legal and political community and with the public, as well. (The length of Justice Alito’s majority opinion in Dobbs v. Jackson is indicative of the importance and difficulty of justifying the Court’s decision to overrule Roe and Casey. 

16. Originalism is a fig-leaf that seeks to conceal the pre-determined result position in the case of Dobbs v. Jackson. Overall, originalism is a tool that works to roll back the expansion of constitutionally guaranteed rights established by the Supreme Court in the 20th century. 

Thoughts 29 Dec. 2021

 

The Constitution of Knowledge

Jonathan Rauch

Disconfirmation. The system does all sorts of things, but it is tuned for what Greg Lukianoff and Jonathan Haidt in their 2018 book, The Coddling of the American Mind, call “institutionalized disconfirmation.” Individuals, of course, work hard to confirm their own viewpoints, and try hard to persuade others. But they understand that their claims will and must be challenged; they anticipate those challenges and respond; they subject their scholarship to peer review and replication, their journalism to editing and fact-checking, their legal briefs to adversarial lawyers, their intelligence to red-team review.

The Constitution of Knowledge

Jonathan Rauch

Madison was aware of the general problem, which he knew had sunk democracies of the past. He called it the problem of factions—what today we often call special interests. “By a faction,” he wrote in Federalist No. 10, “I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Ten Lessons for a Post-Pandemic World

Fareed Zakaria

What, then, is the best course for the real experts? To help the public understand how their field works, in particular how science works. Most Americans think of science by its endpoints—a discovery or breakthrough or invention. They look at dazzling pictures of galaxies and read of miracle drugs. But science is really all about the process of learning and discovering, with many failures and disappointments.

Last Best Hope

George Packer

But fundamentally Just America ["progressives;" "social justice warriors;" "anti-racists"] is about race. Everything else is adjunct.

Shutdown

Adam Tooze

Spread across priorities ranging from childcare to the energy transition, that was far too little to effect a transformation of American society or to put the United States on course to climate stabilization. Especially with regard to the energy transition, they appeared to rest on optimistic assumptions about the private investment that would be triggered by modest public stimulus combined with regulatory change. When it came to long-term policy, Bidenomics was a continuation of the public-private, blended finance, Frankenstein policies that had been so typical of the crisis-fighting in 2020.

Thoughts for the Day: Tuesday 14 September 2021

 

From the above book (reviewed here)

[T]o use Marxist language to make a point contrary to Marx, the state, not the private capitalist, was the true expropriator, and increased national and state power was both the end and the means of this expropriation.This is one powerful reason, among many others, why the Marxist solution to the problems of Hobbesian political economy has failed so badly: by appealing to the original agent of expropriation for salvation, it puts the fox in charge of the chickens. Seizure of the means production by the state does not alter the fact of expropriation; rather, it  replaces one class of exploiters, the monopoly capitalis ts and their political lackeys, with a "new class"of appartchiks and commissars, such as the corrupt nomenclatura that ran the former Soviet Union. 111

The free market is therefore an ideological fiction. Not only did the market system have to be created by the government in the first place, but it can continue only to operate with continuous government intervention and support thereafter. However, because of the disproportionate power of corporations, the economic tail wags the political dog. The upshot is the worst of both worlds: a top-heavy and heavy-handed state bureaucracy layered over a distorted and somewhat corrupt market economy. 118

An especially pertinent point:

Ironically, the supposed "conservatives" of American politics, that complain the loudest about many of these changes, especially moral decay, are the most laissez-faire with respect to the economic enterprise and technological innovation that produce them. In return for higher levels of production, we have to pay the price in lost social cohesion and political autonomy, as the values of "efficiency" and "exchange" implicit in achieving greater productivity have invaded the sociopolitical realm. (The supposed "liberals" of American politics are just as deluded as the "conservatives": equally addicted to material progress, they also want to conquer nature with technology; but they foolishly believe that economic production as possible without economic power, that ordinary citizens can call the political and social tune when, in fact, it is economic and technological enterprise that pays the piper. In short, with the collaboration of all parties, the technological servant has become the political master.) 171

 

The Constitution of Knowledge

Jonathan Rauch

“In framing a government which is to be administered by men over men,” [Madison] famously wrote in Federalist No. 51, “the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

William Walker Atkinson Premium 7 Book Collection

WILLIAM WALKER ATKINSON

The word “suggestion” is derived from the Latin word “suggestus,” which has for its base the word “suggero,” meaning: “To carry under.” Its original use was in the sense of a “placing under” or deft insinuation of a thought, idea, or impression, under the observant and watchful care of the attention, and into the “inner consciousness” of the individual.

On Revolution

Hannah Arendt

The social question began to play a revolutionary role only when, in the modern age and not before, men began to doubt that poverty is inherent in the human condition, to doubt that the distinction between the few, who through circumstances or strength or fraud had succeeded in liberating themselves from the shackles of poverty, and the labouring poverty-stricken multitude was inevitable and eternal.

The Ingenuity Gap

Thomas Homer-Dixon

[Homer-Dixon details a] grim list of economic, social, and environmental challenges. But our societies [some argue], especially the rich ones, will generate and deliver enough ingenuity to solve many of them. As for the problems that can’t be solved easily, we will often learn to live with the consequences. Usually this won’t be too difficult, because human beings are very good at adjusting to new conditions. Wealthy countries will build more secure frontiers to keep out poor migrants. Strict quarantine procedures will isolate patients who don’t respond to drugs. We will wear hats to protect us from the sun, modify our crops to survive in eroded soils, and grow fish in huge aquaculture ponds. Some problems, like the loss of biodiversity, won’t have much immediate effect on our quality of life: we will easily and comfortably adjust to a world without jaguars, frogs, gorillas, and many of the species alive today.

To me [Homer-Dixon], though, there is little cause for optimism in these remedies. Nor do I think we have to accept such a future.

The Ingenuity Gap

Thomas Homer-Dixon

And its relentlessly optimistic temperament (what the anthropologist Lionel Tiger has called our “biology of hope”) shortens our time horizons and instills in us a potentially fatal imprudence.

The Price of Peace

Zachary D. Carter

After sketching his ideas about probability, he [Keynes] moved on to suggest that it is more rational for people—and society itself—to pursue small goods with a high probability of attainment than it is to strive for grand utopias with minute probabilities of attainment.

The Landscape of History

John Lewis Gaddis

It’s part of historical consciousness to learn the same thing: that there is no “correct” interpretation of the past, but that the act of interpreting is itself a vicarious enlargement of experience from which you can benefit.

Thoughts for the Day: Friday 3 September 2021

 

Pope Francis. Encyclical on Climate Change and Inequality [Laudato Si] (pp. 37-38). Melville House. Kindle Edition: 

60. Finally, we need to acknowledge that different approaches and lines of thought have emerged regarding this situation and its possible solutions. At one extreme, we find those who doggedly uphold the myth of progress and tell us that ecological problems will solve themselves simply with the application of new technology and without any need for ethical considerations or deep change. At the other extreme are those who view men and women and all their interventions as no more than a threat, jeopardizing the global ecosystem, and consequently the presence of human beings on the planet should be reduced and all forms of intervention prohibited. Viable future scenarios will have to be generated between these extremes, since there is no one path to a solution. This makes a variety of proposals possible, all capable of entering into dialogue with a view to developing comprehensive solutions. (p. 37)

61. On many concrete questions, the Church has no reason to offer a definitive opinion; she knows that honest debate must be encouraged among experts, while respecting divergent views. But we need only take a frank look at the facts to see that our common home is falling into serious disrepair. Hope would have us recognize that there is always a way out, that we can always redirect our steps, that we can always do something to solve our problems. Still, we can see signs that things are now reaching a breaking point, due to the rapid pace of change and degradation; these are evident in large-scale natural disasters as well as social and even financial crises, for the world’s problems cannot be analyzed or explained in isolation. There are regions now at high risk and, aside from all doomsday predictions, the present world system is certainly unsustainable from a number of points of view, for we have stopped thinking about the goals of human activity. “If we scan the regions of our planet, we immediately see that humanity has disappointed God’s expectations.”

And now for some other voices: 

From Requiem for Modern Politics by William Ophuls

The major advances in civilization are processes which all but wrecked the societies in which they occur.

--Alfred North Whitehead (xv)

Of course, all political paradigms contain inherent contradictions and therefore generate problems that must be solved.The job of the statesman, as opposed to the mere politician, is to preserve the paradigm by dealing effectively with these problems. However, if political wisdom and skill are lacking or if the contradictions are very deep, small problems eventually coalesce into a large problemmatique that challenges the old paradigm. At this point, more reform, however well conceived, no longer suffices and may even make matters worse, so pressure builds up for a fundamental change in regime. (26)

The challenge is to find a way of going beyond a moral individualism without losing the individual along the way. (27)

 

Commanding Hope

Thomas Homer-Dixon

These four slow-process stresses— worsening economic inequality and insecurity, mass migrations, climate change, and normative threat— erode our feeling that our situations are safe and fair; such stresses are also seen by many people, even if only subconsciously, as harbingers of devastating social earthquakes to come.

Commanding Hope

Thomas Homer-Dixon

The notion of our common humanity— that all human beings share the same fundamental moral worth— originated in the Axial Age. It was then, in the millennium before the Common Era, says the philosopher Karl Jaspers, that the idea of “the human being as we still conceive of it today made its appearance.”

Conservatism

Edmund Fawcett

“In framing a government which is to be administered by men over men,” Madison wrote (Federalist 51), “the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Conservatism

Edmund Fawcett

The ills of modernity—secularization, loss of moral compass, social conflict, and national rivalry—were set against the premodern virtues of unity, stability, and faith. Nazism was blamed on a fatal metastasis of modernity’s vices: liberalism, Marxism, Nietzschean individualism, and Darwinism.

Men in Dark Times

Hannah Arendt

But cognition, whether in the form of discovery or of logic, is distinct from thinking (as manifest in literature and philosophy) in that it alone is compelling, that it alone can lead to a necessity and a compelling absolute, and that consequently it alone may give rise to a theory of (political or ethical) action which can hope to ascend, as it were, above the unpredictability and unforeseeability of human action.

The Constitution of Knowledge: A Defense of Truth by Jonathan Rauch

 

2021 publication

Prelude: I ended up writing this review over a longer period of time than I normally take. I reviewed my highlights quite thoroughly. Because of this, I can provide you an executive summary of my review if you're pressed for time. You should read this book! Everyone should read this book! It's terrific. It's timely. In the end, my review says this: I enthusiastically endorse what this author has written. He's confirmed many of my beliefs and hunches. And he's sharpened my thinking. He's gotten me excited about fighting the good (informed) fight. Given the nature of Rauch's argument, I should perhaps be more measured in my tone. I could be wrong. But he wouldn't have written this book if he thought its arguments wrong, and I wouldn't praise it if I found Rauch headed down the wrong track. If anyone thinks he (and I) are wrong about his contentions, but all means say so. But first, read the damned book! 

If Oprah or the American Library Association or some such, were to make a book recommendation for a  national civics lesson, The Constitution of Knowledge would be a perfect choice. This book is well researched and moves along quickly with the benefit of a flowing narrative voice that is insightful but not pedantic. Rauch carefully constructs a case for liberal (as in open and learned) institutions. Rauch argues that like the U.S. Constitution, knowledge, as discovered and developed by law, science, journalism, and government, depends upon a constitution, albeit unwritten. This constitution of knowledge governs the discovery and creation of knowledge based on facts. This constitution allows the creation of a measure of reliable truth. Could there be a more important topic for us (around the world) to stop to ponder and appreciate? 

In 2020, former President Barack Obama stated the matter starkly: “If we do not have the capacity to distinguish what’s true from what’s false, then by definition the marketplace of ideas doesn’t work. And by definition our democracy doesn’t work. We are entering into an epistemological crisis.” Loc. 249, Kindle edition.

Rauch opens his book with a consideration of the sorry state of the state of knowledge and truth in public discourse. As Rauch notes--and as anyone paying the least bit of attention knows--the quality (as accuracy and truthfulness) of our public discourse has been in free-fall for a long time. (And it certainly was never all that good.) With the rise of the man from Mar-a-Lago, disinformation, lies, and fantasies received the imprimatur of authority that followers and minions soon aped. In a sense, this assessment of our sorry state is needed. I doubt that anyone reading this book doesn't know all of this already, but to frame what follows Rauch needs to state the obvious and thereby ground his message and his concerns. 

After his opening assessment of our current sorry state of affairs, Rauch begins building his argument by looking a what we might call our native set of dispositions. Drawing upon history and social science, which he quotes and cites without getting lost in academic jargon or excessive detail, Rauch establishes that we humans are given to tribal conformities and limited frames of knowledge that often serve immediate needs and ends but that don't readily facilitate sophisticated ideas about knowledge and society. Primitive humans existed in small groups that operated with limited horizons and limited forms of technology. For instance, agriculture is only ten-to-twelve thousand years old. As agriculture, cities, trade, and conquest developed, more reliable and sophisticated forms of knowledge were required to meet the needs arising from the challenges associated with expanding horizons of activity. But still, humans have this anchor in archaic experiences that we can't shake, including, perhaps most importantly, the need to maintain good relations with our group, our tribe. As social scientist Jonathan Haidt puts it, we humans are "groupish." 

Rauch draws on Plato's Socratic dialogue with Theaetetus to mark the beginning of a careful, patterned tradition of thought about the nature and reliability of knowledge. (Note that Rauch here and in the remainder of his book draws only upon the Western tradition, beginning with Plato. Other civilizations certainly have gone through a similar process but this book isn't a comparative intellectual history, and, for better and for worse, the Western traditions of thinking about science, technology, and industry as well as about how to organize societies have established a dominance throughout the world.) Rauch moves on quickly from Plato to the early modern age and its thinkers who give us liberal politics, market economics, and scientific thinking. Thinkers like Montaigne and Francis Bacon, make appearances, as do later thinkers about the scientific enterprise, such as the founder of American pragmatism, Charles Sanders Pierce, and the Austrian native Karl Popper. Each of these thinkers refines our understanding and appreciation (of the strengths and weaknesses) of the scientific enterprise. But the highest places of honor in Rauch's pantheon go to the triumvirate of John Locke, Adam Smith, and James Madison. Smith for this appreciation of the operation of markets; Locke for his identification and promotion of epistemic virtues (including his defense of tolerance), his emphasis on politically protected liberties, and the idea that government depends upon the consent of the governed; and Madison for his design of a political system that seeks to check the arbitrary use of power and to promote a government based upon a system of checks and balances that weed out distorting interests and faulty claims of knowledge. 

After reviewing the history of these novel institutions for creating knowledge and making decisions, Rauch delves more deeply into the values and principles that make these institutions unique in history. Openness to new ideas, limitations on authority, dedication to the principle of fallibilism (any claim of knowledge could later prove wrong), and the widespread sharing of knowledge mark this new way of generating knowledge. Note, however, that Rauch realizes that these ideals often break down in practice; therefore, the "constitution of knowledge" isn't a machine that would go of itself. It needs a constant commitment from those who constitute the institutions. Also, Rauch emphasizes that these are social organizations (law, science, government, and journalism) and subject to the foibles that he describes at the beginning of the book. Also underpinning these institutions and the liberal order is a shared aversion to coercion. A level of conflict attendant with openness is a hallmark of the liberal order. Disagreements, over physics and well as politics will occur but should be resolved through words, not weapons. 

That we must pay close attention to our institutions for creating knowledge and refining it arises from the attack that this regime, which Rauch has dubbed the "reality-based community,"* has undergone in our time. Of course, forces of authority (from above) and ignorance (from below) have always battered liberal regimes. But current attacks have once again gotten worse (although the mid-twentieth century probably still takes the cake). Rauch delves into these contemporary attacks that eminate from both the political (extreme) right and the political (extreme) left. From the extreme right, we get a flood of information, mostly via social media, that's either false, misleading, or distracting. This involves a "firehose of falsehood" (Rand corporation's term) or as Steve Bannon described his strategy: “The Democrats don’t matter. The real opposition is the media. And the way to deal with them is to flood the zone with shit.” (Location 3061). Princeton philosopher Harry Frankfurt provides another apt description of a method for degrading knowledge in his work On Bullshit (the title says it all, doesn't it?). Needless to say, the examples Rauch provides are legion and start at the top in the U.S. during the last presidential administration. I'd hoped that we'd lanced this boil with the absurdist yet dire attack of January 6, but as that event recedes in the rearview mirror, I fear that the boil remains. 

The attack from the other side comes primarily from the "woke" left, the so-called "progressives," or at least the most radical elements of this group. In this section, Rauch addresses the issue of "cancel culture," which is simply a new name, attendant with social media, for ostracisation as a tool for the coercion of opinions. As Rauch notes, the problem of social coercion to seek to establish opinions to conform to a norm is not new to democratic societies. Both Alexis De Tocqueville in his Democracy in America and John Stuart Mill identify a trend toward conformity of opinion in democratic societies (that were relatively new at the time--if we exclude ancient Athens). The drive for purity and against pluralism seems to be a phenomenon more on the political and cultural left than on the right. When we look at history from the French Revolution to Lenin and Stalin's regime to the reign of Mao and his Cultural Revolution we see a demand for purity and conformity that results in deaths, imprisonments, and disgrace. (Note that the extreme right is not without sin: the right tends to deal with dissent with more dispatch; to wit, with more preemptory violence, skipping show trials and efforts at "re-education.") Nothing in the U.S. has reached these extremes, but it's a gnawing concern. I have to admit that I've tended to brush off concerns of this sort in the past as merely a passing fad among some college students, who are given to excess. (I know; I once was one, and I lived and practiced law in a college towns for over 30 years.) But the level of fear of being called out among students and professors for some imagined transgression has increased greatly. Rauch makes a case that those who are sympathetic to progressive values and goals have to work to separate the gold of liberation from the dross of social coercion. 

Toward the end of the book, Rauch becomes more personal. He counsels an imaginary young college student, whom he dubs "Theaetetus," in honor of Plato's young inquirer in his dialogue of that name. Rauch provides sound counsel to the young inquirer about when to hold 'em and when to fold 'em; when to confront purveyors of falsehoods and those who seek to coerce conformity. Rauch is a gay man now in his early 60s who's experienced life from the closet to Stonewall to the acceptance of gay marriage (about which he published an influential book in 2005). He knows the value of liberation, the disparagement dished out to gay people (now, one hopes, a dwindling occurrence), and he knows the importance of standing one's ground by making rational, coherent arguments for one's cause even in the face of seemingly intractable resistance. It's in this section that Rauch goes beyond impressing me with his skills as a journalist who reports with depth and insight about the fundamentals and history of science and thought and who has a breadth and depth of insights into contemporary events. Here I perceive Rauch as a wise man who can give counsel to those in need based on a depth of knowledge and experience. Fighting the good fight by the rules. 

Now, go back a read my opening paragraph (in italics). What should you do? 

*One slight bit of dissent: Rauch's use of the term "reality-based community" as a short-hand for those who adhere to the principles of the constitution of knowledge. He later notes that one can be a member of the "reality-based community" and, for instance, go to church. Many aspects of life aren't governed by the conventions of the reality-based community, such as personal experience, feelings, spiritual experiences, and so on. A lot of life! The negative pregnant here is that these experiences (personal, non-replicable, private, hidden) aren't real, or at least that they are so subjective as to beyond community recognition. I agree that there exists a reality-based community if we're talking about a certain sphere of knowledge, let's call it "Nature." Thus, I always appreciate Dr. Samuel Johnson's contribution to the reality-based" viewpoint:

After we came out of the church, we stood talking for some time together of Bishop Berkeley's ingenious sophistry to prove the non-existence of matter, and that every thing in the universe is merely ideal. I observed, that though we are satisfied his doctrine is not true, it is impossible to refute it. I never shall forget the alacrity with which Johnson answered, striking his foot with mighty force against a large stone, till he rebounded from it, "I refute it thus."

— James Boswell, The Life of Samuel Johnson 

However, logicians will note the fallacy of Dr. Johnson's response, and that as to non-material issues, we have no such easy recourse. Thus, it might be more accurate for Rauch to say that this is the "basic" or "material" or "scientific" reality-based community. "There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.” And I should also note here that Rauch recognizes the importance and validity of arguments over topics such as which is the better play between Shakespeares's Timon of Athens and his Hamlet. No commentator argues Timon the superior play. This too, I argue, is a "reality-based" assessment. 

 

Thoughts for the Day: Thursday 28 January 2021

 

Impeachment

Cass R. Sunstein

Madison pleaded that it was “indispensable that some provision should be made for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient safeguard.” (There’s a lot there: incapacity, negligence, or perfidy.) He feared that the president “might lose his capacity after his appointment.” Madison was especially concerned that the president “might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.” And if the president were either corrupt or incapacitated, the situation might be “fatal to the republic” unless impeachment were available.

The Price of Peace

Zachary D. Carter

For Keynes, the soft underbelly of the classical theory was Say’s Law, which he summarized as the maxim that “supply creates its own demand.” Postulated by Jean-Baptiste Say, a French contemporary of Adam Smith, it linked together three problems Keynes saw in the classical story: the outdated focus on scarcity, the notion that markets self-correct, and the idea that involuntary unemployment is impossible.

Cf. The quoted reference to von Mises in yesterday's post.

Essays in Understanding, 1930-1954

Hannah Arendt

“Imagine only that these occurrences would become known to the other side and exploited by them. Most likely such propaganda would have no effect only because people who hear and read about it simply would not be ready to believe it.”

A Secret History of Consciousness

Gary Lachman

[Colin] Wilson argues that Pamela and the other novels that emerged in its wake were like a new kind of drug, but one without the horrific side effects of gin. The story kept readers interested—like all good novelists, Richardson instilled that itch to “see what happens.” But aside from the mild titillation of sex, what really attracted Richardson's readers was the sense of having stepped out of the confines of their lives.

Conservatism

Edmund Fawcett

Conservatives took society to be harmonious. They respected power and accepted customary authority. They did not believe in progress or in equality. Respect in their eyes was due not to everyone regardless but to merit and excellence.

Collingwood's the Idea of History

Peter Johnson

Collingwood argues that most theories of knowledge – knowledge as acquisition, description or correspondence – make history impossible because they neglect the work of the imagination in the way the world comes to be known.

A Teachable Moment: A Lesson in Rhetoric, Proof, & Jurisprudence Arising from the Impeachment of Trump, by an Old Lawyer

The Senate trial of Donald John Trump for two articles of impeachment brought by the House of Representatives

Let's use all of the hullabaloos for a "teachable moment." I've taken a quote from a Facebook comment that relates to the current impeachment trial. Let's dissect it and see what we can learn. Here's what the person says:

"[W]ere there a truly constitutionally established impeachable offense committed by a POTUS, the timing should be immaterial. The problem here is that this impeachment is purely politically motivated and at best based on a difference of opinion or views which should be handled in the traditional manner of an election."

I believe that this paragraph is representative of what Trump supporters have been saying for some time now, although it's a bit behind the curve, as I'll discuss later below.

1. "This impeachment is purely politically motivated." First, let's take away the modifier ["purely"] and consider whether his impeachment is "politically motivated." This statement is undoubtedly true. While the law and a Constitution consist of political questions that have been answered at least for the time being and gain the force of law. The force of law means that someone who acts contrary to this decision may be subject to penalties imposed by the state through the judicial process; that is, the scope of any issue is narrowed when we make a political decision that results in a law. But the law can be changed, and if done legitimately, it's done through the political process. This applies to the Constitution as well as zoning or traffic laws. And like ordinary statutes, the Constitution has been subject to changes by courts and the legislative branch (via the amendment process) throughout its history. And how we interpret the Constitution, as we can see around us even today, remains the subject of intense political discussion. The impeachment of Donald Trump involves the power of the presidency, along with many other issues. Some of these issues must be resolved by the courts, but the legislative branch, as an equal branch of the government under the Constitution, also has the responsibility to interpret and apply the Constitution. Under the circumstances of the current impeachment, we see Democrats directing their appeals to the text of the Constitution, legislative precedents about impeachment, and the writings of the Founders--especially Madison and Hamilton--to establish their case for impeachment. Trump supporters (apparently all Republicans) have shown much less concern with precedents and legal procedures. (So much for "conservatism.")

2. Now let's put back in the "purely." To say that the House impeachment is "purely politically motivated" is intended to mean, I assume, that it's been undertaken only to gain partisan advantage in the next election. In other words, the impeachment mimics Trump's desire to coerce Ukraine to investigate the Bidens. The impeachment has no legitimate purpose other than to gain an advantage in the next election. I will stipulate for purposes of argument to the implicit assertion that all of the information gained in the impeachment may (and should) give Democrats an advantage against Trump in the next election. But to agree that impeachment will certainly give Democrats an advantage in the next election isn't (or at least wasn't) a foregone conclusion. Remember that the Republican impeachment of Bill Clinton backfired and cost them dearly in the 1998 election, and it cost Newt Gingerich his speakership. Also, John Bolton might have come forward and offered to exonerate Trump instead of confirming Trump's intention to coerce an investigation of the Bidens. And remember that the Mueller's Report that documented a prima facie (on its face) case of obstruction of justice against Trump went nowhere, contrary to the hopes of most Democrats. So if it was "purely political," it was a hell of a gamble. It could have ended up as a big-nothing sandwich, as did the Benghazi investigations of Hillary Clinton (acknowledging, as one must, that while of no substance, it helped damage her in the eyes of the general public. If evidence, truth, and justification of no consideration, anything goes.)

3. So how do we resolve the "purely?" business? I recommend the thought experiment that I posted on Facebook on 25 January. There, I suggested the following hypothetical oath to be taken (and followed) by all senators before voting on the two articles of impeachment. The text of my hypothetical oath:

"I swear (or affirm) that the decision I make today is the same decision I would make if the president in question would have been Barack Obama, Bill Clinton, or any other Democrat. I have not been moved by partisan favor or any motive other than to uphold and defend the Constitution of the United States of America, so help me God."

This, I maintain, is the standard by which we should judge each senator's final vote. "It's the standard that I want to be applied to all presidents, Democrat, Republican, Socialist, or Libertarian" each vote is saying. And then we the voters must judge their decision with whether it comports with our understanding of the Constitution and the rule of law.

And in some way, this is what each senator is doing because the precedent set by this decision will affect future presidents and senators. If it's okay for Trump, it's okay for the next Democrat president, too. Since Trump's defense has moved from "I didn't do that" to "Anything that I do is okay, including using my power contrary to the law [he did break the law with his action, but it's not a part of the criminal code]. It's lawful if I deem my reelection to be in the national interest--which of course it is!" (An eerie echo of Nixon's claim that "if the president did it, then it's not against the law.") So, yes, even if Trump stays in office (as we knew he likely would), the repercussions of this vote will echo for years to come. In some ways, impeachment law, especially the standard of "High Crimes and misdemeanors" may be usefully compared to the common law of negligence; the definition (of "negligence" or "High Crimes and misdemeanors") is broad and decision-makers (judges, jurors, or the Senate) must apply the concept on a case-by-case basis. Therefore, a precedent flows from each decision, although it doesn't necessarily bind the next decision-making occasion.

4. The assertion that "this impeachment is purely politically motivated," is a form of the ad hominem argument. Now your rhetoric or composition teacher may have taught you that this is a logical fallacy. It is, but then logic is a formal system, not an infallible guide to discerning human behavior. The ad hominem argument seeks to avoid the facts of the case by concentrating on the teller. In the law, we routinely make ad hominem arguments by impeaching (raising doubts about) the credibility of a witness. Indeed, every plaintiff and defendant in a case is biased and at least implicitly subject to impeachment. Each party maintains that his or her position provides a true account of the facts of the case and comports with the standard of law; therefore, judgment should be rendered in the party's favor. Other witnesses, especially expert witnesses, are impeached by asking who's paying them (most experts are paid for their "time"). The expert will claim that his or her opinions are based on sound science and nothing else. The astute cross-examiner will point out the expert testifies almost exclusively for plaintiffs (or defendants). It's then left to the judge or jury to sort out who's credible. So how should the final decision-maker (the judge or jury) sort out conflicting testimony given the often inherent bias of most witnesses who testify?

Here, as an example, is what a judge in a criminal case in Iowa tells a jury about how to address these issues:

100.7 Credibility Of Witnesses.  

Decide the facts from the evidence. Consider the evidence using your observations, common sense and experience. Try to reconcile any conflicts in the evidence; but if you cannot, accept the evidence you find more believable. 

In determining the facts, you may have to decide what testimony you believe. You may believe all, part or none of any witness's testimony. 

Whether the State has met its burden of proof does not depend upon the number of witnesses it has called or upon the number of exhibits it has offered, but instead upon the nature and quality of the evidence presented. 

There are many factors which you may consider in deciding what testimony to believe, for example: 

1. Whether the testimony is reasonable and consistent with other evidence you believe.
2. Whether a witness has made inconsistent statements.
3. The witness's appearance, conduct, age, intelligence, memory and knowledge of the facts.
4. The witness's interest in the trial, their motive, candor, bias and prejudice.

In other words, consider all of the evidence, not just the background of the witnesses. Foolproof? Hardly, we're dealing with humans here, but this typical instruction provides a standard that you and I can use to judge the case of the impeachment of Donald John Trump (for we will ultimately judge this president and these senators when we enter the voting booth).

5. Conclusion

So to say that "this impeachment is purely politically motivated" provides us with no meaningful information and stands naked as an argument against impeachment. This simple assertion has no facts to clothe it. This failure to mount an argument upon facts and the constitutional text and precedents comports with the tactics of the Republicans in Congress, who, as we near the end of the impeachment, have left not even a fig leaf to cover Trump's shame. The defense, in the hands of the famous criminal defense lawyer, Alan Dershowitz, has disposed of any need for a fig leaf of facts that would cover-up Trump's abuse of power. According to Dershowitz, if the president wants to be re-elected, he can deem that purpose as in the national interest and thereby manipulate public funds and seek foreign involvement in our elections as he desires. Well, if standing against this conclusion and the facts (no longer seriously in dispute) that support a finding for removal is "purely political," then sign me on.

sng
31 Jan. 2020