Month: July 2018

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

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 resignation, Trump 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