Progressive Fascism

“Everything in the State, nothing outside the State, nothing against the State.” Benito Mussolini

“State intervention in economic production arises only when private initiative is lacking or insufficient, or when the political interests of the State are involved. This intervention may take the form of control, assistance or direct management. (pp. 135-136)

—Benito Mussolini, 1935, “Fascism: Doctrine and Institutions”, Rome: ‘Ardita’ Publishers.

————————————————————————————-

Nancy Pelosi couldn’t have said it better. 

It is more than a little ironic that as Progressives continue their utterly predictable march into the arms of fascism they continue to cry out about the dangers of — Fascism. The wonder is why. After all, Mussolini himself began his trip as a socialist before deciding he was a Fascist after all. 

It is (or should be) clear to anyone who has studied American history and politics that the classical liberalism of the American founding was thrown overboard by Woodrow Wilson and replaced by a Bismarckian flavored collectivism that, with intermittent and fleeting interruptions, has steadily gained ground at the expense of liberty. There are now few facets of American life that are not under the thumb, either directly or indirectly, of  the Administrative state, so painstakingly created by progressives. 

Consider how progressive politicians have been trampling on the Bill of Rights using the Covid-19 crisis as a pretext.  For example, Lousiville, KY Mayor Greg Fischer unilaterally banned drive-in Easter services even when they conformed to social distancing policies. When NJ Governor Phil Murphy was asked by Tucker Carlson where he got the authority to nullify the Bill of Rights in order to prevent people in New Jersey from going to church, Murphy responded “That’s above my pay grade.” Then he added “I wasn’t thinking of the Bill of Rights when we did this… The science says people have to stay away from each other”. 

Virginia’s Governor Northam issued an executive decree making it a crime (Class 1 misdemeanor) to attend a religious service with more than 10 people in attendance, even when keeping social distance. However, in Virginia, state liquor stores remain open as “essential”. Nobody has explained how customers are to maintain social distancing while handing a bottle of whiskey and cash to a sales clerk.  

Add to that clear violations of the right to assemble and petition the government by rules limiting the number of people who are permitted to assemble outside. 

Then there are the many attempts by progressives to shut down gun stores as “non-essential” businesses. Somehow or other though, state lottery sales count as essential. Obviously said governors do not consider the 2nd amendment to be essential. 

But what about businesses that some governor arbitrarily decides is non-essential? Closing down many small businesses dooms them to failure; they will never re-open, and the owner’s equity in the business, perhaps built over a lifetime, is reduced to nothing. 

Fortunately at least some of the more outrageous restrictions that violate the 1st amendment free exercise clause and the 2nd amendment right to bear arms have been batted down by judges. But let’s not forget that progressives have promised to pack the court should they gain the power to do so. People who regard this as an empty threat are just deluding themselves. 

It isn’t really necessary to search around looking for a hidden agenda. It is right out in the open. For example look at the $3 trillion wish list that Speaker Pelosi rammed through the Congress Friday with only 1 Republican vote—that vote belonging to the retiring Peter King of New York. And that would be on top of the $4 trillion that has already been approved. 

Consider some of the items contained in the bill, the so-called Heroes Act.

A pledge of $1 trillion in virtually unrestricted funds to state and local governments. Keep in mind that the major ongoing financial problem faced by (some) state and local governments is funding state pension programs, which has absolutely nothing at all to do with the coronavirus. Needless to say, public sector unions applauded mightily when the bill passed. 

The bill hands out $25 billion in aid to the U.S. Postal Service. 

The bill requires federal banking regulators to regularly report on “the availability of access to financial services for minority-owned and women-owned cannabis-related legitimate businesses.”

The bill extends an additional $600 per week in unemployment relief until January of 2021, thus ensuring that unemployment will last longer than it otherwise would,

It provides $850 million for states to provide child and family care for those deemed “essential workers”. Keep in mind that selling lottery tickets is typically deemed essential. 

It provides an additional $100 billion to low income renters and $50 million to farmers. 

It lifts the SALT Cap for two years.

The passage of this monstrosity does serve a purpose though. It should serve to eliminate the fiction that there are moderates in the Democratic caucus who matter. There were all of 13 “moderates” who voted against the bill, compared to 206 Democratic Members who voted “Aye”. 

Like Obamacare it is going to take a while to see what else is in the bill; unlike Obamacare it is not going to get through the Senate. 

But this bill together with other proposed legislation makes clear what the priorities of the Democrats are and what they will attempt to do if they retain the House and recapture the Senate. They will attempt (once again) to amend the Bill of Rights; enact a regime of economic command-and-control; intimidate the judiciary; eliminate the filibuster and the electoral college. Which is to say, centralize economic and political power in Washington, DC. 

If the Progressives get their way, the State will reign supreme in all matters, big and small. Not to worry they say; they will just be pragmatists and do what works. Kind of like the way Mussolini got the trains to run on time. 

JFB

On Iran

In the aftermath of the strike ordered by President Trump that killed Iranian Quds Force Major General Soleimani there has been a furious reaction by progressives who are always furious about something. But complaints have also been registered by the populist right, most notably by Tucker Carlson. But the objections coming from Carlson and the objections coming from progressives are very different. 

Let’s take Carlson’s argument first before heading to the progressives. Carlson asserts that “Washington has wanted war with Iran for decades”. As evidence for his proposition Carson has produced…nothing. But there is the obvious question. If “Washington” wanted war with Iran for “decades” why is it that President’s Bush and Obama declined the opportunity? In the tin foil hat land where Carlson resides, “they”, wanted war and this was their opportunity, so “they” prevailed upon the least interventionist President in modern history to unilaterally commit an act of war without provocation. This doesn’t even have a veneer of plausibility. As the late Christopher Hitchens once remarked, assertions without evidence can be dismissed without evidence. 

Interestingly enough, the argument coming from the left is, in some ways the polar opposite of Carlson’s. To the surprise of no one, progressives argue there is a “rush” to war—but this is in spite of, rather than because of, the bureaucracy AKA the intelligence community. We are now being informed, courtesy of leaks to the New York Times, that “…while Trump’s top military advisors offered the option to kill Maj. General Qassim Suleimani, they assumed it would be rejected as too extreme.” Trump, however, made his decision “despite disputes in the administration about the intelligence that warned of imminent threats.”

Let’s unpack this. When an action memo is sent to an executive decision maker in government, it typically includes a number of policy options with estimates of possible costs and benefits. And typically the options are phrased in such a way that one option stands out as the most favorable. So as a matter of course one of the options given to President Trump would have been to knock off General Soleimani. But why would anyone believe that Trump, of all people, would shrink from an action because it was “too extreme”. Nuance is not the first word that comes to mind when it comes to Trump. 

The next argument now being test marketed is that, among the intelligence community, there is mounting skepticism of evidence that a threat was imminent. This one has been dusted off from the George W. Bush years and sent onto the field of play once again. And from the standpoint of the bureaucracy it has a major advantage. It provides bureaucratic cover no matter which way things turn out. 

Leaving aside (for now) the question of where decision making authority resides, let’s examine the quality of some the intelligence community’s analysis. To start off with, there is what is politely called a credibility problem. To put it more bluntly, it is indisputably the case that James Clapper (NSA), John Brennan (CIA), James Comey (FBI) and Andrew McCabe (FBI) are liars. It remains to be seen if they managed to fulfill the requirements necessary to sustain a perjury indictment and prosecution. 

But let’s not dwell on individuals; instead let’s recount the long history of spectacularly bad calls. It is hard to forget that George Tenent insisted that Iraq had nuclear weapons. It was, he said, “a slam dunk”. Note also that the Inspector General found that Tenet bore “ultimate responsibility” for the intelligence community’s “failure to develop a plan to control Al-Qaeda in the lead-up to 9/11”. And how was he held accountable? President George W. Bush awarded him the Presidential Medal of Freedom. 

If that was an isolated incident, it would be one thing. But it wasn’t. The intelligence community was convinced that Yuri Andropov was a sophisticate with whom the West could deal. After all, he liked scotch. That was before Andropov ordered the assassination of the Pope. Likewise, the CIA was caught flat-footed when the Berlin Wall came crashing down. Just as they were stunned when the Shaw of Iran was deposed by the Ayatollah Khomeini. That was the Shaw whose rise to power was engineered by the same CIA. And let’s not forget the Keystone Cops efforts of the CIA in Cuba—including the doomed Bay of Pigs invasion, numerous attempts to assassinate Castro at the behest of the Kennedy brothers, all while the CIA was working in conjunction with the Mafia. 

So given this well-documented history it is reasonable to wonder why it is that we should accept what the CIA says as if it is coming straight from Mount Olympus. 

But leave all that aside. There is one key fact that dominates (or should dominate) the discussion. Like it or not (and I don’t) Trump is President. He has the authority as Commander-in-Chief to make the call. The proper question is a prudential one: Should he have ordered the killing of General Soleimani?

Unfortunately, a great deal, if not most of the analysis is based on faulty assumptions about the nature of the Iranian regime. The underlying assumption is that traditional tools of diplomacy should be used in dealing with the Iranian government. This in turn rests on the widely shared assumption that the West can wait Iran out until it comes to its senses. That mistake was made by a number of U.S. Presidents including President Reagan who got himself ensnared in Iran Contra and the the arms-for-hostages scandal.  

The argument that Iran can be contained and dealt with by using conventional diplomatic tools is faulty because it rests on the assumption that the Iranian government is conventional and legitimate. It is not. Iran is a revolutionary regime. And it has been since the Ayatollah Khomeini’s revolution seized power in 1979. 

Revolutionary regimes are different from conventional, even tyrannical and authoritarian governments in that they do not merely seek to rule. They seek to create a new man molded (by them of course) to create perfection here on earth. Resisters will be ruthlessly dealt with and the streets will run red with their blood. It has been true throughout history, especially, but not only, the bloody history of the 20th century. Robespierre, the radical Jacobin and leader of the Insurrectionary Paris Commune, ran the terror during the French Revolution from his perch on the Committee of Public Safety. Historians estimate that he had thousands sent to the guillotine in his quest for the perfect republic. 

In the 20th century we had the Nazis and the extermination camps, Stalin and his forced starvations and show trials with mass executions. Which is not to leave out Castro, Mao, Ho Chi Minh, Pot Pol, and the Kim family in North Korea. To name a few. 

And then there is Iran which, since 1979, has been run by the Supreme Leader and backed by the Revolutionary Guards. Note the nomenclature. The operating theory of the Iranian Islamic State as propagated by the Ayatollah Ruhollah Khomeini, leader of the 1979 revolution is that the State is a Theocracy governed according to the Absolute Guardianship of the Islamic Jurist. (See Wikipedia). That theory of state now forms the basis of the Iranian Constitution. The Islamic Jurist is the Supreme Ruler. Which is to say that the Supreme Leader governs a total state. Just like, Stalin, Hitler, Kim Jong-un (another Supreme Leader). 

The brutality of these regimes, although bad enough, is not the only feature they have in common. Unlike conventional dictators, revolutionary states and their leaders have imperial ambitions. As does Iran. So, pace President Obama, they are not going to be gently talked out of their habit of spreading terror and mayhem around the world. Because Iran is a revolutionary state with imperial ambitions led by revolutionary theocratic fanatics. 

The prudential question is not whether the U.S. should act to protect itself and the Liberal order. The question is how the U.S. should act, especially in the wake of the latest Iranian provocations. The Iranian regime has been at this game since 1979, over 40 years. They have had plenty of time to age out. There are no signs that this is going to happen anytime soon. Moreover with every passing day they come closer to acquiring a deliverable nuclear weapon. The clock is ticking in favor of the regime. 

By ordering the assassination of General Soleimani, President Trump achieved a number of important goals. First, he erased the fiction that there is a difference between the Iranian regime and its terrorist operations. They are one and the same. Second, by changing the rules of the game he served notice on the regime that the era of touch football wars with the U.S. is over. Actions taken by the regime and its terrorist proxies will be dealt with swiftly and severely. The Iranian leadership is now vulnerable, a development that will surely grab their attention. 

There is also an additional qualitative change in the incentive structure. It is that the U.S. merely seeks to contain Iran’s behavior; it does not seek to acquire or occupy territory or engage in nation building, the great mistake of previous efforts in Vietnam and Iraq. The U.S. has served notice that it is in a position to impose tremendous costs on the Iranian leadership and that it will do so if need be. Finally, the U.S. has also delivered a message to Kim Jong-un in North Korea. He is personally vulnerable, a message he has undoubtedly heard loud and clear. 

In the end Trump had little choice, especially with the nuclear clock ticking both in Iran and North Korea. The strategy is not without substantial risk. Even now Iraq is threatening to toss the U.S. out of the country. That would achieve for Iran a long sought objective. But Iranian control over Iraq would just create a bigger economic mess for Iran, and would be a hollow victory in the long term. In the end, directly attacking Iran’s terror master and changing the rules of the game works in favor of the U.S. and the West. The potential benefits exceed the costs, and the action is justified from both a moral and legal perspective. 

JFB

Christopher Hitchens on Reparations

Christopher Hitches was a writer and polemicist with extraordinary talents who, in December of 2011, died much too early at age 62. An iconoclast throughout his adult life, Hitchens eventually drifted away from the left — early on he was a Trotskyist — to something vaguely resembling the sensibilities of classical Liberalism. But he would probably object to that characterization.

Christopher Hitchens

He was, like his hero George Orwell, a man of the left. He was a public intellectual who maintained an abiding distrust of the market; he was fearless in the pursuit of truth, and was a brilliant writer and speaker. He had over 30 books to his name as well as countless articles in journals like The Nation, The Atlantic and Vanity Fair, to name a few.

He is probably best known for what has become known as “Hitchens razor”, so named after his quip that “What can be asserted without evidence can be dismissed without evidence”.

In 2001, when he was writing for The Nation, he participated in a debate on reparations in which he represented the “pro” side in favor of paying them. He was, as always, a force to be reckoned with. Here below is a You Tube video of his presentation in that debate.

JFB

The Authoritarians of the Left

“If you cannot convince a Fascist, acquaint his head with the pavement.” ~ Leon Trotsky

“In a stark video showing what appeared to be an assault, a man was shoved and punched in the face at UC Berkeley this week while advertising for a conservative cause at a table on the main campus plaza, police said Wednesday.” SF Chronicle February/21/2019.

“There is a disturbing silence from leaders of the Democratic Party over those gangs of black-masked leftist thugs shutting down free speech and beating people to the ground with clubs at Berkeley.” John Kass — Chicago Tribune August 29, 2017.  

——————————————————————————————————————————————

As the Democratic Party continues its beeline to the left, Progressives have increasingly adopted the use of force and intimidation rather than persuasion to accomplish their goals. This should come as no surprise given that they have increasingly embraced socialism. As a practical matter Socialism means using the police power, not to protect rights, but to bend the citizenry to the will of the State. 

We can turn again to Leon Trotsky who put it bluntly, as usual: “In a country where the sole employer is the State, opposition means death by slow starvation. The old principle: who does not work shall not eat, has been replaced by a new one: who does not obey shall not eat.”

For socialists or progressives (the terms are now virtually interchangeable) individuals do not much matter. Progressives have bigger fish to fry: they are busy constructing a new society and a new man. In this brave new world, to give but one example, biology does not matter because human nature is infinitely elastic. It is so elastic that the term human nature is virtually meaningless. Gender, for instance, is merely a question of preference because there is no natural order of things. In such a world, the strong are justified in exercising their power over the weak to promote what they consider to be the greater social good.

That is always and everywhere the creed of socialists. They may start out talking about individual autonomy and the worth of the individual, but it doesn’t take long for the mask to slip away. Consider the recent de facto legalization of infanticide in some states. Or the near unanimous vote by Democratic Senators, including all the declaBen Sassered Democratic Presidential candidates, against Senator Ben Sasse’s Born-Alive Abortion Survivors Protection Act. As reported by the Washington Post, the bill would have required health-care practitioners to “ exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child” as he or she would to  “any other child born alive at the same gestational age.”

 

Remember, these are already-born, living, babies. The bill would not require medical professionals to take extraordinary measures for babies born alive after a botched abortion.  (Apparently there have been more than a few—see here). It would have simply required them to take the same action they would take for any other baby born at the same gestational age. 

In the event, all the Democratic Senators going for the Party’s presidential nomination voted “No”. Here is Senator Kamala Harris attempting to justify her “No” vote, as reported by National Review. 

“I think it’s up to a woman to make that decision, and I will always stand by that,” Harris told the Daily Caller on Wednesday, when asked if she believes abortion is immoral. “I think she needs to make that decision with her doctor, with her priest, with her spouse. I would leave that decision up to them.”
Kamala Harris

Where to begin. How about with this. First: Why are we pretending this is still about abortion? The baby has already been born. Moreover, Harris—a lawyer and former DA—just glides by the fact that the views of the woman’s priest and spouse (whom she assumes to be the father) have no legal standing whatsoever. It is the woman’s choice, and her’s alone according to Harris, even though the baby is already born and living. If the woman orders the doctor not to care for the baby, the child will simply be left to die. There will be no legal consequences. 

That is what Harris and her fellow Democratic Senators voted for. It is, quite simply, grotesque.

The raison d’être of Liberal, as opposed to Authoritarian, Government is to protect rights, especially the rights of the most vulnerable. That is why government, in a Liberal system, has a legal monopoly on the use of violence. It is to protect. But here we have Kamala Harris and her colleagues voting to privatize the legal use of violence to kill newborn infants. In so doing, she commits not only a grave injustice against those children who will be left to die; she attacks the very foundation of ordered liberty which necessarily depends on unalienable rights and the rule of law. 

 

The Washington Post began to print its slogan “Democracy Dies in Darkness” at the top of every page in February of 2017. They may have it wrong. Liberal democracy is dying with the lights turned on at full power. 

JFB

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

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

Dateline August 8, 2017—Lenox Massachusetts

The Kemble Inn, located in Lenox, is just a mile or so down the road from Tanglewood. A classic New England Inn, it features spectacular views of the Berkshires and a decent restaurant where a very good Amarone will set you back something like $175. The parking lot is filled with Mercedes, BMW’s and Audis. There is not a Chevy in sight.

 

Around town the occasional “Bernie” bumper sticker can be spotted—usually on a Volvo or Subaru. If there are any Trump fans, a doubtful prospect, they are well hidden. Perhaps they have gone underground. We are, after all, in the heart of Resistance territory, at least in spirit.

 

A writer for the Berkshire Eagle, a local newspaper, best expresses the area zeitgeist in a column about that most pressing of issues—texting while driving. “What will it take” he writes, “for the State House of Representatives to approve legislation passed in the Senate …that would ban motorists from using handheld devices behind the wheel”? “Supporters …rightly point out that the new law would make roads safer and force behavioral changes in an era when people have become addicted to using cellphones, email….”

 

The Progressive mindset is a wonder to behold. So passing a law will “force behavioral change” among people who have become “addicted”. And how is that drug war working out I wonder? Nothing like 50 years of failure as evidence for the need to press on. Maybe tossing a couple of million people in jail for texting without a license would do the trick.

 

In the meantime we are treated to the spectacle of Google firing an engineer who had the temerity to say that men and women are…different. Not better or worse, mind you—different. In his memo, James Damore, the Google engineer, carefully distinguished between individual people and statistical populations. First he noted there was considerable overlap in the talents of men and women. Then he noted that on average, women are more likely than men to be empathetic and to be better with people. Men, on the other hand, are more likely to be competitive and status driven. These characteristics, he suggested, might account for the preponderance of men in tech senior management.

 

Needless to say, Google fired him.

 

Which Google is fully within its rights to do. But that doesn’t make it smart. And it doesn’t give Google or anybody else the right to slander him.

 

The memo the engineer wrote is routinely referred to as “a rant” and “a screed”. It is neither. The people who describe the memo that way either haven’t read it, or are unacquainted with the finer points of using a dictionary. But that is beside the point. The jackboots of the left mean to stomp to silence any and all challenges to the cultural hegemony they are busily crafting in the name of “diversity”. This is, of course, nothing more than subterfuge masquerading as “tolerance”.

 

Way back in 1965 Professor Herbert Marcuse, darling of the SDS, came up with the rationale for stomping on dissenting opinions, all in the name of “tolerance”. In “A Critique of Tolerance” he argued that fostering tolerance “…would include the withdrawal of tolerance of speech and assembly from groups and movements which promote aggressive policies, armament, chauvinism, discrimination on the grounds of race and religion, or which oppose the extension of public services, social security, medical care etc.…Liberating tolerance, then, would mean intolerance against movements from the Right and toleration of movements from the Left.”

 

Which is to say that for Progressive believers it is all about power, to be gotten by any means necessary. It always has been. Subverting the language to accomplish the goal is a standard part of the playbook.

 

So: for anyone who is actually interested in what the Google engineer had to say, the memo is reproduced in full by Gizmodo, and can be seen at this link.

 

JFB

The First Duty of Intelligent Men

“Sometimes the first duty of intelligent men is the restatement of the obvious.” George Orwell

 

With Orwell’s aphorism in mind I am reminded of when I served as a juror in a trial.

 

It was a criminal case in which the defendant was charged with breaking into a small accounting firm and stealing computer equipment. He was arrested a block away from the heist by a police officer who testified that the defendant was holding one of the purloined computers as the officer approached. At the sight of the officer the defendant dropped the computer like a hot potato and took off running. In due course he was apprehended, arrested, charged and sent to stand trial.

 

For some reason the defendant choose to stand trial rather than negotiate a plea bargain. The defense produced the inevitable collection of character witnesses who showed up to testify that the defendant was really a good guy after all. Then for some inexplicable reason, the defendant actually took the witness stand. After we listened to his rather implausible explanation of how the stolen computer managed to find its way into his hands at 2:00 AM around the corner from the burgled accounting office, the prosecutor began his cross-examination.

 

That’s when we found out about the three prior convictions for attempted murder.

 

The defendant, gamely insisting that it was really only two and not three attempted murders, triumphantly pointed out that he never actually succeeded in killing anyone. Moreover, he pointed out, he really only pled guilty despite his innocence, because the judge was upset and he didn’t want to disturb her any more.

 

As you might have guessed, this didn’t wash very well. The formal conviction vote came shortly thereafter.

 

I tell this story because, just as the defendant’s guilt was obvious, it is similarly obvious that President Trump is in way over his head, and as he twists and turns to pretend otherwise, he, like the defendant is just making matters worse. But the defendant just made things worse for himself. Trump is making things worse for the country at large. That ought to be obvious too. What may not be obvious (although it should be) is the cultural damage Trump is doing as he further degrades a popular culture that is already doing great damage to the institutions of civil society.

 

An important insight of conservative intellectuals is that politics stems from culture, not the other way around. Contra this, totalitarians have tended to see art as instrumental in the quest for power. Hence we have Soviet proletarian art of the Stalinist era, Mao’s Great Cultural Revolution, and Hitler’s fondness for art whose exterior form was meant to symbolize an inner racial purity. And of course, all used art as propaganda.

As Trump and his coterie crash through political and social norms that have been with us for centuries, he is wearing down institutions that matter, and matter a lot, for the support and preservation of liberty in America. His down market vulgarity is not merely tasteless; it attracts more of the same ilk as the hiring of the Anthony Scaramucci, the new communications director, clearly shows.

 

In Scaramucci we have someone who appears to be a lot like the President: a slob with a lot of money, who has no understanding of politics, history or policy.

 

Up until this point there have been conservatives who have been willing to give Trump the benefit of the doubt. The time for that is by now well past its sell-by date. Other conservatives have decided to “support Trump when he’s right and oppose him when he is wrong.” That too is wearing a little thin, given that Trump is his own worst enemy, and that his influence in the legislature is diminished, to say the least. And not to put too fine a point on it, if a liberal Democratic President behaved even close to the way Trump routinely behaves, conservatives would be swinging from the lights.

 

Conservatives are supposed to have an appreciation for the limits of government power; they are supposed to be the ones who think people are unique individuals with inherent rights and are not just an undifferentiated mass, they are supposedly the ones who wish to conserve and protect the institutions of Western society that preserve and protect liberty and the rights of man. Remaining silent and timid in the face of an all-too-predicable daily display of Trumpian boorishness and overbearing behavior is no way to accomplish conservative ends. After all, it was Edmund Burke who said “The only thing necessary for the triumph of evil is for good men to do nothing.”

 

 

If the Republican Party, the Party of Lincoln, relegates itself to defending the President’s indefensible behavior rather than choosing to articulate and implement an agenda to roll back government power and expand individual freedom, it ought to close up shop.

 

JFB

Charlie Gard, Requiem in Pace

There was a time not so long ago when courts would intervene if parents refused to get medical help for a gravely ill minor child. Now, in England, we have the case of Charlie Gard. In that case the courts intervened to prevent the child’s parents from obtaining medical help in the form of an experimental treatment, even as their son lingered on the verge of death. This, even though the parents raised the substantial funds needed to treat him.

 

The British courts, backed by the badly misnamed European court of human rights, held that children have rights independent of their parents, and as a result hired a guardian to protect the 11-month-old boy’s right to die—against his parents’ wishes. The court refused to release the boy to the parents’ custody to seek treatment, ruling his interests would be best served by dying. Now after 4 months of court enforced stalling, the American doctor who had agreed to provide the treatment says that the child’s condition has deteriorated to the point where there is nothing he can do.

 

The parents have dropped their court action and have asked the court to allow Charlie to die at home. The court is considering the request.

 

Welcome to the single payer system.

 

When government says it will provide health care what it really means is that government will use its police power to decide who will and who will not receive treatment. They euphemistically call it cost containment. And so individuals and families will not be the ones to decide to let nature take its course. Nor does it mean that individuals and families will decide what constitutes taking “extraordinary measures” to prolong life. The calculus will be the state’s. It no longer belongs to the individual or the family.

 

It means that government, operating through a bureaucracy staffed by presumed experts, will decide who gets treatment and who does not; whose life is worthwhile and whose is not; who will live and who will die. Those decisions will inevitably favor the powerful and politically well connected. Like Charlie Gard and his family, individuals and their families will have lost agency over their own lives. Because in the Progressive Administrative state, rights come from government, they do not precede it, nor are they independent of it. Individual rights, including the right to life, are subordinated to the will of the state, not the other way around.

Remember, Charlie Gard’s parents raised the funds to pay for medical help for their son. And still the state asserted its police power to retain custody of the child, ruling that it was in Charlie’s best interest to die. The parents had no say.

By all accounts it is very unlikely that, in the end, the treatment sought by the parents would have changed the outcome. That is not the point. The decision rightly belonged with the parents. And the state just took it away. Because when push comes to shove, that’s how the Progressive Administrative state works.

Charlie Gard, RIP.

 

JFB

The Impeachable Mr. Trump

It is now beyond dispute that the Russian government of Vladimir Putin sought to influence the outcome of the 2016 U.S. Presidential election. That the Russian government tried to subvert the American political process should come as no surprise—they’ve been at it for 50 years. What is different about this go-around is that high officials of the Trump campaign were stupid enough to go along with it. We know this is so because Donald Trump Jr. confessed to the deed (but not the stupidity) and released e-mails proving both. And this may not be the end of it.

 

So lets consider where this leads. For one thing, it is unlikely to end well. But let’s not get ahead of ourselves. At present, roughly everyone wants to see all the facts come out. Which is to say, (1) an examination of the various Trump enterprises and their commercial ties to Russian interests, (2) what meetings Trump officials had with Russian counterparties and who said what to whom, and (3) the extent to which President Trump was himself involved in these conversations, if at all.

 

To that end, the FBI investigation headed by Robert Mueller would seem to be the way to go. By all accounts he is investigating whether Trump obstructed justice when he fired James Comey, and whether there was collusion between the Trump campaign (and Trump himself) and the Russian government. The second is more important than the first because if there was no collusion, it’s hard to get too exercised over alleged obstruction when there is no underlying crime. So let’s consider collusion.

 

First, a definition.

 

In general, collusion is an agreement between two or more people to do something illicit. But that is kind of vague, so prosecutors generally turn to a charge of conspiracy. Conspiracy in the criminal law would occur when two or more people get together and agree to commit a crime—but they do not actually have to commit the underlying crime to be guilty of the charge. For instance, the conspiracy could be broken up by law enforcement before the conspirators act.

 

At this point, with what is publicly known it would be hard to charge Donald Trump Jr. with a crime, notwithstanding the daily hyperventilating at MSNBC. His agreeing to meet with Russian operatives who dangled oppo research in front of him was stupid, naïve and dishonorable, but not in itself criminal. And in any case, the criminal law is not the standard for what this is all about, which is impeachment.

 

There are two questions before us. One is evidentiary; the other is Constitutional. The first question is this. Did President Trump himself knowingly participate in an effort to cooperate, conspire or collude with a foreign power to secure an electoral advantage in the 2016 Presidential election? The second question is conditional on the first. If the evidence shows that Trump cooperated, conspired or colluded with a foreign power to secure an electoral advantage, what is the remedy?

 

 

Thus far there is no publicly available evidence that President Trump himself acted to collude with Russia. There is no question that he has bent over backwards to be at least rhetorically accommodating toward Russia in general and Putin in particular. Not only that, he frankly admitted firing Comey over “the Russia thing”, although he apparently took no steps to actually close down the investigation. Lots of smoke, but as yet no fire. So let’s ask the Constitutional question.

 

Does impeachment require proving that the President engaged in criminal behavior?

 

I believe the answer is: No. The House is within its rights to impeach, and the Senate to convict the President of “High Crimes and Misdemeanors” without finding the President guilty of criminal wrongdoing.

 

Let’s consider the possibilities by engaging in a thought experiment. Let us suppose that then candidate Trump knowingly acquired and used opposition research from a foreign government, or governments. Let’s also stipulate that Trump did not explicitly promise something in return. What then?

 

I believe that such behavior would constitute an impeachable offense—not because the behavior was criminal in the conventional sense—because it probably isn’t. It doesn’t have to be. The phrase “High Crimes and Misdemeanors” should be understood as referring not to the crime itself, but to crimes and misdemeanors committed by a “High” person, which is to say a person who holds high office. That does not mean that Presidential jaywalking is an impeachable offense, but it does suggest a political standard by which Presidential behavior may be judged.

 

That standard is the effect the behavior has on the society writ large. By that standard impeachable offenses would be ones that inflict great injury on the society itself, that are abuses of the public trust, that require a check to preserve the separation of powers or acts that deserve “perpetual ostracism from the esteem and confidence and honors and emoluments of his country.” (For an in-depth discussion see Carl Scott discussing Federalist #65 on Impeachment in First Things. Another source to check is the Constitutional Rights Foundation).

 

Abuses of the public trust, particularly with respect to treatment of a foreign power are especially egregious in our Constitutional scheme. That is because the founders only adopted the U.S. Constitution to replace the Articles of Confederation 13 years later in 1789 after a great deal of debate directed at strengthening the federal government without making the President into a de facto King. In addition, having just fought the revolutionary war, they wanted to make sure the U.S. did not become ensnared in Europe’s wars, or fall under the influence of a foreign power.  So they adopted the emoluments clause, which among other things forbade the granting of Titles of Nobility by the United States, and prohibited public office holders from accepting gifts from any King, Price, or foreign state.

 

The emoluments clause was designed to stop politicians holding high office from falling under the sway of foreign powers. But it didn’t stop there. It was also designed to protect the republican design of American political institutions. (See this discussion of the emoluments clause at Heritage.org.)

 

In order to keep a check on the President, they adopted a Constitution for a republic—not a democracy—because just as they were fearful of creating a King, they were also afraid of mob rule. So they divided power at the federal level among three co-equal branches. And they created a federal system of dual sovereignty where the federal government and the states had different roles to play.

 

The impeachment clause (Article 1, Section 2, Clause 5) was designed to be a limiting mechanism to prevent a President from abusing the powers of his office. At the same time the founders made the process sufficiently difficult that it would not likely be used to prevent the President from using his lawful powers. In order to succeed, a vote to impeach requires a super-majority of 2/3rds of the House. Likewise, conviction in the Senate requires a tw0-thirds vote. Note—at the time the Constitution was adopted, Senators were not elected by direct popular vote, but were appointed at the state level.

 

At heart, the impeachment power is about politics, not the criminal law. Federal Office Holders are not allowed to accept gifts from foreign players without Congressional approval. Quid pro quo doesn’t matter. It isn’t allowed without Congressional approval. Period. Full stop. And it is clearly because of concern that foreign powers will seek to influence American policy by use of gifts and flattery. Moreover, the Founders were concerned with the harm that an errant politician could do to the society at large, particularly if he abused the powers of his office and violated the public trust.

 

Note that in the prohibitions against accepting gifts, and in the discussions in the Federalist there is no discussion of penalties. The only penalty specified in the Constitution is impeachment. That is because this is inherently a political matter, not a matter for the criminal law, at least in the first instance. The criminal law comes in later—after successful impeachment proceedings. In this respect it is worth noting that the requirements for a criminal conviction are tougher than for impeachment. A criminal conviction requires a unanimous jury rather than a two-thirds vote.

 

So I submit that it is reasonable to argue that an impeachable offense does not require a violation of the criminal law. But it does require an abuse of office and the public trust, or the infliction of great harm on the society at large—not merely a policy dispute. And in our Constitutional system, putting oneself under the influence of a foreign power is an egregious political offense.

 

Are we there yet with Mr. Trump?

 

No, at least not yet. But that is because all the facts are not yet known. When they are—and they will be—it is conceivable we could see a second Presidential impeachment in less than 20 years. The prospect of a Trump impeachment is no longer confined to the fantasies of the Resistance. Although not likely, it has become a very real possibility.

 

JFB