The End of the Rule of Law?

On July 31, 2017 U.S. District Court Judge Susan Bolton ruled that former Sheriff Joe Arpaio was guilty of “flagrantly” disregarding an order by federal District Court Judge G. Murray Snow to halt the immigration round-ups for which he had become famous. Arpaio instead continued the practice, bragging at one point that he would “never give in to control by the federal government”. For his defiance of the court Judge Bolton found him to be guilty of criminal contempt, a misdemeanor for which he could have faced up to six months confinement.


But that will not come to pass because President Donald J Trump announced on Friday that he was pardoning Arpaio, an early “birther” who had announced his support for Trump’s presidential run early on. The pardon surprised no one because Trump had telegraphed it a few days prior at a raucous rally when he said “He should have had a jury, but you know what? I’ll make a prediction…I won’t do it tonight, because I don’t want to cause any controversy . . . But Sheriff Joe can feel good.”


So let’s cut to the chase. President Trump exercised his Constitutional prerogative to grant a pardon to a law enforcement officer. The law enforcement officer in question, Joe Arpaio, willfully refused to carry out a lawful court order to cease and desist in his illegal activities. In addition, Arpaio violated his oath of office to uphold the Constitution of the United States. Moreover, Arpaio has shown no remorse for his illegal behavior, which would almost certainly still be ongoing, had the voters not shown the good judgment to toss him out of office.


In pardoning Arpaio, Trump made it clear that neither he, nor his supporters, need to feel constrained by the rule of law. It is of a piece with his refusal to fully and forthrightly single out and condemn Nazis and the KKK at Charlottesville, VA. What matters for Mr. Trump is who you are and where you sit. It is about power, not justice. In this President Trump is fully simpatico with the “social justice” warriors and critical legal theorists of the left.


But in pardoning Arpaio, Trump has not only attacked the separation of powers; the way he did so doing effectively eviscerates the entire Constitutional architecture. Consider the point of the separation of powers as described by James Madison. Writing as Publius in Federalist 51 he said:


“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”


But here we have a situation in which the President of the United States is dismantling those auxiliary precautions. Consider, we have a law enforcement official, Joe Arpaio, who was found to have systematically violated Constitutional rights. In response the President (1) praised and pardoned him, (2) rolled over the judiciary, and (3) sent an unmistakable signal that Constitutional violations by law enforcement officials will be rewarded if the violations are aimed at the right target.


It wasn’t too long ago that the Obama Administration was busy refusing to enforce the law. For instance, Obama ordered the IRS not to enforce the Obamacare mandates. And speaking of the IRS, there was that little matter of Lois Lerner weaponizing the agency against Tea Party groups. Not to put too fine a point on it, the Justice Department acted like a legal defense firm for Hillary Clinton during the non-investigation of her e-mail account.


When the Obama Administration simply refused to enforce laws it didn’t like, or were politically inconvenient, some Republicans pointedly asked what the reaction would be if a future Republican President were to simply announce e.g., that he was “suspending” capital gains taxes. In light of where we are today, it was a prescient question. After all, for blatantly political purposes a nominally Republican President has pardoned an unrepentant convicted criminal who flagrantly and deliberately violated Constitutional rights that he had sworn to protect.


In pardoning Arpaio the way he did, Trump violated his oath to “…preserve, protect and defend the Constitution of the United States”. That oath requires that the President “…take care that the laws be faithfully executed”. But to the contrary, President Trump rewarded a law enforcement officer and political ally who willfully ignored a court order to cease and desist violating the law. Not only does that signal a willingness to tolerate, if not celebrate, lawlessness by government officials, it further undermines law enforcement by sending a signal to Trump allies that they will be taken care of if they are under investigation.


There is a reasonably good case to be made that these actions cross the threshold into political “High Crimes and Misdemeanors” referenced in Article II, Section 2, that authorizes the removal of a President from office by impeachment and conviction. But there is a two fold political problem. First, the Republicans are terrified of Trump voters even as he proceeds to destroy their party. Second, the Democrats have no problem with executive over reach, as evidenced by their quiescence during Obama years—they just want to be the ones doing it.

And so we have an entire political establishment that, for its own purposes, is willingly acquiescing in the destruction of the rule of law in the United States. Isn’t bipartisanship terrific?



The New Barbarians

Toward the end of February 2001 Mohammed Omar, the Taliban’s spiritual leader, ordered the destruction of all the statues in Afghanistan because, he said, they were idolatrous. And so the Taliban went about the systematic destruction of pre-Islamic artwork, which included giant statues of Buddha that were carved into the mountains. Some of these pieces were two thousand years old.


As they went about the business of blasting these priceless pieces of art into smithereens, they also erased a part of Afghanistan’s history. Which was rather the point. Art that did not conform to the received wisdom of Mohammed Omar and the governing bodies of Afghanistan had to be erased from memory, because as Orwell said, he who controls the past controls the future.


The civilized world was appalled.


Fast forward to August 2017. Leftist ideologues have decided that the 225-year-old statue of Christopher Columbus in Columbus Circle must go. Mayor Bill DeBlasio has courageously announced he will appoint a commission to look into the matter. City council speaker Melissa Mark-Viverito decided to weigh in: “There obviously has been ongoing dialogue and debate in the Caribbean—particularly in Puerto Rico where I’m from—about this same conversation that there should be no monument or statue of Christopher Columbus based on what he signifies to the native population…[the] oppression and everything that he brought with him” she said.


The opinion of the civilized world now appears to have evolved into an acceptance of the enlightened reasoning of Mohammed Omar. Statuary and artwork from the pre-Woodstock era must be put into the memory hole; otherwise we might offend the exquisite sensibilities of those aching for the chance to be offended. But of course, this has little to do with what the fight is really all about. It is really about erasing the past to control the future.


The hard ideologues of the left wish to rewrite the history of the West and in the process undermine its culture. And so they attack the soft underbelly of the West, which is that Western elites are either unable or unwilling to defend Western culture and tradition in the face of the mob. Because Western elites are ahistorical and have fallen prey to a vacuous relativism, they stand defenseless before the Marxist critique of Western civilization as a story of the continuing oppression of marginalized groups. Western elites are an easy target because they are lost in a haze of politically correct bumper sticker slogans that substitute for thought.


John Maynard Keynes was prescient here. He famously wrote “Practical men who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist. Madmen in authority, who hear voices in the air, are distilled in their frenzy from some academic scribbler of a few years back”. Except that it turns out that the academic scribblers were not economists. They were Marxist philosophers, and artists and sociologists. They were of the Frankfurt School and later its offshoots like postmodernism and deconstructionism. Their leaders were Herbert Marcuse, Antonio Gramsci, Gyorgy Lukacs and Theodor Adorno. They successfully laid the groundwork for the ruthless cultural attack against Western civilization that is now taking the form of wanton destruction of artwork that doesn’t conform to today’s cultural norms.


But by burying symbols that are unquestionably part of its history, the U.S. is also burying its history rather than learning from it. That is hardly an optimal solution. Some, but not all, of those statues celebrating the Confederacy that have aroused such ire were actually created well after the Civil War ended. They were meant to be proclamations of resistance to, among other things, the 14th and 15th amendments that were passed to secure the legal rights of freed slaves. Those belong in museums so that their history can be properly taught.


And let us not forget that the Progressive hand lies heavily on the scale here in favor of historical racism. Woodrow Wilson was one of the most racist Presidents in U.S. history. Margaret Sanger was an unabashed racist and eugenicist who favored birth control and abortion to reduce the non-white population. Ruth Bader Ginsburg echoed that sentiment several years ago in a New York Times interview, when with respect to abortion she casually referenced “growth in populations we don’t want too many of”. Then there was the late Senator Robert Byrd who served for a while as an “exalted Cyclops” of his local Klan affiliate. Which is not to leave out Justice Hugo Black who also was a Klansman for a while.


So perhaps, just perhaps, we ought to sit back for a minute and get a grip before we buckle to the mob, and engage in a destructive rite of ritual self-purification.






Death in Charlottesville, Virginia

It has come to this: The President of the United States had to be dragged kicking and screaming into making a statement condemning neo-Nazis in Virginia. This was not a mere abstract exercise. The neo-Nazis in question had staged a rally to protest the removal of Civil War statuary that commemorated the rebels. The predictable scuffles ensued and in the end one of the Nazi sympathizers deliberately drove his car into the crowd of counter-protestors, ISIS style, killing one and injuring 19 at last count. The President, not exactly known for his reticence, found it difficult to forthrightly and explicitly condemn this behavior in the immediate aftermath.


The Alt-Right, a sometimes-violent lunatic fringe group dedicated to preservation of “the white race” was apparently pleased with Trump’s performance. On their websites these cretins have actually taken to making derogatory remarks about the murdered woman’s appearance; they have cast aspersions on her reputation, and have gone so far as celebrate the fact that she is deceased, although they carefully avoid mentioning exactly how her death came about.


What is both remarkable and horrifying about all this is that Trump’s behavior is about par for the course. It is what we have come to expect. Which is to say that the leader of the free world apparently had to be talked into denouncing neo-Nazi violence that ultimately resulted in a deliberate killing.


On the campaign trail then candidate Trump argued that President Obama’s refusal to use the phrase “Islamic terrorist” showed that he did not understand the problem and was therefore incapable of dealing with it. And then as President, Trump has to be dragged into acknowledging (sort of) that the motivation behind the attack in Virginia was precipitated by neo-Nazi ideology. Not simply the all-purpose and by now next to meaningless word “hate”. The neo-Nazis, for instance, do not simply “hate” in general. They have a specific ideology with specific and well-known beliefs. And those beliefs demand action. We got some of it in Virginia.


While we are at it, let us drop the neo part of “neo-Nazis” because there is nothing new about it. Evil has been with us for a very long time, and this brand of it is as old as the hills. The individual doesn’t matter, only the tribe. Blood and soil determine the tribe. Instead of each human being being a unique individual soul with an inherent right to life, humans and human society are essentially like an ant colony waiting for a glorious leader to take them into a more glorious future. And for the leader, like all revolutionaries seeking some twisted earthly utopia, the struggle and its attendant violence and destruction are liberating forces. Killing and destruction and death are a necessary part of the package.


If you don’t think so read what Adolf Hitler said in Mein Kampf: “He who would live must fight. He who doesn’t wish to fight in this world, where permanent struggle is the law of life, has not the right to exist.” Or for that matter, Osama bin Laden who said over and over again: “We love death as you love life”. In resolving the tension between Eros and Thanatos in his Eros and Civilization, Marcuse finds that “Death can be a token of freedom”. And of course Bobby Sands, a professed atheist and communist, starved himself for “the cause”. It is always “the cause” whatever the cause happens to be at the moment.


We live in an age that rejects the permanent things—and it does so at its peril. The moral relativism that infects the body politic makes it a soft target for radicals of all stripes, from Saul Alinsky to ISIS to Jason Kessler to Milo Yiannopoulos. And we should not be deceived into believing that these people are simply out to make a case, however noxious. They seek to further undermine the institutions and culture of Western Liberalism so as to ease the path toward their totalitarian fantasies.


The mere fact that the President of the United States took his time about condemning the violence and murder in Charlottesville, VA should be (but isn’t) stunning. Combine that with the fact that plenty of people are still willing to defend Trump’s behavior and we have an illustration of just how far the culture has deteriorated and just how fragile the line is between civilization and barbarism.




Now It’s Getting Serious

The Clinton, Bush and Obama Administrations insisted that a nuclear-armed North Korea would be “unacceptable” even as Pyongyang continued to test and develop nuclear weapons and delivery systems. In fact, as recently as a couple of years ago foreign policy experts of the Democratic and Republican establishments were still patting themselves on the back over their self described success in containing North Korea’s nuclear ambitions.


But while U.S. foreign policy experts were busily congratulating themselves, North Korea was busy developing ICBM’s, nuclear bombs and miniaturization technology. Now North Korea is threatening to launch a few of those ICBM’s very close to Guam.   One would think that the foreign policy establishment would be humbled by such a crashing bipartisan policy failure that was 25 years in the making.

Not a bit.

Lest this seem a tad harsh, let’s review what the foreign policy establishment has been saying all along. In 2013, then Secretary of State John Kerry said a nuclear-armed North Korea was unacceptable. In 2003 then President George W. Bush said the U.S. would “not tolerate” a nuclear-armed North Korea. And of course, the Clinton Administration’s Agreed Framework designed to curb North Korea’s nuclear ambitions was signed in 1994, and collapsed in failure in relatively short order.


And for the sake of completeness, we can’t leave out Hillary Clinton’s immense contribution to the predicament we are now in. Her war in Libya led to the execution of Moammar Gadhafi by U.S. backed rebels after he surrendered his nukes, a development that was surely noted by Pyongyang.


Needless to say, the authors of the failed North Korea nuclear policy have leapt right in to the fray without missing a beat. Hillary Clinton sagely notes that “Tweets won’t solve [the problem]”. Thanks for that, Hill.


Best of all, Susan Rice, former Obama Administration National Security Advisor and go to Ben Ghazi liar, now says that the U.S. can tolerate a nuclear-armed North Korea after all. If you like your doctor and all that, I suppose.


So the question is: why in the world should anybody take these people seriously? They have produced a catastrophic policy failure that just may lead to a nuclear exchange resulting in millions of deaths, and possibly a nuclear strike on the United States. Undaunted, after insisting for years that a nuclear armed North Korea is unacceptable, the party line is rapidly moving into just how acceptable it is. The people who for years insisted that North Korea’s regime was populated by crackpots, now tell us we can contain the regime because after all, they are rational and want to survive.


But look at it this way—it took about 25 years for the North Korea policy failure to be undeniable. It may only take 5 years for the U.S. policy with respect to Iran’s nuclear capacity to collapse in utter failure.



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.