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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Why is Trump Polling So Well?
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Wednesday, December 09, 2015
Why is Trump Polling So Well?
Gerard N. Magliocca
I once wrote an article on Huey P. Long, the legendary "Kingfish" of Louisiana politics. In response to a comment that one of his proposals was impractical, Long allegedly said: "Yeah, but by the time they figure that out, I'll have something else for them." I think this sums up Donald Trump rather well (along with his Renfield, Ted Cruz). I'm open to voting for a Republican for President, but not those two gentlemen.
Comments:
The last quote is of unclear salience.
The quote appears to promote free speech and there is no large segment saying we need to simply silence either one as in censor. Jefferson strongly challenged various people, including state establishments of religion, as wrong in visceral language. Such is being done. As to elections being won, he felt Federalists won elections that endangered public safety. He died still "combating" various things with reason. And, a majority supported things now deemed perfectly irrational by civilized people long after he died. I have my doubts either will win the general, but others who in recent memory and today to have won elections, including those who said torture is acceptable and that we should amend the Constitution to block same sex marriage. We can only continue to be vigilant and combat such things with reason. It will continue to be a fight into the far future.
Gerard,
Are you really "open" to the prospect of voting for a Republican? A. Who might that be, and why? Do you reject the notion that the important thing a president does, beyond posturing and engaging in occasional decisions that are really important, is staffing an administration with members of his/her own political party. Are you really sufficiently agnostic about whether the Secretary or Undersecretary of this, that, or the other, is a Democrat of Republican. And are you content to imagine that your favorite Republican would pick the replacements for Ginsburg and Breyer?
Prof. Magliocca in the past, perhaps at Concurring Opinions, noted once he leaned Republican. I think you two might disagree on various things there.
With respect to the inability to persuade someone who believes X that X does not exist, I think Upton Sinclair said it best: “It is difficult to get a man to understand something, when his salary depends on his not understanding it.” Whether it s salary or belief, persuasion in such cases is an exercise in futility.
Gerard: I then gently pointed out that I could have many plans with no chance of success (mind you, she wasn't talking about some terrorist attacks; she was talking about the imposition of sharia law by force).
You may want to reconsider your doubts based on the EU experience. In order to avoid conflict with the constantly swelling ranks of Muslim migrants, EU nations stopped or reduced enforcing the law in some migrant communities and allow them to self govern under Sharia. The secular government may not be enforcing Sharia, but Sharia is being enforced nonetheless. Sharia arbitration as an alternative to secular civil law is becoming increasingly common: http://www.economist.com/node/17249634 http://www.dailymail.co.uk/news/article-1196165/Britain-85-sharia-courts-The-astonishing-spread-Islamic-justice-closed-doors.html The extent to which Sharia criminal law is being imposed in Muslim communities across the EU is a matter of some controversy there. http://www.gatestoneinstitute.org/2530/denmark-sharia-hezbollah I can easily see progressive American governments who hold multiculturalism as an article of faith following the EUs lead. The Trump proposal to impose a temporary ban on allowing Muslims to enter the country until we establish an effective vetting system to identify jihadis has far more support popular support than you assume. As I suspected, after all the establishment attacks, a plurality of all voters and a super majority of GOP voters support Trump's proposition. A new Rasmussen Reports national telephone survey finds that 66% of Likely Republican Voters favor a temporary ban on all Muslims entering the United States until the federal government improves its ability to screen out potential terrorists from coming here. Just 24% oppose the plan, with 10% undecided. Among all voters, 46% favor a temporary ban on Muslims entering the United States, while 40% are opposed. Fourteen percent (14%) are undecided. http://www.rasmussenreports.com/public_content/politics/current_events/immigration/december_2015/voters_like_trump_s_proposed_muslim_ban The people correctly believe that we are at war and massively disapprove of and distrust our political class. When the political class condemns Trumps proposal as unnecessary bigotry without offering an reasonable alternative to maintain the national defense, they are only giving Trump credibility with the population at large.
Trump is polling well because on the topic of immigration, there is a systematic disconnnect between public opinion, and elite opinion. And the elites have not, until now, permitted democracy to function. Trump spotted this disconnect, and exploited it.
I have no idea whether he is sincere. Kinda doubt it, actually. But nobody else in the running is even willing to lie about agreeing with public opinion. It's dangerous when the elites refuse to let widespread public opinions be represented in government. It opens up opportunities for demogogues. You don't want demogogues? Better let democracy work in the first place, even if it means the elites don't win every one.
It's dangerous when the elites refuse to let widespread public opinions be represented in government. It opens up opportunities for demogogues. You don't want demogogues? Better let democracy work in the first place, even if it means the elites don't win every one.
# posted by Blogger Brett : 11:23 AM So you don't think demagogues are good, but you agree with everything that the current demagogue (Trump) is saying?
I certainly don't agree with everything that's being attributed to him. What he's actually saying is somewhat less outrageous, but still goes a bit beyond what I'd do. Though I understand what he's doing: You don't open a negotiation by demanding only what you'd settle for. You ask for the Moon, with the expectation of being negotiated back to what you really wanted.
But if the 'reasonable' Republican candidates had been willing to adopt even a moderate level of controlling immigration, Trump wouldn't have had an opening. Trump is a symptom of a democratic system which will no longer allow a wide range of public opinions to be functionally represented. So along came somebody outside the system willing to represent them.
"Public opinion" as a whole does not agree with Trump. Like other demagogues in the past, he reflects the opinion of a subset of the population, and his skills at promoting himself and that message has helped his success.
To the degree with can figure it out, a majority probably supports some sort of immigration reform of the sorts on the table the last few years. The dissenters here are not being blocked either. Various people in politics reflect their views. The fact they aren't strong enough, especially in the blatant way of Trump, is how democracy works -- they don't have the votes. This is selectively recognized just as "democracy threat" in respect to the courts is a matter of whose ox is being gored. Per Unknown, first, it is a matter of strength of position -- beliefs come in various sizes. Second, we saw major shifts in society and I have seen it small scale too regarding some basic beliefs.
Trump is a symptom of a democratic system which will no longer allow a wide range of public opinions to be functionally represented. So along came somebody outside the system willing to represent them.
# posted by Blogger Brett : 12:00 PM When, exactly, did you lose the right to vote?
"moderate level of controlling immigration"
The Obama Administration "moderately controls immigration" in ways like deporting more people than any President in history. To the degree "moderate" means "more conservative" various Republican candidates support more control. For instance, Ted Cruz: https://www.tedcruz.org/cruz-immigration-plan/ I'm not seeing this lack of "allowance" of views, exactly.
"When, exactly, did you lose the right to vote?"
A couple decades back, when the major parties collaborated on altering America's campaign and ballot access laws to guarantee no new party would have a chance of competing with them. Fat lot of good having the right to vote does you, when somebody else is picking who you can vote for. When the people running the major parties agree that no candidate representing a viewpoint will be permitted to run, the people's right to vote is moot.
Fat lot of good having the right to vote does you, when somebody else is picking who you can vote for.
# posted by Blogger Brett : 1:30 PM Brett, I'm pretty sure that anyone can register as a Democrat and then run for office. Are the rules different for Republicans?
Bartbuster, I'm pretty sure that, despite all appearances, you're not really that dense. Schoolhouse rock had some really nifty songs, but they were never an accurate description of how our government works. You can run for your local school board on that basis, and have a decent chance. As you move up the ladder, the party establishment has plenty of ways to spike your campaign if they don't like you.
Item: http://www.buzzfeed.com/johnstanton/ted-cruz-votes-against-senate-resolution-that-rejects-trumps#.dgQM2yDMO
--- The dominance of the two party system was not something that came "a couple decades" ago and third parties/others continue to have significant power. Independent governors have been elected, third parties have strong showings in various states & various segments of each of the major parties has over the years shown significant power like the Tea Party wing does today. "Permitted" is being used in a creative way here too.
As you move up the ladder, the party establishment has plenty of ways to spike your campaign if they don't like you.
# posted by Blogger Brett : 2:11 PM And they do this by killing every voter that might vote for you? Do you see the point, Brett? You're not being held back by the "establishment". You're being held back because there aren't a lot of people who agree with you.
One of those "Who are you going to believe, me or your lying eyes" things, I guess. I was active in the Libertarian party from the late 70's, and had a front row seat as one change in the law after another was crafted to keep us down. Ballot access requirements were raised impossibly high, (But only for third parties, not for the majors.) our funding sources cut off, Presidential debates taken away from the League and given to a *bipartisan* commission, matching funds rules changed any time we qualified, the wire services put together a organization to centralize reporting of election results, which reported the results election night with our votes subtracted from the totals, third parties ceased being included in polls...
It's no accident the Tea Party works within the GOP, instead of being a third party. Third parties are all but illegal in the US today; You can form one, sure, but the laws are carefully calibrated to make success impossible. The game is rigged to an amazing extent. Ok, Bartbuster, I guess I give, you are as dense as you appear.
Brett:
A combination of the deep ideological divide between the parties and our plurality electoral system has pretty much cemented our two party political establishment. If an independent or third party challenges the establishment candidate of one of the major parties, it splits the vote on that side of the ideological divide and the opposing major political party wins with a plurality. (See Clinton and Bush 43 in 2000) Thus, any voters wanting to challenge the establishment are forced to cast a ballot for the least worst establishment candidate or an even worse establishment candidate win. We need to move to a majority electoral system with a runoff. Under that system, an independent or third party candidate can challenge and defeat the establishment candidate of the party she is challenging, end up second in the first round of voting, then earn the votes of the losing establishment candidate's supporters in the runoff.
Ok, Bartbuster, I guess I give, you are as dense as you appear.
# posted by Blogger Brett : 2:38 PM LOL Physician, heal thyself! If your views are as popular as you believe, you should have no trouble taking over the Republican party.
I continue to be wary of "nutcases" controlling one of the two major parties in this country, in part given what some unsavory characters running things now are doing to harm the public good at this time.
I continue to be wary of "nutcases" controlling one of the two major parties in this country, in part given what some unsavory characters running things now are doing to harm the public good at this time.
# posted by Blogger Joe : 3:32 PM The GOP is already controlled by nutcases. But they're pretty good at hiding their crazy. Trump is flaunting his crazy. It's better for country if the crazy is out in the open.
Gerard: Of course, being a sanguine person, I believe that there is no silent majority that will endorse Trump or Cruz in a general election.
Trump and Cruz have nothing in common apart from both seeking working class votes. Trump is a progressive NYC plutocrat making media hay by demagoguing immigration. Cruz is libertarian conservative who is a brilliant legal scholar and is running the most efficient presidential campaign this election cycle. https://thecitizenpamphleteer.wordpress.com/2015/10/18/will-ted-cruz-cruise-to-the-gop-nomination/ While Trump is engaged in a food fight with the Democrat media over Muslim immigration, Ted Cruz is quietly assembling what could be a winning coalition in Iowa. https://thecitizenpamphleteer.wordpress.com/2015/12/10/cruz-scores-an-iowa-hat-trick/ Trump delights in angering the political establishment by playing the populist and pushing their buttons. Cruz scares the hell out of the political establishment. Where nearly everyone else in the GOP field (apart from Rand Paul) campaigns as libertarian conservatives and then governs as progressive-lite, Cruz has demonstrated he means to govern as a true libertarian conservative.
"A combination of the deep ideological divide between the parties and our plurality electoral system has pretty much cemented our two party political establishment."
Yeah, but the campaign and ballot access law changes of the last few decades had a big part to play. The GOP displaced the Whigs under a first past the post system, but under today's laws, I expect the Whigs would have been safe. Want to bet the GOP isn't less popular today than the Whigs were when they went under? But the GOP can't go under, they're part of a legally entrenched duopoly. Don't discount the effect of having to run a marathon to arrive at the starting line of the race; Third parties have to expend all the effort of a real run for office just to get on the ballot, only to start the real campaign flat broke with their workers exhausted. Meanwhile, the major parties not only get on the ballot with a mere filing of a paper, they get put on the ballot even if they forget to file it.
Full-fledged "nutcases" will cause more harm to the public good. The "out in the open" value there is not enough or as needed to up the ante and give even more power to the Trump wing of the party.
The following was posted in the comments section of Baghdad Bart's execrable blog, but I thought it would be instructive to copy and paste it over here.
Don says: December 10, 2015 at 3:28 pm To show how handicapped the GOP field has become in the name of ‘Political Correctness’, Trump, and Trump alone has the moxy to call a spade a spade. The remainder, in my humble opinion, cower in shame, under the guise of being “compassionate”. (the fraud occupying the White House might be reminded that Jimmy Carter, who up until the Obama presidency, held the title of America’s worst President, restricted the immigration of Iranians in the 70’s, and to my knowledge was a DEMOCRAT) I see MOOOSLUMS as nothing less than a Trojan horse who enter this country (under the guise of ‘religious freedom’) with the ultimate goal of total destruction of the American way of life, and to replace it’s Christian values and capitalism with the religion of peace,(???) Islam. (in which pedophiles rein supreme. Hide your young daughters is you have any) Under Islam, ANY equal rights, as well as preferential treatment, will become a thing of the distant past. (Women as well as homosexuals and privileged/politically protected groups might wish to take note) With CAIR representatives being given all of the free airtime they desire by the lame street media to espouse their claims and dissertations of racial prejudice and religious intolerance by Americans, you would think the civil rights movement of the 60’s was being relived. Unfortunately, the lame street media is more than willing to provide a stage for the propaganda without disclosing the long time ties and associations that CAIR has with terrorist groups including HAMAS and the Muslim Brotherhood. (would they have done the same for the KKK or Adolf Hitler in espousing ideologies which are/were detrimental to the American prospective and way of life???)) My understanding of the term “IMMIGRATING TO AMERICA” is that those immigrating individuals want to, and have the desire to ‘ASSIMILATE’ into the American culture, and to swear an allegiance to the American Constitution and way of life. (as well as leaning the English language) It appears to be obvious, as the most recent California terrorist attack information unravels, (to ALL BUT OBAMA) that there was a long running, and coordinated plot to commit terrorist activities being planned, that MANY members of the Muslim community knew of, and even participated in the planning of this atrocity, yet SAID and did NOTHING to prevent the slaughter of American lives. Islam is not a religion as we know the term. It is nothing less than a political ideology of hate and control. And it sure as HE double hockey sticks is NOT a religion of peace!!! With this in mind, are these the kind of individuals America and it’s children need in it’s culture and future, or are we to open the gates wide for this Trojan horse to enter and destroy OUR country??? I seriously suggest that EVERYONE view the YOU TUBE videos of the destruction being done to Germany as well as the UK by unabated Muslim immigration onslaught to those developed countries (soon to be Third World Countries) And thank you, Donald Trump for having the balls to speak the truth!!!!
BB:
I allow anyone to post any comment they like so long as they are civil and stay on topic. You are free to post a response to Don at my blog if you can follow the same rules. Don't spam his stuff here.
Don't spam his stuff here.
# posted by Blogger Bart DePalma : 4:59 PM That isn't spam. In fact, it appears to answer the question asked in this blog post.
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Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |