They Shall Not Die Old. A Review.

“Woe to the statesman whose reasons for entering a war do not appear so plausible at its end as at its beginning.” Otto von Bismark


 

They Shall Not Die Old. Directed by Peter Jackson

In directing the documentary film They Shall Not Grow Old, Peter Jackson of Lord of the Rings fame has produced a cinematic tour-de-force. Made at the request of the British Imperial War Museum, Jackson used some 100 hours of the Museum’s contemporaneous documentary footage shot on site along with 600 hours of interviews with British soldiers who lived, fought and died in the trenches of World War I.

The story is not told through an analysis of command decisions; nor does it romanticize war through stories of heroic feats and indomitable courage. It tells the story through the eyes of the British soldiers who lived, fought and died in the trenches. 

It is a compelling way to tell a powerful story. It puts the viewer right in the trenches with the soldiers. You can see the fear mixed with boredom. You see the soldiers performing mundane tasks amid constant shelling. You watch them create coping mechanisms to deal with the stress, like making tea with the boiling water produced by the cooling systems of their machine guns, all the while knowing they could be killed at any instant.  

When the call to war came in 1914, scores of young British men came from farms and factories to enlist to fight in the Great War. They didn’t question the war or its aims; they took up arms because they thought  it was their duty. Their nation called; there was a job to be done and they were going to do it.  

Many of the enlistees were just boys—16 to 18 years old—who were too young to enlist. But they lied (and were encouraged to lie) about their age so as to be eligible. They were the cannon fodder who, when ordered to do so, went over the top only to be slaughtered by murderous German machine gun fire.  Before it was over, about 1 million soldiers from Britain and its empire would be killed. 

And that was just Britain and its Empire. Russia suffered about 1.7 million military deaths. Estimates of military deaths of Allied powers range from 5 million to 6.5 million in total. Similarly, The Central Powers led by Germany lost between 3.5 and 4.5 million. Between them the combatants suffered military deaths somewhere between 8.5 and 11 million men. Estimates for the total number of civilian and military casualties that include disease and other factors run as high as 40 million people. 

World War I was among the greatest of all catastrophes in human history and 100 years later there is still no definitive answer as to its cause. Moreover the slaughter didn’t end with the Armistice of November 11, 1918; it was merely put on hold until it was relaunched as World War II with Germany’s invasion of Poland on September 1, 1939. Sixty million perished in World War II, most of them civilians, the overwhelming majority of whom were killed by the Germans and Russians. 

World War I did more than usher in World War II. It was also the end of an era. Progressives recognized the power of the war model for reorganizing society around the aims of a central government. And so began the militarization of the West and the organization—or reorganization—of Western society with government at its center. Checks and balances were out; the imperial and ever growing U.S. Presidency was in, and governance by  experts in the bureaucracy would become the norm.   

The result has been profound—-and mostly unrecognized. In large part because the population of the United States is being transformed from a self-reliant one into a subservient one, dependent on government largesse. 

And so now, 100 years after the end of World War I, after the creation of countless agencies, programs and commissions, public administration in the United States would be unrecognizable to the Founders. The government of the United States has become an unaccountable behemoth. It spends trillions of dollars a year, mostly on income transfers, while running trillion dollar deficits without a thought for how to pay it off. 

Virtually every facet of American life is regulated, mostly indirectly, through agency generated rules and regulations, to a degree that is an affront to the U.S. Constitution. Traditional sources of authority are under government attack along with basic liberties that we used to take for granted. Civil Society is increasingly co-opted by the central government. 

 Live and let live has been tossed aside in favor of strict conformity and shaming that would make William White’s Organization Man of the 1950s recoil. The increasingly bitter polarization of American politics is clearly the result of the rejection of subsidiarity in favor of a relentless drive to centralization and social engineering that represent the beating heart of the progressive project. 

Yet despite its obvious failure to make good on its promises, the Progressive onslaught continues. We now are faced with demands for a raft of pipe dreams including “free” college, Medicare for all—when we can’t pay for the one we have—and a Green New Deal fantasy that promises to achieve net-zero emissions in 10 years. The utopians as ever, are undeterred by past failure. 

The Great War, both directly and indirectly, caused the suffering and death of hundreds of millions of people in the 20th century. It unleashed wave after wave of utopian dreams that ended, as always, in misery. The Western democracies succeeded in spite of, not because of, the utopians. 

We are again confronted with militant utopians who know what is best for us and intend to show us whether we like it or not. At the same time the distribution of power around the globe seems to be drifting away from Western liberalism. Fraying western alliances and western cultural irresolution, combined with the challenges posed by the emergence of powerful authoritarian states makes the world a tinderbox not unlike 1914. 

It is impossible to see the young innocent faces of the soldiers in “They Shall Not Die Old” without thinking about how we got here, and how we can avoid the traps that produced the catastrophes of the 20th century. They Shall Not Die Old is not a film meant to be about politics. But its relentless focus on the foot soldiers who bore the cost of their leaders’ folly should give us pause. Especially when considering radical proposals being tossed around with such  striking insouciance by followers who have convinced themselves they are actually leaders.

JFB

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Virginia’s Democrats

Two women have come forward to accuse Virginia’s African-American Lieutenant Governor, Justin Fairfax, of sexual assault. This, while the white Governor and Attorney General are embroiled in controversy over wearing blackface over 3 decades ago. To boot, the Governor first admitted posing in a racist photo and then denied it. 

All three men, the Governor, the Lieutenant Governor and the Attorney General are Democrats. They are all resisting calls by fellow Democrats for their resignations. The Governor’s credibility now hovers around zero. He nevertheless retains 47% support for staying office according to recent polling.

For its part, the New York Times reports that the accusations of sexual assault have presented Democrats with an excruciating choice. If Mr. Fairfax, like his white counterparts, refuses to step down, Democrats will be faced with deciding whether or not to impeach him. Either way, according to the Times, Democrats risk angering one of two crucial constituencies presumed to be at loggerheads over this: women and African-Americans. 

According to the Times, if Democrats refuse to impeach Mr. Fairfax they risk angering women; on the other hand if they impeach Fairfax but allow the Governor and Attorney General to remain in office, they risk angering African-American voters. 

Karen Bass (D-CA) head of the Congressional Black Caucus says that the Democratic Party would lack credibility if it followed a double standard. She says that both the Governor and the Lt. Governor should step down. Meanwhile, Representative A. Donald McEachin (D-VA) said “We’ve worked hard on the Democratic brand for so many years and now we have to deal with this.”

These comments speak to the collectivist mind-set. Does Karen Bass really believe that an accusation of posing in a racist photo should be treated the same as an accusation of committing a sexual assault? Similarly, does Representative McEachin seriously think the salient issue here is branding?  Perhaps instead these people ought to think about justice and due process before hopping on the bandwagon. 

We could start by adding some perspective here. Lt. Governor Fairfax, who insists he is innocent, is accused of committing a heinous crime. Governor Northam, first confessed to, and then denied appearing in a blatantly racist photo 35 years ago. It is safe to say that Northam, then 24 years old, acted like an idiot. It is not reasonable to infer he is a violent felon.

The accusation against the Lt. Governor is far more serious. He is accused, twice, of having committed a violent crime. He is entitled to the presumption of innocence even though he has already been tried and convicted by the Democratic National Committee. And while Fairfax may very well be guilty of two horrific assaults, he is entitled to due process and a thorough investigation of the facts.  

 

An impeachment proceeding against Fairfax would be the proper way to begin. And if it turns out that the evidence is strong enough to support a criminal charge, he should be prosecuted. In any case he should not be forced to resign beforehand in what would be tantamount to a confession of guilt. Nor should he be given a slap on the wrist if he agrees to resign in order to spare the Democrats some embarrassment. Neither of those solutions has anything to do with justice. Justice demands truth. 

It should also be noted that these cases represent an institutional failure of some importance. It is clear that the press did not sufficiently investigate the backgrounds of these candidates. Nor did either of the political parties do their homework on their own or opposition candidates. 

More than anything, this episode rips away the mask hiding the Marxian doctrines of oppression and collective guilt that pervade what passes for progressive thought. Justin Fairfax is presumed to be guilty because he is a man. His accusers are presumed to be telling the truth because they are women. African-Americans are presumed to side with Fairfax because he is African-American. Women, especially white women, are presumed to side with Fairfax’s accusers because they are women. It is the status of the victim rather than evidence that is determinative. It is the triumph of intersectionality over justice, which is to say, mob rule. 

Nowhere is there a hint that individual people are capable of sifting through the facts and making a judgement about an individual case. Nor is there even a suggestion that people can or ought to distinguish between committing a violent crime and posing for a racist photograph. All that matters to the progressive elite is the politics of power and protecting the “brand”. Justice, fair play and due process do not count. 

Remember that next time you hear the speech about the importance of the rule of law. 

JFB

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The Progressive Governor Northam

Ralph Northam was elected governor of Virginia in 2017. During the campaign Northam routinely denounced his Republican opponent, Ed Gillespie, accusing him of being a racist. Now an incendiary photo of two men has surfaced from Northam’s medical school yearbook. In the now infamous photo one man is in KKK garb, the other is in blackface. At first Northam said he was one of the two men pictured; now on second thought, he says he is not in the photo.

The Governor is obviously concocting a story designed to save his hide in the face of a mob of social justice warriors and Republican opportunists. Does anybody seriously believe that the photo just so happened to surface now? That it hasn’t been sitting in a pile of oppo research waiting for an opportune time? Regardless, the Governor’s credibility is, shall we say, a bit suspect.

Pretty much the entire Virginia Democratic establishment as well as the declared candidates for the Democratic 2020 Presidential nomination have called upon Northam to resign his office, with some taking pains to say that they don’t believe that Northam is a racist. But they want him to resign anyway. Obviously this is simply a political calculation; it has nothing to do with conviction.

Speaking of racism, somehow or other the high priests of Progressivism seem to have caught laryngitis when it comes to addressing vicious left wing anti-semitism. It is put on routine display by Representatives Rashida Tlaib (D-MI) and Llhan Abdullah Omar (D-MN). Then there is the only slightly more subtle anti-semitism of Alexandria Ocasio-Cortez (D-NY) and Keith Ellison, now Minnesota’s Attorney General. And of course, hanging out with Louis Farrakhan is just fine. Not to mention Jeremy Corbyn.

In fairness it should be noted that Cortez’s (AOC for groupies) displays of unintelligibility on the matter of Israel, anti-semitism and the BDS movement may not be thinly veiled anti-semitism. It may instead be attributable to profound ignorance, a common phenomenon among socialists.

Back to the Governor and the infamous photo, taken when he was all of 24 years old. Let’s face it—it’s pretty ugly. Actually it is fair to say the behavior it represents is reprehensible. Having said that, let us remember that Northam was elected Governor of Virginia in November of 2017. And the Constitution of the Commonwealth of Virginia provides a mechanism for removing the Governor and Executive Officers from their posts. It’s called impeachment. On the other hand there is no constitutional provision for removal from office by Twitter rage.

If the political establishment wants to remove the Governor from office they should examine the language of Article IV Section 17 of the Virginia Constitution and see if they can make a legal case. That is a highly doubtful proposition.

There is a reason why we elect politicians at particular times for specific terms, with enumerated powers. We don’t elect Kings. We have institutionalized a separation of powers among the Executive, Legislative and Judicial branches. These mechanisms are designed to limit and dilute the powers of office holders so as to enshrine the rule of law. And protect us from mob rule.

What is particularly fascinating about this episode is that it lays bare the moral bankruptcy of the 100 year old progressive movement, both with respect to racism and the protection of individual rights. It isn’t as if Northam is the only exemplar of this. Just today, Brent Staples of the editorial board of the New York Times has a long article showing how the suffragettes read women of color out of the movement. Ruth Bader Ginsburg has on more than one occasion opined that protecting abortion rights is important for restricting births of those who were (and I am paraphrasing) “not the right kind of people”. See this article.

Planned Parenthood had its beginnings as a way for Margaret Sanger to pursue her interest in promoting eugenics under cover of family planning. Woodrow Wilson was arguably the most racist President the United States has ever had, with the possible exception of Andrew Jackson. Justice Hugo Black was a member of the KKK for a while. So was Senator Robert Byrd (D-WV). Historically speaking in the first half of the 20th century, the Klan and Southern Democrats were allied.

And now, (almost) lost in the uproar over the photo is Northam’s support for an abortion rights bill in the Virginia legislature that would permit the killing of infants in utero up until the moment of birth. It would also allow a mother, in consultation with a few doctors, to decide to leave a newborn to die. You heard that right. The proposed bill (mercifully tabled) would make infanticide legal. And the governor supported it. And he explicitly confirmed that it would allow abortion up until the moment of birth as well as the passive killing of newborns. See this article.

Not a single Progressive on the national scene has had anything bad to say about that—or for that matter, a similar bill that just passed the New York State Legislature and cheered on by Gov. Andrew Cuomo.

But they are pretty upset about a 35 year old photo of a 24 year old acting like an idiot.

Really.

Think about that the next time a Progressive politician claims the moral high ground.

Or attempts to.

 

JFB

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The Most Important Election of Your Life

“This is the most important election of your life.”

That’s what they always say.

“The only poll that counts is the one on election day.” 

The candidate who is behind in the polls always says that, too. 

Truth be told, the upcoming midterms are not that big of a deal. It is, for example, reasonably unlikely that Trump’s supporters will all-of-a-sudden decide to defect and vote for a Democratic candidate from a political party that is becoming more left-wing by the day. Nor is it reasonable to think that Democrats and progressives will vote for Republicans when they have convinced themselves that Republicans are the modern definition of evil. 

What is likely to happen is that the Democrats will probably pick up enough seats to take over the House, while the Republicans are likely to hang on to the Senate, but just barely. The result would be gridlock, a thoroughly unremarkable result. In that case we can easily imagine a Democratic House issuing a blizzard of subpoenas for investigations of the Trump administration. On the other hand, Mitch McConnell and the Republicans would continue to confirm judges to the appellate courts, and might get a crack at another Supreme Court nominee. 

If there are surprises the real question will be whether the surprises are the result of candidate quality, or a genuine shift in voter sentiment that might be a harbinger of things to come. It is way too early to speculate on that. We will have to wait until Tuesday when the results come in to begin that analysis. 

Keep in mind that the two sides are (mostly) making the same standard issue arguments they have been making for several decades. But there are exceptions. The Republicans are acting more like  the protectionists and freewheeling spenders who have dominated the Democratic Party for decades. And the Democrats showed their true colors when they decided to launch a fair imitation of the Salem With trials during the Brett Kavanaugh hearings in the Judiciary Committee. 

Aside from newly minted Republican protectionism, a true cause for concern, the changes we see are of degree, not fundamental pivots. With the exceptions noted, there is not a lot new to see here. So this is not the most important election of your life.

It’s not even close. 

JFB

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Justice Denied

The race to the bottom proceeds apace. Now Donald J Trump has some serious competition for being the most contemptible politician of the year.  That competitor is the ranking member of the Senate Judiciary Committee, Diane Feinstein (D, CA).  While the FBI was conducting background checks on Brett Kavanaugh, Senator Feinstein received and sat on a charge that  Judge Kavanaugh, when he was 17, attempted to rape a 15 year old girl. Most of the sane world would think that might be worth looking into post haste. 

Not Senator Feinstein.  The first order of business was to make sure that the lawyer the accuser hired was a Democratic Party activist. Then, at the very last minute, the allegation was leaked to the press, guaranteeing that any inquiry would be a public spectacle on the order of the Salem Witch Trials. And sure enough, all the Democrats on the Committee—every last one—announced that they believed the accuser before the accused even spoke. Not only that, several Democratic Senators, including Majority Leader Chuck Schumer (Harvard Law, 1974) and Chris Coons (Yale Law, 1992) announced that the burden of proof rested not on the accuser, but the accused. 

This despite, or maybe because of, the fact that the accuser says she does not know when the attack happened, the address where it happened, how she got there or how she got home. Moreover, none of the people she placed at the scene can corroborate her story. In fact, all of them deny that it happened at all. Additionally, a self-identified very close female friend of hers whom she placed at the scene says that (1) she wasn’t there (2) doesn’t know Brett Kavanaugh anyway, and never met him. 

So, Judge Kavanaugh is left with the impossible task of proving he did not commit a criminal act on some unspecified date, at some unspecified time, at some unspecified location. Because now the presumption of innocence has been replaced with the presumption of guilt. Especially so if the accused is a white male and the accuser is female and should therefore be believed. 

Committee Democrats argued that the hearing was not a trial, but a job interview. Consequently, normal standards of due process do not apply. This, of course, is nonsense. The assumption of due process permeates, or at least used to permeate, daily life, including job interviews. Does anybody seriously believe that equal treatment under the rules does not, or should not, apply in the daily activities of life? That there should be separate rules and operating standards for different classes of people? That it’s OK to deny due process to job or credit applicants? Apparently Committee Democrats do.  

Ritual Denunciation and Investigation

What we have here is not a search for truth, but a ritual denunciation designed to humiliate and silence  skeptics of progressive pieties. Or as Democratic Senator Mazie Hirono (Georgetown Law, 1978) so delicately put it “And I just want to say to the men in this country: Just shut up and step up. Do the right thing for a change.”  Note: For a change. Presumed guilty.

So now that the accused has been declared guilty, it is time for an investigation. Or rather, another investigation. This despite the fact that the ranking member kept the accusation hidden so it couldn’t be investigated for a month. Nevertheless another investigation has been demanded by Committee Democrats even though they have already announced they are going to oppose the nominee anyway.  Further it is crystal clear, or ought to be, that another investigation will not, cannot, establish a single substantive clarifying fact with respect to the question.  How could it?

The FBI in its investigation will take statements from the parties identified by Professor Ford as having been at the party where she claims to have been assaulted by Brett Kavanaugh. But those parties have already given statements under penalty of felony. And those statements contradict Professor Ford’s testimony. They say either that they did not attend any such party, or that nothing untoward happened. If one of those witnesses were to change his (or her) story why would that make them a credible witness for the accuser?  Why are they not credible now? 

The answer is simple. They haven’t produced the answer Committee Democrats want to hear. So now it’s time to shift the goal posts. Senator Cory Booker  (Yale Law, 1997) went so far as to argue that those who do not oppose Kavanaugh are simply “complicit in evil”. Beyond that, Democratic Committee member tactics included arguing that Kavanaugh routinely drank himself into a stupor, so much so that he couldn’t remember his various rape attempts; they included unsubstantiated (and naturally last minute) charges that he drunkenly exposed himself during a bachannal in his Yale dormitory, and that he and his friends participated in gang rapes. Surprisingly enough, these charges were unearthed at the last minute by lawyers who are activists in the Democratic Party. 

Delay, Delay, Delay

Now we are faced with another delay—this time one week—so the FBI can conduct its umpteenth investigation. The investigation will consist of interviews which will be forwarded to the Judiciary Committee. At which point one of two things will happen. Either the interviewees will stick to their stories which flatly contradict Dr. Ford’s testimony, or they will change their stories thus destroying their credibility. Neither case is helpful to Professor Ford’s case. 

Inevitably, when the results of the investigation arrive, Committee Democrats are going to argue that the investigation was rushed or incomplete. They will probably ask for more time to study the report, or perhaps come up with another list of witnesses to be interviewed. Anything to delay a vote on the nomination until the mid-term elections. Because that is the goal and always has been. 

Justice Denied

We will never know the truth of what, if anything, happened with respect to the sexual assault that Professor Ford alleges. But there are some things we do know. One is that Professor Ford’s story, which never would have made it into a court of law, was never seriously vetted. Neither was her credibility. Another is that if she was assaulted by Kavanaugh, or someone else, justice will never be done. Neither will Judge Kavanaugh, assuming he is innocent, see justice done. His name and reputation have been deliberately and  irreparably harmed as part of a conscious strategy employed by Committee Democrats and their allies. 

Most importantly, for those who choose not to turn a blind eye, it is clear to see that the leaders of the Democratic Party, many of whom went to the nation’s finest law schools, have no interest at all in the pursuit of truth or justice. They have clearly demonstrated that for them  justice is not blind; ideological adversaries are not to be granted due process; the presumption of innocence is to be applied selectively; adversaries are evil and deserve to be destroyed. 

In the matter of the Kavanaugh nomination Committee Democrats have strayed far outside the democratic norms that they claim to hold so dear. They have fundamentally inverted political-legal norms and rules to designed to protect individuals from the arbitrary and capricious use of governmental power. In so doing they have displayed a totalitarian mindset that should be disturbing to all—including those who profess to be disturbed at President Trump’s erratic and authoritarian behavior. Their behavior suggests that their true concern is not with  authoritarian power per se, but the person exercising it. 

JFB

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Freedom Matters

“We fight to be free.” George Washington

“Freedom’s just another word for nothing left to lose” 

Me and Bobby McGee, written by Kris Kristofferson, made famous by Janis Joplin in her “Pearls” album. 

 

 

Judging from the adulation that most liberals are raining down on the recently deceased John McCain you would think that they voted for him in 2008 when they had the chance. But of course, they didn’t. Instead the prospect of a McCain presidency had them resort to their go to playbook of slashing attacks and smears. Maybe the worst of it was an evidence-free suggestion by the New York Times that McCain had an affair with a lobbyist who had business before his committee. Anyone who doubts this should check out the Times stories in the links here and here. 

It is absolutely true that McCain reached across the aisle to promote what he believed to be good policy. It is also true that the favor was not returned. And there is a reason for that. Despite all the rhetoric, progressives simply do not believe what McCain believed about the promise of America. 

Consider McCain’s rhetoric when he was awarded the Liberty Medal in 2017. 

“We are living in the land of the free, the land where anything is possible, the land of the immigrant’s dream, the land with the storied past forgotten in the rush to the imagined future, the land that repairs and reinvents itself, the land where a person can escape the consequences of a self-centered youth and know the satisfaction of sacrificing for an ideal, the land where you can go from aimless rebellion to a noble cause, and from the bottom of your class to your party’s nomination for president.”

Now consider the (recent) rhetoric of Andrew Cuomo. 

“We’re not going to make America great again. It was never that great.”

By now it should be obvious that the America that John McCain believed in is not the America that progressives see. They see an America shot through with injustice and riddled with race, class, gender and sexual oppression. The grim social justice warriors of the left can never reach across the aisle to do what’s best for America because they fundamentally reject the founding principles of what they still think of as Amerika. 

Fifty years of progressive attacks on the culture and institutions of American society have left their mark, and not for the better. Who doubts that the degradation of the culture was a factor, and maybe the most important factor, in the election of Donald Trump as President? 

John McCain was different because, without being doctrinaire, he defended those institutions and traditions that made America great. And he understood that freedom isn’t just another word for nothing left to lose; that there is a reason why 13 small colonies on the Atlantic Coast grew to be the mightiest and wealthiest nation on earth. 

It’s called Freedom. 

JFB

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The Beginning of the End?

The Fat Lady may not be singing yet, but she is clearing her throat. If Michael Cohen is to be believed, Mr. Trump probably committed a raft of crimes when he directed Cohen to buy the silence of women with whom he had sexual liaisons in order to protect his 2016 Presidential bid.  Since there is little doubt that Cohen made the payments on Trump’s behalf, the question of criminality revolves around intent.

The question of intent is not straightforward because Trump can argue that he had dual intent, meaning that when he directed Cohen to to make the payments he had more than just politics on his mind. Specifically Trump can argue that he wanted to spare himself and his wife embarrassment. The legal question then becomes this: Would Trump have made the payments had he not been a candidate in a political contest? Arguably, if it turns out that Trump has a (pre-politics) history of buying women’s silence, his legal position may be strengthened. 

But his political position is another story. Somewhere along the line it is going to occur to Republicans that they would be better off with Mike Pence in the White House. Similarly, it is eventually going to dawn on Democrats that they are better off with a wounded Trump than a scandal free Pence. But the base of the Democratic Party wants blood, and if they re-capture the House in the midterms, they are likely going to impeach Trump. However, absent new and substantive information, the chance of a Senate conviction is vanishingly small. Trump could emerge from impeachment and acquittal more politically powerful. Clinton redux. 

Leaving aside the histrionics of the base, the Democrats really have to think long and hard about whether they want to impeach a President for process crimes. Suppose proof were to emerge that Trump ordered the payments solely because of political considerations. That’s easy enough to believe since he appears to be beyond embarrassment about anything. Even so, that type of process crime is pretty thin gruel for overturning a Presidential election.  Students of the game will recall that is the essence of the Clinton argument during his impeachment trial. 

During the Clinton impeachment saga the Republican chorus insisted that Clinton lied under oath and as a result, ought to be removed from office in order to protect the integrity of the justice system. And right on cue, the Democratic chorus responded that it was “only about sex” so it didn’t matter. That was about the time that Gloria Steinem invented the “one free grope rule” which has now been modified and adopted by Evangelicals. So at this stage of the game it’s safe to say that the difference between now and then is that the teams have switched Jerseys. 

But the main substantive issue still remains on the table. Did candidate Donald Trump somehow collude, cooperate or coordinate with foreign powers, especially Russia, for the purpose of influencing the election in his favor? That remains a serious question and it should be answered. The best way to do that is for special counsel Robert Mueller’s investigation to continue. Once Mueller has wrapped it up he will send a report to Congress at which time the facts be available for all to see. 

Then Congress can do its job. For a change. 

JFB

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Richard Milhous Trump

The political commentariat has spilled a lot of ink trying to understand what the Trump phenomenon is all about. But no one has come up with a convincing story about why it is that candidate, and then President Trump has managed to break every rule in the book with near impunity. Perhaps it is because the rules he breaks with such obvious delight were designed for a very different day and age, with very different sensibilities.

I submit the Trump phenomenon is not primarily about politics; it is about culture. He is, unfortunately, representative of the current damaged state of American culture. Consider for a moment, Mr. Trump’s behavior and his policy agenda and think about when we have seen this before.  Most recently it was the backlash against the cultural revolution of the 1960s that propelled Richard Nixon into the White House. 

Trump’s behavior is routinely crude, juvenile, narcissistic and authoritarian. It is Manichean; driven by class consciousness, complete ignorance of economics  and a whole-hearted disdain for political and social norms. His “America First” policy agenda champions exclusion rather than assimilation. It rests on the delusion that building physical, financial and administrative barriers between the United States and the rest of the world will bring back the mythical America of the 1950s.  It is a zero-sum game. The Sharks versus the Jets. Differences are solved with fists. 

The America First urge is nothing new in American politics; it has always lurked a bit under the surface. There are however two differences this go around. First, during previous bouts of isolationism America was a bit player on the world stage. Second, Donald Trump has managed to do what no other politician has done before. He built a coalition that capitalized on populism and isolationism. He combined the Midwestern prairie populism of South Dakota’s George McGovern with the Southern populism Alabama’s George Wallace. By combining the two he captured the electoral college (although not the popular vote) without the votes of upmarket coastal elites and ethnic minorities, both of which are concentrated in urban enclaves. 

 

Barring some catastrophic political error (to which Trump seems strangely immune) it will be difficult for someone to upend his coalition. His backers have made an emotional and class based commitment, not a policy based one. This makes them difficult to dislodge, particularly when the opposition keeps on insisting that Trump voters are Neanderthals. Deplorables as Mrs. Clinton put it. Consequently the 2020 Presidential election is starting to shape up like the 1972 contest between George McGovern and Richard Nixon. 

When George McGovern won the 1972 Democratic nomination, he led his party sharply to the left, and then went on to carry Massachusetts, losing the other 49 states to Richard Nixon. McGovern’s capture of the Democratic Party with his call to “Come Home America” led it into the political wilderness for 2 decades until Bill Clinton captured the White House for the Democratic Party in 1992. Note that Jimmy Carter’s narrow 1-term victory was an aberration, the result of disgust with President Ford’s pardoning of Richard Nixon. 

As President, Nixon extended Lyndon Johnson’s welfare state, created affirmative action, imposed wage and price controls, and made detente with the Soviet Union a core element of U.S. foreign policy. At the same time he derisively referred to William F Buckley and California Governor Ronald Reagan as right wing troublemakers and elitist idealogues. Sound familiar?

Nixon co-opted Wallace’s blue collar populists and appealed to the patriotism of middle class voters. These were the voters he called the “Silent Majority”; voters who were not necessarily political conservatives, but who resented what they saw as the condescension of liberal elites. That ought to sound familiar as well. 

Meanwhile, like before, the Democratic Party is veering sharply left. And like before the Republican Party is either supporting or remaining silent about Presidential policy initiatives (like tariffs, deficit spending and industrial policy) that it had previously professed to abhor. Which is to say that both parties have turned sharply left in favor of more central planning; the question is one of degree, not direction. Just as under Nixon.

What separates Trump from Nixon is Trump’s ignorance as well as his outlandish and typically boorish public behavior. In fact, his profanity laced stream-of-consciousness speeches may be one factor that cements the tie between Trump and his fans. He talks like them; he is one of them. He is not a “suit”. Far from being a liability, his coarseness may be a political asset, at least in the short term. 

For some reason or other a lot of conservatives who used to quote Toqueville and Burke about the importance of the pursuit of virtue to the political health of a society seem to have lost their old speeches. Not that progressives are much better; quite a few including Kamala Harris, Tom Perez and Kirstin Gilibrand deliberately use profanity to develop “street cred” with the base. Bill Clinton’s town hall discussions about his underwear preferences now seem positively demure. So it should be no surprise that public discussions of policy issues are often fact free affairs framed in language designed to appeal to the prejudices of the audience. 

But the sloppy (at best) and often vulgar language used by politicians is detrimental to the health of civil society, social order, decency and compromise. It is also an indicator of sloppy thought. And it leads to bad policy, which often produces awful results. In this regard it is worth taking a trip down memory lane to recall some of Nixon’s policy making, which bears more the a passing resemblance to Trump’s.  

It is, for instance, well worth remembering that Nixon’s economic policies which included wage and price controls and attacks on the independence of the Fed, produced the runaway inflation of the 1970s. It ultimately resulted in severe stress in the financial system, a recession in 1973 – 1975, a severe stock market downturn, stagflation and commodity shortages. In fairness, it wasn’t entirely Nixon’s fault; he had plenty of help from successors Jerry Ford and Jimmy Carter who followed the same types of awful policies. 

With their protectionism, unrestrained spending and redistributionism, both major parties are planting the seeds for a return to the 1970s.  It is (or ought to be) clear that, while Trump is a problem, he is not the problem. He is symptomatic of a damaged culture that is infecting our political and civic institutions. The problem will last beyond Trump’s exit from center stage, just as it did with Nixon’s. 

The challenge is to rebuild the culture. That is a lot more difficult than winning elections. 

 

JFB

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SCOTUS Watch

The Federalist Society, scourge of the “living Constitution” and defender of liberty, provided in 2016 a list of 25 candidates it preferred as nominees for the Supreme Court. Whereupon candidate Trump announced, with a lot of fanfare and a little wiggle room, that he would select nominees from that list were he to be elected. His first nominee, Neil Gorsuch, was on that list and he now sits on the high court. 

Now that Justice Kennedy has announced his resignationTrump has another nomination to make. Reportedly his top 5 potential choices are all from the same list. At the top of the list is Brett Kavanaugh, who has a 47% chance of being selected according to Predict It, a political futures market. That the Federalist list dominates the selection process is cause for relief, and not just because the jurists on the list are first rate. It is also clear that the President, left to his own devices, lacks the capacity to make an informed selection. 

Nominee Prediction Markets

 

To the surprise of no one, the Senate vote counting has begun and progressives are already howling. They appear to be afraid of three things. First, that Roe v. Wade may be overturned (it should be). Second, that the Court will continue along its present path of defending the First Amendment, which is under relentless attack by progressives. Third, that the Court will begin to rein in the Administrative State by eliminating the judicial doctrine of Chevron deference when adjudicating disputes over the interpretation of regulations.    

Let us take a brief look at each of these policy areas. 

Roe v. Wade

In the matter of Roe, it is almost universally understood that the case was wrongly decided. The Court basically decided that women ought to have a right to abortion and set about creating that right out of whole cloth. In so doing it dispensed with democratic processes, imposed an abortion rights regime on the entire nation by judicial fiat and set the stage for the culture wars of the last 5 decades. The United States now has the most radically permissive abortion regime in the West. 

Note too that Roe was based on the idea of a right to privacy, which was first discovered in Griswold v Connecticut. In that case the Court voted 7 -2 that Connecticut’s Comstock law violated the “right to marital privacy”. That’s right: marital privacy.  By 1972 in Eisenstadt v. Baird, the Court extended the right to unmarried couples. In 1973, Justice Potter Stewart cited Griswold and Eisenstadt in support of Roe. By 1992, in Planned Parenthood v. Casey, the Court found a liberty right to abortion under the 14th amendment, holding that states could not regulate abortion if it created an “undue burden”. Using this test, the court invalidated the requirement of spousal notification. 

All along the way, the Court continued to shift the decision criteria until we arrived at where we are today, which is abortion on demand at any time. Note too that while Griswold began with the right to marital privacy, the Court wound up invalidating a requirement of spousal notification of the intent to procure an abortion. Moreover the ever changing rights granted in the abortion regime are rights created by government, unlike the rights in the founding documents which are based on natural law, not positive law. 

And therein lies the rub. In the progressive universe, positive rights are created and dispensed by government. There is nothing sacrosanct about them. They are rooted in fashion, not philosophy. Which leads us to the First Amendment, now under assault.

The First Amendment 

The assault on the First Amendment is most visible in the Universities where speakers who espouse unpopular points of view are shouted down, ostracized and sometimes assaulted for expressing (or attempting to express) those points of view. And it extends to Trump, who has encouraged the use of violence to silence his critics. So what is the genesis of all this?

A good way to get a read on it is to refer to an article published by the New York Times on Saturday, June 30, 2018, titled “How Conservatives Weaponized the First Amendment”. A link to the article is here. 

The intemperate language of “weaponization” comes from none other than Justice Kagan in her recent dissent in Janus v. AFSCME. In her dissenting opinion she referred to her colleagues as “black-robed rulers overriding citizens’ choices”. It is difficult to ignore the irony of Kagen’s reference to “citizens’ choices” when, on First Amendment grounds, the Court held that public sector union members could not be compelled to financially support policies with which they disagreed. But, Kagan said, “the First Amendment was meant for better things.” 

Perhaps unwittingly, Justice Kagan revealed her preference for conferring command and control powers on an unfettered bureaucracy when she went on to say that the Court’s majority “…Weaponiz[ed] the First Amendment in a way that unleashes judges, now and in the future to intervene in economic and regulatory policy.” Well, judges have been intervening in economic and regulatory policies for at least a century. But more importantly, Kagan reveals an instrumental view of the First Amendment. She is perfectly willing to abandon free speech and free association (which includes the right not to associate) in support of compelled speech as long as doing so leads to her preferred outcome. 

On the progressive left, this is now becoming a fashionable way of thinking.  Consider this remark byProfessor Lewis Michael Seidman as reported by the Times in the above referenced article. 

“When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”

Again we have the instrumental view. Free speech is just swell as long as it produces a “more just society”. The obvious question is: who will be the arbiter of what constitutes a “more just society”? And who will decide what speech advances the cause? How will the speech police punish malefactors? And how, exactly, does that protect minority rights? And not to make too fine a point of it, according to the founding documents of the U.S., speech rights inhere to the individual having been endowed by the Creator. There is a reason why the First Amendment is the first amendment. The government’s responsibility is to secure those rights, not pick and choose who exercises them. 

Which leads us to the doctrine of Chevron deference. 

Chevron deference essentially says that agencies, not the courts, are the primary interpreters of the meaning of statutes administered by agencies. Chevron deference requires the courts to accept an agency’s disputed reading of a statute, even if that reading differs from what the court believes to be the proper reading. The theory is that agencies—not the courts—have the necessary expertise to do so across the federal bureaucracy. Moreover, it is argued, by leaving this responsibility with professionals in the bureaucracy the Chevron doctrine reduces partisan political behavior by judges. 

In a paper published by the Federalist, Christopher J. Walker finds some evidence that suggests this last point may be correct. (Here is a link to the article). By restraining judicial discretion, Chevron may have reduced partisan political behavior by judges. Then again, it may have succeeded in simply relocating that partisan behavior to the bureaucracy. That aside, Chevron undoubtedly transferred significant power to the bureaucracy at the expense of the Congress. And it also increased Presidential regulatory power at the expense of the Congress—witness both the Obama and Trump administration’s reliance on governance by executive order. 

The maintenance of a vast bureaucracy (with some agencies having police power) that acts at the order of the President is the essence of a command and control framework that is central planning in everything but name. Not only are the individual agencies vulnerable to capture; the system invites corruption in part because it lacks meaningful oversight and accountability. The agencies themselves are easily co-opted by partisans to be used as means to partisan ends; not only that—sometimes the staffing at an agency makes it a de facto lobbying group for outside interests.  These are not easily correctable flaws; they are baked into the architecture of the Administrative State. 

This is simply untenable; the Administrative State has to be cut down to size. One way to do that is to substantially weaken (if not eliminate) Chevron deference as judicial doctrine. The likely result would be a more accountable (or less unaccountable) federal bureaucracy; a reduction in executive power, and an increase in legislative power and accountability. All to the good.

In short, cases in three important issue areas are almost certainly going to come before the court before too long. One will be a challenge to the constitutionality of Roe v Wade. Another will include cases likely to challenge First Amendment rights respecting freedom of speech, freedom of association and the practice of religion. A third will call into question the Chevron doctrine and the relative power of the bureaucracy vis-a-vis the elected  branches and the Judiciary. A strict constitutionalist would find that Roe was wrongfully decided; that the First Amendment means what it says, and that the United States is a Republic in which laws are written by duly elected legislators, not the bureaucracy. Finally, a strict constitutionalist would be one who understands that the government is charged with securing the rights specified in the Declaration of Independence, using powers granted by the Constitution, and only those powers.  

A constitutionalist approach to these issues is a dagger pointed at command and control—the beating heart of modern progressivism. We shall soon see if Trump appoints a constitutionalist and what measures the left will take to torpedo such a nomination, if it occurs. 

JFB

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