Thursday, January 14, 2021

Somebody Has To Say It

Suppose you discovered that votes for your favored presidential candidate had been thrown out or otherwise suppressed by a nationwide cabal of powerful people determined to impose a government upon you against your will, and that their preferred candidate will lead an effort to deprive you of your constitutional rights. How would you respond? Some might passively accept the new situation, and make plans to stay out of trouble. But a good number of us Americans might just march on the Capitol to visit harm on the conspirators.

We’ve done it before. Our nation was founded in revolution, and we, of all people on earth, have no legitimate basis for saying that violent revolt is always and everywhere an illegitimate response to governmental action. It should never happen where there remain peaceful alternatives, of course. But if what President Trump and his media acolytes were saying about the 2020 presidential election was true, what peaceful remedy would be available for that? Massive civil disobedience might be the most effective remedy in the long run, but it isn’t to be expected that a majority of Americans share that view.

It thus appears that President Trump and other dispensers of purported information to the general public were giving a rendition of contemporary affairs that was likely to incite rebellion against the United States government. Knowing that he had a loyal following, Trump told them that republican government was on the line, and that powerful conspirators were engaged in an operation to render their votes ineffectual.

That wasn’t true, of course. It was a lie, and a profoundly serious one. And he had help in the media and even in Congress. The intent, clearly, was to be believed, and to get people to act as if the disinformation was true. Reasonable people understand that many were likely to respond with violent revolt.

Why was this allowed to get so far? We have a very strong tradition in the United States supporting freedom of speech and the press. That is a good thing in the main, but even something that we consider so sacred can get out of hand. Lies that incite misguided rebellion is freedom of speech that is entirely out of hand. And we must stop it before it does more damage.

Sir William Blackstone, the great expositor of the common law, and whose Commentaries on the Laws of England provided the conceptual backdrop of much in the American Constitution, said, “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press, but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.” [1] But we have changed freedom of speech and the press into a libertinism. The outcome of our folly should now be manifest to all.


There has been much handwringing of late over the prospects of our country coming together again. The elephant in the room has been that we cannot achieve national unity if there is no agreed set of facts; and we can’t have an agreed set of facts if a substantial portion of the population is believing lies. Speech or writing, then, that is known to be false by the disseminator, or is disseminated with reckless disregard of its truth or falsity, and is of a nature to deceive the public into misguided political action, should be criminal. We cherish our democracy. But democracy can’t work if the people are victimized by disinformation.

Lies can harm society. Therefore, some lies should be prohibited.

Yes, there is a danger that governmental agents will abuse such a law. That’s true of most laws. For example, government agents can plant evidence in a variety of criminal cases, yet that is rarely, if ever, put forward as a reason to not have a criminal justice system.

But we have a safeguard that most countries do not: juries. Juries aren’t government agents, obligated to state superiors. They are drawn from the general citizenry, and it is they who will ultimately pass on the truth or falsity of statements. One day we will learn that it is the jury system that is the true guardian of our liberties, not prophylactic rules that inadvertently provide loopholes for the mischievous and cunning.

We have laws against lying to cheat people out of money. It’s time to have laws against lying to misdirect people politically. As we have just seen, lying of that kind can bring about serious social harm, and should not be considered protected speech.

There. I said it.

Thursday, January 7, 2021

He Needs To Go Now

It appears that administration “officials have started discussing the possibility of invoking the 25th Amendment to remove President Trump from office, according to a source familiar with the matter.

“Officials have exchanged calls and messages about the extraordinary measure, which would require a majority of Cabinet officials plus Vice President Pence to declare to Congress that Trump is unable to fulfill his duties as president.” [1]

Your humble servant suggested this very thing on another occasion [2], but inciting insurrection might convince the responsible officers that the time has come.


Why now? His presidency will end on January 20th, just a few days hence.

But the problem is, he will be president until January 20th. While he isn’t likely to get the cooperation of the military in his yen to seize power, he nonetheless controls a massive governmental apparatus. Given that he appears to be completely off his rocker, it’s probably not a good idea to allow him to retain possession of it for even a short time. It would be bad for national security for the ship of state to be essentially rudderless until Joe Biden’s inauguration.

There may be too many sycophants in his administration to pull off any 25th Amendment action, however. If so, there is another way.

No law prohibits a president from being impeached twice. And this time, Trump really did it.

Section 2383 of Title 18 of the United States Code provides that whoever “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” [3] That seems to cover Trump’s behavior pretty well, and committing a federal felony is a legitimate ground for impeachment.

It’s also a legitimate ground for conviction on an impeachment.

But would there be enough Republican senators to convict? Mitch McConnell, for one, seems to have reached the end of his tolerance for Trump’s shenanigans, and he is in a position to be persuasive.

But we have to get this guy out of there. Now. Today. It might be difficult to come up with something crazier than inciting insurrection, but do we really want to test it out?

Thursday, December 31, 2020

A Veto That Cannot Be Overridden

Associated Press reports that “Senate Majority Leader Mitch McConnell all but shut the door Wednesday on President Donald Trump’s push for $2,000 COVID-19 relief checks, declaring Congress has provided enough pandemic aid as he blocked another attempt by Democrats to force a vote.

“The GOP leader made clear he is unwilling to budge, despite political pressure from Trump and even some fellow Republican senators demanding action. Trump wants the recent $600 in aid increased threefold. But McConnell dismissed the idea of bigger “survival checks” approved by the House, saying the money would go to plenty of American households that just don’t need it.

“McConnell’s refusal to act means the additional relief Trump wanted is all but dead.” [1]

So, that’s that. It would have been nice to have the Senate take a vote on the issue at least, but McConnell says no.

A couple of years ago, when “asked if the Senate would consider legislation to protect special counsel Robert Mueller, McConnell responded, ‘I’m the one who decides what we take to the floor, that’s my responsibility as the majority leader, and we will not be having this on the floor of the Senate.’” [2] But search the Constitution, the federal statutes, even the Senate rules, and you won’t find such power given to the the majority leader. It’s simply a custom that has developed over the years.

It is a custom, your humble servant submits, that is unconstitutional. Voters from each state select two senators to represent them. Representation in this context should clearly involve presenting legislation for the Senate to deliberate on. But if the Senate majority leader doesn’t want a vote to be taken on that legislation, there will be no vote. This effectively deprives the state represented by the senator proposing the legislation of its representation in the Senate: it deprives that senator of her ability to represent her state in an effective and meaningful manner.

But the Senate majority leader is only one senator, representing one state; and he isn’t even his state’s entire delegation. One senator is effectively empowered to prevent any bill from coming to the floor for a vote, even if it would pass if it was voted on.

The House of Representatives has, from time to time, operated under the “Hastert Rule,” otherwise known as the “majority of the majority rule,” whereby the Speaker of the House allows proposed legislation to come to the floor only if it has the support of the majority of the majority party. [3] [4] When operating, the rule applies even though the legislation would pass if brought to the floor. [5] This practice has the same constitutional problems, even though the Speaker of the House, unlike the Senate majority leader, is mentioned in the Constitution.

Any senator or representative should have the ability to propose legislation that is voted on by the entire body. And any legislation passed by one house should be voted on by the other. Any other practice is an abandonment of republicanism. There needs to be a constitutional amendment imposing that requirement.  

 

Thursday, December 10, 2020

No Longer Republican

Article II, Section 1, Clause 2 of the U.S. Constitution says that the electors for President are to be chosen from each state “in such Manner as the Legislature thereof may direct....” [1] Texas has filed a request with the U.S. Supreme Court for leave to file a complaint, alleging that the electors of four states—Georgia, Michigan, Pennsylvania, and Wisconsin—were not actually chosen in that manner, but that other authorities in those states conducted the election in a manner not authorized by their state legislatures.

Apparently, the Texas attorney general is of the view that the legislatures of those four states were too incompetent to rise in their own defense, and stood by in seeming helplessness while their respective state officials ran roughshod over their carefully constructed statutory edifices. The request is accompanied with factual allegations that would require a lengthy process of evidentiary fact-finding. But what Texas is hoping for is that the Court will either stop the electors from those states from voting at all, or send the matter back to the respective state legislatures to appoint electors. [2]

These four states have two things in common: all four of them went for Joe Biden in the 2020 presidential election, and all four of them have Republican majority legislatures. What is obviously afoot is that Texas is trying to get the Supreme Court to order the Republican state legislatures to directly appoint electors regardless of the popular votes in their states.

Sixty-two electoral votes are at stake. If all of those votes were taken away from Biden, he would no longer have the required majority of electoral votes, and the election would go to the House of Representatives. If the Republican state legislators select electors for Donald Trump, that would raise his electoral vote total to a majority, giving him the presidency.

One might expect that the Supreme Court will, after the fallout from Bush v. Gore, seek to ward off this cynical ploy with a crucifix. But I have learned not to predict the future, or to be surprised by anything in American politics.

What is certain is that if the Supreme Court effectively awards the presidency to Donald Trump, the United States will no longer be able to legitimately claim itself to be a republic. Either way, the Republican Party has already forfeited the legitimacy of its moniker.