Balkinization: Our contemporary Reichstag fire?

Comments:

Just with all due respect, bit different perspective:

The respectable author of the post, dares to write really bad things on Trump. This is ok. Yet, not to forget, in too many states in the world, the author of such things, would abruptly find himself, in very dark and remote basement, going through hell of tortures.Tortures, that would cause him to beg for mercy of hell. Hell itself, would seem to him, like soft and celestial residence. Trust your Christ.

Yet, he can do it freely in the US. But, yet, this is not the real one. The real one, is that, if Trump himself would be asked about that, he would personally and sincerely support, the right of the author to write all this. Let alone, would be shocked by the idea, that such writing would result in horrific torture, or even the slightest punishment. So:

Maybe Trump, is unfit in his eyes. But, not that much bad person or ruler. And yes, here we have:

An Executive order, issued by Trump at the time ( March 1, 2019 ) and titled:

"Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities"

Supporting free speech, with all his heart and mind. So, maybe the devil is not that much evil.

Here:

https://www.whitehouse.gov/presidential-actions/executive-order-improving-free-inquiry-transparency-accountability-colleges-universities/

Thanks

# posted by

el roam : 7:02 AM

Sandy:

Serious question: If you asked your students an exam question asking them to give examples of the authoritarian aspects of the Article II CiC power and they turned in your post above, what grade would you give them?

# posted by

Bart DePalma : 9:25 AM

The real one, is that, if Trump himself would be asked about that, he would personally and sincerely support, the right of the author to write all this.

I don't agree.

This is a man who wants to shut down and punish opposing voices, and will do it when he can. See the DOD cloud contract - an underpublicized event - for example. See the constant verbal attacks on journalists. See the denial of WH press privileges.

In other words, he does what can get away with, and will try to expand that scope, and none of his supporters will care.

As to whatever statements he may have made, or will make, they can be safely disregarded. The man is a habitual and unrepentant liar, so his statements are meaningless.

# posted by

byomtov : 9:27 AM

I take the point of the first comment to be that things could be much worse, which is undoubtedly true. Basic civil liberties are alive and well for people like me, and I am extremely grateful for that fact. But it is also worth taking into account the near irrelevance of that happy fact with regard to the policies embarked on by the Trump Administration, which cares only about the views of its base, who are told over and over again that anything not coming from Fox News is "fake news" and that the non-Fox press is basically a menace to the republic. The fact that an obviously unfit lout like Donald Trump can retain the support of roughy 40% of the public is a truly dreadful fact about contemporary America. Trump was on to something when he said that he could murder someone on 5th Avenue and that his base wouldn't care. It is not that his opponents wouldn't care, but he realizes that in many ways his opposition can be neutralized by means other than standard suppression of civil liberties. Still, it is important to realize that people like me are almost infinitely better off, in every way, than would be the case if we were part of the opposition (or "resistance") in, say, Turkey, Egypt, or the Philippines, all led by authoritarians that Trump admires and wishes to emulate to the extent possible.

# posted by

Sandy Levinson : 9:42 AM

DT reliably does only what he perceives to give him the greatest personal advantage at that moment.

# posted by

Fred Raymond : 9:47 AM

Appears that Iran's missile launches were a propaganda stunt.

Iran informed Iraq ahead of time, knowing Iraq would inform the US.

None of the missiles hit their claimed US base targets.

The Iran immediately whined on twitter that their response was proportional under UN rules and they do not want further hostilities.

By studiously declining to cross Trump's red line concerning US casualties despite the rhetoric about taking American blood, Iran sure appears to be afraid of the madman across the water.

It will be interesting to see how that "madman" responds this morning.

# posted by

Bart DePalma : 9:51 AM

For me, the relevant question is "how far have we fallen?", not "how far do we still have to fall?". Sure, there are lots of countries where we'd all be much worse off, but that's not the standard. The standard is not even the distance we've fallen so far. The standard is how much better we could have become. Trump is destroying that dream. We may -- may -- be able to claw our way back to the starting point. But the chances of us being able to reach beyond that are rapidly disappearing.

Prof. Levinson is not Cassandra, he's an optimist.

# posted by

Mark Field : 9:59 AM

Here's the reference (in response to Brett):

"I think Prof. Levinson is aware he is voicing a certain minority opinion here, including continual Cassandra-like tones regarding how the public and institutions do not accept his framing of constitutional principles."

Over the years, Sandy Levinson has had a certain jeremiad tone of the state of our constitutional system, including a tone that suggests he felt he was speaking into the void with so few listening. I guess he might also remain somewhat optimistic that positive change would come eventually, helped in some part by his preaching.

# posted by

Joe : 10:20 AM

Sandy:

(1) If Fox News slandered POTUS Barrack Obama over a period of years as a traitor who conspired with Russia to interfere with the 2008 election, would such repeated defamation be a threat to the function of our Republic?

(2) If Mr. Obama called out the Fox News slanders as "fake news," would that be a threat to our civil liberties?

BTW, Trump criticizes Fox News as well.

# posted by

Bart DePalma : 10:26 AM

Of course Bart doesn't (can't) observe Sandy's polite request about posting. He's already shown his lack of functioning moral compass in things large (signaling his willingness to support Trump even were the latter to commit open murder), so why observe mere niceties?

As to his ranting about Iran I will continue to remind everyone of his consistent cheerleading of W's Iraq debacle, even long past the point that W and his cabinet conceded how badly that went. Notice no introspection or caution has come to him from that. His confidence seems to have a perfect inverse relationship to his understanding.

# posted by

Mista Whiskas : 10:26 AM

Sandy, long ago I predicted here Trump was more Berlusconi than Mussolini. I think I'm still correct. While Trump certainly adopts much fascist rhetoric (as even our resident Bircher noted for months before he became the GOP nominee) and he's certainly a narcissistic, bullying ignoramus with racist tendencies, he has no coherent worldview other than simplistic impulses such as 'winners are better than losers,' ''I am especially smart,' 'I should look after myself,' etc. His policies have been basic hard right mainstream for decades.

Now, Berlusconi did much damage to Italy and others. I'm not excusing him or Trump. And an overconfident ignoramus can cause huge damage (a costly war with Iran would be such). But this isn't a Mussolini moment imho.

# posted by

Mista Whiskas : 10:33 AM

The most valuable thing about Sandy and his work is his willingness to provide the gadfly to the over the top veneration of the Founders and the Constitution that exists. And that's relevant here:

The Constitution helps create this mess by giving the Executive ridiculously vague, and therefore potentially over broad, CiC powers that are ripe for abuse by an ignorant demagogue. They did this while confusedly giving the legislature 'war making' power. It provides the recipe for a hot mess.

2. The Founders naively thought Congress would aggressively defend its perview as a branch, in theory checking such an ignorant demagogue executive, but that failed to foresee that party would prevail over branch fealty (McConnell is the exemplar of this failure).

3. The Founders thought the EC would prevent such ignoramus demagogues from taking power. They were wrong empirically and philosophically here (anti-democratic).

4. The ratifiers of the 25th failed to see that officers hired as yes men are no wall of protection to the dotard that hired them to positions of power.

# posted by

Mista Whiskas : 10:42 AM

"This is a man who wants to shut down and punish opposing voices"

Indeed. Trumps EO re college speech was just an ill informed attack on colleges because conservatives see them as enemy institutions that they would like to saddle with 'free speech' complications that no other institution has to comply with.

When conservatives make their own 'colleges' they're places with strict speech requirements unheard of in 'leftist academe.' It's a total red herring.

# posted by

Mista Whiskas : 10:48 AM

Mr. W:

You at least provided focus sadly lacking in Sandy’s opening rant about a “constitutional dictatorship.”

What are your proposed remedies?

# posted by

Bart DePalma : 10:53 AM

Sandy Levinson wrote "The Madisonian vision of Federalist 51, which rarely made much empirical sense, is completely vacuous today. If there is going to be pushback against Trumpian thuggery and threats not only to the American constitutional order, such as it is, and world peace more generally, it will almost certainly have to come in the streets."

While I generally share his perspective on these matters, it seems as if his conviction that there is no support at all for the president or his actions is blinding him to a simple truth: there are a lot of Americans who support the president and his actions, and there is a substantial presence within the federal government (at least) of lawmakers and judges who also support the president and his actions.

There isn't much push back because the people in a position to push back don't want to. Levinson is convinced (as am I) that the behavior and decisions of the president are outrageous, but all the is really going on is that the US political system has not granted those who share our views sufficient power to do anything about it. This isn't odd, or unusual (even if it is unfair, since we almost certainly represent a majority of the population).

So, should those of us who view the president in this way take to the streets instead of cursing the political system that has not granted our viewpoint much political power? I think the best way to answer this is to ask what our position would be if everything was reversed, and a deeply progressive president had been elected c/o the oddities of the electoral college, and was causing outrage among a (small) majority of the population while enacting policies that we loved.

# posted by

PaulDavisTheFirst : 11:48 AM

Trump gave a very measured speech by his standards.

Dismissing the Iranian missile attack as Iran "standing down," Trump moved on to set a new red line, demanding Iran denuclearize, promising new sanctions, bragging about a rebuilt military with supersonic missiles, and calling for NATO involvement to enforce that demand.

The POTUS apparently and correctly views the Iranian missile show as a sign of weakness and is pressing the US advantage.

Finally, Trump being Trump could not resist getting a serious dig in on the Democrats, trashing the Iran nuclear deal and condemning the Obama release of well over $100 billion which Iran used to pay for its wars against the US and the region. Naturally, the NBC feed I was listening to over the net went ballistic. Nothing hurts quite like the truth.

# posted by

Bart DePalma : 11:53 AM

As to his ranting about Iran I will continue to remind everyone of his consistent cheerleading of W's Iraq debacle, even long past the point that W and his cabinet conceded how badly that went. Notice no introspection or caution has come to him from that. His confidence seems to have a perfect inverse relationship to his understanding.

# posted by

Mista Whiskas : 11:59 AM

Mr. W:

In case you missed it, in the face of Democrat demands to surrender to AQI and the Iranian sponsored militias, Bush decisively won the Iraq War during the Surge.

After Obama misappropriated Bush's victory as his own, withdrew from Iraq and allowed AQI (reconstituted as ISIS) to reinvade and conquer about a third of Iraq, Trump decisively won our second war against AQI/ISIS.

If you Democrats want to campaign on that stark contrast, by all means proceed.

# posted by

Bart DePalma : 12:17 PM

byomtov, and Sandy Levinson,

First, that wasn't a statement, that was an executive order. It has legal binding effect.

Second, you are right that he does attack verbally journalists. Yet, never ever denied, their first amendment right. That represent huge gap between a real dictator, and " amateur" one like Trump. A president, who doesn't oppose free speech in no way, can't be considered as psychopath in governance terms with all due respect.

And opposing, what he considers as fake news, is not like clear violation of first amendment. If he believes that they produce, actual fake news, deliberately, maliciously, then, it is reasonable to believe, that it is real danger for democracy. Journalism is about, honest and professional investigation of the truth. Not made for political bias. But, from such statements, and until, real action, let alone, cruel ones, huge gap.He lacks yet tolerance to some extent, correct, yet,huge gap.

By the way Sandy, you have chosen,very " soft " states ( Turkey, Philipines, Egypt). I could take you to nasty journey, you wouldn't believe simply. And yes, you are right, he has certain admiration for dictators, but this is mainly because of the mental and psychological isolation and bitterness he feels, due to fake news among others.

But inside his heart and mind, he is a good and patriotic American, and like typical American, he believes in freedom and liberty.

By the way, he also has demonstrated clear opposition and actions against dictators and in favor of oppressed peoples. See for example here:

"Treasury Sanctions Eight Members of Venezuela’s Supreme Court of Justice"

https://www.treasury.gov/press-center/press-releases/Pages/sm0090.aspx

But, such things, typically, are not published by the media. So, we have an issue here, I don't say always maliciously, yet, an issue.

Thanks

# posted by

el roam : 2:46 PM

Wouldn't it be ironic if enough electors decide to actually perform their duties as envisioned in the Constitution and in the 2020 election for POTUS conclude they cannot stomach another Trump term? After all, these people have no political future to protect, unlike the members of that distinguished body, the Senate.

Sure, it's unlikely. But considering the loathing that Trump inspires ... (and not merely among what some refer to as "the left" -- meaning anyone who is not a "true believer".)

I suspect that the spinning of those who have traditionally argued in favor of a literal wording of the Constitution would be sufficient to generate tornadoes.

# posted by

C2H5OH : 2:50 PM

Sandy: " ... and vote the lout out of office (which will, of course, still give him until January 20, 2021 to work his awful mischief)?"

It's a minor point in the current circumstances, but we don't know how Trump will react in the event of his defeat on November 3 - which is by no means certain, but still the uniform prediction of the pollsters. It won't be a pretty sight, but the range of possibilities is wide.

At one extreme, Trump could go on a Hitlerian rampage of trashing everything in sight, like a child in a tantrum smearing the wallpaper with feces. (That is included). He might try to loot the Cézannes, or even try to start a war. The difference from his current behaviour is that nobody would be cheering, even on Fox News. McConnell, the rest of the GOP establishment and big donors would move on, distancing themselves at the speed of political light from the sad outsider they never really supported. This response would limit the damage.

At the other, Trump would promptly resign, in order to cash the broadest possible pardon from Acting President Pence. Could he rely on this? McConnell would probably press Pence not to pardon, or to keep it narrow.

The least damaging option would be for Trump to go into a three-month sulk and spend all day watching TV in a ghost White House, tweeting, and playing golf.

The likely Democratic winner might not be able to count on the normal lengthy transition, perhaps being forced to take policy decisions in the effective absence of the President nominally in office.

# posted by

James Wimberley : 3:24 PM

C2H5OH said...Wouldn't it be ironic if enough electors decide to actually perform their duties as envisioned in the Constitution and in the 2020 election for POTUS conclude they cannot stomach another Trump term? After all, these people have no political future to protect, unlike the members of that distinguished body, the Senate.

Translation: Wouldn't it be cool if the electors, who do not answer to the voters, tell the voters to f_ck off and decree the losing Democrat is the POTUS.

Putting aside, for the moment, the fact the party and thus the Trump campaign will be choosing the GOP electoral slates in each state...

Do you seriously want to see what an armed revolution looks like?

Seriously, do you Democrats stay awake at night coming up with different schemes to pull off a coup d'tat?

# posted by

Bart DePalma : 3:58 PM

The difference from his current behaviour is that nobody would be cheering, even on Fox News. McConnell, the rest of the GOP establishment and big donors would move on, distancing themselves at the speed of political light from the sad outsider they never really supported.

I'm not so sure the GOP establishment would move away so quickly. Over 40% of the country will still be strong Trump loyalists, and they will be eager to turn on a Republican politician who abandons their hero. The R's are aware of this, and will not want to be considered backstabbers.

Of course if Trump just goes nuts, they might turn, but my own suspicion is that he would make claims of widespread voter fraud and launch various legal efforts to get whatever done. The R's will necessarily support him in this, with grave comments about election integrity and so on. It will probably come to nothing, unless SCOTUS is even more in the bag than they seem to be, but it will be unpleasant.

# posted by

byomtov : 4:27 PM

You'll notice that there was no threat of armed insurrection because of the installation of Trump by a minority of voters. Would the suggested action not be perfectly legal? Evidently it's people like yourself who lie awake at nights in fear that the Constitution might actually be applied in ways you don't like...

And for the record, I really don't think anybody needed a "translation" of what I said.

# posted by

C2H5OH : 4:37 PM

I won't speak of the "naivety" of the Framers here since they were dealing with such a different time and situation. As to electors, the Electoral College was a makeweight compromise of sorts to advance various ends. Independent electors as compared to electors basically pledged would advance most of them. Anyway, soon enough it was clear that independent electors wasn't really going to be much of a thing & though there was a bit of grumbling, even the framers still around weren't too appalled by the whole thing.

# posted by

Joe : 5:38 PM

The Constitution was amended over the years to address a range of changing situations as early as the 12th Amendment to deal with the growing party system. This continued with the end of slavery and so forth. To the degree modern times (one might even suggest post-Civil War times) requires amendment, go ahead and amend.

The Framers aren't really to be blamed here. Then, there is the issue of the problem of amending. But, hey, they had to deal with that in the Articles of Confederation and dealt with the situation too. Sandy Levinson's "gadfly" (without the hemlock) role here is helpful in flagging those who worship the past too much. But, I share some disagreement on his approach. So it goes there.

# posted by

Joe : 5:43 PM

"You'll notice that there was no threat of armed insurrection because of the installation of Trump by a minority of voters."

That would be because,

1) Said installation was unambiguously legal and constitutional.

and,

2) You gotta be armed to threaten armed insurrection.

# posted by

Brett : 6:06 PM

"Said installation was unambiguously legal and constitutional."

That would be the case under Mr. Ethanol's hypothetical too, certainly under the originalism you claim guides your constitutional interpretation.

# posted by

Mark Field : 8:17 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 10:56 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 11:13 PM

Mark: That would be the case under Mr. Ethanol's hypothetical too, certainly under the originalism you claim guides your constitutional interpretation.

The Constitutional Convention had no intent to divine concerning the electoral college because the system was a compromise between those who wanted to choose the POTUS by popular vote and others who wanted Congress to choose the POTUS.

The text of the Constitution is silent about how to allocate electors, so every state chose to allocate electors to the winner of the state vote or each House district vote. All states allow parties to choose slates of electors loyal to their nominee. About half the states expressly outlaw faithless electors.

This was the system in place when Congress proposed and the states ratified the 12th Amendment updating the electoral college. No one was demanding faithless electors. This is the closest thing we have to intent concerning the electoral college.

As a practical matter, the People are casting ballots for a POTUS, not an elector. To allow faithless electors to ignore the will of the voters and choose candidates they preferred would render presidential elections a sham.

# posted by

Bart DePalma : 11:14 PM

The difference between most Republicans and most everyone else is that the latter knew W's Iraq debacle was just that beforehand while the former know it was after. The difference between all of them and Bircher Barr is he still doesn't know.

# posted by

Mista Whiskas : 8:55 AM

The sophistry in Bart's comments just reeks. The "People" aren't casting ballots. It's the voters who cast ballots. And as a practical matter, they are, in fact, under the only Constitution we have, casting votes for electors, not for President. If it had been the "People" in the last election, we'd be discussing the actions of a tyrannical Clinton as POTUS.

It's the mark of a true hypocrite to celebrate the minority victory of Trump under the EC due to its lack of democracy in that process while claiming here that it represents something that must be defended -- with guns! -- if it legally produces a result someone doesn't like. That is somehow antithetical to a peaceful, democratic society.

We note that, while 32 states have laws which require electors to follow the results of the election, only 11 of them have a means of overturning a of "independence" by electors, should they choose.

Note for Bart, et al: I do not wish for such an outcome, as it would be destabilizing and set a precedent that could be very bad at some future time. The idea that this is a desire of any significant portion of what, in your minds, constitutes "the left" is delusional. I merely presented it as a possible scenario -- and given the fact that Trump has broken so many of the customs and precedents...what goes around comes around.

# posted by

C2H5OH : 9:16 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 10:26 AM

C2H5OH:

(1) POTUS candidates and not electors appear on your ballot.

(2) I am a BIG fan of forcing candidates to win election in a broad swath of states across the nation. A system where a large state like CA can manufacture votes to choose the nation's POTUS is unacceptable.

(3) I agree the voters have little legal recourse if electors decided to decree the losing candidate is the POTUS. Thus, my prediction of an armed uprising.

You Democrats really do not want to go there.

# posted by

Bart DePalma : 10:27 AM