- The NLRB-Damore Memo Ken White, Popehat
- Justice Sotomayor on legislative history Jonathan H Adler, Volokh Conspiracy
- Bad legal news from China Scott Sumner, EconLog
- Hobbesians vs. Rechtsstaaters Federico Sosa Valle, NOL
Today I’d like to write a few words of hope and encouragement to those who already understand liberty’s value. I read a speech from 1853 that stood out to me. It’s easy to be caught up in the daily news cycle and feel that liberty is constantly under attack and threatened at every hand, that every gain is clawed back as liberties are eroded one at a time. At times like that, it is good to step back and took a better look at the broader history of the world.
The speech I read was by a gentleman named Parley P. Pratt, an apostle of the Church of Jesus Christ of Latter-day Saints in the Utah territory. This was just a few years after the Mormons, including Pratt and his family, had been driven from their homes by mobs and by indifferent and sometimes hostile state and federal governments in the United States proper to find freedom and refuge in the Rocky Mountains. There they still held 4th of July celebrations, honoring the sacrifices for liberty their fathers had made. Pratt, by this point in his life, had traveled through England and parts of Europe, much of the US, Canada, and along the Pacific into Mexico, and met with many people from Asia as well – a remarkably well-traveled man.
Despite the very real failures of the government to protect their individual rights or redress their grievances, he spoke in praise of the Constitution. The main thrust of his address was that the cause of liberty would expand and someday fill the world:
The longer I live, and the more acquainted I am with men and things, the more I realize that … the Constitution of American Liberty was certainly dictated by the spirit of wisdom, by a spirit of unparalleled liberality, and by a spirit of political utility. And if that Constitution be carried out by a just and wise administration, it is calculated to benefit not only all the people that are born under its particular jurisdiction, but all the people of the earth … . It seems broad enough, and large enough, to receive and protect all that may be in any way deprived of the common rights of man. …. [The principles of the Constitution] embrace eternal truths, principles of eternal liberty, not the principles of one peculiar country, or the sectional interest of any particular people, but the great, fundamental, eternal principles of liberty to rational beings – liberty of conscience, liberty to do business, liberty to increase in intelligence and in improvement […]
There is a day coming when all mankind upon this earth will be free. When they will no longer be shackled, either by ignorance, by religious or political bondage, by tyranny, [or] by oppression (Journal of Discourses, Vol. 1, p. 137-143)
Pratt claimed this would not happen predominantly by revolution and violence, but by America being a beacon light to the world. He spoke of throngs of people who would sit in his day enjoying to hear of our freedoms, our institutions, and our scientific and cultural progress. He spoke of the immigrants coming to this country from all parts of the world specifically to find that freedom, and that once enlightened by being allowed to think and reason and act for themselves without the bondage of kings, state religions, or other powers they would blossom and rise up in greatness. Whether they eventually returned to their native lands or not, this would act as an “indirect influence … on those despotic nations” of Europe and Asia.
Recognizing that our liberty is remarkably multi-faceted, I will focus on the same categories Pratt mentioned. At the time he spoke, there were exactly 3 nations that were in some measure democracies, where at least some large percentage of the populace had the liberty of choosing their leaders. You can see for yourself how this has grown in the intervening 160+ years:
Billias’ 2009 work on how the principles of American constitutionalism were “heard round the world” shows that waves of influence gradually spread the principles of self-determination, liberty, separation of powers, and checks and balances into the freedom movements and constitutions of most of the world. Even while warning that the last ten years have seen declines in liberty overall worldwide, Heritage shows us that the last thirty years still show remarkable improvement:
From a time when the US was one of very few countries to legally protect religious liberty, today nearly three-fourths of all the countries in the world have a constitution that specifically protects freedom of belief, and two-thirds permit some religious proselytism – which preserves freedom of expression (Pew Global Restrictions on Religion). There is still much to do to improve and preserve religious liberty around the world, both in legally acknowledged protections and in fostering an actual peaceful society where religious groups are not subject to violence and persecution.
Despite the distance left to go, the cause of liberty has clearly moved forward in great ways in the last 160 years. Much as Pratt predicted, much of this was accomplished without great revolutions and civil wars, but through the power of example as free nations and free people proved themselves a beacon to the world. There is still good cause to believe in that fundamental converting power from setting the right example and allowing free people to govern themselves.
Once, in another place, I had pointed out the misunderstandings of the common interpretation of Hayek’s road to serfdom thesis. This was not an unintended process by which government intervention on markets inevitably leads to further and increasing interventions. That might be Ludwig v. Mises’ thesis, but not Hayek’s.
What Hayek stated in The Road to Serfdom was that the checks- and-balances system of modern constitutionalism appears as an obstacle to the quick achievement of the concrete ends that an interventionist policy aims for. Thus, the road to serfdom is an unintended process by which legal constitutional processes are eroded by decisions based on expediency.
On that occasion it was left pending to solve the question of where the confusion on the central thesis of “The Road to Serfdom” came from.
The source of the answer to this question is yet Ludwig v. Mises. The Road to Serfdom was first published in 1944, but, previously, in essays published in 1935, we find Hayek, still heavily influenced by L. v. Mises, stating opinions that are very similar to the common confusion about the meaning of the road to serfdom: “In fact, however, if by planning is meant the actual direction of productive activity by authoritative prescription to be used, or the prices to be fixed, it can be easily shown, not that such a thing is impossible, but that any isolated measure of this sort will cause reactions which will defeat its own end, and that any attempt to act consistently will necessitate further and further measures of control until all economic activity is brought under one central authority” (“Socialist Calculation I: The Nature and History of the Problem”, first published in Collectivist Economic Planning, London, 1935, and reprinted in Individualism and Economic Order, Chicago, 1948).
F. A. Hayek did not change his opinions of 1935 in The Road to Serfdom (1944), he just shifted the realm of his inquiry from economics to political philosophy. Nevertheless, it would be a crass error to judge Hayek’s political and legal theory -for good or for bad- using his former opinions as an economist.
At the heart of Europe […] lay a hugely complex and fragmented political entity which resisted the ‘modernizing’ trend of national state formation, and preserved medieval arrangements conceived as rooted in antiquity: the Holy Roman Empire. After three decades of bloodshed retrospectively known as the Thirty Year War (1618-1648), the Empire had achieved a somewhat precarious equilibrium in which hundreds of semi-autonomous imperial estates co-existed under the loose authority of an emperor and a college of princes. Disparaged as a multi-headed monster by many […,] for Leibniz the Holy Roman Empire remained a preferable alternative to national and absolutist states. In his mind, the Empire offered an ideal of shared sovereignty in which limited territorial autonomy could be combined with a central imperial authority, and the main Christian confessions could cohabit peacefully in a balanced, representative Reichstag. Alongside his more famous works on logic, metaphysics, and mathematics, Leibniz wrote innumerable memos and proposals advising rulers on how to strengthen and re-order the Empire into a stable, supra-national political structure which could protect and promote common interests while maintaining local self-determination in territories and imperial free cities. In short, Leibniz regarded political unity in diversity under a supra-national authority as a better path to peace, prosperity, and stability in Europe than the ascendancy of competing national states.
This is from Maria Rosa Antognazza, a philosopher at King’s College London, writing for Oxford University Press’s blog. (h/t Barry) Check out this map of the outline of the Holy Roman Empire in 1600 AD (it is superimposed onto the outlines of today’s European states):
It reminded me of this map I produced a couple of years ago showing the GDP (PPP) per capita of administrative units in Europe. What the map illustrates, generally, is a Europe where present-day Austria, western Germany, northern Italy, Switzerland, and Benelux are much wealthier than the rest of Europe (sans Scandinavia).
And here is a map, thanks to Vincent, of GDP per capita in European regions. What his map illustrates, generally, is a Europe where present-day Austria, western Germany, northern Italy, Switzerland, and Benelux are much wealthier than the rest of Europe (sans Scandinavia).
Wow, right? Eastern Germany, Poland, and Czech Republic are poor today, but the rest of what was once the Holy Roman Empire is very prosperous. So, two lines of thought here. One, socialism is really bad for people. It not only destroys economies and political and civil liberties, it also destroys institutions.
The second line of thought is to wonder aloud a bit more about institutions and their long-term viability. The first question that needs to addressed is “what are institutions?” Today, many scholars use “democracy” and “property rights” as generic answers when explaining to the general public what good institutions are, and they are not wrong, but they don’t do justice to the concept of democracy (or property rights, for that matter). I think a better term might be “representativeness,” or “constitutionalism,” or “republicanism.” Anything but “democracy.” Democracy implies rule of the people, but this doesn’t describe what has happened in the West, in regards to political equality and economic growth (both are uneven, but undeniably real).
“Democracy” sounds better than “political institutions favoring separation of powers and coalition-building in parliamentary settings, as well as the inclusion of people who don’t pull the levers of statecraft (through the voting mechanism),” but this shorthand has obvious negative unintended consequences: many a demagogue will use the term democracy to mean something quite different from what actual self-governance requires institutionally.
There is more to the Holy Roman Empire than just path dependency (albeit stretched to its limits). For instance, you’d have to explore why representative institutions in the HRE eventually failed. My quick guess would be that HRE’s neighbors (Russian Empire, French Empire, Ottoman Empire, Scandinavian kingdoms) were pretty ruthless and thus made it impossible for more formal constitutional institutions to take deep root and flourish in the heart of Europe. Instead, because of HRE’s unruly neighbors, the Empire was forever in flux between a loose alliance of petty states and a confederation.
That’s what I have been hearing ever since the morning after the presidential election. That what I keep hearing on most cable television and on National Public Radio. That’s what I see in most of what I read, and that’s what I am told is being published in the liberal print media I stopped reading long ago. That’s also what I find when I go slumming in left-wing sectors of Facebook.
No one has actually told me directly, in those exact words, “Fuck your vote,” not yet, but that’s what the ceaseless hounding of Pres. Trump means: My vote for him ought to be ignored; it can’t possibly count. If you had not had any news for six months, you would think that there had been a coup in the United States; that a horrid, caricature capitalist had taken over the country by stealth and by force, both. You would guess that the intellectually and morally live segments of American society were resisting a brutal takeover as best as they could. You would not guess there had been a hotly disputed election, fielding 16 viable candidates on one side.
A grass-root movement with a strategy
The verbal lynching to which Pres. Trump is subjected on a 24-hr cycle is not a conspiracy. There is no secrecy to it. It’s all overboard. It’s a regrouping of the political establishment, of the 90% leftist media, of the 90% leftist academia, of the vast tribe of government bureaucrats, of the many others who live off tax revenue, of the labor unions leaders, of the teachers’ unions, especially. So, after a fashion, it’s a genuine grass root movement. It’s a grass root movement of the well-bred and of the semi-educated who spend all their time – always did – feeling “appalled.”
It’s not a conspiracy but it’s a deliberate plot. It has a strategy: Hound him until he loses his cool completely. Harass him to the point where he cannot govern at all. At worst, we can keep him so busy his intended policies kind of vanish. The Santa Cruz AM station where I had a political show for three years has its own well-known, semi-official leftist caller, “Billy.” Billy thinks he is well informed and a genuine, deep-thinking intellectual because he is leisurely. In fact, he does not work for a living; he lives off his rich wife instead. (I would not make this up.) He called the station about two weeks before this writing to sound off on one thing or another that the president had done or said. Then, he declared straightforwardly, “We are hounding him out of office,” and also, with commendable clarity, “It’s a slow coup.” I would not have dared used these words in my conservative (“libéral” en Français) polemical writing, too provocative, possibly exaggerated.
Or take this short, childishly coded message I picked out from from an ordinary left-liberal’s Facebook page:
“47 could end up being Pelosi if we drag it out til 18.”
Translation: the current minority leader in the House could become the next president (the 47th). If we drag what out? For overseas readers and for American readers who went to the beach when the US Constitution was taught in high school: What has to happen before the minority leader of the House of Representatives becomes president outside of a presidential election? The constitutional order of succession if the president dies, in any way of manner, or becomes incapacitated, or is remove from office for any reason is this: Vice-President, Speaker of the House. In the partial elections of 2018, Nancy Pelosi may become Speaker of the House again. She would automatically become president if and only if both President Trump and Vice-President Pence were eliminated. Hence the FB message: Keep up the harassment. Note: Some readers might think I am making this up. I will give the name and FB address of the person from whom this is taken to anyone asking me privately.
What does not revolt me: Donald Trump is a bad person
What is it that makes me angry? Let me begin by telling you what does not make me deeply angry.
First, everyone here and abroad has every right to dislike Mr Trump personally, Trump the man. There is a lot I don’t like about the man myself. He talks too much; he is ignorant of many things; his ignorance does not stand in the way of his having strong opinions about the very same things; he often talks before he thinks; he brags too much; he is too frequently crude. (Actually, I am of two minds about the latter. Official crudeness may be the form that starting to roll back political correctness must take.)
I did not vote for Donald Trump because I loved him but mostly because of the character of the only, single alternative to him at the time of the presidential election. (Keep in mind that Sen. Sanders was not on the ballot. Remember what happened to him?) I had no illusions from day one. I knew that Mr Trump is not at all like suave President Obama, for example, who was awarded a Nobel Peace Prize within barely ten months of taking office.* I voted for Trump also for policy reasons. I thought there was a good chance he would appoint a conservative Supreme Court Justice, as promised. He did, within days. I thought he would deregulate to some extent. He is doing just that. I thought we stood a better chance of having serious tax cuts with him than with the Democratic candidate. I still think so. Tax cuts are the most direct path to vigorous economic growth, I believe. (Shoot me!)
A short digression: As I was writing this cri du coeur, the liberal media were exulting about President Trump’s loss of a few points of general approval. (Actually, it’s about the same as Bill Clinton’s at the same period in their presidencies.) They don’t mention that there is zero evidence that he has lost any ground among those who voted for him, that they feel any voter remorse. Myself, I like him better than I did when I voted for him. He has begun to make America stand up again. He has been a bulwark against several forms of hysteria – including Endofworldism – to a greater extent than I counted on.
What does not revolt me: Opponents trying to stop and sink his program
The second thing to which I do not object in the treatment of President Trump is legislative maneuvering. Democrats and dissident Republicans have every right to block and undermine Mr Trump’s legislative programs, be they tax cuts or “the wall.” (Personally, I want the first ones and think of the second as a silly idea.) The media have every right and sometimes an obligation to support this exercise in checks and balances between executive and legislative that is at the heart of the US constitution. No problem there either. I understand that when you win the presidency, in the American system, that’s all you have got, the presidency. After that, you have to convince Congress to pay for what you want, for what you (conditionally) promised.
What annoys me without revolting me: the courts’ usurpation
The Founding Fathers decided that courts had to be able to curtail or block just about any executive or legislative action. This, to make extra sure that neither branch of government could ever create unconstitutional law. This, to avoid the tyranny of the majority. It often rankles but that’s how our constitutional democracy works. Accordingly, the third going on that annoys me but that I accept is the several courts’ endeavors to stop the president from taking the measures he thinks necessary to keep the country safe. (I try to distinguish between dislike and a negative judgment of illegitimacy. This distinction is a the heart of the problem about which I am writing.) I accept, for example the decisions of the two or three courts who stopped the presidential executive order banning the admission of peoples from a handful of countries. I accept them, although:
Public opinion and – I think – one court, call it a ban “on Muslims,” even if only 9% of all Muslims worldwide would be affected; although half of those are citizens of a country – Iran – that is the declared enemy of the US and officially a sponsor of terrorism as far as we (Americans) are concerned.** and ***.
I accept it although there is nothing in the Constitution that prevents the executive branch from stopping people entering the US based on their religion.
I accept it although there is no part of the US Constitution that recognizes any rights to foreigners who are neither under American jurisdiction nor at war with the US.
I accept it although there is a statute, a law, that explicitly gives the president the right to ban the entry of anyone for any reason.
I accept these court orders but my acceptance is a testimony to my strong commitment to constitutional democracy.
Now, on to what I object to deeply and irreversibly in the attacks on the president.
Extirpating electoral legitimacy
What really, really disturbs me are the nearly daily attempts at removing, at extirpating the legitimacy of the 2016 presidential election results, the desperate and brutal, unscrupulous attempts to make people believe that Mr Trump is not really president. They make me livid because they are not attacks on Mr Trump but rather, they are attacks on me. They are assaults on my right to exercise my constitutional right to cast my vote and to have it counted. And also the rights of sixty-three million Americans**** who voted as I did. The slow coup against Mr Trump defies reason and it resembles nothing I have seen in fifty years in this country. It does remind me of several historical precedents though. (Look up “March on Rome,” you will be amazed.)
More than the mechanics of democracy is at stake. The principle of government by the consent of the governed itself is under assault, the attack is systematic and unrelenting. When I cast one of approximately sixty-three million votes for Donald Trump, I thought I was choosing the lesser of two evils. That’s nothing new; I don’t remember ever voting in a national election for someone who inspired enthusiasm in me. And perhaps, that’s the way it should be. Enthusiasm about a person may not be even compatible with democracy. Free men and women don’t need saviors and they are leery of leaders, even of leadership itself. Be it as it may, I cast my vote as I did and no one (that’s “no”) has the right to try and nullify it, to cancel it. As I write this self-evident truth, I fear that many of the people still having hysteria about the 2016 Democrats’ failure are not sophisticated enough to understand the difference between opposing the consequences of my vote through accepted, traditional parliamentary and judicial maneuvers on the one hand, and nullifying my vote, on the other hand.
Fascism is neither of the left or of the right. It thrives on moral confusion and on bad logic. Hysteria is its main sustenance.
“The Russians” made them lose everything
The daily assault on the Trump legitimacy changes form almost every day. Right now, it has been focusing for several weeks on alleged Russian intervention in the presidential election.
It matters not to the Trump haters that in 2016 Democrats lost everything they could lose besides the presidential election: governor races, state legislatures, Congress. This swath of defeats seems to me to indicate that the Democratic Party in general was not popular, forget Trump. If “the Russians” had actually handed out the presidency to Mr Trump, there would still be a need to explain the Democrat routs at all other levels. Did “the Russians” also organize the rout, including of county boards of supervisors, and at all other minute local levels?
It does not matter that Mrs Clinton was never made to explain how and why she caused to erase or ditch 30,000 emails belonging to the government, a cynical suppression of evidence if there was ever one.
A considerable work of imagination
Thus far, the mud has been thrown at Mr Trump and at his whole team, at any one who has ever met him perhaps in connection with “Russian” interference in the presidential election. Mud has no shape; it’s amorphous. I don’t know about him but when I suspect someone of something, the something has a shape, at least a rough description. You never say, “I suspect you,” but, “I suspect you of X or of Y.” The Trump accusers have never been able to reach even that primitive level of concreteness. None of them has (yet) been stupid enough to suggest that the Russian secret services hacked or tricked up the voting machines in the hundreds of jurisdictions that would be needed to make a difference. So, what have “the Russians” done, really?
The most tangible thing they have against the Trump campaign to-date is a supposition, a product of the collective imagination, and it need not even involve Trump or his agents at all. What we know is that someone hacked the Democratic National Committee emails. Some contents were leaked by Wikileaks which did not say where it got it from. Wikileaks has friendly links with Russia. It’s possible Russians hackers gave it the info. If this is what happened, here is what we still don’t know:
We don’t know that those imagined Russian hackers worked for Pres. Putin. Entrepreneurial Russian hackers have been dazzling us for twenty years. The DNC email seems to have been poorly protected, anyway. A Putin intervention is superfluous in this story.
Furthermore: Do you remember what Wikileaks disclosed (thanks to “the Russians.”)? It showed that the Democratic establishment engineered, by cheating, the defeat of candidate Sanders in the Democratic primary elections. In my book, the anonymous, perhaps Russian, hackers deserve a medal, an American medal for casting light on dysfunction and plain dishonesty within an American political party. The Congressional Medal of Honor is not out of the question, in my book.
Moreover: The leftist media keep referring to “collusion” between members of the Trump campaign and some unnamed Russians. Sounds sinister, alright. But as the Harvard Law Professor Alan Dershowitz, – a Democrat – pointed out recently, “collusion” is not illegal. It’s what you collude to do (rob a bank) that makes it criminal. Colluding to eat a pizza is not criminal. Mr Trump and his entourage are daily accused -without proof – of having committed acts that are not illegal.
The first Comey testimony
The 06/08/17 open, public Senate Judiciary hearing of dismissed FBI Director Comey was awaited by the left and media, and also by some genteel Republicans, like the Roman plebe awaited the lions’ feasting on the Christians. That hearing was a disappointment too. I am writing here as if I thought every word uttered by Mr Comey were exactly true (100% true) although there is no reason to do so. The hearing showed ex-FBI Director to be a leaky wimp, of shaky integrity caught in corrupt and difficult circumstances, first under Obama with the Clinton Follies, then with the unpredictable Trump presidency. It did showcase a great deal of inappropriate behavior by President Trump. But the hearing did not even begin to point to any illegal behavior on the part of the president, not to a single whiff of illegality. If you don’t trust my legal judgment (although I watch many crime shows on TV), refer again to Democrat and Harvard Law School professor Dershowitz who thinks as I do on this issue. The fact is that hardly anyone, possibly no one, voted for Mr Trump because of the appropriateness of his behavior or of his statements. If anyone was about to do so during the election, the airing by the Clinton campaign of a tape describing Mr Trump’s manual approach to seduction would have cured that illusion.
Personally, I think there is nothing to investigate. Nevertheless, I hope the Special Counsel (a friend of Comey’s, it turns out) will do his job of investigating the possibility that President Trump did whatever he is supposed to have done with I know not what Russians. There is a chance that merely having a single person in charge – what the left demanded – will reduce the daily din of anti-Trump insults. There is even a possibility that it will allow Pres. Trump to get to work on some more of the projects***** for which I gave him my vote. If the investigation reveals real illegal behavior by Mr Trump, felony-level crimes, I think he should be peaceably removed from office, with Vice-President Pence taking over as required by the US Constitution. Anything else, any other succession would be a form of fascism. Any other scenario of Trump removal turns my attention to the Second Amendment (me and hundreds of thousands of gun-crazy, church going “deplorables.”)
How it will end
I don’t see a reasonable finish to all this unless the president is found guilty of something. When the smoke finally clears, when the investigation of President Trump’s collusion to do whatever with whatever Russians ends, I think there is no chance that the matter will be finally put to rest. If the Special Counsel that liberals clamored for concludes that Mr Trump and his whole entourage never committed any illegal act in connection with the 2016 election, there will still be voices pointing out that an intern on Trump’s campaign once ate Russian caviar on a date, which raises serious questions! Or something.
The undisputed fact, that Mr Trump’s improprieties revolt many who voted for the only real alternative, is not an argument for overthrowing an elected government. They are the same people who tried to elect – directly or indirectly – an old woman apparently in failing health, a lackluster former Secretary of State, at best, a person who campaigned incompetently, a candidate for the highest office who never managed to articulate her vision of government, a person who cheated during the primary election, one who ended up losing against a rank political amateur who spent less than half the money she spent on campaigning. With a large majority of voters guilty of such a poor choice, this country has bigger fish to fry, I would think, than presidential rudeness and/or insensitivity.
Dear Trump–hating fellow citizens: One thing that did not cross my mind when I voted was that should my candidate win – a long shot at the time – there would be a massive, multi-pronged endeavor to make believe that I had not voted, or that I had voted other than the way I voted, or that my vote somehow did not count. I thought I was living in a democracy. I assumed the democracy was lodged not only in the rules we follow to form governments but in the hearts of my fellow-citizens. I assumed that the rules were internalized, that they were part of the moral baggage of everyone including those whose vote countered mine.
If you will not accede to the modest wish that my vote should be honored, why bother with elections at all? They are costly and disruptive, they often disappoint, sometimes more than half of the population, and they provide many opportunities for the expression of deplorable taste. Why not, for example, convene a governing directory selected by an assembly of university professors, of well-bred employees’ union leaders, of Democratic politicians, and of media personalities (excluding Fox, and also Rush Limbaugh, of course), all chaired by the Editor-in-Chief of the New York Times?
* Just because you ask, I will tell you that I am guessing that the silly old men of the Norwegian Nobel Committee actually thought they were giving the Prize to the American left electorate for electing a Negro (“neger,” in Norwegian). It’s also a fact that Mr Obama always looks good in a suit.
** To my overseas readers: It was not Pres. Trump who designated officially Iran as a sponsor of terrorism. It happened several presidential administrations back, many years ago.
*** I wonder if the said executive order would have been acceptable to the courts if President Trump had thrown in say, a Buddhist country or two, and a pair of Catholic countries from South America, for example, like this: ban on admission to the US for citizens of Somalia, Yemen, Laos, Syria, Paraguay, Iran, etc.
**** Note to my overseas readers: That’s 2.8 million fewer than won by candidate Clinton. In the US system the candidate who obtains the largest number of votes cast by citizens (the “popular vote”) does not necessarily win the presidency. We have indirect elections instead. This may seem strange but the fact is that neither big party has ever really tried to change the constitution in this respect. So, after the two Obama victories, no one in the Democratic party said, “We have to change this system to make sure the popular vote prevails.” And if we had a popular vote system, all candidates would have campaigned differently. Mr Trump might have won the popular vote handily, or Mrs Clinton may have won with a margin of ten million votes or more; or the Libertarian Party may have received enough votes to deny either candidate a majority. There are many other possibilities in the world of “what if….”
***** Some of his campaign promises are being fulfilled at a fast clip in spite of the ceaseless persecution to which the president is subjected. The loosening of the regulatory hands of the Federal Government on the economy’s neck, for example, is going well.
As previously indicated I will be posting an appendix to my posts on Coup and Counter-Coup in Turkey, referring to Ottomanism, Kemalist republicanism and related issues. The sixteenth of April referendum does require a response of a more immediate kind. The referendum was on amendments to the Constitution largely concerned with transforming Turkey from a parliamentary republic, which it has been at least in principle since the formation of the Republic of Turkey in 1923. Recep Tayıp Erdoğan had already been breaking the Constitution since 2014 when he was elected President of Turkey after more than a decade as Prime Minister. On becoming President he transferred the chief executive power to the presidential palace (which has more than 1000 rooms and was built on Erdoğan’s orders using executive privilege to override court bans on building on the land concerned). This in itself tells you everything you need to know about the decay of Turkish democracy, from a starting point which was itself not a shining beacon to the world of purist constitutional democracy.
Erdoğan’s ambitions for an executive presidency in Turkey precede his elevation to that role. The shift from a President elected by the National Assembly to a President elected by popular vote came from a referendum of 2007, though Erdoğan is the first President of Turkey to take the office in this way. Kemal Atatürk (1923-1938) and then İsmet İnönü (1938-1950) were powerful presidents in a parliamentary system. This paradox arose because Turkey was a de facto one-party state in which only the Republican People’s Party had seats in the National Assembly from 1923 to 1943, though the Free Republican Party won seats in local elections. The elections of 1946 resulted in an opposition party and some independent deputies entering the National Assembly. In 1950 İnönü became the first Turkish (or Ottoman) leader to give up power peacefully as the result of elections and the Republican People’s Party became the first political party to give up power in this manner. During the one party period, the President was the dominant figure in the Republican People’s Party and therefore acted as the head of government, though with a Prime Minister and some genuine divisions of responsibilities.
Not only did Erdoğan start using powers he had not been given in the constitution in 2014, the whole evolution towards a presidential system has been done in a way to benefit him personally. He was Prime Minister over three terms from 2002 to 2014, an office to be abolished in 2019 as a result of the recent referendum, and was the head of government. He has acted as effective head of government since 2014, regardless of the Prime Minister having this role. The office of Prime Minister will still exist until 2019 and most of the constitutional changes as a result of the referendum will not come into force until then. Erdoğan can then have the two terms of executive presidency in addition to the term he is currently serving which will still constitutionally limit his powers in ways that mean the Prime Minister should be head of government. In this sense, the system is working as in the days of the one party system. So Erdoğan can serve as head of government in Turkey from 2003 until 2029. Furthermore he may be able to add another term if the National Assembly goes to an early election during his second term.
The President will have the power to dissolve the National Assembly, and this could easily happen simply because the President wishes to have a third term. The amended constitution at least restricts the President to two five-year terms plus most of a third term in special conditions. So the possibility exists of Erdoğan running the Turkish government from 2003 to 2034, a highly unusual situation in any democracy and one likely to undermine the democracy in question, particularly as the powers of the President now include control of appointment of senior judges, senior civil servants, senior bureaucrats, the right to issue decrees as laws, the right to appoint all cabinet ministers without National Assembly approval, and the right to appoint two vice-presidents without National Assembly approval. Theses figures will not be required to answer questions in the National Assembly and, like the President, will benefit from lifetime immunity with regard to alleged crimes committed in office. That is to say, the President and his associates will have immunity for life unless the National Assembly votes to suspend the immunity, with a high enough majority required to make this unlikely unless there is a massive collapse in the number of AKP deputies, or of Erdoğan’s control of the AKP.
We cannot even say that these changes designed to produce a President above normal democratic constitutional checks and balances, dominating the whole governmental process and state machinery in a way unprecedented in Turkey’s multi-party history, have been agreed to by a genuine majority vote. The referendum was held in state of emergency conditions, which still prevails. A state of emergency in which opposition journalists have been detained in large numbers on flimsy charges as ‘terrorists’, opposition deputies (from Kurdish rights-leftist HDP) have been detained on a similar basis. State media and most private media groups operate as media organs of the AKP. The state of emergency has been applied in a particularly harsh way in the southeast (Kurdish majority) part of the country where elected local government has been replaced by central government appointees. There are 500,000 displaced persons in the southeast resulting from PKK terror and the state security reaction which led to military bombardment of whole towns and urban districts until they were reduced to rubble. It was clearly not easy for them to vote and it looks like a large number did not vote. Extreme intimidation of No campaigners was the norm in the southeast where large numbers of HDP election observers were denied access to polling booths. Intimidation of the No campaign took place elsewhere if in a less extreme way and public spaces were dominated by Yes publicity.
The count was itself full of flagrant irregularities. The number of polling stations recording a 100% vote for Yes was far greater than the number recording 100% AKP votes in recent elections. There was another party campaigning for the Yes, the hardline nationalistic MHP, but the party split over the leader’s support for Yes and all the evidence is that overwhelmingly most MHP voters did not vote Yes. Given that some AKP voters defected from Yes, not many but no less than 5%, there was no reason to expect an increased number of polling stations with a 100% vote and of course suspicion is in order about polling stations which recorded such results in the past.
An AKP politician who is a member of the national electoral board (itself packed with AKP appointees) requested that all ballot papers used to vote, but not carrying a stamp to show they have been authorised for that polling station by an official, should be counted. This is illegal but the request was granted. AKP apologists were quick to say that opposition requests in the past for counting such ballots (because maybe they were stuck together when the official was stamping papers) were granted in the past. Small illegality does not excuse large illegality and the scale of counting of such ballot papers was much larger than previously.
During the count the state news agency was announcing results before they were released by the electoral board. A strange and suspicious situation. The international media, following the state news agency, failed to see the discrepancy also confusing the percentage of ballot boxes opened with votes cast, giving a very misleading impression of a big lead amongst most votes cast early in the evening. The election board results then went off line and were not shared with the opposition. When results came back online they showed a very different pattern than before the break in service, more in line with the state news agency announcements.
Given the close (51.4% for Yes) nature of the official result, there are a number of reasons to think that No won in votes cast, and even if we ignore the voting irregularities, there is reason to think that in a less intimidating atmosphere, particularly in the southeast, more Yes voters would have cast a vote. In these circumstances I suggest that even on a very cautious reckoning, the number of votes cast for No was at least 51% and that with a less intimidating and disruptive atmosphere, another 2% would have gone to No. To say on this basis that 53% voted No is I believe a very cautious estimate. There is very probably a clear majority of Turkish voters against the new presidential system, at least 55%.
The narrow result clearly caused embarrassment to Erdoğan and the AKP who had predicted a very big victory for Yes. They have gone quieter since then, but with no let up in authoritarian measures. Just two days ago Wikipedia was blocked in Turkey, several thousand state employees were dismissed using emergency powers and a number of NGOs were closed in a similar way. The context of the supposed Yes victory gives hope that there is opposition to the Erdoğan/AKP destruction of liberal democracy, but recent measures suggest they are as determined as ever to use the tools of state to obliterate opposition, or just any sense of independence from the party-state machine.
President Trump’s executive order temporarily barring entry into the US to those coming from seven countries was a rude act.* To make things worse, it was badly implemented, causing inconvenience and even distress to a number of innocent travelers. What’s more, it’s unlikely to be very effective in its stated goal of keeping Americans safe. The reason the administration gave for the order was to give the appropriate agencies some time to improve their techniques for vetting ordinary travelers from those countries.
As I write, the bar is in circuit court where it will be decided whether a previous federal judge’s order suspending application of the bar holds or not. There is a mano-a-mano between a largely liberal circuit court and a fairly conservative and decisive new executive. Whether the executive prevails or not, the order was given and it will be remembered as one of the first acts of the Trump administration. It’s worth discussing.
Much of what has been said about the order is false, ridiculous, or dishonest. I urge you to preserve your collective credibility by not falling for the falsehoods, and worse, for partially true but misleading statements you have heard. Some, you have heard repeatedly.
Beyond this, I suspect you have not done enough collective self-examination. I suspect this because no one reasonable talks to you frankly about matters concerning you. There are plenty of ill-informed hysterical, obscene anti-Muslim shouts which you probably (rightly) shut out. The rest of America is too paralyzed by political correctness to say anything to you that may seem critical. I am reasonable and I am not paralyzed by political correctness. In addition, there is a good chance I am pretty well informed. (Go ahead, Google me.) Where I am not, I listen to advice and corrections with an open mind. I wish to talk to you about mistrust of Muslims and about what you may not have done to represent yourselves in a light inducing others to be fair. Lastly, I wish to address you about what you have done that has not been helpful.
The persecution of Muslims
Fact: The seven countries the executive temporary banning order targeted are all predominantly Muslim countries.
That does not make the order an anti-Muslim measure. If President Trump had wanted to persecute Muslims, Indonesia, Pakistan, Egypt and even India (yes, India) would be heading the list. There are something like forty predominantly Muslim countries in the world. How do you think the seven were chosen?
The seven were originally selected by the Obama administration as dangerous countries from which it was difficult to obtain enough information to vet travelers. This explains why most Muslim countries – by a long shot – did not make the list. In the case of five Arab Muslim countries on the list, they are there because they are failed states unable to provide credible information if they want to. Iran is a special case. President Trump, and some of us, think that the information should not be trusted that comes from a country where the political class has been smiling benevolently for the past thirty years on demonstrators whose main demand is “Death to America!” Taking people at their word is not a dirty trick, right? The sixth country on the list, Sudan, is there for both reasons. It’s an ineffective state and its leadership is openly hostile to America. It’s unable to cooperate in vetting and it will not.
Why should President Trump want to go to extraordinary lengths to vet travelers from those particular countries, you wonder suspiciously? It’s because – you are right – the Muslim world is widely thought to be a privileged source of terrorism. That’s in the 21st century. In the 20th century, it would have been (largely Catholic) Ireland, the (Catholic) Basque area of Spain and, especially, the (Hindu) Tamil area of Sri Lanka. The fact that no IRA terrorist, no ETA terrorist and no Tamil Tiger terrorist ever claimed to be acting in the name of God or of his religion may make a difference though. What do you think?
Personally I don’t see how anyone can disagree with the proposition that Muslim countries (not all, some, of course) generate large numbers of terrorists when those same terrorists massacre many more Muslims than they do anyone else? I can’t believe you are not aware of the many car bombs detonated near mosques during prayer from Pakistan and Afghanistan to Iraq. And have you ever thought of what the proportion of Muslims must have been at the massacres in the French night club or during the Bastille Day festivities, in Nice, France? Let me tell you: Many French Muslims are immigrants from rural areas in Africa. It’s been true for a long time. They have more children than people born in France. Whenever you find children and young people, in France, you are looking at many young Muslims. And, go back to the “Underwear Bomber” trying to blow up a plane over largely Muslim Detroit, during Christmas Eve, of all times. Who do you think would have died, primarily? How many Christians are on a plane on that night? (Reminder: He is a young man from a good Nigerian family. He is having a bad time in federal prison, right now.) It’s your duty to be informed about the people who are massacring both your people and your neighbors, I think.
Incidentally, the fact that Muslims die much more than other people under the knife of neo-jihadists does not give your passivity a pass.
This all is sufficient to explain well why there are only Muslim countries on the ban list. It would have been more polite of the Trump administration to add, say Iceland, Paraguay, and Laos, or Timor. Perhaps, they did not think of it. No one is perfect. Perhaps they did think of this trick and decided to not implement it to signal that political correctness has to go, at last.
Before I move on, note what the paragraphs above do not (NOT) say, lest your memory tricks you later: They do not say that “most Muslims are terrorists,” as stupid liberals allege such statements mean. I don’t think most Muslims are terrorists. I do not think that many Muslims are terrorists. I am not even sure the terrorists who claim to be Muslims are Muslims, or good Muslims. I don’t really know. However much I regret it, I can see how it is easy to find justification for religious acts of violence in the Islamic sacred Scriptures. (Ask me or tell me plainly that I am wrong, that there are no such justifications in the Scriptures.)
Trump’s order was intended to keep terrorists where they are for the time being, until we learn better to spot them. It was intended to protect me and my children, and you and your children. I have my doubts about its efficacy, as I have said elsewhere. You should feel free to criticize it on that ground without going to motives you have little way of knowing. “Stupid” is not the same as “prejudiced.”
The Muslim contribution to the mistrust of Muslims: Inaction
Next, I need to ask you if Muslims collectively have done anything to contribute to widespread mistrust of Muslims in America. First I need to ask what American Muslims did not do that they should have done – and can still do. This can be brief.
Large American Muslim organizations have put themselves repeatedly on the public record denouncing terrorism perpetrated by those who claim to be inspired by Islam. They are quick to assert that religious violence is incompatible with Islam, that the neo-jihadists are simply bad Muslims, or even, not Muslims at all. This is all for the good although – I am sorry – most of the protestations sound hollow. One of the things missing, incidentally – is condemnations by obvious religious authorities.
What bothers me personally, and probably others who don’t have the time to think about it, is the lack of individual faces to accompany condemnations of neo-jihadist barbarism. There are two exceptions I know of, two Arab-American men who sometimes come on TV to reject barbarism or any links to American Muslims vigorously. I don’t have either name in mind right now and I would not name them anyway because I don’t have a clear idea of the risks they are taking.
What I am missing is reactions from individual, private persons of Muslim faith, people with a face. I ask how many of you said anything – outside the family – when ISIS was beheading an American journalist and then, an American social worker, all on video. I wonder if you said anything, at work, even if only at the water fountain, when ISIS was burning people alive in cages. How many of you expressed horror aloud or when it was turning thousands of young women and girls into sex slaves. How many dismiss Boko Haram which is burning its way through North Western Nigeria as a (black) African monstrosity?
Some of you, most of you, or all of you, think these questions are superfluous and even, that my expectations are outrageous. I have a friend, a young Muslim woman who tells me straight up that terrorism is no more her problem than mine. It’s unrealistic and it’s false. The abstract category “American Muslims” (I am not using “community” deliberately) turns out enough terrorists and would-be terrorists to destroy this presumption of distance between you and the prevalent kind of barbarism. Note also that, irrespective of provocations, since the masterful, well-planned, very successful aggression of 9/11, there has not been a single act of private terrorism against Muslims or Muslim institutions in America. (Hectoring of women wearing the hijab in public places does not quite count as terrorism.) Mind what I am really saying: It’s not your job to stop terrorism committed in your names but you would be wise to reject it forcefully and loudly, and also in person when you have a chance.
The Muslim contribution to mistrust of Muslims: Actions
There are also the things American Muslims did that contributed to the process leading to the Trump administration temporary ban on travel from seven Muslim countries.
Let me help you remember. In 2008, you voted for Barack Obama in large numbers although he was a leftist of zero demonstrable achievement but one. (He did pass the bar exam.) I don’t know if you did it because the father he never knew was a Muslim (a drunken Muslim), or because his middle name is “Hussein,” or because you were caught up in the great Democratic emotional sweep. Later, in 2016, you largely supported the candidacy of an obvious liar and cheat who had already sold some of the country to foreign powers before even being elected. What’s more, she presented herself squarely as President Obama’s successor. Many of you just bet on the wrong horse without much of an excuse for doing so. (I think I have read somewhere that American Muslims are better educated than the average American. Correct me if I am wrong.)
Had more of you voted Republican, they just might have influenced the result of the primary, perhaps, Marco Rubio (my candidate) would have won it, or the honorable Mayor Giuliani. The presidential election could have played out differently. If it hadn’t, there is a chance you would have still earned a voice within Republican politics. You chose instead to trust in liberal cliches to go with the easy flow of falsely generous liberalism.
Even with Donald Trump as president, you would have avoided getting trapped in the Democratic identity mishmash. You would have saved yourselves the embarrassment of ending up squeezed in their book between illegal aliens from China and transgender activists. At this point, your main public, visible representation in American politics – by default, I realize – is the pathetic, corrupt loser’s personal assistant. She is very elegant but she is married to a gross pervert. The fact that her parents are members of the Muslim Brotherhood does not help. It’s not a terrorist organization exactly but it’s very unfriendly to America and to its main values. By the way, you appear to still not be paying enough attention. The fact is that, right now, thousands of Americans are talking (and screaming) in the streets in defense of, and often in the names of, Muslims in general. Yet, the voices of American Muslims themselves are hard to perceive in the din. It makes no difference; when the fog clears up, some Americans are going to blame you for the riots. You are innocent, of course but, to a large extent, you put yourselves there.
There is danger in letting others speak in your place on the public square. It’s the same others who recently used the armed power of government to force others to violate their conscience. (By forcing a Catholic nuns’ order, for example, to provide contraceptive services to their employees.) How is this going to play out tomorrow when your own religious practice needs protection, I wonder.
The executive order and our constitutional order
There is much misunderstanding everywhere about the legal nature of the order. It’s all over the media and elsewhere. One Iranian woman, a distinguished MD, I am told, is suing the federal government because she suffered some travel inconvenience as a result of the executive order. (I don’t know if she is a Muslim; it does not matter.) I hope the suit only shows confusion about the American Constitution rather than some sinister plot. Whatever some little liberal judge in the boondocks may say, the Constitution does not apply to those who are not under the power of the US government. This includes citizens, legal permanent residents, illegal permanent residents, prisoners of war, to some extent, and those who are already on US soil by whatever means, or otherwise under exclusive US control. It does not apply to Mr Yokama in Osaka, to Mrs Dupont in Marseille, or to Ms Reza in Iran, or on a layover in Dubai.
The media have also shown growing confusion about the nature of a visa. It’s not a contract between a government and a private foreign party. It’s not enforceable in any court. It’s a promise to admit and evidence that someone is considered acceptable at a particular time. Either of these assessments can change in minutes. Incidentally, American immigration officers at all levels have always had discretion to do what they think is best: You can arrive at LA International from Finland, with a perfect visa, and have a fat federal employee in short sleeves get suspicious of you and deny you admission on the spot. There is no legal recourse, never has been.
Nation-states avoid canceling visas in ways that would look arbitrary, for two reasons. First it makes the relevant government lose international credibility. That’s a subtle phenomenon. No one knows how much denials and cancellation push the relevant country over the brink. Thus, any government, including, the Trump administration assumes it has a good deal of discretion in this matter. The second possible consequence of many negative visa events is that other governments may take retaliatory measures: You do it to us, we do it to you or even, we deny your citizens any visa. It’s not surprising that some governments of small, poor countries just don’t care much about serving up reciprocation to a large, desirable country such as the US. If you are an alien and you have a visa for the US, it means that you have a good chance to get in. It’s not a guarantee.
The president and his conservative supporters are not responsible for the confusion about the Constitution whipped up and smartly supported by liberal opinion.
By now, I suspect, you are thinking “Islamophobia.” I don’t quite know how to defend myself against accusations sitting in your mind about what’s going on in my own mind. It’s like suspecting me of watching porn inside my head. How can it convince you that I don’t? Nevertheless, for what it’s worth, nothing predisposes me to a blind, irrational hatred of Islam or of Muslims. I have known Muslims all my life. I have had nothing but harmonious personal relationships with them. I think there is much to love in Islamic culture. For example I am fond of calligraphy in Arabic, the language of the Koran, so fond that the Profession of Faith (the Sha’hada) hangs over my bed. (I wouldn’t be surprised if this usage by a non-believer is considered blasphemy, somewhere or other.) The few times I have lived among Muslims, I have liked it. There is even a Muslim country where I would like to live permanently now that I am old. (My wife won’t hear of it; what do you know!)
“Islamophobia” is not a real concept anyway. It was invented by liberal intellectuals to shut up debate up. If it were not so, there would be other similarly formed words such as “Protestanphobia” and “Bhuddistphobia.” The impression that Muslims in America take refuge behind that rotten old hyena hide is deplorable. It feeds many unfair stereotypes.
And, by the way, what would be wrong with being an Islamophobe? I mean in the American tradition of freedom of conscience and freedom of speech? Being a Muslim is not a race, an unalterable fact about a person. It’s a choice. If I understand a little about Islam, it’s even the supreme choice. There is widespread confusion there also.
Why should anyone not be morally, intellectually allowed to detest a choice you can reverse any time you wish? Take me, for example. I used to be a Catholic. I am not anymore. I am an ex-Catholic. Anyone could have blamed me for being a Catholic, a believer in fairy tales and a supporter of an organization massively complicit with child rape. “Catholicophobe” would not become an insult; it did not. Why would you deserve special treatment, in this regard?
No one at all blames me either for being an ex-Catholic, by the way. There is (well-founded) Catholicophobia in this country. There is no such thing as “ex-Catholicophobia.” I am also aware as I write that changing religion is called “apostasy.” I am further aware that apostasy is punishable by death in a number of countries. They are all Muslim countries, as far as I know. (Please, correct me if I am wrong on this.) One of the advantages of living in the US, as you and I do, is that there is no penalty here for transgressions of conscience. There is no punishment for walking away from a set of beliefs. This is never discussed in narratives that use the word “Islamophobia.” We don’t speak enough about such matters. Muslims, in particular, don’t speak enough. (And, I don’t believe the media suppress such conversations. The liberal media will print anything said by anyone identified as “Muslim,” especially if the speaker wears a hijab.) I realize that one can find many statements by American Muslims on the Internet. That’s not good enough; I shouldn’t have to do research.
There is also much confusion – often spread by the liberal media – about the First Amendment to the US Constitution. That main amendment to the Constitution is widely misunderstood, by native-born citizens and by many others as well. It states categorically that government cannot have a favorite religion; it says that government cannot interfere with religious practice or belief. Moreover, the Constitution forbids government to administer religious tests as a precondition to holding any government office. That’s it!
There is no part of the US Constitution that protects anyone from criticism by private parties. There are countries where such criticism is illegal; the US is not one of them. Personally, I hate Communism and Devil worship, and I also detest obsessive talk about baseball statistics, for example. Do I have a right to my dislikes? May I express them openly? Should I count on the protection of my government – whose first assignment is to protect me – when I express these dislikes? May I say safely, “Devil worship is an abomination”? How about, “Christianity is a false religion”? Should you, personally, have to forbid yourselves from detesting Devil worship aloud? How does the Constitution answer these questions?
Since I began talking calmly about things some Muslims don’t enjoy hearing, let me continue a little way. Let me affirm as a preamble that you have as much right to be here as anyone. If you are an immigrant like me, you might have even a little bit more right than most. (Immigrants contribute somewhat more than the native-born.) Irrespective of your rights, if you are a person who dislikes the separation of Church and State, if the gap between religion and government is anathema to you, I hope you will leave. I won’t do anything about you but you must know that I don’t want you as a fellow-citizen. And, if you take my suggestion, please, take with you as many Baptists, Lutherans and Catholics of the same belief you can find. I hope our government will do its best to limit or prevent the entry of people who hold such beliefs.
To end: It’s likely that most of you are people with whom I would like to have a cup of coffee or a meal. I suspect that we have more in common than not. You would yourselves be astonished at what a pleasant person of culture I am in real life. (Go ahead, Google me.) We would talk about our children and our grandchildren. We would share our experiences in the country I chose. This probable commonality creates no obligation for me to tolerate nonsense. The Trump temporary executive order of mention may well be regrettable. If it’s unlawful – I don’t see how – it will not be implemented. Our institutions are working. In the meantime, it’s not the end of the world. We, Americans, you and I, have bigger fish to fry.
About Syria: There are tens of thousands of Syrian refugees we could take in without endangering ourselves. We should do it, for two reasons. First, it the right thing to do and it’s good for our souls. Second, we are partly responsible for the unending disaster in Syria. I have not forgotten the red line in the sand the dictator Assad was not supposed to cross or else…. That was before the Russians were heavily involved. At the time, the US Air Force and the US Navy could have destroyed 95% of Assad’s planes and helicopters in one morning if there had been political will. It would have made it extremely more difficult for him to continue fighting and to massacre civilians. We did not intervene. Now, we have to give a hand, a big hand. I don’t see why this help should include a path to citizenship.
*The executive order has been suspended by a judge (a single judge) as I write. The Administration fast track appeal has been rejected. Afterwards, the administration appealed to the 9th Circuit Court. Our institutions are doing their work even if it’s at the cost of some judges believing it’s their job to make laws. To my mind, the fact that the order was issued at all is important whether it’s ultimately put to work or not.