America • Center for American Greatness • First Amendment • Post • The Constitution • The Left

Nicholas Sandmann Was Denied the Justice He Deserves

A Jimmy Carter-appointed federal district court judge in Kentucky on Friday dismissed Nicholas Sandmann’s defamation lawsuit against the Washington Post. The Covington Catholic High School student’s two other suits against CNN and NBC remain active, however.

Recall that Sandmann became Public Enemy No. 1 after video surfaced of him perpetrating a heinous crime on the steps of the Lincoln Memorial the day after the 2019 March for Life: standing while white and MAGA-hatted. Even worse, he appeared to smile as Nathan Phillips, a Native American adult who approached Sandmann and his friends, loudly banged a drum in Sandmann’s face.

Sandmann, still a minor, was quickly smeared as a disgusting racist by thousands of adult, leftist pundits (shamefully abetted by many so-called conservatives), politicians, and activists. The Twitter mob said Sandmann had a “punchable face” and was a “prime candidate for wood chipping.” He became the embodiment of “white male privilege,” a scapegoat for all the world’s wickedness. He was even deemed complicit in Christ’s crucifixion! Ultimately, he was abandoned to the mob by his own bishop, as well as by a neighboring bishop who just couldn’t resist the urge to woke-signal.

Applying a Kentucky defamation statute, the court held that 33 statements from seven Post articles and three tweets—which Sandmann alleged were defamatory and entitled him to $250 million in damages—were all protected as opinion under the First Amendment. “Few principles of law are as well-established as the rule that statements of opinion are not actionable in libel actions,” Judge William O. Bertelsman wrote in his ruling.

In assessing the relevant defamation precedents, Bertelsman focused primarily on the first of the seven articles (the other six and the three tweets contained mostly recycled statements from the first article) and determined that nine of the 33 statements were not even “about” Sandmann in particular and thus were not actionable; another seven statements (some of which overlapped with the previous set) could not “form the basis for a defamation claim” because they were mere opinions, not factual statements “capable of being proved objectively correct.”

Most importantly, the court explained that “[i]n determining whether a writing is libelous per se under Kentucky law, courts must stay within the four corners of the written communication.” Which means the “words must be given their ordinary, natural meaning as defined by the average lay person,” and the “face of the writing must be stripped of all innuendoes [sic] and explanations” that could “enlarge or add to the sense or effect of the words charged to be libelous, or impute to them a meaning not warranted by the words themselves.”

Bertelsman also analyzed the allegedly libelous publications in their entirety to “determine if [their] gist or sting [are] defamatory”—in other words, if they would “tend to expose Sandmann to public hatred, ridicule, contempt or disgrace, or to induce an evil opinion of him in the minds of right-thinking people.” For a statement to be defamatory, it cannot be an opinion; it must be about someone in particular; and it has to in itself—without reference to any “extrinsic evidence of context or circumstances [or consequences]”—be injurious to its object. None of the 33 statements, in Bertelsman’s determination, met this threshold, even as many people then and now hold “an evil opinion” of the “smirking” Sandmann.

Unfortunately, that conclusion follows more or less inescapably from Bertelsman’s straightforward application of Supreme Court and Sixth Circuit precedents to the facts of the case.

That Sandmann couldn’t convince the court to find that even one of the nearly three-dozen statements constituted defamation indicates deep rot at the core of this area of First Amendment jurisprudence. Especially so when the district court declined to reach a critical question in defamation law, namely, whether Sandmann was either a “public figure” or a “limited-purpose public figure.” Indeed, it is difficult to see how such an analysis could result in a finding that Sandmann—who did nothing to seek the public-square spotlight and the firestorm that later enveloped him—was anything other than a purely private figure, a classification which would have given his lawsuit a much higher chance of success.

Recently, Justice Clarence Thomas, concurring in the denial of certiorari in McKee v. Cosby—a case that asked the court “to review [the petitioner’s] classification as a limited-purpose public figure,” a classification rooted in the landmark defamation case, New York Times Co. v. Sullivan (1964)—put it best when he wrote, “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”

What the New York Times decision and its progeny, including this case, get wrong is that free speech, for the Founding generation, generated a correlative duty to use it responsibly for the pursuit of truth, and its primary regulators were to be state legislatures, not courts. The Founders were not free-speech libertarians (even as the Supreme Court increasingly, and worryingly, has embraced such a relativistic vision of speech), and a world in which the press can, even incidentally, sic a ravenous, self-righteous mob on a teen and plaster racist next to his face forever and suffer no real consequences is not truly a free society.

The Pennsylvania Supreme Court described why in 1788:

Libelling is a great crime. . . . With respect to the heart of the libeller, it is more dark and base than that of the assassin, or than his who commits a midnight arson. It is true, that I may never discover the wretch who has burned my house, or set fire to my barn; but these losses are easily repaired, and bring with them no portion of ignominy or reproach. But the attacks of the libeller admit not of this consolation: the injuries which are done to character and reputation seldom can be cured, and the most innocent man may, in a moment, be deprived of his good name, upon which, perhaps, he depends for all the prosperity, and all the happiness of his life.

No less an authority than Dante concurs; he placed liars deeper in hell than the violent because lies “offend against the rational part of the human being, which is nobler and more in need of protection even than the body.”

Sandmann plans to appeal, and he should, even though the Sixth Circuit likely would be forced to affirm Bertelsman’s decision thanks to decades of too-lenient defamation precedent that now robs private citizens of our right to our good names.

The Supreme Court should take this opportunity to reign in its runaway defamation jurisprudence, restore (at least to a degree and in this one area) the original understanding of the free speech clause, and tame our public discourse—which today more resembles the Wild West than a public square of a constitutional republic ordered to truth.

Free speech exists to secure human flourishing and the common good of the nation. We should take it back from those who have weaponized it to create a culture of fear as they push an anti-American agenda.

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Photo Credit: Fox News

Hollywood • Post • The Constitution

How ‘Secret Obsession’ Exposes California’s Dumb Gun Laws

When Netflix’s bland new psychological thriller “Secret Obsession” was released last week, I never expected keen political insights, let alone a unique cinematic twist. (Warning: Some spoilers ahead.) Under closer scrutiny, however, the film solidifies the need for individual rights, and presents a damning picture of California’s unconstitutional gun laws.

Much like a generic Lifetime drama, the film opens on a rainy California night, with the vulnerable Jennifer fleeing an anonymous, knife-wielding, male assailant. As the chase continues, it appears the stalker has a penchant for the supernatural—one moment standing menacingly in the rain, the next staring Jennifer down from a truck while reeling her car in with a winch.

At this particular moment in Jennifer’s story, a firearm used in self-defense might have changed this horror flick into a film highlighting female empowerment.

Unfortunately, California’s current gun laws prevent any sort of meaningful self-defense for the state’s most vulnerable populations. Pursuant to California penal codes, it is illegal for citizens to open carry firearms in any instance and concealed carry laws are extremely restrictive.

Currently, a county sheriff or municipal police chief may issue a concealed weapons permit (CCW), provided a citizen can prove he is of “good moral character,” is a resident in the county or city, has completed an eight-hour training course, and has a “good cause to justify the permit.”

As a matter of precedent, California law enforcement, such as the Los Angeles County Sheriff’s Department, have maintained that carrying a concealed weapon is a privilege rather than a constitutional right guaranteed by the Second Amendment. In some counties, concern for personal safety or desire for self-defense is not enough to warrant the issue of a CCW.

Additionally, the Ninth U.S. Circuit Court of Appeals has ruled that the Second Amendment does not apply specifically to concealed firearms, so despite California’s additional ban on open carry, the courts have maintained “good cause” requirements do not violate the Constitution—thus making it exceedingly difficult for our heroine Jennifer to obtain such a permit.

Those without a CCW must also carry a firearm directly to and from their vehicle in a locked container and transport the firearm in the vehicle’s trunk or a locked container within the vehicle, rendering it extremely ineffective in the event of an emergency.

Returning to our story, Jennifer effectively is deprived of her constitutional means to defend herself and forced to run headlong into the rain. Next she is struck by a stranger’s vehicle and transported to the hospital with an injured foot and, more crucially to the story, short term memory loss.

After Jennifer wakes up in the hospital with no memory of the horror that occurred, her husband Russell is there to fill in the blanks on her road to recovery. She is eventually discharged from the hospital and Russell whisks her away to a mansion in the California mountains, while local police detective Frank Page continues to examine the events surrounding the night of her accident.

Soon however, it is apparent that all is not what it seems. Russell has many secrets and Jennifer begins to have vivid flashbacks of a man being stabbed in her mansion by a masked figure cloaked in black. Detective Page wants answers, and the hospital nurse tries in vain to schedule a follow up appointment for Jennifer, but it appears cell phone signals are spotty in the mountains.

In a sudden, albeit obvious twist, we learn Russell isn’t who he claims to be. Rather than Jennifer’s loving husband, he is a stalker named Ryan, who murdered the real Russell. As Jennifer ineffectually tries to escape, Page zeroes in on the killer, and the plot comes to a head in a woodland trail.

Page’s gun tumbles to the ground, and he and Ryan wrestle in the dirt as Jennifer backs away on an injured leg. At the film’s climax, Jennifer grabs the detective’s pistol and shoots Ryan twice in the chest, putting the killer down for good. While Jennifer ultimately was able to stop the killer, her story is a cautionary tale for those who would restrict individual rights.

According to an October 2017 study in the American Journal of Public Health, approximately 3 million Americans carry a loaded firearm daily, and an estimated 9 million do so monthly, primarily citing protection as their reason for doing so. California’s current gun laws essentially prevent the state’s citizens from exercising the rights millions of Americans enjoy every day.

While “Secret Obsession” likely was not intended to be a political commentary on the infringement of constitutional rights, it is the perfect vehicle to illustrate why Americans must be allowed to exercise their God-given freedoms. When our rights are restricted, the nation is less strong, less free, and less secure, and society’s most vulnerable pay the price.

Photo Credit: Hybrid Films/Netflix

America • Declaration of Independence • History • Post • The Constitution

Memo to Kaepernick: Read More Frederick Douglass

Many observers were quick to correct Colin Kaepernick’s recent selective quoting from Frederick Douglass’s speech, “What to the Slave is the Fourth of July?” They were right to do so. Misrepresenting anyone’s words in the manner that Kaepernick did breaks one of the first rules of good writing.

In spite of his error, thanks are due as well to him for bringing attention to a very fine speech that all Americans should read. Another of Douglass’s speeches that I urge Mr. Kaepernick and others to read addresses the great document that stands next to the Declaration of Independence: the United States Constitution.

Douglass, born into slavery, escaped and purchased his freedom with the help of others who raised funds. He eventually moved to Rochester, New York and worked to end slavery by helping people reach freedom on the Underground Railroad, supporting anti-slavery political parties, and publishing his own antislavery newspaper, The North Star. It was at the invitation of the Rochester Ladies Anti-Slavery Society that he appeared on July 5, 1852 to deliver the Independence Day speech. The circumstances for his speech on the Constitution were very different. The title of the speech is in the form of a question: “The Constitution of the United States: Is It Pro-Slavery or Anti-slavery?

After Douglass’s escape from slavery he worked with the Anti-Slavery Society founded by William Lloyd Garrison. The American Anti-Slavery Convention convened in 1833 in Philadelphia to address the enslavement of one-sixth portion of the American people. They looked back 57 years to 1776 and acknowledged the effort to deliver America from a foreign yoke, stating that the Temple of Freedom was founded on the principles of the Declaration—that all men are created equal and that they are endowed by the Creator with certain inalienable rights. They contrasted their efforts of relying on the spiritual and working through God to the efforts of the Founders who were forced to wage war and marshal arms. They also believed that the Constitution was a pro-slavery document.

Douglass, however, eventually split from Garrison over his interpretation of the Constitution and the use of politics and force to end slavery.

Douglass delivered the Constitution speech in Glasgow, Scotland in 1860. He began by drawing out a contrast between the American government and the American Constitution, which is always worth doing. “They are distinct in character as is a ship and a compass. The one may point right and the other steer wrong. A chart is one thing, the course of the vessel is another. The Constitution may be right, the Government is wrong.”

The issue then was not whether slavery existed at the time of the Founding, but rather whether the Constitution guarantees a right to one class to enslave or hold as property people of another class and should the union be dissolved over disagreement about the question. The Garrisonians held that the Constitution did hold such guarantees and it that it should be dissolved as a “compact with the devil.” In addition, they refused to vote or  hold office in what they understood to be a corrupt system. Douglass stated his position to the contrary: “I, on the other hand, deny that the Constitution guarantees the right to hold property in man, and believe that the way to abolish slavery in America is to vote such men into power as will use their powers for the abolition of slavery.”

The Constitution, Douglass explained, was ratified by the people and it is only they who can alter, amend, or add to it. He took issue with those who look away from the text and dismissed commentaries and creeds written by those who wished to give the text a different meaning or who searched for secret motives or dishonest intentions of those who wrote it.

He gave examples of those who misrepresented the language of the Constitution and corrected them by giving a faithful reading of the words and an interpretation consistent with the historical evidence before him. He also reminded his listeners that the preamble begins with “We, the people of these United States” and “not we the white people, not even we the citizens, not we the privileged class, not we the high, not we the low, but we the people; not we the horses, sheep, and swine, and wheel-barrows, but we the people, we the human inhabitants; and, if Negroes are people, they are included in the benefits for which the Constitution of America was ordained and established.”

Douglass did not excuse those Americans who had given the Constitution a slaveholding interpretation, but dissolution of the union, for him, was not a remedy. He openly rejected Garrison’s call for no union with slaveholders as all Americans have a duty to return the plundered rights of the black people.

Douglass had previously spoken in Glasgow in 1849 when he held different views from the ones that he advanced in his 1860 speech. He readily admitted to the positions that he held previously. “When I escaped from slavery, and was introduced to the Garrisonians, I adopted very many of their opinions, and defended them just as long as I deemed them true,” he said. “I was young, had read but little, and naturally took some things on trust. Subsequent experience and reading have led me to examine for myself. This had brought me to other conclusions.”

We should heed the direction of Douglass to read and examine for ourselves and not hesitate to reevaluate our beliefs and opinions. Perhaps Colin Kaepernick will do as Frederick Douglass did in light of his misrepresentation of the latter. The Constitution speech is a good follow up for further study, but the best place to begin is with Douglass’s Autobiography, which gives the full measure of the man.

Photo Credit: Salwan Georges/The Washington Post via Getty Images

America • Center for American Greatness • History • political philosophy • Post • Religion and Society • The Constitution • The Culture

The American Founding’s High-Minded Purposes

James Madison is justly celebrated for his frequently stated opinion that “all power in just and free Government is derived from compact.” But Madison’s view is not endorsed by all purported champions of the founders. A recent article, “Our Unwritten Constitution: Orestes Brownson and the Foundation of American Liberty,” published as part of the Real Clear Policy series on the American Project and co-authored by Richard M. Reinsch II and the late Peter Augustine Lawler, argues that Madison is utterly mistaken in his claim. In fact, the authors claim that reliance on “Lockean contract theory” produced a constitution that was “devised solely in the interest of the rights of individuals” and was “based on the unrealistic abstraction of unrelated autonomous individuals.”

Lawler and Reinsch claim that autonomous individuals—that is, human beings abstracted from real life—cannot provide the appropriate material for political life. They are not “parents, creatures, [or] even citizens. Lockean thought, thus, isn’t political enough to be the foundation of government, and it isn’t relational enough to articulate properly the limits of governments or the roles of family and organized religion.”

Reinsch and Lawler rely heavily on Orestes Brownson’s criticism of Locke’s influence on the American Founding. They describe Brownson, accurately if a bit oddly, as “a 19th century New England intellectual associated with the transcendentalist movement who converted to Roman Catholicism” and vouch for his assertion that “the equality of human persons is a fact. But it is a fact that entered the world through Christian revelation and was later affirmed as self-evident by philosophers.” The authors maintain, according to Brownson, the self-evidence of human equality as it appears in the Declaration of Independence “is undermined” by its “pure Lockean dimension . . . where individual sovereignty becomes the foundation of government. Every man, Locke says, has property in his own person, and for Brownson that assertion of absolute self-ownership is, in effect, ‘political atheism’.”

Brownson, however, vigorously resists the idea of self-ownership: “man is never absolutely his own, but always and everywhere belongs to his Creator; it is clear that no government originating in humanity alone can be a legitimate government. Every such government is founded on the assumption that man is God, which is a great mistake—is, in fact, the fundamental sophism which underlies every error and sin.”

Our authors endorse Brownson’s criticism of the notion that the just powers of government derive from the consent of the governed or that sovereignty ultimately resides in the people. To say that the people are sovereign is “implicit atheism” because “[s]ocial contract thought lacks an external standard higher than man’s will that could limit, shape, and condition it. The highest being is man, who would self-create government by consent . . .” This is the universe of “self-sovereignty or political atheism” that Hobbes, Locke, and Rousseau occupied and which the authors of the Declaration of Independence obediently followed.

The authors of the Declaration, of course, appealed to the “Laws of Nature and of Nature’s God,” as their authority. Were they simply disguising the fact that they relied on no higher authority with high sounding rhetoric?—that despite their rhetoric they were “political atheists”? It is true the Declaration is the quintessential statement of social compact theory, but isn’t it also clear that its entire argument rests on the acknowledgment of a Creator and an intelligible Creation?

Reinsch and Lawler are wrong to assert that compact is only about the protection of rights and does not involve obligations. In a social compact, every right entails a reciprocal obligation. Every member of the compact who joins for the equal protection of his equal rights has the duty to protect the equal rights of fellow citizens—even the right of revolution is a reciprocal duty belonging to all citizens. Anyone who is unwilling or unable to perform the duties attendant upon membership in a community based on social compact is ineligible to become a member.

Our authors apparently did not notice the closing statement of the signers of the Declaration of Independence: “we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” The signers are willing to sacrifice life and property—both of which are natural rights—to preserve their honor. They believed that honor or justice was of higher rank than the natural right to life or property. Clearly, the signers of the Declaration ranked the goods of the soul (honor, justice) higher than the goods of the body (life, property). For Hobbes, of course, honor is not any part of the human good. It is utterly impossible to imagine him ever pledging his “sacred honor” to any cause.) But Reinsch and Lawler maintain throughout, that the Lockean authors of the Declaration and the Constitution sought only to provide protection for the natural rights of autonomous individuals or, as they described it on one occasion, “to provide protection against violent death and to secure property rights.” As we have just demonstrated, however, they are mistaken. In ranking honor above life, the authors of the Declaration demonstrated they were not Hobbesians, willing to sacrifice everything to the “fear of violent death.”

In addition, the Declaration never claims that the principal end or purpose of government is the protection of natural rights; it is rather the “safety and happiness of the people”—what one prominent political philosopher described as the alpha and omega of political life as depicted by Aristotle. Our authors make the significant, but frequent, error of those who insist that the American founding was radically modern, simply ignoring the obvious Aristotelian elements incorporated in the framers’ handiwork.

Bound by the Law of Nature
The authors of The Federalist accepted the Declaration of Independence as the authoritative source of the Constitution’s authority. Madison in The Federalist insisted that the proposed Constitution must be “strictly republican” because no other form of government could be “reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with the honorable determination which animates very votary of freedom to rest all our political experiments on the capacity of mankind for self-government.”

The “genius of the people” refers to the habits, manners, customs, history, traditions, and religion of Americans. Contrary to our authors, the social compact founders were well aware of the necessity of including these factors in their constitutional deliberations. No one can read The Federalist or, for that matter, the writings of the Anti-Federalists, without coming to that realization.

The second and central factor that requires “strictly republican government” is adherence to “the fundamental principles of the Revolution,” i.e., the principles of the Declaration. The third reason is that strictly republican government requires self-government; and that means rule by the consent of the governed, a principle squarely based on social compact.

In following Brownson, Reinsch and Lawler may have followed a false prophet. Brownson’s account of Locke is seriously defective because he seemed to be unaware of the unique theological-political problem that Locke faced. Our authors seem to have followed him through the gates of error.

The wars of religion were still a fresh memory to Locke and other political philosophers of his era. They were not just a distant memory to the American founders, either. In the classical world, the laws of particular cities were always supported by their gods. Obedience to the gods and obedience to the laws were one and the same. As soon as there was a universal God for all cities, however, political obligation became problematic. In the Christian world, conflicts between obligations to God and obligations to civil authority became inevitable, and in cases of conflict, the first obligation of Christians was to God or ecclesiastical authority. This reveals the apolitical character of Christianity. As the apostle Paul wrote to the Philippians, “our government is in heaven.”

The universalism of Christianity, of course, makes an appeal to particular gods as the ground or foundation of the laws of a particular regime impossible. Some ground for political obligation—for politics—independent of Christian theology had to be found if political life was to be free from the continuous strife engendered by the theological disputes that arose within Christianity. The late Harry Jaffa probably understood this theological-political predicament better than anyone when he argued:

Christianity had established within the souls of men the idea of a direct, personal, trans-political relationship between the individual and his God. But this relationship did not determine what the laws were to be, or the precise character of the obligation owed to those laws. The idea of the state of nature—the idea of a non-political state governed by moral law—corresponded to the relationship which every Christian had with every other Christian as he considered himself prior to and apart from his membership in a particular civil society. Just as every Christian was under the moral law, without being a member of civil society, so every human being was under the moral law of the state of nature, prior to entering a particular civil society by way of the social contract.

It is clear in Locke that everyone is bound by the law of nature—the moral law—in the state of nature. Thus, Jaffa argues, the social contract, by creating particular political communities, reestablishes the idea of man as by nature a political animal, an idea that was absent from the apolitical universe of Christianity. It provided a ground for political obligation, based in reason and consent, that was also absent in Christianity. Far from the “political atheism” described by Brownson, Locke restored man’s political nature based on higher law, the laws of nature—and he did it on Aristotelian grounds!

Good Theology and Good Government
Of course, Locke spoke most often in terms of individual rights, something that Brownson deplored as leading to the radically autonomous individuals who assumed, he falsely believed, the sovereignty of God. Brownson misunderstood Locke, but he must surely have understood the origin of the idea of individual rights was in Christian theology itself. In Christian theology, man’s relationship to God is personal, thus the political relationship must also be “personal,” that is based on individual rights. Locke understood that the principles of natural right must be able to accommodate the regnant theology. Rights must belong to individuals; that was good theology—and it was good government.

Aristotle says that the principles of human nature are universal, but for human nature to flourish, for human potential to become actual, it must do so in particular human communities—in the polis. For Christians, the highest aspirations are in the life to come, and political life in this world is merely a preparation for the next. Paul cautioned the Colossians to “mind the things above, not the things on earth.” From this point of view, man is by “nature” apolitical. Social compact reaffirms man’s political nature by establishing particular political communities where this-worldly aspirations are the proper objects of political life. At the same time, man’s universal nature is affirmed by the law of nature that is the standard and measure by which particular communities are judged. While reasserting man’s political nature, social compact at the same time retains its compatibility with the City of God because natural law is understood to be, in Locke’s terms, “the Will of God” or reason which is the “the voice of God.”

The Declaration is also Aristotelian in its recognition of universal human nature (“all men are created equal”) but also recognizing that the implementation of that equality in securing of the “safety and happiness” of the people requires the creation of a “separate and equal” nation. Only in a separate and equal nation—a sovereign nation—can the privileges and immunities of citizenship be guaranteed and the habits, manners and virtues suitable for republican citizenship be inculcated.

No doubt Reinsch and Lawler will complain that this social construct is hardly Aristotelian because it is a human construct, an act of pure human will, whereas Aristotle maintained that man is by nature a political animal. For Aristotle, of course, the polis does not grow spontaneously—it is not the result of natural growth; rather, it had to be “constituted” by human art, and the one who first “constituted” the polis, Aristotle says, is the cause of the “greatest of goods.” The polis exists by nature because, while it is last in the order of time, it is first in the order of final causality. All associations—male and female, the family, the tribe, the village—are incomplete, and their incompleteness points to the polis as a final cause. And the final cause is nature. Aristotle’s polis thus seems to be no less the result of artifice than social compact. In other words, Aristotle’s polis—no less than America—had to be founded by human art. Had Aristotle faced the same theological-political situation that Locke faced, I believe he would have agreed that social compact was the only possible ground for establishing political life on the foundations of nature or natural law.

Brownson and our authors are particularly exercised by Locke’s “doctrine” of self-ownership. They believe this to be the most destructive of all Locke’s subversive writings. Men always belong to the Creator; they can never belong to themselves. But what is the sovereignty of the individual presupposed by social compact “but the assumption that man is God?” Let’s see.

In the sixth paragraph of the Second Treatise, Locke spells out the obligations that men have in the state of nature. It is quite remarkable that in a book famous for its advocacy of rights, we hear first about the obligations that everyone has to the law of nature:

The State of Nature has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions. For Men being all the Workmanship of one Omnipotent, and infinitely wise Maker; All the Servants of one Sovereign Master, sent into the world by his order and about his business, they are his Property, whose Workmanship they are, made to last during his, not one another’s Pleasure.

Men are thus the property of “one Omnipotent, and infinitely wise Maker.” This act of creation—the “workmanship of God”—makes each man equally the property of God, and each being the property of God, no one can be the property of anyone else. Thus each is “equal and independent” with respect to every other human being, which can only mean that “every Man has a Property in his own person” in his relations with every other human being, but is responsible to God in fulfilling his obligations to the law of nature—those obligations that God has imposed for the preservation of His workmanship. According to Locke in the First Treatise, God made man and planted in him a desire for self-preservation so that “so curious and wonderful a piece of Workmanship” should not perish. And according to Locke in the Second Treatise, God has set the individual free and made him “master of himself, and Proprietor of his own Person” so that he might go about fulfilling his obligations to the laws of nature, which he describes as the “Will of God” in the service of preserving God’s workmanship, not only of individuals but of mankind.

Liberty Is the Law of God and Nature
This is hardly the portrait of radically autonomous individuals who seek to supplant the authority of God drawn by Brownson and endorsed by Reinsch and Lawler, but it is the authentic Locke available to anyone who is willing to read him with any modicum of care. The American Founders read Locke as enlightened statesmen, gleaning political wisdom from his superior understanding of the theological-political problem. It was the absence of such disputes that made the success of the American Founding possible—a rare time in history when such a providential dispensation favored political founding—a dispensation prepared in large measure by Locke.

Madison was right: compact is the ground of all just and free government, and the theologians at the time of the founding agreed.

I will discuss here only one widely circulated sermon that was typical of the many sermons that relied on compact to reconcile questions of theology and politics. The Reverend John Tucker delivered “An Election Sermon” in Boston in 1771 that was profoundly influenced by Locke. “Civil and ecclesiastical societies are, in some essential points, different,” Tucker declaimed. “Our rights, as men, and our rights, as Christians, are not, in all respects, the same.” It cannot be denied that God’s

Subjects stand in some special relation and are under some peculiar subjection to him, distinct from their relation to and connection with civil societies, yet we justly conclude, that as this divine polity, with its sacred maxims, proceeded from the wise and benevolent Author of our being, none of its injunctions can be inconsistent with that love of liberty he himself has implanted in us, nor interfere with the laws and government of human societies, whose constitution is consistent with the rights of men.

Tucker exhibited a common view among New England clergy: the constitution of the “divine polity” cannot be in conflict with any civil government “whose constitution is consistent with the rights of men” and the “love of liberty” that God implanted in human nature. According to Tucker, the proper constitution of civil government begins with the reflection that

All men are naturally in a state of freedom, and have an equal claim to liberty. No one, by nature, not by any special grant from the great Lord of all, has any authority over another. All right therefore in any to rule over others, must originate from those they rule over, and be granted by them. Hence, all government, consistent with that natural freedom, to which all have an equal claim, is founded in compact, or agreement between the parties;—between Rulers and their Subjects, and can be no otherwise. Because Rulers, receiving their authority originally and solely from the people, can be rightfully possessed of no more, than these have consented to, and conveyed to them.

Thus compact seems to be the key to reconciling divine polity and civil polity. Tucker began the sermon with the invocation that “the great and wise Author of our being, has so formed us, that the love of liberty is natural.” Liberty is the law of God and nature. The laws of divine polity are prescribed in the Gospel; those of civil polity are derived from social compact. What connects divine polity and civil polity is the liberty that God created as the essential part of man’s nature. Social compact is the reasonable exercise of that freedom in the formation of civil society. Thus it seems that the theological-political problem—the problem of potentially conflicting obligations between divine polity and civil polity—is solved by Tucker, at least on the moral and political level, on the basis of social compact, which provides the only rightful basis for government because it is the only origin of government consistent with natural liberty.

In fashioning his account of the social compact, Tucker readily acknowledges the influence of “the great and judicious Mr. Locke,” extensively quoting and citing “Locke on Civil Government.” I think it fair to say that “America’s philosopher” dominated the pulpit no less than he dominated legislative halls and constitutional conventions. Thus a remarkable providence seemed to have guided the American founding in the form of a dispensation from the theological-political disputes that would have rendered impossible any attempt to establish constitutional government.

To argue that the American Founders fell prey to Locke’s radical individualism when they relied on social compact reasoning is simply perverse and a mischaracterization of the Founders’ (and Locke’s) understanding. The Founders did not read Locke as a radical modern. They were unaware—or ignored—the philosophic dispute between ancients and moderns. As statesmen, they were interested in the history of politics and were free to choose the most salutary and beneficial practical solutions. Their reading of Locke traced the ideas of natural law directly back to Aristotle. They were mostly unaware of the latter-day discovery of Locke’s esoteric writing that provided insights into the radical core of his thought. Locke’s exoteric writings provided an entirely salutary political teaching that was adopted—and adapted—by the Founders.

The Founders’ decision decision to follow Locke on social compact—“the principles of the Revolution”—meant that the end of government was the “safety and happiness” of the American people, an Aristotelian conception that helped to insulate the founding from the storms of modernity that were threatening Europe. It provided America with a more comprehensive and elevated purpose than simply avoiding “violent death” and “protecting property,” the Hobbesian purposes assigned by Reinsch and Lawler.

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Conservatives • Law and Order • Post • Progressivism • The Constitution • The Courts • The Left

The Way Out of Our Judicial Impasse Is Through It

For more than half a century, as leftist judges have preempted or nullified our efforts to govern ourselves, conservatives have staked much on the appointment of judges who would follow the law rather than legislating or administering from the bench. And indeed, the number of such judges has been growing for a generation.

But since the 2016 election, it has become clear that merely appointing good judges cannot stop what the bad ones are doing, as leftist federal judges continue to strike down one after the other of the Trump Administration’s initiatives, as well as conservative state laws.

Even if a majority of the Supreme Court were to overrule every district court judge’s usurpation once an appropriate case reached it, leftist judges would still be a major brake on one side of American public life. Until conservatives somehow stop this judicial malpractice, all the work they do to elect whomever, to pass whatever laws, to appoint more good judges, is guaranteed to be undone by some bad judge putting his seal on some leftist group’s brief.

Nor can honest, nonactivist judges provide a counterweight on the other side of political conflict.  If conservative judges were the mirror image of leftist ones, there would be a cadre of them ready to invalidate the next leftist president’s every move, as well as every law and practice of California’s and other blue states’ governments. But there is not such a cohort in waiting.

A Tale of Two States
Red states over the past two years have been passing laws restricting abortion, while blue states have been passing laws expanding “abortion rights,” including measures that would allow killing babies outside the womb. The red state restrictions are practically null and void because leftist judges have pronounced them so. Because no judge has done the same, the blue state sanctions of infanticide stand.

There is a fundamental asymmetry between the Right’s view of law, and the Left’s. For conservatives, law is the Constitution as written, as are the laws lawfully passed under it, because these proceed from elections by the people. So are decisions by lawfully appointed judges.

For the Left, law is what meets theirs and their community’s best judgment.

The asymmetry between the Left’s legal culture and that of conservatives guarantees the permanent submission of the conservative side of American life. Conservatives respect the rulings of judges unless and until the Supreme Court invalidates them, and largely respect the Supreme Court’s rulings regardless of their content. They do so because of the link, however tenuous, these institutions have to the will of the people. Leftist judges—and not only judges—have the opposite of respect for the people. For them, the laws are what they say they are. Laws R Us!

Alternative Resolutions
If the conservative idea of American life is going to survive, it must either disable the Left from exercising tyranny through judges or match the Left’s attitude toward laws and judges—something is law only so long as we agree with it.

Disabling the Left’s judicial weapon is a merely political problem. Nothing in the Constitution gives any judge—including the Supreme Court itself—the power to invalidate any law or executive action, much less to set national policy. “Judicial review” grew from the fact that the Supreme Court (and derivatively other Article III judges) being a co-equal branch of government, may refuse to affirm any law which it finds to be in conflict with the Constitution.

But the existence of the inferior federal courts, their rules and jurisdictions are creatures of subordinate legislation, not the Constitution itself—as is the Supreme Court’s appellate jurisdiction. Under the Constitution’s Article III, section 2, mere law can restrict a district court’s powers to the case at hand in its own district and eliminate its dictation of policy. Conservatives can and should restrict the courts to their proper role.

Taking matters into our own hands is the other alternative. Abraham Lincoln’s comments on the Dred Scott decision set a standard: while he did not dispute the court’s affirmation of Scott’s slavery, he refused to take its decision as a rule for any other case.

Defying the reach of a federal court ruling—even one of the Supreme Court’s, never mind that of a district court—is within everyone’s power. Alexander Hamilton had made that point in Federalist 78: the judiciary’s fundamental power is neither more nor less than the power to persuade. You may be otherwise persuaded. Hamilton is clear that there is no constitutional duty to obey the courts—certainly not on policy.

Andrew Jackson applied that principle even to the Supreme Court’s decision in the specific case of the Bank of the United States in 1832: “John Marshall has made his decision; now let him enforce it!” There is no constitutional reason why any president, or governor, should forbear from carrying out a law or an executive decision just because a federal district judge’s opinion is that it violates some standard, The president or governor has his own opinion. In the final analysis, all depends on executive power, which, in turn, depends on popular support.

The Work of the People
Single district judges who have “struck down” so many of the initiatives on which President Trump was elected have framed the public issue: who rules? Were Trump to defy them, Jackson-style, his argument would be “the voters rule,” not these individuals’ discretion. Their only answer would be that their discretion is the rule of law. This is unconvincing.

Politically based defiance may also counter judges’ interference with democracy at the state level. In 1957, President Eisenhower sent federal troops to enforce a court order pursuant to Brown v. Board, to admit black students to Little Rock Central High School. This outcome was foreordained. Neither side meant to shoot. The presidency’ prestige was at its height, wielded by World War II’s recent victor.

In today’s deeply divided country—as central institutions are widely discredited—no president, regardless of his opinion would send federal troops to enforce a court order against opposition. If, for example, any state law were to ban abortion, the Army would not shoot the state’s police, with the cameras rolling, to enable an abortion. Nor can we actually imagine the reverse.

The only way out of our political impasse is through it. Judges cannot unite us again as a people. That remains the work of the people and their elected representatives.

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Administrative State • America • Center for American Greatness • Energy • Environment • Post • Technology • The Constitution • The Courts

The Climate Case of the Century

Twelve years ago, the U.S. Supreme Court ruled in Massachusetts v. EPAthat greenhouse gases are air pollutants covered by the Clean Air Act. The decision in effect gave the Environmental Protection Agency massive additional regulatory authority. This year, another landmark climate case appears headed for the high court: Juliana v. United States. This time, the stakes are even higher.

The Ninth U.S. Circuit Court of Appeals on Tuesday will hear arguments in Portland from both sides. The hearing was preceded by a wave of well-funded protestsacross the United States in support of the plaintiffs, who are a group of 21 children and teenagers who were recruited in 2015 from places around the country deemed particularly vulnerable to climate change.

While environmental lawsuits have been around for 50 years, “climate rights” and climate liability lawsuits blaze new legal territory. As “60 Minutes” explained in a favorable story in March, the young plaintiffs allege the U.S. government’s use of fossil fuels is “causing climate change, endangering their future and violating their constitutional rights to life, liberty, and property.”

The prospects for this case to reach the Supreme Court and provoke a strong ruling in favor of the plaintiffs cannot be ruled out. Over the past few decades, the fossil fuel industry has embraced the climate change activists. The industry has determined that challenging the basic premises of climate change activists is no longer good for business.

Rather than continue to fund unbiased scientific inquiry, the fossil fuel industry recognizes that if it is harder to extract oil and gas, the price of oil and gas will rise, increasing their profits. They also recognize—unlike every climate activist on earth, evidently—that it is impossible to pursue economic development without fossil fuels. Therefore, their industry will continue to thrive no matter what climate activists accomplish through litigation or legislation.

Government Has a Tough Case to Make
A similar pattern of appeasement describes the federal government’s approach to climate activism over the past 30 years. Across Republican and Democratic administrations, the federal bureaucracy, usually staffed by individuals who were themselves climate activists, generated mountains of correspondence that will be used to allege the government knew that fossil fuels were causing climate change and did nothing to stop it.

This evidence has left the defendant, the federal government, with a much tougher case. The plaintiff’s attorneys have accumulated documents going back decades that they will offer as proof of liability.

Whatever the fossil fuel industry’s motivations were—protecting their public image, taking the path of least resistance, short-term thinking, or cynical, profit-oriented stratagems—they now face consequences beyond anything they may have imagined. The plaintiffs in Juliana want the court to compel the federal government to develop a plan to reduce atmospheric CO2 concentrations to 350 parts per million or less by 2100. Global CO2 concentrations are currently around 400 PPM.

This is an impossible goal. Not difficult. Not tough. Impossible.

Critical Questions
What will decide the case in the Supreme Court, however, is not the feasibility of this remedy. Rather, the case will hinge on whether the U.S. Constitution guarantees the right to a healthy planet; do CO2 emissions from burning fossil fuel cause an unhealthy planet; and if so, did the U.S. government know this and do nothing?

The case could turn on any one of those questions, but the second one—do CO2 emissions caused by burning fossil fuel cause an unhealthy planet—is the most critical to future policy.

The “endangerment finding” in Massachusetts v. EPA was a missed opportunity for climate skeptics to have an honest debate on the entire scientific basis of climate activism. The failure of climate skeptics to successfully argue their position in Massachusettshas created a powerful precedent that favors the plaintiffs in Juliana.

Nevertheless, if and whenJuliana reaches the high court, it would be a mistake for the federal government’s attorneys to focus primarily on the question of whether or not U.S. citizens have a constitutional right to a healthy planet. Instead, they could use the opportunity to challenge every scientific premise of the climate activist lobby.

For example:

What proof is there that anthropogenic CO2 is the primary contributor to global warming? What about changes in solar cycles, other astronomical variables, the multi-decadal oscillations of ocean currents, the dubious role of water vapor as a positive feedback mechanism, the improbability of positive climate feedback in general, the uncertain role (and diversity) of aerosols, the poorly understood impact of land use changes, the failure of the ice caps to melt on schedule, the failure of climate models to account for an actual cooling of the troposphere, the credibility of climate models in general, or the fact that just the annual fluctuations in natural sources of CO2 emissions eclipse estimated human CO2 emissions by an order of magnitude?

What proof is there that global warming is occurring at an alarming rate, that it won’t stabilize, or that it isn’t actually causing more good than harm in the world by stimulating the expansion of the world’s forests, increasing agricultural productivity, increasing global precipitation, and reducing deaths from freezing?

What if species loss is overstated, happening for other reasons, or countered by adaptation? What if anthropogenic CO2 is the reason the Anthropocene era hasn’t already been catastrophically obliterated by what is now the past-due next ice age?

What if the environmental consequences of a dramatic reduction in CO2 emissions actually would be worse than alleged global warming? What are the cumulative environmental impacts of carbon-neutral solutions such as the heat island effect of hundreds of thousands of square miles of photovoltaic panels, or millions of square miles of biofuel plantations? What are the wildlife impacts of these solutions, along with others such as millions of large wind turbines?

What about the environmental impact of mining for millions of tons of rare earth minerals and other extractive nonrenewable resources in order to construct these massive energy projects? What about the environmental impact of recycling and reprocessing these renewables assets which have useful lives of only 25-50 years?

These are some of the scientific arguments that the government should bring to bear when Juliana v. United States reaches the U.S. Supreme Court. But decades of cowardice and opportunism by members of industry and government who knew better make it harder than ever to make those arguments.

Appeasement and Unwitting Nihilism
The choice was made a long time ago by most of these special interests to appease and accommodate the climate activists. As a result, the arguments they ought to be making have been banished and toxified for so long they have become heresy in the eyes of virtually the entire mainstream and online media along with a generation of America’s youth.

Which brings us back to the absolute impossibility of implementing the remedy that the plaintiffs in Juliana seek. What a ruling in favor of the plaintiffs will do, however, is create powerful momentum for a “Green New Deal” of far greater scope than whatever compromise package would otherwise eventually find its way for a signature from a friendly White House in 2021 (they hope). This, in turn, would be devastating to America’s prosperity, freedom, and ability to compete economically and militarily in the world.

The saddest part of the entire climate activist movement is its unwitting nihilism. Fossil fuel development is the only way that people in the world will be quickly lifted out of poverty. Fossil fuel provides 85 percent of global energy production, and for every person on earth, on average, to consume half as much energy per capita as Americans do, global energy production has to double. This cannot possibly be achieved without ongoing development of fossil fuel, along with whatever renewable technologies we can muster.

America should be encouraging the development of clean fossil fuel, at the same time as it pours research into leapfrog energy technologies: safe nuclear fission, nuclear fusion, the industrial development of outer space including satellite solar power stations.

If environmentalists really believe what they say, they would support such endeavors—along with technologies to lower the human footprint: aquaculture, fish farming, high-rise agriculture, urban agriculture, smart agriculture, lab-grown meat, and innovations certain to come that we haven’t even thought of yet.

Cheap energy is the primary enabler of prosperity, literacy, urbanization, female emancipation, reduced infant mortality, and voluntary population stabilization. Without it, throughout the teeming tropics, women would continue to gather wood for the cooking fires, men would hunt bush meat, and forests and wildlife would continue to disappear.

These privileged American children and their manipulative activist parents may pat themselves on the back as they drive their Priuses to the courthouse. But their utopian vision delivers a dystopian fate to the less fortunate on the other side of this world.

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2016 Election • Center for American Greatness • Congress • Democrats • Donald Trump • Elections • Mueller-Russia Witch Hunt • Post • The Constitution • The Resistance (Snicker)

Democrats Have Always Wanted to Impeach Trump

Let’s imagine for a moment a hypothetical situation in which a president shoots someone on the White House lawn. A two-year, $34 million special counsel investigation ensues. As a result of the investigation, the special counsel finds that there is sufficient evidence to conclude that the president committed murder.

Now does anyone honestly believe the special counsel, in announcing his findings, would refrain from stating a clear conclusion and instead of announcing that simply say, “Charging the president with a crime was not an option we could consider”? Of course not because that would be ludicrous. If the evidence were there, the special counsel would say he found sufficient evidence to conclude that the president committed murder.

Whether the special counsel could “charge” the president with that crime would be totally irrelevant to the inquiry because charging him is not his role and responsibility. The House would initiate impeachment proceedings, the president would be tried in the Senate, and the president would be removed from office. That’s the way it should and would work.

The hypothetical above shows that the blessed “Saint” Robert Mueller is playing games. On the collusion and conspiracy issue, Mueller stated pretty clearly that “there was insufficient evidence to charge.”

Yet on the obstruction of justice allegation, Mueller would not say his team found obstruction but then offered weasel words to the effect that they didn’t find that the president did not commit a crime, noting that charging him was not an option.

Well, that conveniently leaves it wide open, doesn’t it? Which seems to be exactly as Mueller intended.

Mueller could have said there was insufficient evidence to charge. He also could have said there was sufficient evidence to charge but that he had no authority to charge. Or he could have left out the verb “charge” altogether, since his ability to charge is irrelevant, and simply stated his conclusions. As in the murder hypothetical above, he might have said our investigation has led us to the conclusion that the president obstructed the investigation.

But he didn’t say any of those things. Instead, dropping all pretense about his motivations, the partisan political hack played cute. He winked and nodded to Congress without stating a clear conclusion.

Mueller’s equivocation and inconsistency tell you all you need to know. This was always a political hit job with two alternatively acceptable goals in mind: either they were going to impeach the president or damage and undermine him going into the 2020 elections. To be clear, I don’t think Democrats truly care which one it is so long as Donald Trump does not win reelection next year.

There are several sickening aspects to yesterday. First, as Sean Davis at The Federalist noted, we had Robert Mueller trying to propose a new legal theory that an uncharged person was not innocent. Not only does that flip the presumption of innocence on its head—positing now that someone is guilty until that person can prove himself or herself innocent—it also shows that Mueller intended to muddy the waters and wants to undercut this president.

Mueller’s was not the only major investigation over the past two years. We had one underway with the House Intelligence Committee, another with the Senate Intelligence Committee, and yet another with the Senate Judiciary Committee. In addition to the 500 witnesses Mueller interviewed, there were likely hundreds more with those concurrent investigations. Yet all of those people, under oath, didn’t give even one piece of evidence for “collusion” or criminal conspiracy, nor did they give any definitive proof that there was any obstruction of justice—because there wasn’t any.

Now Mueller and the Left are signaling to the country that a political opponent can help instigate an investigation based on false premises through partisan propaganda or through illegally leaked memos, without proof of any wrongdoing, and that such an attempt by someone to defend oneself against such actions will now be construed as obstruction of justice.

Have we completely lost our minds?

If we accept these innovations suggested by Mueller’s actions, we will now be saying that due process and the presumption of innocence are dead. For what? We would destroy the foundations of our republic for a short term and purely partisan gain, to our eternal shame. If we remove those principles and eviscerate the rule of law, all bets on the longevity of our political society are off.

The fact is, Democrats have always wanted to impeach Donald Trump. From day one, unable to accept the results of the 2016 elections, they have sought to nullify them.

Now, with a strong economic tailwind at his back and a collection of Democratic Lilliputians clamoring to be the nominee against him, all of their election models are showing Trump winning re-election in 2020. Democrats, in defiance of common sense, knowing that a Republican Senate won’t remove him, want to impeach him because they think that might be the only way they can cripple him and keep him for winning again in 2020.

They keep blabbering about principle and a supposed constitutional crisis, to which I say: it’s hardly principle to launch oneself off a political cliff, but by all means, stop talking, find the nerve and do it—and be prepared to accept the political consequences for your actions at the ballot box in 2020.

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Administrative State • Deep State • Donald Trump • Free Speech • Intelligence Community • Law and Order • Mueller-Russia Witch Hunt • Post • Technology • The Constitution • The Corner

The Case for Prosecuting Comey and Brennan

Twenty-five years ago, the Arnold Schwarzenegger action hit “True Lies” depicted a jealous husband abusing his access to powerful tools intended to fight terrorism to discover whether his wife was having an affair. The character played by Tom Arnold lamely warns Schwarzenegger’s Harry Tasker that using government surveillance to spy on his wife is a crime (which is true) and that abusing these tools could land them both in prison.

Tasker retorts that they violate the law all the time. Once you have a person’s search history, access to her emails, text messages, and listen to her phone calls, it’s not hard to construct a blackmail scenario. But that could never happen in real life, right?

Wrong. In 2013, almost 20 years after the movie, Reuters reported that at least a dozen U.S. National Security Agency employees were caught using secret government surveillance tools to spy on the emails or phone calls of current or former spouses and lovers. The NSA has repeatedly promised to reform its procedures as the database it keeps on Americans continues to grow in scope and reach.

When you talk to your spouse, your child, or your lover in the presence of your electronic devices, those devices passively listen to what you’re saying just in case you say “Hey Siri,” or “Hey Alexa.” Have you ever noticed that when you suddenly develop an interest in a particular product or service, ads mysteriously seem to appear and follow you around?

Former FBI Director James Comey once admitted he covered his computer camera for his privacy. He would know. Just imagine a snooping government making a word-searchable transcript of audio and digital recording of video passively transmitted from your phone. What could a curious agent, with access to a feed from the two cameras in your phone, record while simultaneously viewing your private life in both directions?

Such data could give unlimited power to influence and blackmail elected officials, private citizens, judges, law enforcement, journalists, and so on.

When Americans see a public official or an influential journalist suddenly reverse a position or do something otherwise deemed illogical, speculation often runs to question whether “somebody has something on” that official. We should worry about the potential abuse of a database containing essentially unlimited source material that easily could be used to gain power over our fellow Americans.

False Affidavits
Congress set up the Foreign Intelligence Surveillance Court to protect Americans from being spied upon by their own government.
And we also know, as in “True Lies,” that NSA analysts “with greater frequency than previously disclosed . . . used U.S. person identifiers to query,” the giant NSA database. This abuse continues even after repeated promises to Congress and the FISC that NSA revised procedures to safeguard private information about Americans.

The NSA’s inspector general caught this wholesale abuse simply by reviewing a small sample of the searches of the database. “That relatively narrow inquiry found that [a redacted number of] analysts had made [a redacted number of] separate queries using,” names of U.S. citizens to search the database. The inspector general discovered this in the first three months of 2015.

On September 26, 2016, the government submitted to the supervising court a certification that failed to disclose the inspector general’s report even though it was well known by then to the signatories of that certification. Among the supporting affidavits falsely reassuring the FISC that the government was not abusing access to data on Americans: NSA Director Admiral Michael S. Rogers, FBI Director James B. Comey, and CIA Director John Brennan.

On October 24, 2016, in the early days of the Trump-Russia scheme then-dubbed “Crossfire Hurricane” and just a few days after the FISC issued a warrant authorizing surveillance on Carter Page, Rogers dashed to the FISC court to make an oral admission. Two days before the FISC was about to approve the government’s continued use of the database, Rogers admitted to significant “non-compliance” with the NSA’s procedures to protect the private information gathered on Americans from the prying eyes of curious analysts. Rogers amended his affidavit to address the falsehoods of his earlier affidavit supporting the September 2016 certification.

Comey and Brennan apparently did not.

In the October 26, 2016 hearing, “the Court ascribed the government’s failure to disclose” the explosive revelations of widespread abuse of Americans’ data, “to an institutional lack of candor” and “emphasized that ‘this is a very serious Fourth Amendment issue.’” The court further described the NSA’s abuse of the database as “widespread during all periods under review.”

Rogers Breaks Ranks 
Shortly after the 2016 presidential election, Rogers then did something that incensed the Intelligence Community and its allies in the media: he
met with President-elect Trump without first giving President Obama a “heads up.” A cold slap of fear might have stung the offending intelligence officials as Rogers seemed to be tattling. This may explain why the Russia hoax accelerated after the election—to keep the incoming anti-swamp president from exposing their vast exploitation of the private information of Americans.

Georgetown University Law Center published an article arguing that the NSA gathering bulk information about Americans is simply unconstitutional. The NSA’s argument has been that the data is kept safe from unconstitutional searches until there’s a need for to search for a U.S. citizen in connection with a particular crime, at which point a warrant would be issued to “search” the data the government already scooped up. But we know from repeated experience that the database remains an irresistible temptation for bureaucrats looking for dirt on targets.

The government has repeatedly demonstrated that it won’t follow constitutional safeguards. The law review article noted, “As with general warrants, blanket seizure programs subject the private information of innocent people to the risk of searches and exposure, without their knowledge and with no realistic prospect of a remedy.” The article adds: “the seizure of papers for later search was an abuse distinct from, but equivalent to, the use of general search warrants—which is why ‘papers’ was included in the Fourth Amendment in addition to ‘effects’ or personal property.”

Comey and Brennan Have a Big Problem
“The FBI doesn’t spy on people,” Comey recently
proclaimed in a public announcement of the same lie he made to the FISC in his affidavit. Under the statute, the FBI was not supposed to search the NSA database without a court order. The FISC noted that the FBI not only accessed the database, but it did so with such frequency that it resorted to the extra manpower of outside contractors to conduct the searches.

Every search by the FBI without a court order requesting data on an American is a potential crime punishable by a fine of up to $10,000 or imprisonment of not more than five years, or both. Comey submitted a false affidavit to deceive the court charged with protecting our constitution.

That seems like a good reason to interrupt the celebrity deep stater’s interminable publicity tour and hold him accountable. We don’t yet know the identities of the targets of these many searches or how that illegally-obtained information was used. Were wives blackmailed into humiliation? Were public officials coerced into changing positions? Were journalists forced to conform to the Intelligence Community’s talking points? It does seem puzzling that the media cheerleads so vigorously for our intelligence agencies. The victims, if they know what the government did, aren’t talking.

Rogers did the right thing by (eventually) coming clean to the FISA court on the widespread abuse of Americans’ data. But James Comey and John Brennan do not appear to have taken any steps to correct their affidavits certifying that the data was not used improperly. The FISC court did not provide numbers but it’s reasonable to infer that the term “widespread” in reference to ongoing violations by multiple officials could mean thousands of felonies under the cover of the Comey and Brennan affidavits that apparently remain uncorrected, in spite of having been found false by a published court opinion.

Comey and Brennan should be prosecuted and the evidence is in plain sight.

The great gift that Donald Trump gave America may be that he tempted the intelligence community to the task of interfering with an American election and undermining a duly elected president. The abuses related to Trump appear to be the tiny tip of a much larger iceberg that we might never have spotted as our intelligence agencies increasingly seem to see their role as “protecting” us from our own constitutional rights.

James Comey and John Brennan (among others) presided over an assault on the constitutional right to keep the government out of our emails, texts, phone calls, and other data. Our republic must hold them to account. As Roman scholars once observed, ubi jus ibi remedium—”a right must have a remedy.” If no action is taken against those who trampled on our Fourth Amendment rights, then no right remains.

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2016 Election • Administrative State • Center for American Greatness • Deep State • Donald Trump • Mueller-Russia Witch Hunt • Post • The Constitution

No Questions? Nonsense—Mueller Must Testify

After two years of investigation, Robert Mueller on Wednesday gave his first public statement since the inception of the special counsel’s office.

Mueller’s remarks, which lasted less than 10 minutes and entertained no questions, offered no new substantive information apart from the announcement that the office was formally closing and that Mueller would be resigning from the Justice Department.

The statement was carefully designed to give the mainstream media and Democrats in Congress an excuse to continue calling for an investigation and potential impeachment of the president. It also let Mueller portray himself as an unbiased and objective public servant merely stating “the facts.”

Consider the following few lines from Mueller’s statement in which he reiterates that the special counsel’s office would have stated that President Trump did not commit a crime if they had confidence the president clearly did not commit a crime:

And as set forth in the report after that investigation, if we had had confidence that the president clearly did not commit a crime, we would have said so. We did not, however, make a determination as to whether the president did commit a crime.

This soundbite will, no doubt, be repeated ad nauseam by the corporate left-wing media and congressional Democrats for the next few days.

They will make the obvious argument that Mueller said:

  1.    Because of Department of Justice policy regarding the indictment of a sitting president, his office would not make a determination as to whether the “President did commit” a crime. (Why not? The policy is against indicting a sitting president, not against discovering that he committed a crime.)
  2.    Had his office been confident that Trump clearly did not commit a crime, he would have said so, thus making the determination that the president did not commit a crime. (But investigators’ confidence that Trump did not commit a crime does not mean that he actually did not commit a crime. Got it? If only life were so simple.)
  3.    Mueller’s office made no statement that the president did not commit a crime, and so his office did not make a determination that the president did not commit a crime.
  4.    Therefore, Mueller has confidence that the president might have committed a crime, but cannot make the necessary indictments because his office cannot make a determination as to whether the president did commit a crime.
  5.    And because “the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing,” the other branches of government should use political processes (such as asking Jerry Nadler) to punish the wrongdoing of the president.

But Mueller’s argument is based on the faulty assumption that the special counsel’s “confidence” is the same as its “determinations.”

Distinction with a Big Difference

A mere two minutes later, Mueller clearly stated his office had determined that it “would not reach a determination one way or the other about whether the president committed a crime.” (Emphasis added.) This means that even if Mueller was confident beyond a shadow of a doubt that the president committed no crime, he would not have reached a determination.

And here we see the clear distinction between the special counsel’s “determinations” and his “confidence.” Mueller decided he would not make a determination “one way or the other” but never explicitly decided under what circumstances he would have “confidence” in the guilt or innocence of the president.

By subtly allowing his audience to conflate his “confidence” with his investigation’s “determinations,” Mueller sidestepped the question of whether he would have stated publicly that President Trump had committed a crime if his office had confidence that the president clearly had committed a crime.

Consider the phrasing again:

And as set forth in the report after that investigation, if we had had confidence that the president clearly did not commit a crime, we would have said so. We did not, however, make a determination as to whether the President did commit a crime.

Mueller wanted to make sure even though he wasn’t making a determination one way or the other, he would leave people with the impression that he did. And so the Mueller report makes the same distinction clear while offering the same conflation:

First, a traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution, but we determined not to make a traditional prosecutorial judgment [i.e. a binary determination] . . .

If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. (Emphasis added.)

(Yes Mr. Mueller, it’s always difficult to prove a negative—which is why our criminal justice system begins with the presumption of the accused’s innocence.)

Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

But no one asked Mueller to exonerate the president and certainly no one asked him what his non-factual, non-legal, and non-prosecutorial confidence was.

As Attorney General William Barr testified on May 1, the job of the Justice Department—and thus the job  of the special counsel—is not to “exonerate.” The job of the Justice Department is to determine whether there is “sufficient evidence to establish an obstruction” and that this “determines whether or not there was a crime.”

Mueller’s job was to make this determination. He declined to make it. But having claimed that they could not make a determination, they did not stop at laying out the facts.

Much in the same way that James Comey and Peter Strzok invented the “extremely careless” category to avoid describing Hillary Clinton’s actions as “grossly negligent,” Mueller and his office came up with the new and nebulous criterion of confidence.

But even on confidence, Mueller and his office are vague. All he said was that had the investigators been confident that Trump clearly did not commit a crime, they would have said so. And given that Mueller carefully sidestepped the question of whether they would have stated publicly that they were confident the president had committed a crime, we can assume that he would rather leave the question unanswered and to the fanciful imagination of the mainstream media.

Media Manipulation (It Isn’t Hard to Do)
By not making a prosecutorial determination and not stating that they were confident the president clearly did not commit a crime, Mueller and his office allowed the media to run wild with speculation.

Mueller and his office punted the question of prosecution to Barr, who subsequently decided not to prosecute the president. Barr also took an unexpected further step. He chose to make the determination not to prosecute “without regard” to the “constitutional considerations” Mueller had cited. Barr’s decision not to prosecute was based on the facts themselves.

The media and Democrats went into a tizzy, with many calling for Barr to resign. No doubt, they had expected Barr simply to rely on Department of Justice policy in his decision not to prosecute, thereby teeing up their impeachment push. By making a definitive judgment on the case, Barr squashed the planned Mueller fever.

Had Mueller stayed quiet after Barr’s decisions and the subsequent release of the Mueller report, then we could have regarded his statements about his office’s confidence as a poorly phrased reminder that, as Mueller said in his statement, “every defendant is presumed innocent unless and until proven guilty.”

He’d Better Take Questions
But Mueller gave a statement. His statement offered no new information. Coming as it did after Barr’s determination, its purpose is clear. It was, once again, to push the narrative that Mueller does not have confidence that the president clearly did not commit a crime and to advance the fallacy that his non-factual, non-legal, and non-prosecutorial confidence means anything.

If Mueller were a man of character and believed Trump would have been indicted if he were not a sitting president, he could have come out and said explicitly that he was confident that the president had committed a crime. Now that he is a private citizen, he could say this. Instead, he weaseled and equivocated to give cover for the Democrats and their kept media, all while trying to portray himself as above the fray.

It is convenient that the special counsel’s office is formally closing and that Mueller is resigning, given his pledge to “not comment on any other conclusions or hypotheticals about the president.”

We are left with many obvious and unanswered questions that the media and Democrats will either ignore or assume the answers to suit their narrative.

For instance, how did Mueller and his office determine confidence? Why didn’t they explicitly say that they were not confident that the president clearly did not commit a crime? What exactly would it mean for them to not be confident that the president “clearly” did not commit a crime? And would they have stated if they were confident that the President had committed a crime?

We could also ask whether they would have told us if they had some confidence that the president probably did not commit a crime, whether they have confidence in their confidence, and whether they are confident that Brian Stelter is not a homicidal pedophile who has systematically targeted, kidnapped, raped, and killed more than two-dozen children on a private island in the Caribbean. (If they are not confident of the last one, House Democrats should surely open an investigation.)

Later in the statement, Mueller claims that his office was partially “guided by principles of fairness” and that “it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.” His hesitance in this part of the statement may be indicative that he knows just how insincere this claim is.

Because what Mueller doesn’t acknowledge is that it is far more unfair to say something like “if we were confident that the President clearly did not commit a crime, we would say so” and then repeat that statement with an ominous stare after the attorney general makes the determination that there is clearly not enough evidence to prosecute.

The Senate Judiciary Committee must subpoena Mueller and ask—and ask—and ask some more. After the countless hours of interrogations that Mueller himself has presided over these past two years, and after the somehow brazen yet gutless political meddling and harassment, it’s only fair.

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2016 Election • Administrative State • Center for American Greatness • Deep State • Democrats • Donald Trump • Hillary Clinton • Intelligence Community • Law and Order • Mueller-Russia Witch Hunt • Obama • Post • The Constitution

Colluders, Obstructionists, Leakers, and Other Projectionists

Before the defeat of Hillary Clinton, the idea that the Russians or anyone else could warp or tamper with our elections in any serious manner was laughed off by President Obama. “There is no serious person out there who would suggest that you could even rig America’s elections,” Obama said in the weeks leading up to the 2016 election.

Obama was anxious that the sure-to-be-sore-loser Trump would not blame his defeat on voting impropriety in a fashion that might call into question Clinton’s victory. After Clinton’s stunning defeat, Russian “collusion”—thanks initially to efforts by Obama holdover Deputy Attorney General Sally Yates to go after Michael Flynn and the successful attempts of the CIA and FBI to seed the bogus Steele dossier among the government elite—became a club to destroy the incoming Trump Administration.

Colluders, Inc.
How ironic that Russian “collusion” was used as a preemptive charge from those who actually had colluded with Russians for all sorts for financial and careerist advantages.

The entire so-called Uranium One caper had hinged on ex-President Bill Clinton, Secretary of State Hillary Clinton, and their Clinton Foundation uniting with Russian or Russian-affiliated oligarchs to ease restrictions on the sale of North American uranium reserves to a Russian company with close ties to Vladimir Putin. Coincidentally what followed were massive donations from concerned Russian parties to the foundation, as well as a $500,000 honorarium to Bill Clinton for a brief Moscow speech. Note that no more money has been forthcoming from Russia to either of the Clintons or their foundation.

Had Donald Trump been caught, as President Obama was in Seoul in March 2012, on a hot mic assuring the Russians that he would be more flexible with Russia after the 2012 election (“On all these issues, but particularly missile defense, this, this can be solvedbut it’s important for him [Putin] to give me space”) he would likely now be facing real impeachment charges.

Imagine the cries of outrage from Representatives Jerrold Nadler (D-N.Y.) and Adam Schiff (D-Calif.) had Trump inadvertently blurted out to the world that he was willing to warp U.S. security interests to fit his own reelection agenda. (Remember: “This is my last election . . . After my election, I have more flexibility.”) Such a stealthy quid pro quo certainly would have been the crown jewel of Special Counsel Robert Mueller’s report.

The locus classicus of Russian collusion, however, is Hillary Clinton’s effort in 2016. The facts are not in dispute. Using the three firewalls of the Democratic National Committee, the Perkins Coie law firm, and Glenn Simpson’s Fusion GPS, the Clinton campaign paid a foreign national, British subject Christopher Steele, to compile a smear dossier against Clinton’s then-opponent, Donald J. Trump.

Steele then bought Russian and Russian-related sources to produce supposed dirt on Trump. None of these Russian-generated smears would ever be verified. In fact, almost immediately most slurs proved to be outright lies and completely made up in their details—if not the stuff of a Russian disinformation campaign.

Nonetheless, Steele seeded his contracted dirt during the 2016 election, and later during the Trump transition and presidency, among the highest Obama Administration officials at the Justice Department, FBI, and CIA. After more than three years of ex-Obama officials’ obfuscation, stonewalling, and chronic lying, we now know Clinton used Russian fake sources both to generate damaging anti-Trump media stories and to prompt government investigations designed to hamstring his governance. Again, if there is such a thing as “Russian collusion,” then Hillary Clinton is its font.

Obstructors of Justice
Mueller spent more than $34 million and wrote over 440 pages to inform the American people that Trump could not realistically be indicted for obstructing justice, mostly because the underlying crime—“collusion”— never existed in the first place. Moreover, Mueller and other officials were never actually hampered in their investigations. No matter: “obstruction” was supposedly the key to destroying the Trump Administration after collusion imploded. To this day it remains the battle cry of the impeach-Trump Left.

But what exactly would real obstruction of justice look like it? It might be a deliberate effort by government officials to mislead and impede the proper conduct of a Foreign Intelligence Surveillance Court, in an effort to spy on an American citizen deemed useful in proving “collusion.”

That is, James Comey, Sally Yates and others signed FISA requests when they knew, but did not dare disclose to the court, that their sources of evidence—the Steele dossier and news accounts in circular fashion based on it—were unverified, products of Hillary Clinton’s bought oppositional research, and written by a contractor at the time fired by the FBI for unprofessional conduct.

Had Comey simply told the court that Clinton had paid for his evidence, that the Yahoo News account was not independent but based on the dossier, that he had fired Steele as an FBI collaborator, and that nothing in the dossier had been verified, then the court never would have granted him permission to spy on Trump campaign volunteer Carter Page. In other words, top FBI and Justice Department officials deliberately obstructed and essentially destroyed the normal protocols necessary to protect the sanctity of legal surveillance, during the election, the Trump transition, and the early Trump presidency.

Or maybe obstruction would be defined as the efforts of a recused attorney general like Loretta Lynch, who had stepped aside from the FBI probe of Hillary Clinton’s emails, to have met secretly on an airport tarmac with the spouse of the target of her department’s investigation.

Or would obstruction be classified as Lynch supposedly ordering the FBI not even to use the word “investigation” when it was investigating Clinton? Or would obstruction constitute deliberately destroying more than 30,000 emails under subpoena, in the fashion that Clinton ordered her aides to “bleach bit” her correspondence and destroy mobile communication devices?

Or would obstruction be classified as deleting emails germane to an investigation of the collusion scam in the fashion of Nellie Ohr erasing emails received from her husband’s government email account, or perhaps in the manner of Mueller team staffers who wiped clean the mobile phones of the fired Lisa Page and Peter Strzok?

Or would obstruction characterize the brag of the anonymous New York Times guest editorialist? He preened in a September 5, 2018 column that he was an unnamed high administration official and NeverTrump Republican who, along with like-minded “resistance” leaders, was trying his best to disrupt his own president’s governance. What would anonymous’s obstruction entail—deliberately ignoring legal mandates? Failing to follow new federal guidelines? Trying to subvert nominations? Illegally leaking to the press? Obstructing anything he did not like, whether in legal or illegal fashion?

Logan Acting
The pathetic attempt to invoke the ossified Logan Act—with two indictments and no convictions in the law’s 220-year history—by Sally Yates likely fueled much of the Trump collusion investigations, well before Mueller’s misadventure.

Yates testified before Congress that her theory of supposed violations of the Logan Act prompted her own request for FBI interviews with Michael Flynn. Trump’s first national security advisor had purportedly dared to talk about sanctions with the Russian ambassador during the Trump transition in the days before Obama left office. In other words, Obama officials believed there really was a viable Logan Act, or at least the façade of one that could be deemed useful to destroy a political opponent.

But for the sake of argument, assume it is unwise to allow any private citizen to subvert government foreign policy. What then would be a classical definition of a Logan Act violation?

Perhaps the ongoing efforts of former Secretary of State John Kerry fit the bill. During the lead-up to the Trump’s Administration’s cancelation of the Iran deal and in its aftermath, private citizen Kerry met with high Iranian officials and purportedly advised them how to obstruct or at least survive the ramifications of Trump’s new Iranian policies.

In spring 2018, Kerry’s sought out meetings with Iranian Foreign Minister Javad Zarif in Norway, Germany, and perhaps as well at United Nations headquarters in New York. He purportedly discussed ways to preserve the spirit of the prior Iran deal negotiated by the two—an agreement which was no longer official U.S. policy and had just been canceled by Trump.

In other words, the ex-secretary of state and, again, now private citizen Kerry met secretly with an Iranian foreign minister to brainstorm about how the elements of their deal might survive his own country’s current policies. Note that Senator Dianne Feinstein likewise just met with Zarif, a sort of copycat performance of House Speaker Nancy Pelosi’s 2007 meeting with the murderous Bashar al-Assad, who at the time was doing all he could to help Iran spike American deaths in Iraq.

If Kerry’s machinations were deemed grey violations of the Logan Act, how about the more overt recent efforts of another former State Department official Susan Thornton? Here is what she boasted about recently in Shanghai to an audience of Chinese analysts and academics:

I tell all our foreign counterparts they should keep steady, keep their heads down and wait. [They should] try to not let anything change dramatically . . . If this skeptical attitude towards talking diplomacy continues in this administration, you might have to wait till another administration . . . 

Thornton seems to be advising the likely veneer of the Chinese apparat and government to stall out the Trump Administration and thus wait to find a more familiar and compliant America that would follow past protocols. That advice might be taken to mean she is advising them to stonewall her current American president and find better ways to facilitate the accustomed serial Chinese patent and copyright infringement, dumping, currency manipulation, technological appropriation, massive trade and account surpluses, and imperialist initiatives in the South China Sea.

When Thornton crows, “I tell all our foreign counterparts” she seems to assume that she is playing the role of omnipotent shadow State Department grandee, whose message is geared to assist almost any power other than her own government.

Thornton’s advice is old news. It is simply a more muscular version of former Obama Pentagon official Rosa Brooks’ June 30, 2017 reassurance to the nation and the world (“3 Ways to Get Rid of President Trump Before 2020”) about how  best to depose the just inaugurated U.S. president without having to wait for a constitutionally mandated election in four years.  

After just a week of Trump in office, Brooks had concluded Trump had to go. Her blueprint for his forced retirement was in an apparent answer to “the question being asked around the globe” (note how our would-be best and brightest always boast of having their hands on the pulse of the like-minded global elite).

Presumably Brooks would reassure her foreign friends and kindred Democrats at home that Trump most certainly could be stopped after just a few days in office—if only the right people began the right adoption of her tripartite strategy of either impeachment, removal under the 25th Amendment, or an outright military coup (e.g., “The fourth possibility is one that until recently I would have said was unthinkable in the United States of America: a military coup, or at least a refusal by military leaders to obey certain orders.”)

The revolutionary Brooks could sum up Trump after a few days in office as a likely target of a military plot (one far more likely to have been successful than Andrew McCabe’s later comical 25th Amendment effort to record Trump secretly and then convince the Cabinet of his mental derangement). Brooks ended her scenarios with a triumphant approval of the idea of a revolutionary coup d’étatnever before seen in our history: “For the first time in my life, I can imagine plausible scenarios in which senior military officials might simply tell the president: ‘No, sir. We’re not doing that,’ to thunderous applause from the New York Times editorial board.”

Noble Dangerous Leaking
Lately, House impeachment hounds Nadler and Schiff have whined that Trump’s effort to declassify government intelligence records concerning the collusion scheme poses a grave threat to national security. In other words, the chronic leakers who recently demanded an unredacted Mueller report and serially leak supposed impending “bombshells,” suddenly have become anti-leakers and pro-redactors. The only common denominator in their chameleonism is Trump hatred.

But what would dangerous and illegal leaking consist of?

James Comey leaking to media conduits classified, private-one-on-one presidential conversations to prompt the appointment of a special prosecutor?

Andrew McCabe feeding the media self-serving hoaxes about collusion?

Former Director of National Intelligence James Clapper seeding to CNN the private Comey briefing with President Trump—and then deploring such illegal leaks, as he leveraged that scoop to land himself a future CNN analyst billet?

FBI sources planting stories of pre-election “collusion” with Yahoo and Mother Jones?

Or how about leaks to tip off the media about the timing Roger Stone arrest? Or periodic Mueller team “walls are closing in” and “noose is tightening” leak-lies to the obsequious media?

What have we learned about the Left’s moralistic talk of Trump’s supposed collusion, obstruction, Logan Act violations, and leaking?

One, that these are all projections of real resistance behavior. The zeal to remove Trump by any means necessary justified colluding with Russians, obstructing justice, undermining his administration abroad, and chronic leaking.

Two, these deep-state and media elites are narcissistically delusional. So inured are they to deference that they really believed they should have the power, indeed the right, to subvert democracy, to overturn a U.S. election on the justification that the wrong voters had voted for the incorrect candidate and both needed to be corrected by the right people. All that is why the last 28 months have been both scary and dangerous.

Real coups against democracies rarely are pulled off by jack-booted thugs in sunglasses or fanatical mobs storming the presidential palace. More often, they are the insidious work of supercilious bureaucrats, bought intellectuals, toady journalists, and political activists who falsely project that their target might at some future date do precisely what they are currently planning and doing—and that they are noble patriots, risking their lives, careers, and reputations for all of us, and thus must strike first.

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America • Center for American Greatness • Cultural Marxism • Defense of the West • Post • The Constitution • The Culture • The Left

The Constitution Does Not Protect Freedom of Speech

Around the inner rotunda of the Rhode Island state capitol stands this quotation from Tacitus: Rara temporum felicitas ubi sentire quae velis et quae sentias dicere licet. “Rare happiness of the times,” said the sardonic republican, “when it is permitted to think what you will and speak what you think.” Rare indeed.

Let us concede for the sake of argument that freedom of political speech in the broadest sense is a good thing, speech that bears not only upon whom we should elect to public office and what laws they should pass, but upon what is good and bad, true and false, wise and foolish.

Americans believe that that freedom is secured by constitutional provisions. They are wrong. Such freedom, such latitude for seeking the truth and securing the common good, must live within the hearts, the minds, and the cultural habits of a people. Otherwise it is dead, even while the constitutional provisions continue, like soulless automata, or the living dead.

The provisions march on, blindly and aimlessly, granting liberty to pornographers on principle, a mistaken principle as I believe, while ordinary people are ever more forbidden to think what they will and speak what they think, even about such ordinary things as what a marriage is, or what a man or a woman is and what they are for.

The phenomenon is, strangely enough, nowhere more evident than when the word “community” is invoked, like a talisman; and the undead shakes the dirt from his grave.

Where are true communities to be found? A communitas implies a place and identifiable members, sharing duties and benefits in common: think of a commons, or a town hall, or a public ball field. The community chest gathers donations from everyone in town, to disburse them to individual charities or to the poor according to their needs and the capacity of the whole. A Greek polis is a community, but a community need not be “political” in that specific sense. Your local parish is a community, or it should be. People who come together to build and operate a school form a community. An old-fashioned guild of shoemakers, ensuring quality of work, honoring their patron on Saint Crispin’s Day, and providing for their widows and orphans, form a community.

Such communities may require the awkwardly put “community standards” from their members, and these may be helpful or harmful, sensible or merely self-righteous and snobbish, as the case may be, and if you don’t like East Podunk, whose zoning laws will not permit bright orange houses, you may move to West Podunk, land of the garish. But in the absence of a real community, to call upon “community standards” is to establish an excuse for censoriousness, intolerance, and mendacity.

When I was a professor at Providence College, we used to receive messages from the administration, containing the words “Providence College community.” Mostly I ignored the phrase, as one of those pleasant fictions that the bureaucratic among us have enjoyed since the days of Orwell. The word “community” added nothing to the meaning. It was a smiley face in the margins, suggesting, “Here you are to have a feeling,” a tenth of a degree warmer than usual. For there were 4,000 students, transient of course, 250 professors, hundreds of staff members, at least 100 adjuncts, also transient, and nobody could know even a small percentage of all those people, by face or by reputation or by family.

Even so, you might attain some measure of community if you all shared a fundamental belief in God, regardless if you worshiped together; or if you all believed that the point of education was to discover the truth, regardless of what you thought the truth to be. But the school, like most others, was stocked with atheists and agnostics, some professed, some so by the sheer acedia of a life devoted to avarice, prestige, and hedonism. And the very idea that there is a truth to discover outside of the province of the slide-rule and the microscope was not only controversial but condemned by many as downright oppressive and wicked.

So there was no community. Why appeal to it, then, other than as a psychological hiccup? To shut down the expression of beliefs that those in power do not like. Hence it was that a professor of politics, while students nodded like puppets, delivered herself of the remarkable opinion that although the object of her public loathing (me) enjoyed academic freedom, that freedom must be used “responsibly,” according to community standards. The inversion was complete. Someone who does not believe in objective moral truth, and who therefore in moral debates cannot use her academic freedom “responsibly,” condemns someone else who does believe in objective moral truth, who seeks it, who declares what he believes he has seen, and who therefore can have cause to speak of what is responsibly or irresponsibly done.

Recently, four people, one of them an enfant terrible of conservative discourse, Milo Yiannopoulos, were banned from the public space provided by the Piranha Brothers, controllers of Facebook, for violating the unwritten law. Again, “community standards” were invoked. But there is no community. Facebook has become a gigantic public utility, like the telephone companies. There is no Facebook jamboree. Facebook has no fish-fry and clam bake. Facebook does not gather funds from little faces everywhere to succor the faceless. There are many thousands of what we might call notional Facebook commons, whereby people who are far-flung in geography write to one another about the topics of the times. These notional communities have little or nothing to do with one another, and nothing at all to do with Facebook, no more than conference calls have to do with Skype.

What can the Piranha Brothers possibly mean to convey, then, when they nailed Yiannapoulos’ head to the floor? It can have nothing to do with a “community.” It has to do instead with a desire that certain kinds of notional communities should be constrained or should not exist at all.

Hence the Piranha Brothers will permit you to put your ignorance of religion and your contempt for religious people on full display, all day long and every day of the week; the spike will never penetrate your temple. But they will not permit you to say, bluntly, that a man who believes he is a woman is in the grip of a delusion. If someone complains, out you go, and out goes your “community” or your portion thereof.

We must expect more of this in the future: people whose intolerance and censoriousness rises in proportion as their faith fades and their longing for the truth grows dull. We will hear the word “community” every day, and never see the real and living thing. We will have the Constitution, neither alive nor dead, but undead, and people who are afraid to let slip the wrong truth at work will continue to believe that they live in a free nation.

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First Amendment • Free Speech • Online Censorship • Post • Technology • The Constitution

Our Tech Slave Power

There can be no doubt any longer that Facebook, Google, Twitter, and their subsidiaries—YouTube, Instagram, Periscope, among others—are trying to suffocate political speech. These American companies have chosen political sides with the Democratic Party, donating what amounts to an in-kind political contribution by silencing those who disagree with them.

Consider that techno censors have never harassed fake news organizations like CNN, and wannabe doxxers like Pennsylvania State Representative Brian Sims spew hateful attacks on minors without consequence.

There can be no doubt any longer that tech companies have no desire to preserve liberties or the common good. They endeavor to become a new slave power by taking that which we earn by the sweat of our brow. We work; they eat.

As long as we play by their often hidden and opaque rules, and utter only the approved opinions, we might be able to partake in the scraps they throw at us from their table.

Their actions condemn any pretense that they are disinterested, objective gatekeepers of speech. Google tried to silence the Claremont Institute from purchasing an innocuous ad announcing its 40th anniversary dinner gala. Twitter banned David Horowitz. Many others face lifetime bans for expressing their political opinions.

When the Silicon Valley oligarchs feel political pressure for their deplatforming decisions, they blame the “algorithm” or say the “mistake” was a technical “glitch.” This is, of course, a lie; but it allows them to avoid responsibility.

It is, moreover, a lie that is a material misstatement or omission in connection with the sale of a security; if it were known that these public companies were risking regulation by tampering with American politics their stock values would plunge.

And the lie is transparent. Limitations on free speech are imposed only on the Right, not the Left. Algorithms are coded by human beings and those codes target certain forms of speech the human programmers don’t like. Just ask James Damore, who wrote about Google’s “echo chamber.” It might be more appropriately called a Star Chamber.

This has had a chilling effect on speech. When people have to watch what they say or else lose their livelihoods, political speech comes with a high price. Libertarians believe all of this is fine, just the price we pay for a free market and that time will solve the problem. But, these are the same interests who believed that trade with China was free, when it truly wasn’t. What can be done to secure the freedoms and equal liberty of speech for the common good of the republic?

A co-founder of Facebook believes the company should be broken up, in part because, “Facebook’s board works more like an advisory committee than an overseer, because Mark [Zuckerberg] controls around 60 percent of voting shares. Mark alone can decide how to configure Facebook’s algorithms to determine what people see in their News Feeds, what privacy settings they can use and even which messages get delivered. He sets the rules for how to distinguish violent and incendiary speech from the merely offensive, and he can choose to shut down a competitor by acquiring, blocking or copying it.”

In fact, at Google, community standards are difficult to find to the point that it is obvious they are being concealed from the consumer. Facebook standards are posted, but unequally enforced. The Southern Poverty Law Center violates several tenets of Facebook’s standards, and has never been banned. Same with Antifa and Black Lives Matter. Those groups suffer no harassment for their hateful speech.

The remedy we should seek is the protection of all political speech—in its broadest definition—in order to preserve liberty and equality, which would also preserve the free press.

Government intervention to the extreme of taking over tech monopolies would not solve the problem: this is something Zuckerberg wants because it will guarantee Facebook will always be a monopoly. There is a better option to this chilling situation in the form of a two-pronged approach that would empower users (the consumer) and preserve the right to property in our opinions.

The first is to break up the tech monopolies. The second is to open up libel laws. Both are necessary and need to be moved in tandem.

The Sherman Antitrust Act provided that any person who “shall monopolize” or “conspire” to do so, is guilty of a felony. Arguably, most of our tech giants are engaged in monopolistic practices, therefore the legal pretext for breaking them up is present.

In addition to the Sherman Act, the Clayton Antitrust Act provides that no company may change the price of a good between purchasers or discriminate in providing goods and services. It is often supposed that the only “customers” on social media are advertisers and paid-content promoters. But all users who agree to allow their data to be used and sold are customers; they simply pay with property rather than cash.

Where a consumer purchases a service in exchange for his or her personal data, only to find at a later date that the company denies the service in a discriminatory manner, that might be a violation of the Clayton Act. Companies like Facebook and Google collect, and sell, a user’s data. But for those banned, it is a bait and switch, a species of fraud. Banning a person from a platform while also keeping their data presents a legal problem for the company with which a user has the right to compensatory damages. Looking to the specific terms of the user agreement may not matter. These are contracts of adhesion in the setting of a natural monopoly.

Breaking up the tech companies could look something like the breakup of AT&T in the early 1980s. The platform would remain the same, but the services offered could be styled to suit the consumer.

Facebook could still be the same Facebook overlay, but the product delivery could be different, depending on user choice. One might accept the free version wherein ads are displayed, while the payment would be the user’s data, much like now. Another might opt to pay for the service without ads, and so on. Either way, the community would not change, and public speech and interaction would continue as it does presently. Unregulated competition could survive in this construction, and several companies could use the platform’s homepage overlay to offer unique services as a result.

The problem with Facebook in particular is that they are offering their services for free in return for the purchase of our data—likes, dislikes, browsing history, etc. Platforms that ban users arbitrarily or discriminatorily and then retain user data are either breaching a contract or possibly liable under an equitable theory such as estoppel or quantum meruit (unjust enrichment). They do not return the data of the user, nor do they pay the user for the data they have used to profit their enterprise. When a ban is imposed, the user-data is retained (as well as the data derived from the user data) for their own profit while wiping out the user’s work product in toto.

But the damages and enrichment are real—and calculable. This potential legal liability is ripe for class action. Discovery in such a suit would expose the political model posing as a business concern.

Connected to this potentiality for class action, is the harm and damage for libel. Just because a user might hold controversial opinions does not give anyone the right to damage that person’s reputation. The consumer ought to have access to the courts to seek redress. When Facebook banned Milo Yiannopoulos, for example, it did so publicly for his alleged “hate speech.” This is a potential libel that should be actionable. No media outlet has the right to harm a person’s reputation. It violates the First Amendment, and contravenes every human being’s right to his own reputation. If Yiannopoulos is a “racist,” then it should be provable in court. If the company cannot prove such, then it should have to cough up damages.

While we have not considered the literal addictive properties that entice us in the form of a dopamine fix, as Sean Parker admitted, the freeing of speech might go a long way to preserving a space for liberty to flourish without the tyrannizing control those companies seek to impose over us. It is also the reason mainstream media cheers when those they disagree with are ousted. They are afraid of those who challenge their oligarchical position. They are afraid of the stronger deliberative argument.

They should be afraid. By breaking up these companies and opening up libel laws, citizens would have the tools they need to seek recompense for injustices done to them, and they would be free to speak their minds. The republic would be better for it.

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Administrative State • Deep State • Democrats • Donald Trump • Law and Order • Mueller-Russia Witch Hunt • Post • The Constitution • The Resistance (Snicker)

The Sinking of Mueller’s Prosecutorial Pequod

In the long and fascinating history of American political pamphleteering, the Mueller report will be regarded for years to come as a unique and in many ways impressive literary achievement.

But as a legal work, and more importantly, as a precedent for future special counsel investigations, it cannot be regretted more deeply, or forgotten soon enough.

Part Robert Ludlum, part Herman Melville—blending John Le Carré’s themes of Cold War disloyalty with hints of Joseph Conrad’s brooding and distinctly Russophobic pessimism—the report paints spectacular allegations of espionage, treason, and theoretical obstruction of justice against Donald J. Trump on the grandest possible canvas.

As if through a glass, darkly, it glosses over how the intelligence community framed (quite literally, it turns out) certain select encounters of peripheral Trump staffers with assumed-to-be Russian assets around the globe in 2016, such that, taken together and connected by a dossier whose political origin was never spelled out forthrightly, they purported to reveal to a FISA court a subversive foreign conspiracy to undermine American democracy.

This “dossier” containing unverifiable evidence of shady provenance (to put it nicely), attested to under oath by many upper-echelon leaders of the Obama Justice Department and FBI, was inexplicably deemed sufficient to obtain several surveillance warrants on two peripheral Trump campaign hangers-on.

Both of these individuals—Carter Page and George Papadopoulos—are today still free men, cleared completely of the original conspiracy suspicions that laughably spooked the FISC multiple times. (Papadopoulos spent a grand total of two weeks in federal prison for lying to federal agents.) Let that sink in.

Needless to say, then, Mueller’s report avoids any nettlesome inquiry into whether said pre-FISC framing was actually warranted, since the framing—indeed the very fact of such spying—and not its demonstrably false justification, is the only rooted leg upon which the whole sprawling spectacle of the investigation itself now stands, casting its long shadow over our whole electoral system.

As is evident by now, though, particularly after the timed leak of the Special Counsel’s letter of displeasure with Attorney General Bill Barr’s no-nonsense approach the release of its final report, the Mueller investigation was only ever a political hit-job. Thus its “report” could never amount to anything more than that.

Fruit of the poison tree, indeed.

The Literary Character of the Report

“Call me Schiffmael.”
Omitted opening line of a draft of the raw unredacted Mueller report, as collected from 1,000 blood-stained paper shavings dropped on the floor by a sub-par-paralegal

Weighing in at a hefty 448 pages, the much-anticipated Mueller report was an instant classic, already the Moby Dick of American political muckraking, and now available in several incarnations and formats on

Far from a merely factual summary composed exclusively for the attorney general of investigative conclusions about whether to prosecute or not, the report provides a complex, multilayered, issues-conflating narrative, crafted more like the great American novel than a perfunctory legal brief, and clearly intended for more than Barr’s bespectacled eyes only.

It is a long and winding (not to mention windy) tale, with many angst-filled animadversions and desultory digressions about its grand antagonist, the Great Orange Whale—President Donald J. Trump.

It is also, at a more meta level, the tale of an aggrieved political establishment’s dramatic (if self-destructive) quest to hunt down and kill that Great Orange Whale, for the unforgivable offense of defeating them in an election. After all, his victory only could have been possible with supernatural, or at least foreign-conspired, malevolence. And this report aims to prove it, even if the assembled facts don’t support further indictments on mere criminal grounds.

The report’s voluminous, painstaking, and often Pynchonesque passages on the president’s erratic and supposedly reprehensible behavior in response to the media’s completely scandalous coverage of the scandalously leaky special counsel investigation constitute a veritable Gravity’s Rainbow of sometimes-revolting, but always enthralling encyclopedic detail.

Through it all, the “totally reliable and trustworthy narrator” provides needed guiding light for his “model reader” (presumably, newly empowered House Democrats itching for one or more impeachment pretexts) to navigate the bizarre and mythical shadow-world of Trumplandia. It highlights the silhouette of this seedy and darkly imagined underworld in search of a stubbornly non-existent Team Trump nexus between—and any connection whatsoever to—foreign powers and their alleged nefarious plots to subvert the otherwise preordained outcome of the 2016 election.

More 2020 dossier than 2016 investigative review, the vast majority of the Mueller report, however, is nothing more than a legal manifesto and extended meditation, not on “collusion” (because it could prove none), but rather on the apparently more urgent subject of obstruction of justice. Can a sitting president, merely by executing his executive powers under the Constitution, also be obstructing justice, even when there is no underlying crime found to have been committed? This absurd question is given serious consideration, for some reason. Hundreds of pages of it.

It vividly depicts the public indignations, select Twitter indiscretions, and the freely waived but otherwise privileged legal consultations of the wily and unpredictable target of its fearsome, high-strung legal harpoons—the president of the United States himself—whose campaign and family the report nevertheless formally clears of any “collusion” or conspiracy charges, despite its best efforts to connect dots where only holes in the original conspiracy theory ever existed.

The Death of a Narrative
And so for lack of any actual evidence of conspiracy in the millions of documents, thousands of subpoenas, hundreds of witness testimonies, and (we are slowly learning) an elaborate counterintelligence campaign secretly launched against him by our own government much earlier than previously thought, the “Trump-Russia possible collusion” narrative is dead.

In other words, for all the loud proclamations of pending “bombshells” and all the fury engulfing the entire D.C. punditocracy and fomenting their rage nightly on cable news for the last two years, there was in the end no “there, there”—as one of the “totally reliable and trustworthy narrator’s” original contributing voices once frankly, in another context, fretted.

But then, rather than admit the obvious conclusion that you can’t obstruct justice if no crime has been committed and a complete inversion of the innocent-till-proven-guilty standard of traditional American justice, Team Mueller curiously refrains from “exonerating” Trump et al. of possible lawbreaking.

By punting the decision to prosecute for obstruction of justice on the merits to the attorney general, along with some curious theories about why he might (should?) indict the president on these charges,it leaves a door open to Congressional (read: political) intervention that, like Pandora’s box, never should have been opened in the first place on so weak a pretext.

But this was its whole purpose.

And Finally, We Come to the Political Objective
They knew before finishing the report that the attorney general planned, at his sole discretion and in the interest of transparency, to release quickly as much of the full report as possible to the public, and yet (we now know) they deliberately ignored his early request to assist in this effort by refusing to indicate in the report places where any grand jury testimony and other things, which by law must be redacted, should be redacted. They did this in order to create the media appearance that the AG himself was slow-walking its release.

Fortunately, Attorney General Barr would have none of this Swamp-savvy nonsense, and over their “snitty” objections he provided a simple “bottom line” summary of conclusions within days of the initial release of the report, letting the whole report stand (or fall) on its own merits with its full release a couple of weeks later, after the appropriate minimal redactions were finally made. Mueller’s team had hoped their stirring opening narrative would shape initial public reaction to the report, thus belying their political intent in the writing of it in the first place.

In the near term, as the Swamp’s mercurial denizens wrangle over Mueller’s dump of lightly redacted rumor, politically charged innuendo, and the prejudicially selected facts common to the one-sided grand jury process, members of the establishment political class are proposing quite creative pro-impeachment interpretations of the “raw evidence” it supposedly provides. This, despite the inexorable “bottom line” conclusions of “no collusion” and “no obstruction” that the applicable criminal legal standards demand.

The public rollout of a statutorily required report that was by that same legal framework only ever supposed to be confidential to the attorney general has unleashed a distinctly beltway political clown show for the American electorate in the run-up to the 2020 presidential election.

The shocking intensity of that clown show, however, merits deeper reflection on what, exactly, the Mueller report has actually achieved, versus what it was supposed to achieve—not to mention the good it could have achieved, had it been undertaken in good faith.

Mueller: Tragedy or Farce?
Had Mueller not merely regurgitated the DNC’s paid-for and questionable CrowdStrike assertions about Russian “hacking“ of their servers; had he shown actual wisdom in building a truly non-partisan legal team; had he reined in his more aggressive deputies in their excessive public humiliation of peripheral characters in barely-related, selectively-chosen prosecutions; had he informed the public sooner of his no-collusion conclusion when he determined it, certainly long before the 2018 election handed victory to its target’s unhinged political enemies—largely in anticipation of collusion-related indictments that never came; had he given equal consideration to “collusion” between Democrats and the Ukraine, or other bad actors besides the Russians, as his open-ended (and arguably legally inadequate) remit surely allowed; had he explored clear evidence of Fusion GPS involvement in the infamous Trump Tower meeting, which now appears clearly to have been a deliberate setup; had he, in short, behaved like the man of impeccable integrity that his admirers still, without evidence, insist he is—instead of the absurd, Ahab-like, self-styled Javert caricature that he appears, looking in hindsight at his entire career, to be—what a different, less fearful, more “normal” political landscape we would be beholding today!

But instead, Mueller’s prosecutorial Pequod, the once-invincible, media-beloved, whale-killing man-of-war, carrying the impeachment hopes and removal from office dreams of many a Great Orange Whale-hunter in their bloodlust for political vengeance, was sunk by an actual agent of cosmic justice, and is condemned now to spin anticlimactically in a whirlpool of its own media-fueled, leak-frenzied narrative-blubber.

Yet the totally reliable and trustworthy narrator still lives—barely!—clinging with desperation to the “coffin life-buoy” of his now-lifeless “collusion” companion, floating aimlessly at sea on the jetsam and flotsam of theoretical obstruction to an ambiguous, entirely regrettable—and ultimately forgettable—end.

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Congress • Donald Trump • Post • The Constitution • The Courts • the Presidency

The Supreme Court Can Stop a Trump Impeachment

Fueled by the recent release of the Mueller report, the Left, including many Democrats in the U.S. House of Representatives, has ramped up its longstanding call for the impeachment of President Donald Trump. The president—arguably the best counter-puncher in American political history—has responded by tweeting, “If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court.”

Not surprisingly, in response the Left has issued a blizzard of replies to the president’s tweet. Harvard Law School professor Laurence Tribe, for example, retorted in the most frequently repeated of the replies that it was “idiocy” for the president to think the Supreme Court would have jurisdiction over an impeachment proceeding.

I disagree. Although it is true that the nation’s highest court held in 1993 that the question of whether the Senate had properly tried an impeachment of federal judge Walter Nixon was a political question that could not be resolved in the courts, Justices Byron White, Harry Blackmun, and David Souter wrote separately to voice their concern about foreclosing the impeachment process from judicial review. While the three Justices agreed that the Senate had done all it was constitutionally required to do during Judge Nixon’s impeachment trial—namely, appoint a committee of senators to hear the evidence against Nixon and later report to the Senate as a whole for a vote on his removal from office—they insisted that the court must retain the power to review cases in which the Senate removed an impeached officer summarily without a hearing, or through some arbitrary process such as a coin toss, or because the Senate thought the impeached officer was “a bad guy.”

Moreover, the House is not the Senate and despite Gerald Ford’s embarrassing boast in 1970 as a member of the House that an “impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history,” the Supreme Court unquestionably could enjoin any impeachment proceeding that is nothing more than a thinly veiled coup d’etat.

An attempt to impeach President Trump at this point would be precisely that. After all, the Left has been trying to overturn the 2016 presidential election from the moment Trump won it, and they haven’t stopped trying in the two-plus years since the election. Tribe himself, in a May 13, 2017 op-ed in the Washington Post, wrote that President Trump “must be impeached” for “obstruction of justice” after firing FBI Director James Comey: a conclusion recently rejected by the Mueller report itself.

Revealingly, Tribe tried to explain why, in his not-so-impartial opinion, what President Clinton had done when he was president was not an impeachable offense. “In Clinton’s case,” Tribe wrote, “the ostensible obstruction consisted solely in lying under oath about a sordid sexual affair that may have sullied the Oval Office but involved no abuse of presidential power as such.”

I strongly suspect that the Supreme Court would not be indifferent to the fact that the Left’s attempts to undo President Trump’s 2016 election victory have taken on the appearance of throwing-anything-and-everything-against-the-wall-to-see-what-sticks. Recall, for example, that the Left has argued that the president should be impeached and removed from office for violating the Constitution’s Emoluments Clause, an obscure provision addressing corruption and curry-favoring at the hands of foreign governments. That attempt has gone nowhere.

The Left also has insisted that President Trump should be impeached and removed from office for, in the words of former Clinton labor secretary Robert Reich, “unfaithfully executing his duties as president” in faulting President Obama on several occasions; for his alleged violation of the First Amendment guarantee of freedom of religion with his travel ban; and for his alleged violation of the First Amendment protection for a free press in criticizing the media for criticizing him. Reich has gone so far as to accuse President Trump of treason against the United States. None of those scurrilous accusations have stuck either.

I also suspect that the Supreme Court would not be indifferent to the related attempts by the Left to insist that President Trump is not “mentally fit” to serve and should be stripped of power under the 25th Amendment, especially when that frivolous charge was based on the “diagnoses” of so-called mental health professionals who have never met, let alone, treated the president.

In short, I am confident that the Supreme Court would see any formal move by the House to impeach President Trump for what it is: a blatant attempt to overthrow the legitimately elected President of the United States. I am likewise confident that the Justices would comply with their oath of office to “support and defend the Constitution of the United States against all enemies, foreign and domestic,” and put a stop to it.

Photo credit: Chip Somodevilla/Getty Images

America • Americanism • Conservatives • Electoral College • Government Reform • political philosophy • Post • self-government • separation of powers • The Constitution • The Culture

The New Social Contract We Must Reject

America’s public life is disordered; our discourse toxic. Competing lists of scandals and abuses (calls for impeachment, “nuclear options,” attacks on free speech, and so on) are long and shop-worn—and often miss the real issue that something profound, systemic, and dangerous has happened to our nation. A hostile ideology now permeates the institutions that inculcate our children’s values, that shape or manufacture public opinion, and that supply the public with our only menu of political options from which to choose.

In effect, our ruling class has declared a new social contract, and they expect us to accept in silent acquiescence.

A social contract reveals itself in action, not ideas, and the true nature of the new, progressive contract emerges in countless examples of applied tyranny rather than its rhetoric of liberation. If we allow this new social contract to become our national norm, we will no longer be Americans in any meaningful sense. We will descend from a self-governing people into the subjects of social democratic elites who will dictate what kinds of political, economic, and social relationships we have with one another and with our new rulers.

American public life grew from a creative tension between two competing but ultimately compatible visions of who we are and what makes our common life meaningful. In effect, Americans have lived in and between two social contracts, which we have come to call “liberal” and “conservative.”

Our liberal social contract is largely individualistic; it stresses natural rights, political consent, and legal protections that extend from protecting contracts to guaranteeing equality of opportunity. Our conservative social contract, accepting much of liberalism, undergirds it by emphasizing the ties of community—of family, church, and local association—that make economic and political cooperation possible and help give life meaning. Freedom and stability, rights and duties, personal drive and the deeper ties and shared stories that bind us, these seeming contradictions have served as the poles of our common life, allowing us to forge a society of dynamic, ordered liberty.

Things have changed. Whether in the sweeping power grab of Representative Alexandria Ocasio-Cortez’s “Green New Deal,” the old-style socialism of Senator Bernie Sanders, or the dogged resistance of “mainstream” Democrats to any judicial nominee who recognizes the duty of judges to follow rather than make law, formerly fringe positions have coalesced into a new consensus on the left more radical than anything we have seen previously in our two-party system.

How did this happen?

Barack Obama’s vapid speechifying about America’s coming “fundamental transformation” sounded sophomoric to many of us but inspired others—activists, academics, journalists, and politicians—to believe their vanguard had finally captured all the important cultural and political high ground. The words were conceptually empty but nonetheless important as they signaled a coming out for this vanguard. Feeling free to use naked power to implement their new social and political model, progressives largely immobilized non-progressive elites whose foolish complicity in the building of the new paradigm left them without a script.

This paradigm owes much to the most radical of American Progressives from a century ago. It is laid out most fully, however, in a work of academic philosophy, the 1971 book A Theory of Justice by Harvard philosopher John Rawls.  At one level, Rawls merely restates old leftist prejudices, and his abstruse language hardly conceals the radicalism of a “social contract” demanding that we reject our lived culture, our inherited principles, and the defining traits of our American character in favor of a radical, inhumane, and fundamentally unjust “theory of justice.”  

On another level, Rawls offers the purest form of political abstraction that supported a method of analysis perfectly attuned to the desires of a new generation of radicals for moral certitude and for those who cannot tolerate dissent or pluralism.  In this way, Rawls crafted a very useful and seductive theory for people who want action. Rawls’ contract begins with the question: what type of society would an individual choose from behind a “veil of ignorance” completely masking every aspect of a distinctive self:  gender, class, talents, physical limitations, religious and moral beliefs? Rawls’ answer is a “fair” society, in which the only permissible inequalities would be those that produce disproportionate benefits to the most disadvantaged. The cold abstraction of Rawls’ system produces moral heat against all forms of difference and inequality, and against anyone who fails to parrot the claim that its principles are self-evident. And so, dissent from the new orthodoxy is portrayed as a sign of racist rage and a selfish thirst for power, political majorities are dismissed as brainwashed rubes or mere fictions, and open opposition to the new order is deemed treason. Rawls’ theory effectively closes the mind of disciples in order to prepare them for the long march to power.

If we have learned anything over the last two and a half centuries it is that nothing is so dangerous to real, particular, breathing humans as moralism devoted to abstract visions of the good. Unfortunately, we seem perpetually destined to unlearn such lessons. “Free” college, medical care, and guaranteed incomes, courts determined to legislate against the expressed will of the people, and the poisonous demands of today’s identity politics all share a hostility to the norms of personal responsibility and traditions of due process deeply embedded in our liberal/conservative consensus. They demand rejection of tradition and opportunity in favor of using government and radical pressure groups to redistribute wealth and power according to political standards.

Political conflict is nothing new in America. Nor is all political conflict the product of disagreements over our social contract. For example, much of the tragedy of race relations historically has stemmed from primitive emotions and bad, race-based pseudo-science. But at the core of today’s toxic politics is a battle for America’s soul. We must choose: Are we, as a people, dependents of a central government and those who perpetually run that government, looking for administrators to protect us from all the tragedies of life—including sickness, poverty, feelings of inferiority, and speech we find hurtful? Or are we a free people, possessed of a common story as well as our own stories in our own communities, capable of governing ourselves provided each of us is given fair treatment and room to move in the public square?

The Rawlsian contract demands that every form of inequality—political, economic, and social—pass muster according to rigorous, unrealistic criteria. In effect, every aspect of our lives is to be judged by the most “woke” among us, who will then use the power of the state to enforce their judgement. Promising liberation, the Rawlsian social contract would reduce each and every one of us to a featureless cog in a great machine of constant social reconstruction. This most political of social contracts is the real foundation for the politics of envy and resentment promoted by Occasio-Cortez, Sanders, and their enablers.

At its heart, the Progressive social contract is a rejection of society itself in favor of a pervasive, inescapable politics, guided by a permanent ruling class insulated from the people by tenure, lifetime appointments, civil service rules, and a corrupt political system. Real political consent comes, not from behind a veil of ignorance, nor from the kind of mass, national elections called for by those who would destroy our Electoral College. It comes from people within their own states and local communities. National politics and promises must take a back seat to local concerns and loyalties if we are to regain self-government. For this to happen we first must call out those who would shame normal Americans into submission. It is time to call a radical a radical and a socialist a socialist. Most important, it is time to remind ourselves that, whether conservative or liberal, a majority of Americans still believe in self-government and ordered liberty; this is what has bound us together, and what must continue to bind us together if we are to remain a free people.

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Big Media • Center for American Greatness • Deep State • Donald Trump • Law and Order • Mueller-Russia Witch Hunt • Post • The Constitution • The Media • the Presidency

Let Me Speak to the Manager!

We’re all familiar with the petulant customer constantly demanding to speak to successive managers at a store until she gets what she wants. And some of us have been there when the final manager comes to put a stop to the commotion.

Ultimately, the customer is trying to get her way and is willing to make a scene until someone comes to tell her she’s right. When that final manager refuses to acquiesce, she will look for any other authority—the corporate office, the wrathful pages of Yelp, occasionally even the police—to force the store to submit to her whims.

Ever since the 2016 election, media pundits and Democratic political operatives have been playing the role of the petulant customer having a full-scale meltdown in the checkout aisle. And it hasn’t been pretty. Initially, they pinned their hopes on “Russian collusion,” a phrase the media repeated so much as to warrant a remix, and their friend—who happened to be a manager—who was going to investigate it.

But when Mueller finished his report and sent it to his manager, the media and the Democrats were confused and upset. They wanted the friendly manager to make the final determination—but ultimately it wasn’t his call to make.

In a press conference coinciding with the release of the Mueller report, Attorney General William Barr had to re-familiarize journalists with the way government works.

The penultimate question Barr answered demonstrates the confusion that journalists seem to have.

Reporter: There’s a lot of public interest in the absence of the special counsel and members of his team. Was he invited to join you up on the podium? Why is he not here? This is his report, obviously, you’re talking about today.

Barr: No, it’s not. It’s a report he did for me as the attorney general. He is required under the regulation to provide me with a confidential report. I am here to discuss my response to that report and my decision, entirely discretionary, to make it public, since these reports are not supposed to be made public.

The media has a difficult time understanding that Mueller was not the free-floating deistic savior they had imagined him to be. Mueller was an employee of the Justice Department and as such he was working for the attorney general.

Members of the press are in good company. Even Democratic politicians have difficulty with this concept.

In a House Appropriations Subcommittee hearing, Barr had the following exchange with Congressman Charlie Crist (D-Fla.):

Crist: Did you contemplate having the special counsel’s office help you with the preparation of your March 24 letter, or did you?

Barr: We offered to have Bob review it before putting it out and he declined.

Crist: I didn’t ask you about reviewing, I asked if you thought about having them help prepare the March 24 letter. I mean they did the report after all.

Barr: No, I didn’t think about that.

Crist: Why not?

Barr: Because it was my letter.

A long, cringe-worthy pause follows this exchange as Crist presumably processes the fact that Barr is, in fact, the attorney general and that Mueller reports to him, not the other way around.

When they do finally process this piece of information, media pundits and Democratic operatives go off the rails and immediately start casting aspersions on Barr’s credibility. If they could, they would no doubt have their own Saturday Night Massacre to find someone who would indict President Trump.

Editorial pages have been littered with denouncements of William Barr and calls for him to resign. Presumably, the media and the Democrats will soon want to speak to Barr’s manager. Unfortunately for them, the Attorney General serves at the pleasure of the President of the United States who happens to be Donald Trump.

No Shortcuts
Politics is filled with hypocrisy. Opposition groups relish in digging up old footage of politicians using the exact logic they now denounce. Just think of the competing statements from Representative Jerrold Nadler (D-N.Y.) and Senator Lindsey Graham (R-S.C.) circling around the internet where they appear to espouse views on impeachment and report redactions diametrically opposed to the ones they hold today.

But the Democrats’ hypocrisy is striking because it is laced with a myopic imprudence that lacks a fundamental understanding of why our system of government is set up the way it is.

They venerate the Supreme Court as an arbiter of morality, not as an arbiter of law. They view the electoral college and the disproportional representation of the Senate as an impediment to democracy, not as a check of smaller states on larger ones. And they view impeachment as a way to reverse a political decision they didn’t like, not as a last resort against a truly despotic leader.

For some, these confusions come from an obsession with power. But for many, they come from an overly idealistic view of morality and politics. And in a group that largely views both morality and politics as merely social constructs, this idealistic view is especially misguided.

Many in the media and in the Democratic party are convinced that President Trump is bad. But since they also hold that morality is a subjective social construct, they do not have to articulate any clear reasons why they think he is bad. And since justice is a subjective social construct, anything they think is bad should be illegal. And since politics is just a subjective social construct, they are happy to warp the fabric of politics to achieve their ends. Which they believe are good. Even though good is a subjective social construct.

This is the same chain of logic most Democrats apply to issues as disparate as immigration, abortion, gun rights, and socialism.

But this logic fails to account for why politics was created.

Politics exists to settle issues without having to resort to violence. We made a calculation that an ordered, authoritative, and nonviolent system to adjudicate political questions was worth the intermittent political losses. Violent battles gave way to far less bloody wars of words and ideas. But the ongoing success of politics requires us to engage our fellow citizens and occasionally to acquiesce to opinions we hold to be misguided or wrong.

When we stop acting within the political systems we built, the kindling builds up. Some may make the calculation that the political system no longer works or that peace isn’t worth preserving at the cost of tolerating these actions by the government. They may write off a group of their fellow citizens as irredeemable and beyond the pale. But when they make this calculation, they must understand that they are inviting violence and civil war.

There are no permanent shortcuts in politics. Any attempt to circumvent actually engaging your fellow citizens will only ratchet up tension and contribute to the political strife that all too easily gives way to violence.

Never Enough
It’s increasingly clear that the media and the Democrats will never be happy with any result from any investigation into the current administration that does not establish President Trump’s guilt. They will continue to exhaust us all with their continued petulant whine on the supermarket floor. They will continue to try to get their way by employing every shortcut they know.

President Trump could have fired Robert Mueller. Congressional Republicans could have cut funding. Attorney General Barr did not have to publish the report. The executive branch could have exercised executive privilege. They did not. They humored the Democrats and tried to engage their “concerns” and address them as best as they could.

But we have patiently humored Democrats for years on the whole collusion narrative. It’s time we politely yet firmly tell them to get stuffed so we can get back to dealing with the problems that actually matter.

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America • Electoral College • History • Post • The Constitution

How the Electoral College Squelches Faction

Ever since the political establishment was rocked by Hillary Clinton’s loss in the 2016 presidential election, the Electoral College has been under renewed scrutiny. It has withstood the charge that it is undemocratic since this accusation was made by the Progressive historians Charles Beard and James Allen Smith early in the 20th century. But it may not withstand the intensifying criticism that is a relic of a Constitution deemed to be “pro-slavery.”

Today’s academics almost uniformly accept that the Constitution was “pro-slavery.” In this they follow the critique of the Constitution leveled by radical abolitionist William Lloyd Garrison in the early 1840s. While Garrison focused his criticism on four clauses (the Three-Fifths Clause, the Slave Trade Clause, the Fugitive Slave Clause, and the clause promising states federal assistance against insurrection), Garrison’s followers have extended his criticisms, and now contend that slavery was behind a dozen or more of the Constitution’s provisions, including the Electoral College.

One notable dissenter from the “Garrisonian critique” is Princeton historian Sean Wilentz. In his recent No Property in Man: Slavery and Antislavery at the Nation’s Founding, he contends that the Constitution and its framers were as much anti-slavery as pro-slavery. It was therefore surprising, given the thesis of his book, that in it he conceded to Garrison’s followers the argument that the Electoral College was “pro-slavery.” Even more surprising was that Wilentz recanted his agreement with them while his book was still hot off the presses. Recently he revised his own argument, writing in the New York Times, “The Electoral College Was Not a Pro-Slavery Ploy.” The Times did not allow this heterodox opinion to go unchallenged, however, and immediately published a rebuttal by Yale’s Akhil Reed Amar: “Actually, the Electoral College Was a Pro-Slavery Ploy.” Readers must be left wondering, who is right?

To answer, one must begin—unlike Amar and Wilentz—at the beginning. On the convention’s first full day, May 29, the delegates were introduced to a plan of government proposed by the Virginia delegation, largely based on the work of James Madison. It proposed a radical change in the form of government that united the states, replacing the confederation with a truly national government. This included a provision that “a national executive be instituted, to be chosen by the national legislature . . . to be ineligible a second time.” The term of office was left unstated.

Begin at the Beginning
The Convention proceeded through the Virginia Plan point by point. By June 1 they reached its provision for the creation of an executive, which they debated for nearly a week. Recalling their rule by the British monarchy, delegates were wary of executive power and sought to structure it carefully. After they explored concerns about modes of election (by direct popular vote, indirectly through electors, or by appointment of the national legislature), the term of office, the question of re-eligibility for office, and the seemingly archaic point of whether executive power should be vested in one person or in a committee of several, a loose consensus emerged. Executive power should be vested in a single person to be elected by the national legislature for a seven-year term, ineligible for re-election. (To be clear, this consensus, including election by the legislature, emerged before the notion of a “three-fifths compromise” had been introduced.)

This was one small point of consensus amidst an unstable mix of competing opinions and interests. On June 6, after the convention completed its first discussion of the Virginia Plan, two fault lines began to appear when South Carolina’s Charles Pinckney and John Rutledge moved “that the first branch of the National Legislature be elected by the State Legislatures, and not by the people.” This proposal broke open the floodgates for debate about what role the states would play in the proposed national government. Within a week William Patterson of New Jersey accused the nationalist Madison of “pushing things too far” and presented a purely federal plan. The New Jersey Plan failed, but Virginia’s plan was mortally wounded. Delegates were coming to understand that the new government would be partly national and partly federal.

Likewise, where the Virginia Plan had proposed that representation in the national legislature “be proportioned to the quotas of contribution, or to the number of free inhabitants,” the South Carolinians would insist on June 11 that “the States ought to have weight in the government in proportion to their wealth.” The idea of representation based on free inhabitants was a non-starter for the deep South. James Wilson (the nationalist and antislavery delegate from Pennsylvania) sought to avoid replaying debates from the Confederation Congress about whether or not slaves should be counted in calculating quotas of contribution, and he brought up the proposal (never ratified by the Congress) by which slaveholding states would be taxed on their number of free inhabitants, plus three-fifths of their slave populations. The introduction of the three-fifths ratio into the debate about representation and taxation was a concession by the convention that the union was divided, part slave and part free.

For a month the convention, riven by these profound differences, battled over issues related to representation in the national legislature before sealing the pivotal Connecticut Compromise on July 16. The new government would accept the equality of states in the Senate, and allow for Southern states to include three-fifths of their slave populations for the apportionment of representatives in the House. After this compromise, delegates returned to discussion of the executive to find their earlier consensus had broken apart. By July 19, the states accepted unanimously Gouverneur Morris’s proposal “to reconsider generally the constitution of the Executive.” Elbridge Gerry complained, “We seem to be entirely at a loss on this head,” and proposed delegating the details to a committee; this proposal was rejected. On July 26, Virginia’s George Mason moved the convention return to its consensus from early June: “that a National Executive be instituted, to consist of a single person, to be chosen by the National Legislature for the term of seven years, to be ineligible a second time….” It passed.

At this point the convention adjourned while a small committee produced a draft of the Constitution. Delegates re-convened on August 6, and the Committee of Detail’s report was read. Discussion of the executive did not occur until August 24, when it was again agreed that executive power should be vested in a single person. The proposal that the executive “be elected by ballot by the Legislature” raised objections, and four different modes of election were proposed and voted down. This inconclusive debate over the executive continued until August 31, when the delegates, exhausted, created one final committee (with a delegate from each state) to handle “such parts of the Constitution as have been postponed, and such parts of Reports as have not been acted on.” This committee created the Electoral College.

The Path to Error
With such a convoluted backstory to the debate over the executive and creation of the Electoral College, and with no records left behind by the committee that created it, how could scholars like Professors Amar or (once upon a time) Wilentz claim so unequivocally that it was “a pro-slavery ploy”? The answer, as we hinted, is that they begin looking at the convention from the middle and ignore its dynamics. They both cite the same fragmentary comment James Madison made on July 19, that if the executive were elected directly, Southern states “could have no influence in the election on the score of the Negroes.” Amar: “… Southerner James Madison explained why this was a political nonstarter: Slaves couldn’t vote, so the slaveholding South would basically lose every time in a national direct vote. But if slaves could somehow be counted in an indirect system, maybe at a discount (say, three-fifths), well, that might sell in the South. Thus were planted the early seeds of an Electoral College system.” Wilentz: “…the Virginia slaveholder James Madison—the most influential delegate at the convention—insisted that while direct popular election of the president was the ‘fittest’ system, it would hurt the South, whose population included nonvoting slaves.”

Frankly, it strains credulity to assert that Madison’s observation amounted to some sly, Svengali-like suggestion implanted in the minds of his fellow delegates, who either were blind to the ploy or eager to accept. To the contrary, in the wake of the Connecticut Compromise vote on July 16, which Madison bitterly resisted, he was at the nadir of his influence in the convention. More to the point, Madison’s comment, on which Amar and Wilentz placed so much importance, came as delegates reevaluated their earlier consensus on the executive in light of the pivotal Connecticut Compromise.

Revisiting the question of the executive’s re-eligibility for office, many endorsed reeligibility as a way of encouraging the executive to strive for re-election through meritorious service. The problem, though, was that if the executive was elected by the legislature, the re-election process would be susceptible to conspiracies or corruption. Rufus King ruled out election by the legislature; and though he thought “the people at large would choose wisely,” he worried about the “difficulty arising from the improbability of a general concurrence of the people in favor of any one man.” He thought appointment by electors chosen by the people “would be liable to fewest objections.” Wilson declared, “It seems to be the unanimous sense that the Executive should not be appointed by the Legislature, unless he be rendered ineligible a second time; he perceived with pleasure that the idea was gaining ground of an election, mediately or immediately, by the people.” With a growing consensus for re-eligibility, and against election by the legislature, the question was whether the people should elect the executive directly or through electors. Patterson proposed a compromise by which electors would be “chosen by the States in a ratio that would allow one elector to the smallest, and three to the largest, States.” Ellsworth suggested population levels to go along with this scheme.

Madison, prefacing his purportedly sinister statement, concurred that it was “essential” that the executive be appointed in a way that insured independence from the legislature, and he agreed with King and Wilson that election by the people was “the fittest in itself.” Madison then observed, as Amar and Wilentz note, “The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election, on the score of the negroes.” But Amar and Wilentz refuse to allow Madison to finish his thought. He concluded, “The substitution of Electors [for a direct popular vote] obviated this difficulty, and seemed, on the whole to be liable to fewest objections.” Selectively reading the convention’s debates, and selectively editing Madison, Amar and Wilentz wholly inverted Madison’s intent, which was to avoid the thorny issue of representation of Southern slaves.

Garrisonian Compass is Wrong
Why do scholars of the caliber of Amar and Wilentz begin to examine the convention and even pull their key quotation from James Madison from the middle? It is because they remain in the thrall of the Constitution’s most profound and influential critic, William Lloyd Garrison. Garrison became convinced that the Constitution was “pro-slavery” after the Supreme Court—led by Chief Justice Roger Taney—effectively had adopted this this view in the infamous 1842 decision, Prigg v. Pennsylvania. Accepting that the Constitution was “pro-slavery,” Garrison rummaged through James Madison’s account of the convention’s debates for “such extracts… as relate to the guilty compromise that was made at the formation of the Constitution.” Ever since, scholars, including Amar and Wilentz, have been unable to look at the convention innocently. As a result, for the 179 years since Madison’s Debates in the Federal Convention of 1787 were published, historians have approached them to document (or refute) the Garrisonian view that the Constitution was “pro-slavery.”

In doing so, scholars rely too heavily on Madison. Those scholars who follow the Garrisonian critique inevitably approach Madison first and foremost as the revealer of the convention’s dark secrets. Some treat him as a dim and bumbling character, like Forrest Gump, narrating events he does not fully understand. Others, like Amar and Wilentz, treat him almost as a villain from a James Bond movie, so proud of his complex and diabolical scheme that he cannot help revealing its shocking details. In either case, they accept Garrison’s premise that the fix was in, the convention was about immoral or evil compromises on slavery, and the only use for Madison’s “notes” from the convention is to expose those compromises.

Madison Becomes Both Central and Not Central Enough
At the same time, this approach, while making Madison central to unlocking the secret intent and motives of the convention, does not rely on Madison heavily enough. It ignores the convention’s context within the broader process by which America’s national institutions developed following the War for Independence. More, it ignores Madison’s unparalleled contributions to that process, most notably his careful study of the Vices of the Political System of the U.S., and his effort to correct those vices. Indeed, his contributions to the convention all can be profitably viewed through their tendency, as he put it in Federalist No. 10, “to break and control the violence of faction.”

This constant emphasis on breaking and controlling the violence of faction even includes his reflections on the challenging issue of the executive. In a long speech on July 25, Madison returned to the point Amar and Wilentz emphasized. Again fearing “intrigue with the legislature,” Madison wished to avoid a situation in which the executive “would derive his appointment from the predominant faction.” He was leaning now toward direct popular election, but once again pointed to “the disproportion of qualified voters in the Northern and Southern States….” Against this potential objection, Madison hoped, “this disproportion would be continually decreasing under the influence of the republican laws introduced in the Southern States;” perhaps he referred to a manumission law Virginia passed in 1782. He concluded in a spirit of conciliation that “local considerations must give way to the general interest. As an individual from the Southern States, he was willing to make the sacrifice.”

On issues related to the executive, which were deferred until the convention’s very end and delegated to a committee, even Madison himself did not have a consistent view. Thus, just as it is wrong for scholars like Amar and Wilentz to have seized on one fragment to explain Madison’s—and the convention’s—intent on the Electoral College, it is misguided for defenders of the College to assume it is above reproach as the product of the framers’ great wisdom. Instead, it is best to accept, like Madison, that while “the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination,” the convention’s delegates shared a “deep conviction of the necessity of sacrificing private opinions and partial interests to the public good.” On issues of electoral politics, all Americans should emulate Madison and seek to avoid the violence of faction.

Center for American Greatness • Declaration of Independence • History • Post • The Constitution

The Font of the Constitution’s Authority

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In my last response to Mark Pulliam, I challenged him to find a single statement from a prominent American Founder who denied that the Declaration of Independence provided the authoritative source of the Constitution’s authority. So far he has failed to do so, but he has forwarded to me a contemporary article that denies the relevance of the Declaration for understanding the Constitution. It seems to me, however, that the relevant authorities are the Founders themselves.

Isn’t the point of original intent jurisprudence to understand the intentions of the Founders? Pulliam claims to adhere to original intent, but he seems inordinately interested in the work of contemporary legal scholars and uninterested in the work of the actual Founders. An original intent that ignores—or subverts—the origins is difficult to take seriously.

John Hancock, president of the Continental Congress, in his official letter transmitting the Declaration of Independence to the states, remarked that since it would serve as the “Ground and Foundation” of any future government, the people should “be universally informed of it.” There can be no doubt that this expressed the views of the signers of the Declaration: it would serve as the “Foundation” for the future government of America.

The contemporary article that Pulliam had forwarded to me maintains that the authors of The Federalist placed little reliance on the Declaration, citing it only twice for the “unexceptional proposition that it is legitimate to change one’s form of government.” And these references, according to the author recommended by Pulliam, were mere rhetorical flourishes not to be taken seriously. Let us examine this claim.

The references in The Federalist to changing the form of government are references to the right of revolution, hardly the “unexceptional proposition” our author claims them to be. The Declaration asserted the natural right to revolution for the first time in history; it was a world-historical event. Divine right of kings was replaced by the sovereignty of the people as the legitimate authority for the establishment of government. The principles of the Declaration, therefore, specify that the “just powers” of government must be based on the “consent of the governed.” The Federalist fully recognizes this revolutionary change when it specifies that the Constitution itself should derive “immediately from that pure, original fountain of all legitimate authority,” “the consent of the people.” This is one of the subtle (but vitally important) references to the Declaration that the author misses—the sovereignty of the people established by the principles of the Revolution demands that the people consent to government.

The Federalist’s references to the Declaration’s right to revolution mere rhetorical flourishes? This cannot be a serious claim. The authors of The Federalist recognized the Declaration as the authoritative source of the Constitution’s authority. Which of the founders did not?

Our author is mistaken about the number of references: there are three explicit references to the Declaration in The Federalist and a host of implicit references evident to the careful reader. But we have already demonstrated that our author is not a careful reader. The central reference to the Declaration in The Federalist, occurs in the central number (some readers will recognize the importance of this placement) and is a paraphrase of the Declaration which no one in the founding generation would have failed to recognize. It was used to answer the question of why the Articles had to be replaced rather than simply reformed (thereby violating the instructions given to the convention): “The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.”

The “institutions to be sacrificed” were those of the Articles. The convention was charged with revising the Articles to make them adequate to meet the “exigencies facing the Union.” Madison argued in The Federalist that the instructions to the convention were contradictory: no revision of the Articles could make them adequate precisely because the principles upon which the Articles rested were defective. As Hamilton remarked, the Articles had created “the political monster of an imperium in imperio” that “cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric.” It would be to no avail to build a new structure on a defective foundation since the new superstructure would partake of the deficiencies of the foundation itself.

Madison explained that a sound principle of legal construction required those who were faced with contradictory commands to choose the most important. Obviously, it was more important to have a constitution that was adequate to meet the exigencies facing the Union than to try and resuscitate one that was inadequate just so the participants in the convention could say that they adhered strictly to the command that the Articles be revised.

In any case, Madison concluded, since “the plan to be framed and proposed was to be submitted to the people themselves, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities.” In submitting the proposed constitution directly to the people, the Convention also subverted its charge to submit the revisions to Congress which would, upon approval, submit them to the State legislatures. A unanimous concurrence of the State legislatures was required under the Articles for ratification. Madison argues, however, that “the establishment of a government adequate to the national happiness was the end at which [the Articles of Confederation] themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed.” In other words, Madison clearly intimates that the Constitution itself resulted from an act of revolution appealing to the supreme authority of the people! Is it credible to believe that references in The Federalist to the natural right of revolution were mere rhetorical flourishes? Hardly!

Another important reference to the Declaration in The Federalist was missed by Pulliam’s purported authority, who seems to be an inordinately careless reader. Madison announces that Federalist 39 begins “a candid survey of the plan of government reported by the convention.” “The first question that offers itself,” he asserts,

is whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.

The central reason that the Constitution must be “strictly republican” is to conform to the “fundamental principles of the Revolution,” i.e., the principles of the Declaration of Independence. This statement is further proof, if any were needed, that for the framers there was an indefeasible connection between the Declaration and the Constitution. The connection was a “strictly republican” form of government as a means of securing the ends posited by the Declaration—the “safety and happiness” of the people. If the Constitution did not conform to the principles of the Revolution as adumbrated in the Declaration, it was “no longer defensible.” Without the principles of the Declaration, the Constitution was indefensible!

How can it be maintained that The Federalist used the Declaration merely for “rhetorical flourishes” or that its references to the Declaration were infrequent and insubstantial? Any careful reader knows better. Anyone who is serious about original intent jurisprudence also knows better. Pulliam should know better. Again, I invite him and all readers inclined to agree with him to reread The Federalist and other documents of the Founding Era and stop relying on contemporary secondary sources. Careful readers will learn something.

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America • Declaration of Independence • political philosophy • Post • The Constitution

Are You Positive About Natural Right?

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Last Sunday, Edward J. Erler replied to Mark Pulliam in their battle over positivist originalism and natural rights originalism. Erler’s relies primarily on the opinions of founders and leading politicians responsible for the 14th Amendment to show the natural rights basis of both the Constitution and the 14th Amendment. The emphasis on opinion outside of the Constitution perhaps obscures some fundamental points about proper construction.

The technical rules of legal construction—containing such exotic delights as in pari materia, ejusdim generis and expressio unius est exclusio alterius—can be fairly reduced to four basic common sense principles: (1) apply the plain meaning or common usage of the language; (2) where the language is still unclear, look to the other plain language within the document to interpret; (3) where a term of art used has a customary and historical meaning, apply that meaning; and (4) if 1, 2, and 3 are insufficient to resolve the ambiguity, the look outside of the document to the stated intentions of the leading authors or proponents of the document, if reliable statements can be found. Avoid conclusions that are contradictory, absurd, or render words or provisions meaningless. For originalism, we can add that where the contemporary and original meanings of plain language are different, the original meaning should prevail.

A charter can be examined adequately using only these rules in almost all cases. But where these methods, exhausted, continue to admit of two or more reasonable meanings, a construction at odds with the principles of the authority on which the charter rests ought to be discarded. After all, what makes a charter compelling and intelligible is the authority behind it. This is true whether we are speaking of a simple corporate charter, the Magna Carta, the Mayflower Compact, or the Constitution. For this reason charters invariably open with a reference to the source of their authority: a Delaware corporation—“pursuant to the General Corporation Law of the State of Delaware”; the Magna Carta—“John by the grace of God”; the Mayflower Compact—“In the name of God, Amen . . . the loyal subjects of our dread sovereign Lord King James by ye grace of God, of Great Britain, France, & Ireland king, defender of ye faith”; and the Constitution of the United States—“We the People.”

Let’s look at the source of the authority behind  “we the People.” Generally, legal reasoning in Anglo-Saxon-derived systems involves inductive reasoning. That is, the legal interpreter looks at the particulars, cases, words in a contract, precedents and persuasive authorities, and reasons by distinguishing and synthesizing to a unifying principle. That principle is then applied to the particular matter. The Declaration of Independence, the very first legal document in which the United States is mentioned, relies on deductive reasoning. Because it purports to transcend a positive law regime (i.e., the laws of England) and the ground of that regime (i.e., the divine right of kings) it proceeds from axioms independent both of the positive law and divine right. These axioms cannot be demonstrated but can be adequately known without further evidence. The Declaration then applies those principles deductively to answer partially the question of what is justice: the ground of just laws is the consent of the governed. Obedience to the positive law— a quintessential feature of justice as understood philosophically since Plato (Crito) and Aristotle (Nicomachean Ethics)—is compelling on the ground of the consent of the governed, which is, in turn, compelling on the ground of natural sovereign equality.

The American form of government closely reflects the principles of the Declaration. The American form is a deliberately adopted and amended charter, periodically ratified with elections rooted in the principle of majority rule. Elections to offices are staggered, causing the government to embody a will separate from the momentary will of a majority and embodying the long-term consensus of a people. In a microcosm, it is also the meaning of a free individual, who is neither tool of someone else nor a tool of momentary passions. The administrative state has been criticized in these pages for displacing the long-term consensus of the people with the caprice of a clique of bureaucrats, as we have seen with career apparatchiks James Comey, Andrew McCabe, and Robert Mueller, subordinating consent of the governed to a national bureaucratic and credentialed caste. The positivist originalism says the principles of the Declaration are unnecessary—indeed are an impediment—to the just and fair (or correct) interpretation of the Constitution. The difficulty of arguing with the positivist position is it is almost entirely correct. Constitutional questions can be adequately, correctly, and more soundly derived in almost all cases using the principles of construction outlined above.

I say “more soundly” because a callow natural rights jurist who uses compact theory to resolve a problem that can be resolved using the basic rules of construction will substitute his intention for the intention embodied in the charter. If that happens the consent needed for justice is undone; the confabulations of a misguided scholar of natural right confuse the nomoi (conventions) of a charter with physis (nature).

I also say in almost all cases” because a positivist originalism that eschews natural right is akin to dead reckoning without ever looking at the stars. This positivist originalism must attempt to inductively determine the authority of the Constitution without any fixed point of reference. In this exercise the interpreter is confronted with two reasonable conflicting inductive conclusions: (1) the Constitution is pro-slavery and is designed to protect the institution of slavery by protecting the slave trade, providing for fugitive slave laws and providing fractional representation of slaves and other persons not taxed, and (2) the Constitution is anti-slavery, confining the institution of slavery by allowing the prohibition of the slave trade after a date certain, tolerating the institution for the sake of the greater good of union, and facilitating the exclusion of slavery from the territories, until the institution dies a natural death.

The reasoning of the second interpretation is that of Lincoln in the Cooper Union Speech, which relies on inductive reasoning to show that in original intent the Constitution is anti-slavery. The first interpretation answers the question of what is compelling about the laws in a troubling way. We the people are an imposition of force, and force is what makes the charter compelling. This, in a nutshell, is a core position—apart from the compact of states doctrine which is so badly at odds with the plain language of the Constitution’s preamble that it should be ignored—of John C. Calhoun. It is also, looking back further, the position of the Athenians at Melos and Thrasymachus in Plato’s Republic.

So how does one judge whether the inductive reasoning in (1) or (2) is, in fact, the correct reasoning? On the one hand, the claim to authority of (1) has the allure of antiquity, practicality, and simplicity (not to mention circularity). Regimes are in power because they have the power to remain in power. But (1) is also contradictory, and must exempt itself from its own thought. The claim to authority of (1) has no independence of the power to enforce it.

On the other hand, the claim to authority of (2) has no such internal difficulty, provided one looks to the principles of the Declaration. The authority of the charter comes from the individual sovereign equality of individuals. Their claim to rule is inalienable even in defeat, and the Constitution’s inclusion of concepts supportive of slavery can only have been intended if the authors of the document understood themselves correctly—and those who did not understand can be dismissed—to have been a temporary compromise.

That said, given that Dred Scott is behind us and, with the adoption of the Reconstruction Amendments, the question of a pro-slavery or anti-slavery Constitution is also behind us, how is natural rights doctrine today more helpful than misleading?

First, the jettisoning of natural right in hopes of curing the insobriety of particular judges does not work. Those same judges will find a worse basis (e.g., historical right) on which to rest their judgments. We have today a doctrine of substantive due process that is divorced from the natural rights origin of the Constitution. In an attempt to determine what the meaning of “due” is in “due process” the judiciary has resorted to incorporating the Bill of Rights over and against the states in increasing measures of emanating in the penumbras, as the joke goes. Most of this jurisprudence has come from the Left—for example, Gitlow (1925), Mapp (1961), Gideon (1963), Griswold (1964), Roe (1973), and Bakke (1978)—but now the Right is in on the game, such as the MacDonald gun rights case in 2010. The best argument against this substantive due process is that such elaborate imputation to the word “due” violates the principle of consent of the governed derived from the equality of the Declaration.

Second, the best argument in favor of the substantive due process advanced in the name of a “living constitution” is the Constitution is at origin a pro-slavery document whose aged clauses are not venerable but are so contemptibly wicked that decency requires they be transmuted, without need for a process of consent, as the principle of the Constitution never respected consent in the first instance.

The first check on a jurist is temperament. Whether the jurist is inclined to adventure in natural right or living constitution substantive due process will always be a function in part of that jurist’s sense of self-restraint. I would no more want to fly to Mars on rocket ship designed by some fanatical Aristotelian than I would want to be judged by an unrestrained natural rights scholar. I would take the diligent student of field equations and a sober Rehnquist or Bork in both cases, on almost all questions. But on certain questions, like what to do on Mars once I get there and whether the word “due” includes plainly arbitrary and capricious methods, I might take my chances with the zealous Aristotelian or wild-eyed natural rights champion of academe.

But, more importantly, I don’t have to choose between a sober Rehnquist or Bork and an inebriate natural rights jurist. It is a false choice. All other things being equal, I would choose the sober natural rights scholar as my judge who does all the things that the Rehnquist or Bork jurist does and understands the source of authority of the Constitution.

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America • Center for American Greatness • Declaration of Independence • History • Post • The Constitution

The People’s Sovereignty Is the Foundation of Constitutional Law

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Although I don’t believe I have ever seen so many errors in such a short essay, the principal error in Mark Pulliam’s response to my recent piece, “Don’t Read the Constitution the Way Robert Bork Did” is this: If one claims to adhere to the original intentions of the Founders, one must first understand those intentions. In that effort, Pulliam fails in every respect.

Beginning with the question of natural law and the Declaration of Independence and moving in all directions from there, Pulliam presents a blinkered understanding of the purposes and meaning of our Constitution. There is not a single prominent American Founder—not Madison, Hamilton, Adams, Mason, Randolph, Wilson or any of a host of others—who did not believe that the Declaration served as the authoritative source of the Constitution’s authority. Miss this point and you cannot understand the original intent of the Constitution.

Pulliam cites Justice Scalia as an authority. However much we may praise many of the conclusions Scalia reached on the bench, it remains that Scalia, unlike Justice Thomas, was a positivist—saying on one occasion that if the majority voted to legalize abortion, then it should be legal. Thomas, however, realizes that according to natural law principles, abortion is a violation of the natural right to life that is expressly protected by the Constitution. In the face of Thomas’ argument, Pulliam collapses: natural law—“whatever that is.” Is it really so difficult!

Consent of the Governed Meets the Ghost of Calhoun
The Founders said in the Declaration that inalienable natural rights were the gift of the Creator and endowed equally on every human being because their nature as human beings demands it. Governments were instituted to secure the inalienable rights to life, liberty, and the pursuit of happiness. Note, too, that this equality in nature is the basis for the Declaration’s statement that “just powers” of government derive from the “consent of the governed.” Here is the social compact origins of government. When John Adams wrote the Massachusetts Bill of Rights in 1780 he gave the same, albeit more detailed, account of compact. Individuals form the social compact, not states. When Madison later said that “all free and just government is based on compact” he said the compact is made by the unanimous consent of individuals, not states.

In the central number of The Federalist, Madison recurs to the Declaration’s appeal to natural rights as the authoritative source of the Constitution. (Pulliam needs to reread his copy). Madison justifies the fact that the Constitutional Convention violated its charge merely to reform the Articles of Confederation—substituting instead an entirely new Constitution—to be submitted, not to the states (as Pulliam falsely claims) but to the people for ratification. This is justified, Madison argues, “by recurring to the absolute necessity of the case: to the great principle of self preservation: to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.”

One has to be willfully trying to avoid it to miss the obvious reference to the Declaration of Independence.

Pulliam insists, against the historical record, that the Constitution is a compact among the states. As I reported in my last reply this was, as Madison described it, “an ingenious sophism” invented by John C. Calhoun to defend the southern slaveocracy. Calhoun agreed with Pulliam that the Declaration was a dangerous idea and insisted that “all men are not created equal,” rather “all states are created equal.”

Calhoun’s sophism would allow for the further argument that since the states created the Union, the states could leave the union whenever they believed the terms of the compact had been violated. It was in this context that I quoted Abraham Lincoln’s July 4, 1861 speech where he argued—irrefutably in my considered opinion—that the Union was older than the states, and that no state had existed independently of the union. This was a powerful argument against secession. Why Pulliam insists it was merely “self-serving” is a mystery. It clearly was in the service of the preservation of the union. To my knowledge, scarcely any founder argued that the Revolution placed the separate colonies in the state of nature with one another. No early state case contesting the matter of citizenship ever made this argument.

At any rate, Madison in The Federalist does not argue that the Constitution was ratified by the states—here Pulliam needs to reread his Federalist once again. Rather, Madison points out that the Constitution was ratified by state conventions elected by the people. It was therefore not ratification by the states, but by the people of the states. If the people of nine states agreed to ratification then the Constitution would come into force. The point: the Constitution was not, in any sense, a compact of the states.

14th Amendment Follies
Pulliam rehearses another comical argument, quoting Federalist 45: “the states will retain under the proposed Constitution a very extensive portion of active sovereignty.” The states will retain a “portion” of sovereignty, albeit “a very extensive portion.”

What, I ask, is a “portion” of sovereignty? Sovereignty means complete and plenary power. It cannot be apportioned or divided. This means that the states will not be sovereign. There will indeed be something like a “dual sovereignty,” where the states have reserved “police powers,” but the states will have none of the powers normally ascribed to sovereignty: the power to declare war, coin money, make treaties with foreign powers, etc. These all belong to the national government and in the case of conflict, Article VI gives the national government supremacy over the states. A portion of sovereignty is not sovereignty. A compact of sovereign states did not create the union. We know this for a simple reason: the states were never sovereign.

It must always be kept in mind that ultimate sovereignty rests with the people and the people always retain their sovereignty—it can never be ceded or delegated. The people delegate certain specified powers to the government to be exercised for their “safety and happiness.” The ultimate expression of the people’s sovereignty, of course, is the right to revolution which the founders understood not only to be a natural right but a natural duty as well. The Declaration was a world historical event: sovereignty rested on the people, not the divine right of kings. The self-evident truth is that “all men are created equal” meaning vox populi vox dei (“the voice of the people is the voice of God”) had replaced divine right of kings. Republican government and the rule of law could now be derived from the “consent of the governed” and the natural right of revolution would be the ultimate guarantee of the people’s sovereignty.

Pulliam also is egregiously mistaken when he says the Declaration had nothing to do with the 14th Amendment. In my original piece, I quoted a statement from Representative Thaddeus Stevens, a prominent supporter of the amendment who thought otherwise. I could have quoted a multitude of similar statements, but I cannot forbear quoting the Speaker of the House for the 39th Congress, Schuyler Colfax. After the amendment had passed both the House and Senate, Colfax praised it as the work that Lincoln had begun. After reading section one, he said: “It’s going to be the gem of the Constitution.”

“I will tell you why I love it,” Colfax continued:

It is because it is the Declaration of Independence placed immutably and forever in our Constitution. What does the Declaration of Independence say?—that baptismal vow that our fathers took upon their lips when this Republic of ours was born into the family of nations. It says that all men are created equal, and are endowed by their Creator with certain inalienable rights, among which are life, liberty and the pursuit of happiness; and that to secure these rights governments were instituted among men. That’s the paramount object of government, to secure the right of all men to their equality before the law. So said our fathers at the beginning of the Revolution. So say their sons to-day, in this Constitutional Amendment, the noblest clause that will be in our Constitution.

So much for the irrelevance of Abraham Lincoln and the Declaration! Section one of the 14th amendment incorporates the Declaration! And, if we credit the Colfax and many other members of the 39th Congress, that is the manner in which section one must be interpreted.

Pulliam claims that moral authority is embodied in the text of the Constitution solely because it was authorized by the consent of the governed. (Hasn’t Pulliam argued throughout that the Constitution is a compact of the states? Which is it?) In any case, he upbraids me for not mentioning the Obergefell case as an example of how “natural law” as a font of natural rights can miscarry. I never argued, of course, that the Ninth Amendment was a “font” of natural rights. I simply pointed out that Pulliam, following Bork, claims to be a constitutional textualist but insisted on ignoring the fact that the Ninth Amendment says plainly that there are “other” rights, not enumerated in the Bill of Rights, that are “retained by the people.” An original intent jurisprude cannot ignore this text simply because he believes that “unelected judges” may abuse their power. All judging risks abuse; that doesn’t mean that we should abolish judging because it may be abused.

Community Conscience No Match for Activist Judges or Legislatures
Pulliam seems to suggest that the “community’s ‘conscience’” should be a judge’s guide in cases like Obergefell, rather than natural law principles. And the legislative branch, rather than unelected judges are better placed to assess the conscience of the community. One wonders, however, whether community conscience is any less amorphous a standard than he claims natural law to be. As a matter of original intent, Pulliam’s descriptions of natural law have nothing in common with the way the founders understood natural law! Imagine John Adams or James Wilson saying that natural law was nonsense or incapable of any meaning! How is it possible to claim the mantle of the founders while ignoring and ridiculing their main contribution, a reliance on the “Laws of Nature and Nature’s God?”

In Obergefell, Justice Scalia argued that his principal objection was that the court, rather than the legislative branch, was making the decision about same-sex marriage. It was properly a decision for the legislature to make because it was a policy or moral question, not a judicial one. Scalia said he was indifferent to the moral argument; his only concern was which branch of the government should have the authority to decide. If the legislature approved same-sex marriage then, like the majority approving abortion, it was legal and constitutional, because it expressed the conscience of the community (or at least that was the presumption).

On issues of morality Justice Scalia (and Judge Bork, and Chief Justice Rehnquist—to say nothing of Pulliam) believed that reason could play no role in arbitrating “value-disputes.” No one could simply prove that one “value-system” was better than another. The world, as Justice Oliver Wendell Holmes said, was made up of nothing but “fighting faiths” vying for domination in the marketplace of ideas. Reason cannot tell us which fighting faith deserves to win, because these “faiths” proceed from nonrational or subrational choices, various forms of ideology, private interests, religion, economic class, etc. In democracy, therefore, it is just to leave decisions of morality to the “moral conscience” of the majority. This is a kind of moral relativism that denies that there are any standards of morality that can be discerned by reason or reasonable choice. Conservatives often speak of tradition and traditional morality as the ground of morality which is supported by mainstream religions. I suspect that something like this is what Justice Scalia (and Pulliam) mean by “conscience of the community.”

I agree that Justice Kennedy’s majority opinion in Obergefell was utterly dishonest, arguing how important marriage was to the fabric of American life. And so it is! There is no doubt that the family is integral to the foundation of free society. But does that include all types of family structure? Polygamy? Same sex? Polyamory? Or is it simply a matter of indifference to be left to the conscience of the community (whatever that is)?

Natural law or natural right easily answers that question: marriage is between a man and a woman; the family begins with the distinction between the sexes. Community conscience cannot be the standard because the conscience of the community is ever evolving whereas the principles that brought us our Constitution are permanent, even as they are subject to prudential adaptations to meet different circumstances. It is the ever-evolving community that provides pliable and unlimited standards of the kind that encourages judicial activism. While Pulliam has his wary eyes on the activist judiciary he ignores the activist legislature which, according to the founders, was the most dangerous branch. I have my eyes constantly on the Constitution—I invite Pulliam to join me!

The principles of the Declaration are derived from “the Laws of Nature and Nature’s God.” That is, those principles are derived from reason and revelation. No founder believed that the principles of morality could not be addressed by reason—that it had to be left to the “conscience of the community” (or the traditions of the community) as expressed in majority rule. Natural law placed moral limits on the majority—the majority, for example, could not approve anything that violated the laws of nature. Madison even went so far as to say that unanimous consent could not approve violations of the laws of nature. If the majority voted to approve slavery, for example, it might have the force and power to enforce its will, but it never have the moral authority to do so even if it is approved by tradition or the conscience of the community. It is natural law and natural right that became the new source of moral authority for America, not tradition or longstanding “moral conscience.”

I invite Mr. Pulliam to give a single quotation from any of the founders who said that the Declaration did not supply the grounds for moral reasoning or that the principles of the Declaration did not supply the foundations of the Constitution’s political and constitutional morality. Imagine George Washington or John Adams arguing that “liberty” is merely a “value judgment” that cannot be supported by reason or is only an “idiosyncratic preference” that someone attaches to something that strikes his fancy but which has no real intrinsic value. It is a simple fact that Pulliam cannot begin to articulate a jurisprudence of original intent if he denies the one thing that animated all of the founders: that Declaration provided the authoritative source of the Constitution’s authority, both moral and political.

Adjudicating Unenumerated Rights Requires Natural Law
I said I expected to be ridiculed when I referred to the famous “mystery passage” in Casey—those words penned by Justice Kennedy: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This described what I said was a perfect summation of what Madison called “the sacred rights of conscience,” a right that does not appear in the Constitution, but one that is essential to freedom and free government. This right does encompass the right to confront the “meaning of the universe, and of the mystery of the universe.” These are things that an individual must do to determine how best to fulfill his duty to God in the manner that he believes will be most pleasing to God. Let Pulliam deny this as a fundamental right! I await Pulliam’s argument that government can intrude on an individual’s right to conscience and force him to expose his most innermost thoughts about the mystery of being as it relates to his worship of God.

If one is charged with the crime of not revealing his innermost thoughts, to what right will he appeal as protecting his rights to conscience? It is not in the text of the Constitution! Is it a part of the free exercise of religion? Not according to Madison. What do we do now? Rely on the “conscience of the community?” That is not in the Constitution either! Perhaps there are, after all, “other” rights not listed in the Bill of Rights—like the “sacred right” of conscience—that need to be exerted as part of the privileges or immunities that belong to U.S. citizens.

Pulliam complains that I did not explain why I did not believe that abortion falls within the ambit of the mystery clause. I did not because I thought any intelligent reader could see that: it violates the right to life, one of the natural rights of the Declaration and a right incorporated in the Constitution and belonging to the privileges or immunities of U.S. citizens. It is a precept of natural law written into the plain text of the Constitution. It is a natural right—it does not have to be approved by the vote of a majority or the conscience of the community. According to the Declaration, it is a right—a natural right intrinsic to human nature—that has been endowed equally upon human beings by the Creator. Was that so difficult?

Contrary to what Pulliam seems to think, I do not believe that a judge can apply natural law principles in a decision, unless those principles are reflected in the language of the Constitution. Pulliam praises the Supreme Court’s decision in the Slaughterhouse Cases (1873) as a model of constitutional interpretation. His main reason for doing so was the Court’s narrow reading of the “privileges or immunities” clause of the 14th Amendment. This narrow reading, Pulliam alleges, was a factor in curbing judicial activism because otherwise judges could have read virtually anything into such vague language. What the courts have done with “due process” and “equal protection” is an indication of what they might have done with the even more imprecise and capacious language of the Privileges or Immunities Clause. He strongly criticizes Justice Clarence Thomas for his efforts to revive the clause which was justly interred in Slaughterhouse.

Thomas believes, along with many scholars, that the Privileges and Immunities Clause was intended to be the substantive core of the amendment, and had it not been mutilated in Slaughterhouse much of the judicial activism we experience today would have been forestalled. Justice Thomas is correct and the framers of the 14th Amendment clearly argued as much. The definition of privileges or immunities was not as unknown or as unknowable as Pulliam leads us to believe.

In my last essay, I argued, in agreement with Justice Bradley’s dissent in Slaughterhouse, that the right to choose an occupation freely was a necessary means to the acquisition of property and therefore one of the privileges or immunities of U.S. citizenship. Louisiana had created a 25-year monopoly for slaughtering in the city of New Orleans. The Supreme Court alleged there were no federal rights, privileges, or immunities violated by the state law. It is true that the Constitution does not forbid the states to create monopolies nor does it protect the right to choose an occupation. The right to property is, of course both a natural right and a constitutional right. It was always described by Madison as the comprehensive right, the right that includes every other right.

In his famous essay “Property” published in 1792 shortly after the ratification of the Bill of Rights, Madison argued that monopoly was an assault on the right to property as was the denial of the free choice of an occupation. As a means to secure the right to property, Madison argued, the right to choose an occupation was a civil right (or a “privilege or immunity”) that government must protect if it is to be accounted just. Thus for any right that is protected, the means to accomplish that right must be protected as well. The means necessary to secure rights might well be denominated “civil rights,” those positive rights enacted by societies as a means to secure natural rights protected by the Constitution. If the ends are conceded—the means must also be conceded. Otherwise the enumerated rights would be nullities.

Unenumerated rights are necessary to secure enumerated rights. This is the reason that the attempts of Pulliam and Bork to excise the Ninth amendment’s protection of “other” rights “retained by the people” from the Constitution under the palpable fiction that this language is too obscure or unintelligible is purely an act of judicial activism. I suggest that Pulliam should have titled his article “How to take the Constitution Out of Constitutional Law.”

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