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Tuesday, June 11, 2019

Responses to Critics-- Part Five: On Publian republicanism and boiling frogs

For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).

It is finally time to conclude my response.  Let me express my thanks one final time to everyone who responded.  I found each and every one interesting and illuminating.

Steve Griffin exhibits puzzlement at my "frequent recourse to eighteenth-century republicanism as the normative standard to evaluate our present political and constitutional order."  This is certainly fair comment.  The social world underlying that republicanism is long-since dead, and we are probably better off for it inasmuch as it rested on a willingness of the lower orders to defer to their presumptive superiors (including, of course, the subordination of women to the patriarchy).  So "republicanism" really reduces to little more than a kind of "Publian" devotion to the general public interest.  The contrast term, of course, is submission to "factional" interest as defined by Madison is Federalist 10.   But the all-important begged question, set out extremely well in Robert Dahl's Preface to Democratic Theory some 60 years ago, is whether we have the theoretical resources that genuinely allow us to identify what serves the "general welfare" instead of merely "partial interests."  Almost all of us are devotees of a "hermeneutics of suspicion" that can quickly recognize any purported arguments based on general welfare as "in fact" being attempts to achieve the policy goals of one or another "special interest" or, at best, the simple reflections of an ideology that presupposes, for example, that those who live on farms really are better, as Jefferson seemed to believe, than those inhabiting cities and therefore deserve enhanced representation or other means of support.

I agree with Seve that we need a "greater awareness of the stewardship or trusteeship function of government."  But here, too, it is unclear that we--meaning professional academics--agree on what would constitute "stewardship" rather than, say, the capture of government power by technocratic bureaucrats with their/our own interests in given policy agendas and enhanced political power.  The notion of "trusteeship" is often linked with Edmund Burke, himself a participant in the same socio-political order that generated the broader notions of civic republicanism that seem all-too-elusive today as actual criteria for defining a polity.

I think that metaphors are important, and I was therefore much taken by Frank Pasquale's evocation of boiling frogs.  Kim Lane Scheppele has suggested that evocations of "emergency power" rarely involve what everyone can agree are "major" emergencies.  Instead, they involve pushing existing understandings only incrementally, but each "success" provides yet one more precedent for what turns out to be relatively unfettered executive power (or, for those who continue to believe in a "limited government of assigned powers, congressional power).  Deciding where to draw the line, as a political matter, is difficult, and too often we seem content to leave it to judges to decide, applying intellectually dubious notions of "minimum rationality" or "heightened scrutiny" that we may have to teach our students but quite likely do not really respect as intellectual constructs.

I think that metaphors are important, and I was therefore much taken by Frank Pasquale's evocation of boiling frogs.  Kim Lane Scheppele has suggested that evocations of "emergency power" rarely involve what everyone can agree are "major" emergencies, such as civil wars.  Instead, they involve pushing existing understandings only incrementally, but each "success" provides yet one more precedent for what turns out to be relatively unfettered executive power (or, for those who continue to believe in a "limited government of assigned powers," congressional power).  Deciding where to draw the line, as a political matter, is difficult, and too often we seem content to leave it to judges to decide, applying intellectually dubious notions of "minimum rationality" or "heightened scrutiny." One should be aware, incidentally, that a judicial determination that the state has in fact displayed a "compelling interest" that justifies deviation from normal understanding is itself a de facto "emergency power" declaration, subject to the same incremental expansions that ultimately result in a boiled frog. The real point is ultimately what gets normalized, so that we no longer bother to ask significant questions about actions that in a previous era might have been viewed as serious indeed.

 One reason that I continue to use what many believe to be extreme language when referring to Donald Trump is that I do not want to normalize any aspect of his egregious presidency.  I do not want to buy into the argument that one should exhibit a respect for the institutional office-holder even if one despises him as a person.  Academic readers of Balkanization are most likely to teach constitutional law, and the most immediate question is how we refer to justices and their decisions.  As academics we face particularly difficult questions as to the degree to which we ought to "import" our political views into our classrooms through the choice of what language we choose to use to refer to presumptively respected leaders.  The real point is ultimately what gets normalized, so that we no longer bother to ask significant questions about actions that in a previous era might have been viewed as serious indeed.  Notice is often taken when a Justice fails to "respectfully dissent" instead of merely registering her sometimes furious opposition to the decision of a majority.  To what degree is adopting of a scrupulous neutrality and politeness an acceptance of the fact that we are slowly but surely being boiled to death by conservative Republican justices who seem all too willing to acquiesce in the actions of Donald Trump?

51 comments:

  1. Ignoring the formatting issues; Maybe I'm just having trouble getting my cache to clear...

    I don't believe that, as a matter of law, or institutional prerogatives, Trump actually requires any "normalization". He got all the "normalizing" he could possibly require on the first Tuesday in November, 2016, he is beyond any need for your approval. That's fundamental to democratic government. The very idea that he stands in need of normalizing is wrong.

    Trump is fully President, in every respect, every power, every immunity. That every President is given too much respect, too much power, too much immunity, does not change that.

    Fix how much of all those things EVERY President gets, not just Trump. Or else everybody understands you don't care about the principle of the thing, you just don't like Trump.

    Which is fine, but it doesn't in any meaningful sense denormalize him.

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  2. "That's fundamental to democratic government."

    "Democratic" here includes "non-majoritarian" while if people flag that such and such is not "democratic," others (surely no one here) will go the whole "no, we are a republic."

    Someone winning an election means they have the power to govern. This does not "normalize" all by itself. The issue there is long term acceptance as normal and acceptable.

    The fact that, pick your poison, wins an election isn't the same as normalization in that sense. This is not about Trump specifically. Brett disagrees with Sandy Levinson's claim that Trump is specifically "not republican" (in a small 'r' sense), but that isn't the point here from my reading.

    If some senator, for instance, is a total jackass, people might at some point not treat them with the same level of respect. Since they don't want to "normalize" their behavior. This doesn't mean the senator lacks the power of the office. The person still is a jackass. If the person simply doesn't care about doing the job, we don't want to normalize this. Make it as if there is nothing special about the person. Make the person a Democrat, if you want. The principle holds.

    Anyway, elections alone in this country isn't what provides checks and balances. There are various things that factor in. Religion, the media, average day to day relations etc. Merely winning an election isn't the end of the road there. That's a mistaken view of the complexity of our system.

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  3. So Brett believes that Trump, as president, is above the law. That's "con" law, not constitutional law. Trump has denormalized himself. The metaphor of the boiling frog is descriptive of Brett's adoration of Trump. There is very little principle about Trump, rather Trump is all about principal, i.e., his own principal, to the detriment of Trump's obligations under Article II's "take care" clause. SAD!

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  4. "Someone winning an election means they have the power to govern. This does not "normalize" all by itself."

    If it doesn't, I really don't understand what you mean by "normalize". If you mean that people who don't like Trump don't like him, OK, that's true, trivially. It's also of no significance at all. Fine, go ahead and not like him, why should anybody care? Election losers aren't expected to like the winners.

    But I get the impression that Sandy means more by "normalize" than that. That he thinks Trump is in some manner not legitimately President, that the history books ought to treat him as an aberration, with an asterisk next to his name. "Trump, R* (*abnormal)".

    He's not really that different from many historical Presidents. As far as I can see the only problem here is that Democrats are losing their capacity to accept that somebody other than a Democrat is allowed to hold office.

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  5. " So Brett believes that Trump, as president, is above the law. "

    You're losing your grip on reality here, Shag. I said nothing of the sort, nothing that would even suggest that.

    "That every President is given too much respect, too much power, too much immunity," is what I said. Trump is no exception in that regard. The only thing really unusual about the Trump administration is that the left is losing its capacity to accept that anybody else can legitimately exercise power.

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  6. Brett is in the "grip" of Trump's reality show presidency. Brett says so many things between the lines, and has for years. Over 10,000 lies is not a norm for a president, despite which (pr because of?) Brett is in sinful lockstep with Trump. Recall that Brett in the days of Obama was a self-described anarcho libertarian. Brett dropped the "anarcho" as authoritarian fascist Trump came along, no longer need for a revolution. Brett shares something with Trump, beyond "going international" - no shame.

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  7. I figured you'd bring that WaPo list up. I've actually looked at it, and it's a joke.

    Opinions labeled lies because the WaPo didn't share them. Disputes where the WaPo just decided to believe the other side from Trump even in the face of relevant evidence supporting Trump's views. Predictions that didn't pan out, but could plausibly have happened if members of Congress had actually meant their campaign promises. Literal truth where they just didn't like Trump's spin on it.

    And, yeah, some actual lies. But nowhere near 10,000.

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  8. Was Trump University that long ago? Trump's self-promoted dealmaker image is a joke. His bankruptcies were jokes. Was Trump as a candidate serious or joking about being able to shoot someone on Fifthe Avenue and his base supporters (presumably including Brett) would continue to support him. [Perhaps Brett might support Trump if he shot one on the Central Park Five on Fifth Avenue.] Was Brett one of candidate Trump's 2nd A absolutists that Trump wondered how they might react if Hillary were elected?

    But Trump is a walking epithet: "HERE, THERE, EVERYWHERE, LIES DONALD J. TRUMP."

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  9. This comment has been removed by the author.

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  10. I do not want to buy into the argument that one should exhibit a respect for the institutional office-holder even if one despises him as a person.

    An office-holder general warrants respect here, especially when the person offers it in return. There is a certain prudential value involved. There are also powers involved but "respect" here goes beyond that. A law professor has little power to interfere with actual power of elected officials as a rule. But, in the real world, fairly smooth application of power requires something from others too, including some minimal respect from various people with some influence. This would include the law community as a whole.

    Prof. Levinson co-wrote an article basically arguing that there is a constitutional duty to have a certain minimal of republicanism to warrant such respect, including when applying the usual presumption of constitutionality. He argues Trump, on the merits, did not meet it. In our constitutional system, merely being elected doesn't give you carte blanche. I criticized this article. But, resting on existing rules, I think Trump fails.

    [e.g., the travel ban under existing rules is illegitimate; this is not treating Trump unfairly or something ... he is not a dictator, he like others can act ultra vires]

    The duty of respect in non-legal social type situations is another matter. There is no obligation to respect people merely because they were elected. Some people elected are horrible. There are good reasons to treat some people with extra dignity as a rule. Elected representatives of the people included. We have a form of democracy and accept those people warrant some respect as the choices of the people at large. This hopefully will encourage them to do their duties as sworn/affirmed governmental officials.

    But, like any rule, it is not an absolute one. There are some obligations both ways there. In the case of Trump, as a whole, as a matter of continual practice, he violates and violates a minimal floor here. This is not because "he's a Republican." Other Republicans did not reach this level. There are special blatant cases. A spouse might be bad. But, a few are truly horrible people on the merits. It is particularly problematic that they are still married to the other person. Special attention and action might be warranted. This doesn't deny them their rights of marriage.

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  11. Let's show Trump's, as president, respect in the same fashion as Trump has shown respect for a former VP by Trump's selection from the Seven Dwarfs of the nickname "Sleepy"f or Joe Biden. "Happy" doesn't seem to fit Trump, nor does "Bashful." Nor does "Doc" as the Donald lacks an M.D., or JD or PhD (unless such was conferred on the Donald honorarily by Trump University before its demise). "Sneezy" doesn't fit either, although the Donald sniffs frequently; while "Sleazy" might be apt, alas, that's not one of the Dwarfs. But "Grumpy could fit the Donald what with all his Twitter fits. That leaves what is perfectly apt and fit: "Dopey" Donnie. So with due respect for the office of this president, we can call him "Dopey Donnie" in the manner of his respect for the former VP. Even Trump's Snow White Supremacists would understand. [Background music, the late Aretha Franklin's "Respect."]

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  12. "[e.g., the travel ban under existing rules is illegitimate; this is not treating Trump unfairly or something ... he is not a dictator, he like others can act ultra vires]"

    I don't agree. The travel ban looks to me like the sort of thing that would hardly have raised a stir under the previous administration, which originated the list of countries in the first place. And, indeed, it has been upheld by the Supreme court.

    Now, would you like to argue that, under the Constitution as it SHOULD be interpreted, Presidents don't have the power to do that... I wouldn't disagree. Presidents are permitted to exercise far in excess of their proper Constitutional powers, ditto for Congress, and the regulatory agencies? I think it's no stretch to say they hugely exceed those limits.

    But I've said this before: Trump is entitled to every usurped power, every illegitimate privilege, every excess of deference, any other President would be permitted to exercise. And, if you don't like that, let's set about paring back EVERY President's power.

    But no treating Trump differently from any other President, just because you don't like him

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  13. Brett in his penultimate paragraph states in effect that Dopey Donnie is entitled to the fruit of the poisonous tree, so to speak.

    Query: Did Brett hate O mama because he was half white?

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  14. I don't agree. The travel ban looks to me like the sort of thing that would hardly have raised a stir under the previous administration, which originated the list of countries in the first place. And, indeed, it has been upheld by the Supreme court.

    The travel ban was problematic for a range of reasons and it was explained by many people over the ongoing litigation. In the Bush Administration, concern about executive power was so sensitive that limits were put on handling non-citizens in Gitmo. Here, express 1A concerns were raised (among other things), including involving American citizens.

    One issue was administrative law problems. Litigation on that sort of thing not novel. The reference to "the list" is misleading at best but I'm not going to re-litigate the details. If Mr. W. is around, he can go five rounds for the nth time on that point. But, citing well worn law, no, it wasn't novel. See, e.g., the dissenting opinions & multiple lower court opinions from more than one federal circuit providing details.

    Now, would you like to argue that, under the Constitution as it SHOULD be interpreted, Presidents don't have the power to do that... I wouldn't disagree. Presidents are permitted to exercise far in excess of their proper Constitutional powers, ditto for Congress, and the regulatory agencies? I think it's no stretch to say they hugely exceed those limits.

    No, you actually AGREED & challenged Mr. W. etc. on the First Amendment point. You have not been consistent though you claim to be. I pointed this out in the past. You give Trump and people "with the right enemies" more of a pass on things. But, if you want to be consistent, be my best. A consistent person, like Rep. Amash, understands that Trump has crossed a clear line above and beyond "everyone is bad." But, you don't think he did.

    But I've said this before: Trump is entitled to every usurped power, every illegitimate privilege, every excess of deference, any other President would be permitted to exercise. And, if you don't like that, let's set about paring back EVERY President's power.

    Sandy Levinson on down has criticized the breadth of the powers of others. But, even beyond that, Trump has crossed more of a line generally speaking. But, Trump is not actually "entitled" to do that, anyway. Two wrongs don't make a right. Not that you have been consistent on this point. You weren't all "Obama is entitled" like this. But, Trump has the right enemies, as you said in the past. And, again, you actually agree with him on various topics at issue here.

    But no treating Trump differently from any other President, just because you don't like him

    That isn't happening on my side. But, yes. Vice versa too.

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  15. Sandy's idea seems to me to be a simple one, so simple even Brett should get it, but partisanship warps minds to miss even simple things.

    Our courts regularly deal with matters that involve policies which might rights or limitations. In some of these, the results will seem to be disparate in a way that suggests the rights or limitations are infringed or surpassed. Our courts have often given an extra-textual deference to the Executive in these matters based on ideas of comity, relative expertise in areas (the executive has its own professional experts that might be more knowledgable on a policy area than any judge), etc. This is build on the supposition that the executive is acting in good faith and with professionalism. Trump acts in a manner inconsistent with the good faith and professional norms of his predecessors. Therefore he's not warranted the extra deference upon which lies on those suppositions. The travel ban is a perfect example. If the executive just has a measure that would primarily ban Muslims the courts may say 'well, that looks troubling potentially, but we can presume they're looking to solve a complicated problem with expertise in a way in fealty to the Constitution, to be expected of an administration that seems usually competent, well run and on the level in what they say. But if it said 'we're banning Muslims because we find it to be a bad religion' and produced a measure that would primarily ban Muslims then that raises free exercise and establishment questions and to ignore the unprofessional statement along with the almost laughingly unprofessional slopping together of a form of the measure to try to pass muster then means, hey, you're no longer acting in a way warranting this deference (which was never required, it was a 'norm'), so we want give it to you. The court should have supposed a bad intent had been offering making the President's proposal warranting a stricter than usual scrutiny in this case. Perhaps the President's powers still allow him to do something that fundamentally un-American, perhaps not, but the 'normalizing' were the attempts at the majority to either avert their eyes at Trump's loud pronouncements or piddle them away as the 'campaign' analogy of 'locker room' talk.

    There was a time when conservatives could lay strong claim to the mantle of the party of common sense over legal fictions and abstractions. Those days are not now.

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  16. In other words, we've given high deference to the Executive in matters because they acted within the norms of professionalism (good faith motive and intent, serious careful selection of policy, competence in an area). When you get a President that doesn't live up to those norms the judiciary should not live up to the side of a now one sided bargain the reasons for which don't exist in this situation.

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  17. On an earlier post by Sandy of his comments on Kersch's new book, Brett at the end of the thread responded to some questions I had raised about the timetable for the explanation of the "MISSION ACCOMLISHED" banner on the carrier Abraham Lincoln so timely for George W's dramatic landing of a plane on its deck including a link to:

    CBS:'Mission Accomplished' Whodunit

    The comment thread closed before I could comment. I did read the link and it raised even more questions than it answered. I'm not sure Brett read it with care in his attempt to defend the Bush/Cheney invasion of Iraq in 2003. Of course, events in Iraq since George W's landing with his Air National Guard training deferment from Vietnam was more "MISHIGAS ACCOMPLISHED" as I had earlier noted on that thread. Brett spins for Bush/Cheney and their debacles. Now Brett spins for Dopey Donnie (aka Trump).

    But speaking of Ken Kersch's new book, Mark Graber's book symposium post points out deficiencies in Kersch's book in its failing to address the Second Founding and its Framers (aka Civil War Ammendments) in explaining the ;pre-Reagan conservatives, who relied upon the 1787 Founding and Framers with America's original sin. For Dopey Donnie (aka Trump) those may have been the MAGA days that attracted Dopey Donnie's base, including Brett.

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  18. "In other words, we've given high deference to the Executive in matters because they acted within the norms of professionalism (good faith motive and intent, serious careful selection of policy, competence in an area). When you get a President that doesn't live up to those norms the judiciary should not live up to the side of a now one sided bargain the reasons for which don't exist in this situation."

    No, I actually do get the concept. I disagree with it. "that act with within norms of professionalism" is too ambiguous, rapidly becomes, "I like what they're doing".

    In the end, in the beginning, really, it just devolves to "Presidents I like get a free hand, Presidents I don't like get hobbled."

    Here's my position: He got elected, he is President. And that is all the normalizing he will ever need. He gets to do anything ANY President could do, and if you don't like it, change what ANY President could do.

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  19. There's a couple of points to be made about Brett's reply. The first is this: Brett himself has articulated something very similar to it when it suited his partisan/ideological desires (it may be difficult for a partisan/ideologue to remember all the stances they've took or how it may be related to what's being talked about now because being a partisan/ideologue often involves shifting positions in any given moment to get the result/outcome you want right now). Brett has talked here about how when governments have a long track record of denying 2nd Amendment rights broadly that their post-Heller/McDonald efforts of 'common sense gun reform' proposals (things like bans on firing ranges or shall issue only permits) should be looked at with a skeptical eye in any scrutiny analysis. This is essentially what Sandy is talking about, I think, re normalization and Trump.

    This leads to the 2nd point: it's not that a politician loses powers any other President would have. No President can constitutionally pass a law which aims at denying free exercise of religion or establishing one above others. The thing is though, that when there's a question of whether a policy violates a constitutional provision there's almost always a balancing of some sort. The proposal must be rational and related to a legitimate gov end, or there must be a compelling interest and it needs to be narrowly tailored to it. In that analysis is where a President's *overt evidence of not acting in good faith and with professional (legitimate) ends* comes into play. Now, the point I think Sandy is making is this: absent such evidence there should be a deference to the idea that the gov is *honestly trying to achieve a policy goal without treading on constitutional rights.* That's not dispositive in itself, but it's a factor. And Sandy is merely making the (I think common sense) observation that when a President 'blows that' by making (or his chief advisors making) comments suggesting they have a not good faith and/or legitimate government purpose in my mind then the Court should not weigh that factor (or at least not conduct the probing of the proffered rationale) in the same way as they would absent such evidence.

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  20. "This is essentially what Sandy is talking about, I think, re normalization and Trump."

    Absent the long track record of actions, of course. Trump started getting this treatment right out of the starting gate, while some jurisdictions have been attacking civil liberties of this sort for decades.

    "No President can constitutionally pass a law which aims at denying free exercise of religion or establishing one above others."

    Setting aside that Presidents can only sign laws, since I know what you meant... No law can constitutionally deny free exercise of religion, or establish one over others. "Aims" has nothing to do with it. It's actions that are constitutional or unconstitutional, not mental states.

    The same act can't be constitutional or unconstitutional depending on which President does it, because you're attributing good motives or bad to the President. Again, this collapses almost immediately into whether you like a President, whether you share his ideology. Transparently, it has collapsed in that manner.

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  21. Just look at what Dopey Donnie (aka Trump) says in the context of events. He raved about a wonderful letter he received from Kim Jung un and then said there would be no spying under his auspices. The context had to do with a just published bio on Kim that referenced Kim's assassination of his half-brother, claimed to be a CIA informant. There is much more context with this in America's national security interests. Dopey Donnie was just being dopey in his narcissistic manner. Perhaps Dopey Donnie had in mind his and his Roy Cohn AG's evidence less claims that the FBI and other government agencies were spying on the Trump campaign. Does Dopey Donnie want to dumb down the intel agencies? Does Brett have enough thread to spin that top?

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  22. "The same act can't be constitutional or unconstitutional depending on which President does it, because you're attributing good motives or bad to the President."

    This is bizarre and daft. Of course different Presidents may be able or barred from enacting a policy challenged on discrimination grounds contingent on the motives of the President in the policy, that's the essence of discrimination cases! For decades we've been told by conservatives 'look, disparate results or impact is not enough, there must also be a discriminatory motive.' Now conservatives like Brett want courts to say 'well, not even evidence of discriminatory motive is enough!' This is bizarre and daft because nearly all Jim Crow laws were not discriminatory *on their face,* they were discriminatory in their *intent* and effect. Look for example at Rehnquist's opinion in Underwood v. Alabama. It wasn't whether a state could pass a law denying the vote to those convicted of 'moral turpitude' crimes, they probably could in his opinion, rather the law was struck because the clear intent of the Alabama convention was to identify laws that African Americans were more likely to be convicted of, call them crimes of moral turpitude, and therefore strip more blacks than whites of the vote. The discriminatory intent flagged a violation even to a conservative like Rehnquist (who was hardly hunting for discrimination to strike down).

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  23. Brett closed his 3:11 PM comment with:

    "And, yeah, some actual lies. But nowhere near 10,000."

    Presumably Brett believes that these were merely Dopey Donnie's (aka Trump) "little white [supremacy] lies."

    Imagine, Dopey Donnie founded Trump University and was forced to unfound it, including $25 millions in tuition refunds. Query: Did Trump U have a dunce chair? If so, I assume it was chaired by Dopey Donnie.

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  24. BTW-that case was Hunter v. Underwood

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  25. Brett's at 8:07 AM:

    "Trump started getting this treatment right out of the starting gate, ..."


    apparently ignores the starting gate of Dopey Donnie's (aka Trump) campaign on his escalator down racist attack on Mexicans which dominated his campaign and attracted its base. When Dopey Donnie was questioned on racism, he stated in effect "I'm the least racist person you'll ever know." AS for my response to that, Brett may be less racist than Dopey Donnie.

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  26. Here's an analogy: Let's say Mayoral candidate Hillary Bloomberg, who has taken strong gun control stands in her campaign, calls a press conference immediately after yet another mass shooting in the nation, and says "Candidate Hillary Bloomberg calls for an immediate ban on all gun and ammunition sales in this city until we can find out what the hell is going on!" Later, after becoming mayor, she calls her chief legal advisor, and according to him, says "put something together, tell me how to this legally." The advisor tells them that they can't do this on it's face because it violates the Constitution, but previous mayors have looked into policies restricting or eliminating pawn shops because of usury type concerns and that all the pawn shops in the city sell firearms and are significant sources of them in the city. The Mayor then moves to enact a restriction/ban on pawn shops which would effectively put them out of business. When 2nd Amendment supporters bring suit her lawyers argue: 1. the mayor has a legitimate right to pass anti-usury laws 2. this can't be a gun ban violating the 2nd Amendment because you can also buy guns at the city Wal-mart and the law doesn't touch it.

    Does anyone here think Brett would say 'well, the court shouldn't weigh at all the candidate's and advisors comments in an attempt to weigh motive or pre-text here?'

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  27. Mr. W.'s 2A example is a good example of how the basic principle is agreed upon here.

    This is important. There is a concern at times that some special rule is being applied unfairly. This includes various legal principles deemed artificial. But, the rules usually on some level are basic. They apply in ordinary situations too. Noting the nuances of the law can complicate things.

    The 1970s case Washington v. Davis set forth the standard rule: "Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another." Disparate impact is not enough, but it might be a red flag, taking everything into consideration. A case involving "neutral" regulation of laundries that in practice singled out Chinese showed this almost a century before.

    It turns on details.

    Absent the long track record of actions, of course. Trump started getting this treatment right out of the starting gate, while some jurisdictions have been attacking civil liberties of this sort for decades.

    Trump had a long track record. It was a major reason so many people, not just Democrats, were so wary of the guy. His racism has been on record for decades. His problematic, to the degree of breaking the law in many cases, business practices have been on record for years. His other problems have been on record. Put aside his campaign and actions "right of the starting gate." The slipshod rushed nature of the travel ban (the ultimate version that reached the Supreme Court was like travel ban 3.0) was a major part of the problem on administrative law grounds.

    The same act can't be constitutional or unconstitutional depending on which President does it, because you're attributing good motives or bad to the President.

    Brett can (though he really doesn't as Mr. W. showed) disagree with basic law of longstanding as to motivation. But, other presidents didn't do what Trump did as a whole. No president was a saint. To use my earlier example, an average spouse will make mistakes. But, there are certain spouses who do a range of things the reached another level. These spouses are not being unfairly treated with -- based on their words and actions as a whole -- special concern.

    I continue to find this normalization of Trump ironic. Trump was and is seen by various people as different in a positive way. But, when pressed, the people want to make him just the same. It has a certain blasphemous flavor to it. Put aside it being ridiculous when looking at the facts at large.

    Finally, I want to single this out. Someone is not "entitled" to do things wrong because of previous wrongdoing. I refute the argument of "both sides do it" spelled out here but that's a horrible principle. It does reflect a certain conservative mentality.

    Brett et. al. liked some of these actions and disputes the facts. This isn't surprising. But, bad faith and differences on the merit is different. But, things are so obvious to some people that only bad faith seems to be a reason to disagree with them.

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  28. Interesting analogy.

    I'm having a little trouble engaging with it, because I don't think the ban on pawn shops could be justified even if it wasn't pretextual, while travel bans are pretty easily defended, normal instruments of national security. And, let's face it, most anti-gun jurisdictions go way, way past your hypothetical, to actually zoning out the gun stores.

    But, no. Because my proposal for subjecting anti-gun governments to preclearance on gun laws, applies to governments with long track records, like NYC, not to specific office holders.

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  30. Trump started getting this treatment right out of the starting gate, while some jurisdictions have been attacking civil liberties of this sort for decades.

    But, what "civil liberties"?

    Brett didn't think the travel ban was a violation of the 1A. Overall, he seems to think the treatment of immigrants have been appropriate, comparing many of them to enemy combatants. When pointed out that Trump supported reduction of freedom of speech, he ignored it or (eventually) handwaved it away as a trivial thought experiment of sorts on his part. And so on.

    I'm sure examples can be found where Brett found problems over the years but as a self-expressed "conservative," he supports many of Trump's policies here. Also, it is not like concerns and litigation wasn't in place to deal with these issues in past administrations. The facts on the ground show why people give more attention to Trump like some were more concerned about Bill Clinton on certain subjects.

    Brett might think executive power as a whole is too strong (such as how agencies operate) but "civil liberty" in the specific context was religious and race discrimination. Or, some freedom to travel. There was also some concern for the rights of families and things like academic rights to bring in certain people from overseas. To try to be comprehensive.

    He rejected that on the merits here. It is so obvious to him in fact, that it appears that the only explanation of the other side is bad faith.

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  31. "because I don't think the ban on pawn shops could be justified even if it wasn't pretextual"

    Local governments have the general police power to regulate the health, welfare and morals of those in their jurisdiction. They can easily restrict or bar enterprises based on 'unfair usury grounds.' This is why restrictions or bars on payday or title loans are constitutional.

    "applies to governments with long track records, like NYC, not to specific office holders"

    Really? So a government which historically has respected gun rights but who *just elected* someone who *as a candidate* expressed the hostility to gun rights I mentioned should, in your opinion, not get more scrutiny vis a vis their proposed rationale?

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  32. "Finally, I want to single this out. Someone is not "entitled" to do things wrong because of previous wrongdoing. I refute the argument of "both sides do it" spelled out here but that's a horrible principle. It does reflect a certain conservative mentality."

    My mentality here is that I don't want ANY President to be able to exercise illegitimate powers.

    But, if Trump is deprived of them as a special case, an abnormal President, rather than it being firmly established, no backsies, that NO President gets them, then come the next Democratic President, all these abuses will suddenly become OK again, because in my experience Democrats don't really object to the abuses.

    They object to Trump. Or, more generally, Republicans.

    Which is why "Congress refused to act!" was justification for the DACA program, but isn't for Trump's wall. It's entirely outcome oriented, not principled.

    I want to leverage Democratic hatred for Trump into a long term solution of these problems. Not, overturn Trump's National Emergency declaration. Overturn the National Emergency ACT.

    I want to shove Trump's abuses down the Democratic party's collective throat until they're so sick of them that they'll agree to fix the real problem to be rid of them.

    And, to that end, I will never agree to Trump specific remedies for abuses all Presidents commit.

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  33. "Local governments have the general police power to regulate the health, welfare and morals of those in their jurisdiction. They can easily restrict or bar enterprises based on 'unfair usury grounds.' This is why restrictions or bars on payday or title loans are constitutional."

    I'm not of the opinion that there was something wrong with "Lochnerism".

    "Really? So a government which historically has respected gun rights but who *just elected* someone who *as a candidate* expressed the hostility to gun rights I mentioned should, in your opinion, not get more scrutiny vis a vis their proposed rationale?"

    Isn't that the way Voting Rights act preclearance operated? It applied to governments with bad track records, not specific office holders.

    The only problem in practice is that the coverage lists never got updated.

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  34. Brett, these are irrelevant, pathetic dodges.

    IF you can't rely on 'Lochnerism' which has been mostly rejected.

    And regardless of Voting Rights Preclearance (what a pathetic deflection)...

    What is your answer to my hypo?

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  35. It's clear Brett is confused and discombobulated.

    He needs to be in a place that ultimately defends his right to guns.

    The example I gave is one that might deny that of him, yet it's what Trump did...

    His responses are notably short and confused...

    Give me a direct answer:

    a government which historically has respected gun rights but who *just elected* someone who *as a candidate* expressed the hostility to gun rights I mentioned should, in your opinion, not get more scrutiny vis a vis their proposed rationale?

    Then address the obvious analogy here.

    No more deflection.

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  36. Direct answer: I don't think a ban on pawn shops could be unconstitutional just because they happen to sell guns, and the mayor who proposed it was publicly anti-gun.

    Now, if pawn shops that didn't sell guns were exempted from it, that might be a different matter. But I care about acts, not motives.

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  37. To be clear, the purpose of preclearance is to prevent jurisdictions with a track record of bad behavior from spamming the judiciary with too many unconstitutional laws to keep up with them. Justifying it requires a track record of unconstitutional acts.

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  38. Brett used the word "entitled." It was wrong. If someone looks the other way when a thief steals their stuff, a second thief isn't entitled to it.

    The double standard stuff is not quite as bad though it doesn't hold up. Lindsey Graham wasn't out there (before Trump won, causing him to shift gears) strongly denouncing Republican candidates over the years as basic threats.

    LG was far from alone from the non-liberal side of the aisle. It also is not a matter of emotionally hating people alone here. Brett supports Trump's policies on a range of issues. He is self-expressed as a conservative. He cited, e.g., his view on abortion in the past. This is a matter of principle on a basic level.

    Trump was opposed on the merits.

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  39. The boiled frogs are a delicacy in Potemkin villages. They are both fictional.

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  40. Brett seems to view "norms" as obese persons on bar stools in Cheers. Brett is in need of a grip on his masculinity sans his 2nd A absolutism. in his 11:42 AM screed:

    "I want to shove Trump's abuses down the Democratic party's collective throat until they're so sick of them that they'll agree to fix the real problem to be rid of them."

    How's that working out for you, Brett? As a troll for Dopey Donnie (aka Trump), you're engineering a bridge to nowhere. Recall that during the 2016 campaign, Dopey Donnie claimed "Only I can fix it." The Swamp? Foreign policy? Trade? The sad plight of Dopey Donnie's supporters? Healthcare?

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  41. Off topic, Jack's introductory response to book symposium essays closes its penultimate paragraph with this:

    "To paraphrase Bette Davis, fasten your seat belts, we are in for a bumpy ride."

    I'm a little older than Jack (and Sandy) and this brought to mind another Bette Davis movie quote: "What a dump!" Is that worse than Jack's anticipated "bumpy ride"? The poetic corner of my brain notes that "dump" rhymes with Trump, and we've been on a bumpy road with Dopey Donnie already for a couple of years.

    Jack's introduction goes in a somewhat different direction than Sandy. So I look forward to Jack's further posts on the points he has enumerated.

    Regarding the Ken Kersch book symposium that continues at this Blog, a few years ago in my semi-retirement I attended a major symposium on Political Dysfunction at BU Law School. Sandy and Jack participated, as did Ken Kersch. My memory is that Kersch and political scientist participants were not convinced there was political dysfunction. I printed many of the papers and may search for Kersch's paper to check out how conservative it reveals him to be. Mark Graber was also a participant at that symposium and has posted his essay on the Kersch book symposium which I briefly commented on earlier in this thread. Small world.

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  42. "I don't think a ban on pawn shops could be unconstitutional just because they happen to sell guns, and the mayor who proposed it was publicly anti-gun."

    Good lord.

    I mean, this is *every* Jim Crow law here, and Brett is like "I'm ok with that." Just to defend Trump. "For Trump? Why Brett, it profit a man nothing to give his soul for the whole world . . . but for Trump!"

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  43. Let's be clear too...Pre-clearance was the idea that if a jurisdiction had a history of bad actions it's current action was suspect...We're not even talking about that, we're talking about a jurisdiction who has offered *currently* bad motives for current policy (Church of Lukumi Babalu Aye, Inc. v. City of Hialeah). Brett, under the spell of Trump, is like 'I'm ok with that!'

    Wow.

    This extraordinary deference for government agencies is from someone who *styles himself as a libertarian.*

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  44. As to the Ken Kersch book...I'm heavily influenced by early conservative legal thought. I think that's why I find so much modern conservative legal thought as contemptuous. My favorite legal book continues to be Bork's The Tempting of America and the kind of judicial restraint found in Rehnquist's First National Bank of Boston v. Bellotti opinion my personal touchstone...Conservative legal thought (or any type of thought) has, however, undergone a terrible transformation a la Limbaugh and Hannity, becoming a petty, ugly partisan thing. It's horrible to watch.

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  45. John Oliver's show on Sunday focused on the Equal Rights Amendment. It included a map of the USA showing the states that have not ratified ERA. They are clustered contiguous in the southeast excepting Arizona. Mr. W's reference to the pre-clearance aspect of the Voting Rights Act seems more than coincidental regarding the history of certain states.

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  46. "I mean, this is *every* Jim Crow law here, and Brett is like "I'm ok with that." Just to defend Trump. "For Trump? Why Brett, it profit a man nothing to give his soul for the whole world . . . but for Trump!""

    I suppose in some hyper-attenuated, "At a sufficient level of abstraction, everything is everything else, because it is after a thing." sense, closing pawn shops because some of them sell guns is "every" Jim Crow law".

    In any sane regard? Not remotely. I'd expect gibbering insanity to make more sense by accident.

    Jim Crow laws mandated direct discrimination against blacks. The very essence of Jim Crow was mandated racial discrimination.

    Closing all pawn shops, no matter how malign the intent, is not discriminatory.

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  47. I should also add that, "It wouldn't be unconstitutional" DNC "I'm ok with that."

    Which I would have thought was obvious, but I guess if you're the grossest sort of living constitutionalist, "I'm ok with that" defines "constitutional".

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  48. Brett informs us at 8:14 PM:

    "Jim Crow laws mandated direct discrimination against blacks. The very essence of Jim Crow was mandated racial discrimination. "

    But Brett doesn't state that Jim Crow laws were unconstitutional. Of course Brown v. Bd. of Educ. (1954, Unanimous) did not end Jim Crow. Rather it took the ensuing civil rights movement to eliminate much of Jim Crow, but far from all of Jim Crow, with the revival of Jim Crow with the support of Dopey Donnie's (aka Trump) Snow White supremacist base. Is Brett separating himself from that base? But for Brett, were MAGA days the days of Jim Crow? Did Brett pawn his soul for Dopey Donnie?

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  49. Man we expect a tweet from Dopey Donnie (aka Trump( that: "It's my way or the highway for FBI Director Wray." regarding "dirt" received by Dopey Donnie, as president, on political opponents from foreign governments, encouraging election interference from Russia again and other adversarial nations, including Saudi Arabia? Dopey Donnie is a national security threat. Can Brett redeem his soul from the Dopey Donnie pawn shop? Maybe the leader of the Philippines has dirt on Dopey Donnie's political opponents. Or MBS of Saudi Arabia. Or Kim Jung un who assassinated his own half-brother..

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  50. Gary Lawson's second post on the Kersch book symposium is all about Ayn Rand in Lawson's observation on the lack of libertarians in Kersch's book. It has been pointed out by a wise man that Rand was more libertine than libertarian, although one could be both. I don't know if there will be a further post from Lawson on Kersch's book, but this one was Randy. Lawson pointed some of his differences with Rand, especially that he is an anarchist, but suggesting he might in the future write a book on Rand. Meantime, I await Kersch's response to Lawson's second post.

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  51. A huge chunk of what made up Jim Crow were laws that were racially neutral on their face. Poll taxes, literacy tests, making elections at large, felon disenfranchisement decisions, all of these were blatant and hugely successful attempts to discriminate against blacks. It's bizarre not to recognize that history. Intent has to matter or we'd be helpless to stop what we know as historical fact are discriminatory efforts.

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