Naomi Wolf discovered the Bill of Rights during the Bush years and believes in it regardless of which party controls Washington, D.C.
Longtime blog readers know that I attended high school with Naomi Wolf. She was a year behind me, but a lot of her friends were in my year and, if my memory serves me correctly, she was in my English class with the brilliant Flossie Lewis (a teacher known to generations of Lowell students).
I was not a Naomi fan because, in honest retrospect, I wasn’t in her league. She was brilliant and beautiful, an airy-fairy hippie chick who managed to make it look easy to get good grades. She was never arrogant about her looks but she was arrogant about her brains and, quite sweetly, she put me in my place more than once.
Because I’d known her personally, I paid attention to Naomi’s career trajectory in the 1990s. (Note: I’ve never seen or spoken to her since high school.) I read The Beauty Myth and, for a brief while, became a bristling third-wave feminist. I got too busy with life to hang onto that notion, though, and then had children. Because I was then a Clinton supporter, I was envious of the fact that Naomi was in the Clintons’ inner political circle. Still, I was able to laugh when I learned that she had given Gore advice in 1999 about his color choices to make him more appealing to voters.
As I hewed right and Naomi remained on the left, I became less impressed with her, as I am with all leftists. She spoke out in support of burqas and vaginas, acknowledged that abortion is homicide but still supported it, constantly attacked George Bush, was anti-war and anti-Israel, and worried about chemtrails. In other words, a leftist crackpot, albeit a brilliant one. She really fell apart when she wrote a book about all the people executed in Victorian England for being gay, without understanding that none were executed. She’d misunderstood the historic records, which is apparently a fairly common problem for Naomi and is her greatest weakness. She’s brilliant but careless. It makes it easy to undermine all her positions, whether or not they’re good.
And it turns out that some of Naomi’s positions are good — at least her position about a free, constitutional society that honors the Bill of Rights. Beginning under the Bush presidency, because of the various anti-terrorism acts that went into effect then, Naomi suddenly became an ardent civil libertarian. Where Naomi gets huge points is that she has continued to be an ardent civil libertarian regardless of which political party holds sway in Washington, D.C.
Because of that intellectual honesty, Naomi has been horrified by the lockdowns and the whole package of power grabs in which both the state and federal governments have engaged, using the excuse of the Wuhan virus to do so. For that reason, Tucker had her on his Monday night show.
Frankly, Naomi didn’t say anything you and I haven’t been saying for a long time. What made it unique was that it was coming from a leftist. Suddenly she’s another Glenn Greenwald — an honest leftist fighting back against the totalitarianism coming from leftist governments. Also, because she’s really bright, Naomi said all these things well. I urge you to watch this video and take it very seriously, especially Naomi’s point about the very small window of time we have left to push back before losing our rights forever. I do what I can with my writing because that’s my one and only strength. What can you do?
Pence could still save the day, but the 12th Amendment has a Trump-friendly remedy if Senators refuse to accept Electoral votes.
I’m willing to admit up front that mine could be a whackadoodle theory. I’m not a constitutional scholar and I was hopped up on caffeine and really tired when the answer to the election fraud problem suddenly occurred to me. Still, if I’m not completely off my rocker, this theory could be what smooths the path to eliminating election fraud and retaining Trump’s rightful place in the White House.
The House and the Senate will gather over the votes on January 6. At that time, as we know several House members and Sen. Josh Hawley, at least, will object to Electoral College votes based upon fraud. (For an overview of the evidence showing that there is overwhelming fraud, I recommend that you go here and here. Also, keep in mind that, while those are recent links, even more evidence of fraud has since emerged.)
Once that happens, both the House and Senate retreat to vote on those objections. We know that the House will vote to override the objections and accept the challenged Electoral College votes. But if the Senate refuses to — if more brave Senators add their voices to Hawley’s — that creates an unfamiliar situation.
Incidentally, I think these negative votes are clearly within Congress’s purview. Fraud voids everything. If the Courts refuse to consider fraud that doesn’t foreclose Congress from acknowledging fraud and saying that it vitiates Electoral College certificate.
But back to what happens if the Senate stands atop the mountain of fraud hollering “Stop.” There are a few theories for what happens then, based upon the 1887 Electoral Count Act.
One much vaunted theory is that Pence gets to make the call.
Another theory is that the state legislatures get to make the call.
Another theory is that the state governors get to make the call.
These are all theories. You want facts? Look to the Constitution, which spells it out. Keep in mind that, at the moment the Senate gives its thumbs down, there are no longer enough Electoral College votes to put any candidate over the top. So here’s what I think happens:
As I wrote in September, when no one was paying attention to this kind of thing, the Constitution is remarkably clear on the subject. If there are not enough Electoral College votes to hand victory to any one candidate — as will be the case if the Senate refuses to accept Electoral College votes predicated on manifest and overwhelming fraud — the Constitution spells out who picks the winner: fifty members (one for each state) from the newly seated House of Representatives decide.
Here’s the Twelfth Amendment’s language:
But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. (U.S. Const., Amendment 12, Clause 3.)
What’s of signal importance here is that the House as a body does not vote. Instead, one House member from each state votes. Handing the matter to the House in this way makes eminent sense because this is the body closest to the most recently expressed will of the American people. If the Electoral College failed, at least the majority of voters in each state will speak through the majority of House members from their states.
Under the 20th Amendment, the vote takes place not with the currently seated House, but with the incoming House. The incoming House has 27 states with a majority of Republican representatives, 20 states with a majority of Democrat representatives, and 3 states that are tied. That spells a clear victory for Donald Trump.
In brief: If senators follow Hawley’s lead and take a stand against the fraudulently generated Electoral College votes, at that point, under the Twelfth Amendment, there is no elected president, and the matter returns not to the full House, but to a single representative from each state. And so, Trump wins.
If you think I’m wrong and foolish, tell me so. But if you think I’ve got a point, please share this post or the underlying American Thinker article that I quote, above. The reason I ask is because, if I’m correct, what I just said actually matters.
One of the reasons I believe that polling is so overblown, consider Hillary over Trump in 2016, Biden over Trump in 2020, is to mask, to a certain extent, voter fraud. We have been treated to, in recent times, reports of precincts where more votes were cast than the number of registered voters. This points to obvious voter fraud. It is a physical impossibility to have more legal votes in any given precinct than you have registered voters. Even if you had 100% turnout, which is highly unlikely, you have voter fraud.
This was one of the goals of groups like ACORN, which would register voters like Mickey Mouse, the starting lineup of the Dallas Cowboys, etc., and some people laughed, thinking, “No one is going to go to the polls and try to vote as ‘Mickey Mouse’.” True. But it inflates the number of registered voters. The more registered voters you have, the easier it is to slip in illegal ballots, without detection.
For example, let’s imagine a township of 100 eligible voters, which has a fairly high registration rate of 85%. Turnout for most elections is also high, at 40-50%, or at least was considered high 20-30 years ago. Under those conditions, a majority of approximately 42-43 people determine the outcome of the election.
If someone submitted an addition fifteen fraudulent registrations, it might be seen as implausible, but not impossible. Hard to prove without an intensive search. Assuming our 43 loyal voters are pretty evenly split, an extra fifteen illegal votes would insure an almost certain victory in any election, a 37 to 21 break, with 58 total votes -less than the total of either registered or eligible voters. Under those circumstances who would even raise an eyebrow over the results. Because, we trust our elected officials to protect us from that sort of thing, right?
But it seems our current generation is not leaving anything to chance. More and more “amateurs” are trying their hand at voter fraud. We are ending up with precincts which have more registered voters than eligible voters, according to the census. We have elections with even more ballots than registered voters, as well. What percentage of our elections are being swayed by illegal votes? One is too many. Our Republic is governed by the consent of the governed. I am perfectly willing to be on the losing end of any vote or proposition where the votes are honestly tallied.
The idea of one man, one vote, implicitly implies: one man, only one vote.
Ballot harvesting must be made illegal nationwide. There is far too much opportunity for vote tampering and fraud when you interrupt the chain of custody of the vote. There should be a “positive purge” of voter registration record to eliminate those who are dead, or moved, whose numbers increase both the possibility of voter fraud, but obstruct its detection. Penalties for voter fraud should be increased, and in my humble opinion, people who commit voter fraud should themselves be disenfranchised, to where they lose the right to vote, to have any say in the governance of this country.
And polling? Again, it’s a managing of expectations. if in our mythical township of 100, the “polls” indicated that all your neighbors favored a candidate or a proposition by 15%, (when in fact, it was illegal votes that favored the winner), most people would just shrug, accept the loss and go on with their lives. That’s why we need transparency and accountability.
In America, the term Right Wing is misused to imply that conservative Americans are fascists lusting for world domination; in fact, the opposite is true.
(As my regular readers (to whom I am endlessly grateful) know, I was away from my blog for some time caring for a relative who had surgery. Being away that long gave me time to think about “going a little crazy,” as Bob Ross likes to say when he adds another tree to a painting. In my case, “going a little crazy” meant wondering if I could do a video as well as a podcast.
In addition to the time spent researching how to do go about making a Power Point video (I’ve got to start somewhere), it took me six hours to create a 35 minute video and companion podcast. They both are a little glitchy, but not bad for a first effort. I will get better. But I will never forget my readers, so here is the same content in written form.)
The idea for this video came when I ended my trip with a much-needed massage. Because this is Tennessee, my masseur is a liberty-oriented man so, in the midst of a far-ranging conversation, he asked this question: “Why are conservatives called “fascists,” when fascism is a socialist doctrine?” An excellent question, and one I wanted to answer here.
The reality is that, even though the media loves to talk about “right wingers” (although never left wingers), there is no “left wing” versus “right wing” in America, at least as those terms are understood in the rest of the world. Instead, we only have liberty versus tyranny, along with the supporters of both those ideologies.
Ironically enough, although the French Revolution post-dated the end of the American revolution by six years, the terms “right wing” and “left wing” are leftovers from that overseas kerfuffle. Let me explain.
The French Revolution had as its slogan “Liberté, égalité, fraternité.” Liberty, equality, fraternity! In the context of the French Revolution, those words were always lies.
At the start of the Revolution, France had an absolute monarchy that sat on top of a large, equally absolutist aristocracy. It was not a sustainable system, and the revolutionaries intended to topple it. However, unlike the American revolutionaries who envisioned limited government coupled with individual liberty, that’s not what the French wanted. Instead, the revolutionaries imagined an absolutist commune, with the monarchy and aristocracy replaced by an equally controlling cabal of “the people.”
But what, you may ask, does this have to do with “left wing” and “right wing”? Simple. In the French Parlement during the lead-up to the Revolution, the representatives who sought to retain an absolutist government led by the monarchy and the aristocracy sat to the Speaker’s right. The representatives who sought to replace the existing government with an absolutist government led by “representatives of the people” sat to the Speaker’s left.
And that’s where the terms still used today in American and around the world came from: Those on the right seek to “conserve” the old ways; those on the left seek to upend them. Except, as I’ll develop at greater length, America has not traditionally had any cognates to this European left/right divide.
And now we get to my favorite chart, one that, for convenience’s sake, uses a left/right continuum to show how there are two sides to the political spectrum:
On the left (although it could just as easily be portrayed on the right side of the line) is absolutist, totalitarian government, something with which we are all familiar. It exists under many names – monarchy, socialism, communism, democratic socialism, fascism, theocracy, etc. – but it always plays out the same: maximum government control; minimum individual liberty.
Meanwhile, on the right side of the continuum (although I could have easily placed “liberty blue” on the left), is the political system that has limited government and maximum individual liberty. At its extreme, it’s anarchy. Otherwise, it’s . . . well, it’s really only the American experiment. Everywhere else in the world, government control is the standard.
So what is the American experiment? It was build on Britain’s Magna Carta and its 1689 Bill of Rights. That last document was a statement of limitations on monarchical. William of Orange and Queen Mary II had agreed to this Bill of Rights in order to to attain the British throne in the wake of 1688’s “Glorious Revolution.” (It was glorious because King James II fled, rather than going to war.)
If you look at the British Bill of Rights, you’ll see many echoes in our own Bill of Rights. However, the British Bill of Rights limits only the monarchy. Parliament was not limited, which is why it felt free to impose all sorts of restrictions on British citizens in the American colonies.
When the Founding Fathers decided to draft a Bill of Rights, they did it correctly. Instead, of stating the items as a negative charter (as Obama wrongly put it), one that simply tells government what it can’t do, the Founders stated our Bill of Rights as a set of rights inherent and inviolable in every individual. No government – no monarchy, no legislature, no judiciary, no official whatever – should be able to impede those rights without a high showing of necessity.
Hold that thought in mind as we look at the three most common forms of government outside of America in the years since WWI.
First, we have socialism, which exists not only as a free-standing form of government (National Socialists), but also as an umbrella term for the evil twins of communism and fascism. Under communism, there is no private ownership. Everything – and everybody – belongs to the government. Examples, all of them tyrannical, are the Soviet Union, China (despite its faux market economy), North Korea, and Cuba.
Back in the 1930s, fascism put a softer face on communism, because it did not nationalize all private property, instead limiting itself to nationalizing a few major industries, especially fuel and transportation. However, there is no freedom in a fascist country. Mussolini provided the ultimate definition of fascism: “All within the state, nothing outside the state, nothing against the state.” (I also include today’s oligarchies in the list of fascist states, since they function much the same way.) In the World War II era, fascist states sought world domination and, in Germany’s case, included genocide and slavery in the service of an imaginary “master race.”
Today’s Europe is still fascist, although that would no doubt horrify Europeans were you to tell them that. Under both EU rule and the governments of the individual European states, there is private ownership, but major industries, especially transportation, are still nationalized. Moreover, the EU and the individual governments tightly control every aspect of people’s lives.
(When it comes to nationalized services, I have a real bee in my bonnet about these “soft” socialized states’ so-called “cradle to grave” care, something my parents’ European-based friends and family boasted about non-stop. These benefits had nothing to do with socialism. They were available in Europe because American taxpayers funded European defense costs during the Cold War. It wasn’t socialized medicine; it was American medicine. Now that the Cold War has ended and the money isn’t flowing as much, European socialized medicine is cratering.)
The difference between today’s European fascism and Hitler’s is that (a) it’s not called fascism today and (b) it’s not yet engaged in world domination and anti-Semitic genocide. However, given the speed with which Muslims are populating Europe, all in thrall to an Islamic doctrine that calls for world domination and anti-Semitic genocide, I think it won’t be long before Europe starts to repeat the 1930s.
The third type of government in the world today shows up in monarchies or theocracies, both of which thrive, and are often intertwined in the Middle East. Whether it’s Mullahs in Iran or Kings in Saudi Arabia, these are totalitarian governments that use religious doctrine to control every aspect of their citizens’ lives. (In Saudi Arabia, Prince Muhammed bin Salman is slowly trying to change this but, since he holds the tiger by the tail, it’s a very delicate and dangerous process.)
And then there’s America, which has a totally different system, one that, in its purest form, does everything it can both to limit government power and mob rule. There’s nothing else like it in the world.
The American political system as the Founders envisioned it has a limited federal government composed of three parts – executive, legislative, and judicial – each with unique spheres of power, each with some control over the other branches, and each jealous of its own power as a bulwark against any branch becoming too strong.
The Executive branch eschews pure democracy in favor of an Electoral College, forcing presidential candidates to campaign in every state (as Hillary learned to her cost). Without this, all presidents would be elected out of population centers. If the Democrats were able to do away with the Electoral College, something they’re trying to do through the grossly unconstitutional National Popular Vote Interstate Compact, all future American presidents would be elected by California, New York, Illinois, Michigan, New Jersey, Virginia, Massachusetts, and Washington.
Under the Legislative branch, we have two organs. The Senate was originally meant to have its members appointed by each state’s governors, ensuring (a) that the Senators would be responsive to their states and (b) that no senator would be enslaved to the passions of the mob. The 17th amendment changed that in 1912, probably not for the better.
The House controls the power of the purse and, before the 17th Amendment, was the only branch of government with direct democracy. House members must go back to the voters every two years to make their case. This is why impeachment begins in the House and why the current refusal to have a formal impeachment – which would force House members to make their positions known to their voters — is a direct betrayal of the voters.
Finally, the Judicial branch is the least democratic part of our government, for its members get selected by the President, get approved by the Senate, and then sit for life. In theory, it is impartial and rules only on whether matters are constitutional or unconstitutional, a power Chief Justice Marshall arrogated to the Court in the early 19th century.
In recent years, the federal judicial has boldly grabbed for itself both legislative power and executive power. The legislative power appears in its finding emanations of penumbras to justify federally sanctioned abortion, something never contemplated in the Constitution, and writing whole romance novels to allow gay marriage, another concept far afield from the Constitution. Both these issues belong in the states until such time as the Constitution is formally amended. As for executive power, every time some podunk judge in a Leftist district blocks a facially valid executive order from President Trump based upon the judge’s interpretation about the purity of Trump’s mind and soul . . . that’s an improper exercise of executive power.
Lastly, as I said before, our Founders gave us a Bill of Rights holding that certain rights are vested in the people and that the government cannot infringe them. This is extraordinary and differs from all other constitutions in the world, each of which is an endless book of bureaucratic does and don’ts.
So what kind of cool stuff flows from a limited government and a Bill of Rights? For starters, we have free market capitalism, which has been doing wonders since President Trump reformed taxes to leave more money with citizens and cut back on onerous regulations.
Strikingly, our Democrat Party presidential candidates have no room in their platforms for the free market. Bernie is a stone-cold communist. As an aside, given that he’s been alive for the greater part of the 20th century and all of the 21st (to date), he must know about the tens of millions dead and enslaved under communism (a knowledge sadly denied to uneducated millennials). That he still supports communism despite this knowledge means either that he’s the most stupid man ever to walk the earth or an evil tyrant wannabe. Neither reflects well on him or the voters who support him.
Warren also should know better, but I can attest to the fact that she’s stupid. Maybe evil too, but definitely stupid.
The most recent example of the disrespect the Left has for the free market comes from Kamala Harris, another candidate who is dumb as a rock, only dumber. Her candidacy is in free fall, so she’s promising to seize private property to prop it up. (Incidentally, I don’t think the government should fund private companies, but it’s important to note that, government aid notwithstanding, these are still companies with shareholders, employees, and profits.
Democrat presidential candidate Kamala Harris on if drug companies do not comply with her mandatory set drug prices: “I will snatch their patent so that we will take over”
Audience asks: “can we do that?”
“Yes, we can do that! Yes, we can do that! … I have the will to do it” pic.twitter.com/gpU8nnGt6h
— Ryan Saavedra (@RealSaavedra) November 23, 2019
Another benefit we have is social mobility of a type that never existed anywhere else in the world before America. I created a little photo montage, just off the top of my head, of people who have attained success in a way that would not have been possible without America:
In America, the fact that your grandparents were rich doesn’t mean you will be, and the fact that they were poor doesn’t mean that is your fate either. We make our own fate in America.
One of my favorite rights – and one that I came to late in life – is the Second Amendment right to bear arms. I think this picture says it all:
In Nazi Germany, the government seized arms as a prelude to seizing people. A government should always stand in awe of its people’s right to defend itself against tyranny.
People should also be able to defend themselves against evil-doers in their own community. Mexico, a rapidly failing state, with appalling gun violence and skyrocketing murders, has some of the toughest gun control laws in the world.
Of course, the Democrat Party desperately wants your guns. Beto, before dropping out, was open about this – and please note the audience roar of delight:
And then there’s the right to free speech. In England, the cradle of free speech, it’s already gone:
Free speech isn’t doing so well in Leftist America either. In New York, you can be find $250,000 for “misgendering” someone. And in California, when it comes to long-term care facilities, it’s the law that you can be fined for “misgendering” residents there too.
So, going back to my chart and the left/right divide, here’s what you need to know about the rest of the world: it’s not tyranny versus liberty; it’s two different types of tyrants fighting each other for total control over citizens. In America, we have half of that equation. The American left wants total control over American citizens:
“We’re not trying to push financial reform because we begrudge success that’s fairly earned. I do think at a certain point you’ve made enough money, but you know, part of the American way is, you can just keep on making it if you’re providing a good product.” – Barack Obama (net worth $40,000,000).
“You built a factory out there, good for you. But I want to be clear. You moved your goods to market on the roads that the rest of us paid for. You hired workers that the rest of us paid to educate. You were safe in your factory because of police forces and fire forces that the rest of us paid for.” — Elizabeth Warren (net worth $18,000,000).
“I will snatch their patent so that we will take over.” – Kamala Harris (net worth $4,000,000).
“Hell, yes, we’re going to take your AR-15.” Beto O’Rourke (net worth $10,000,000-$15,000,000).
On the opposite side of the political aisle in America, however, things are different. Conservatives don’t crave power. They crave a smaller government that leaves citizens alone to pursue their own lives, and that concerns itself solely with such core issues as national security, a stable legal system, functional transportation across the country, and managing (God forbid) major health crises.
“A government big enough to give you everything you want is a government big enough to take from you everything you have.” – Gerald Ford
“No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we’ll ever see on this earth!” – Ronald Reagan
With the above in mind – American conservatives are the sole political movement in the world dedicated to individual liberty – why are American conservatives called “right wing” or “fascist,” terms that are tied to totalitarian control, while American leftists are called “liberal,” implying a dedication to individual liberty? It’s time for a little history lesson to answer that question.
Back in the 1930s, Hitler and Stalin both presided over socialist governments. The former was fascist (private ownership but government control), while the latter was communist (no private ownership of the means of production). They were hideous, evil fraternal twins of socialism.
As is often the case with sibling rivalry, the two countries (and their leaders) hated each other. Nevertheless, in August 1939, a week before Hitler invaded Poland, sparking WWII, Nazi Germany and Soviet Russia entered in the Molotov-Ribbentrop Pact. Under that pact, they swore to be neutral vis-à-vis each other in times of war.
When Hitler invaded Poland, Soviet Russia did nothing. Taking their cue from Russia, in America, communists also took a very lukewarm stance against Hitler.
The Pact ended abruptly on June 22, 1941, when Hitler initiated Operation Barbarossa by invading the Soviet Union. When America entered the War, it found itself allied with Russia against the Nazis. On the American home front, communists instantly became staunch and fervent anti-Nazis.
However, when the war ended, with the Allies victorious, and socialist/fascist Germany in ruins, American communists had a problem: Fascist socialism stood exposed as one of the most evil ideologies of all time. How were they to protect communist socialism, which was also one of the most evil ideologies of all time?
The answer was to create a false syllogism that took hold in academia and media, and that now controls American thought:
Communists and Fascists were enemies.
Communists helped win World War II, with the war’s end providing unquestioned proof that Fascists were completely evil.
Communists and American Republicans are enemies.
Republicans are therefore akin to Fascists and, like fascists, must be completely evil.
And what’s the moral of this story?
Next time someone accuses you, or any other conservative, of being “fascist” or “right wing,” object vigorously. You are a person committed to individual liberty as opposed to being a slave to an all-powerful government (no matter how woke, intersectional, and politically correct that government claims to be).
The Dem’s have no statutory basis to demand Trump’s impeachment — and Trump has valid defenses to charges that his Ukraine dealings were an abuse of power.
This will be a two part post. Part I deals with the law relating to impeachment. Part II will deal with how the Senate should handle the trial of any Articles of Impeachment that come out of the House’s Star Chamber impeachment inquiry.
Let’s assume for argument’s sake that the Democrats running the House’s Star Chamber impeachment inquiry do in fact come up with Articles of Impeachment. What will they be? And will the President have any affirmative defenses?
Impeachment is about whatever the Congress says it is. There is no law that dictates impeachment. What the Constitution says is ‘high crimes and misdemeanors,’ and we define that.
If true, that would leave the President with no defense other than that the Democrats are wrong on the facts. Thankfully, Waters is wrong. To the contrary, the parameters for impeachment are defined at law and, because of that, the Democrats face insurmountable obstacles in impeaching Donald Trump for any and all acts related to his July 25 phone call with President Zelenksyy of Ukraine.
First, the House cannot validly impeach Trump for using the same powers other presidents traditionally wielded. Thus, if it has been custom and practice for presidents to negotiate using foreign aid as a tool, then Trump’s doing so is similarly beyond a valid impeachment charge.
Second, the House cannot validly impeach Trump for asking a foreign power to aid him in the legitimate exercise of his constitutional authority. Leaving aside whether Trump might personally benefit from the investigation, no American citizen (even, theoretically, Hillary Clinton) is above the law. The fact that an election looms does not change that fact. In other words, Democrats cannot avoid criminal culpability by insisting that investigations are illegal as an election draws near.
The Law of Impeachment
The Constitution, Article II, § 6, states that impeachment is a remedy that can be used to remove “civil officers” for “treason, bribery, or other high crimes and misdemeanors.” The Founders, writing a Constitution and not a hornbook, did not further define “high crimes and misdemeanors,” because they did not need to define it for it was a phrase well defined in British common law of the era.
Note: For those unfamiliar with the phrase, “common law” is nothing more than “judge made law,” as opposed to legislatively-created statutes. Past judicial decisions are looked to as for future decisions, a practice that, in 18th Century Britain, created most of the “law of the land” and defined many rights vested in British citizens. Much of our Constitutional provisions and our rights as Americans come out of British law as it existed in 1787, and the “common law” is still an element of law in Britain and the United States today.
When the Founders relied upon recognized “common law” principles related to impeachment, they looked to the 500 years of British judicial history before 1787 (See John Hatsell, Precedents and Proceedings In The House of Commons, Vol. IV (Impeachment) (1796)). It is that body of common law that defines “impeachment” as the term is used in the U.S. Constitution. In his seminal study of the Constitution, Commentaries on the Constitution, 3 Volumes, (1833), Supreme Court Justice Joseph Story examined impeachment in Vol. II (§§ 794-96). He opened his examination by acknowledging the role common law played in understanding the doctrine:
The only practical question is, what are to be deemed high crimes and misdemeanours? Now, neither the constitution, nor any statute of the United States has in any manner defined any crimes, except treason and bribery, to be high crimes and misdemeanours, and as such impeachable. In what manner, then, are they to be ascertained?
After dispensing with commission of crimes in office as an obvious grounds for impeachment, Story addressed “political” offenses as grounds for impeachment, as well as the limitation upon those offenses:
. . . [T]here are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute book. And, indeed, political offences are of so various and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it. . . . Resort, then, must be had either to parliamentary practice, and the common law, in order to ascertain, what are high crimes and misdemeanors; or the whole subject must be left to the arbitrary discretion of the senate, for the time being.
The latter is so incompatible with the genius of our institutions, that no lawyer or statesman would be inclined to countenance so absolute a despotism of opinion and practice, which might make that a crime at one time, or in one person, which would be deemed innocent at another time, or in another person. [Emphasis added] The only safe guide in such cases must be the common law, which is the guardian at once of private rights and public liberties.
(At the bottom of this post, you will find a handy-dandy poster reflecting this principle, which you can share with friends on social media.)
Story then lists a wide range of offenses for which officials were impeached in Britain since the 14th century. almost all involving neglect, oppression, or exercise of arbitrary power. Thus, contrary to what Maxine Waters claims, there are limitations on what constitute impeachable offenses. The official charged must have deviated from a historically established pattern and practice. Democrats cannot validly impeach the President for duly exercising the powers of his office, nor for reasonably acting to advance malfeasors’ punishment for breaking the laws of the land. Indeed, the President is bound by his office to enforce the laws of this nation.
More recently, Alan Dershowitz has also weighed in on what can legitimately constitute a charge of “high crimes and misdemeanors.” His view is more restrictive than Story’s, but the two agree that there are outer boundaries and that simple political offenses or, as Dershowitz frames it in the language of Madison, “maladministration,” do not constitute “high crimes and misdemeanors.
There is a debate among students of the constitution over the intended meaning of “high crimes and misdemeanors.” Some believe that these words encompass non-criminal behavior. Others, I among them, interpret these words more literally, requiring at the least criminal-like behavior, if not the actual violation of a criminal statute.
What is not debatable is that “maladministration” is an impermissible ground for impeachment. Why is that not debatable? Because it was already debated and explicitly rejected by the framers at the constitutional convention. James Madison, the father of our Constitution, opposed such open-ended criteria, lest they make the tenure of the president subject to the political will of Congress. Such criteria would turn our republic into a parliamentary democracy in which the leader — the prime minister — is subject to removal by a simple vote of no confidence by a majority of legislators. Instead, the framers demanded the more specific criminal-like criteria ultimately adopted by the convention and the states.
Of course, since 1789, it is U.S. History that defines impeachment in our country. Notably, in the three past instances in which the House has impeached a president, each has been for an actual crime committed by the President. The House impeached Andrew Johnson for violating a law of dubious constitutionality when he removed the Secretary of War. The Senate refused to convict. The House impeached Bill Clinton when he committed a crime in a civil case by perjuring himself when asked about his having had sex with a White House intern. The Senate refused to convict. Lastly, the House voted to investigate Richard Nixon, when he was an accessory after the fact to the criminal Watergate Hotel break-in. Nixon resigned.
The bottom line is that there are limitations on what grounds exist for impeaching a president, that a president cannot be impeached for engaging in a historically established pattern and practice, and that past presidential impeachments have revolved around criminal acts. So what have the Democrats got?
The possible bases for the Democrats’ Articles of Impeachment
I. Statutory bases for impeachment
When trying to predict the Democrats’ future actions, only three possible laws or legal conflicts come to mind — that Trump violated campaign finance laws, that he obstructed justice, and/or that he interfered with Congress’s power of the purse. As set forth below, however, none of those are applicable.
A. Campaign Finance Law
The Whistle Blower asserted that Trump’s July 25 phone call, in which he sought information about the 2016 Russian hoax and potential corruption by Joe and Hunter Biden, broke two laws relating to election campaigns. He cited 52 U.S.C. § 30121, which makes it illegal to accept any “contribution or donation of money or other thing of value” from a foreign national. But no court has ever interpreted the term “other thing of value” to include mere information. Even the highly partisan Mueller team, when explaining their decision not to prosecute Trump Jr.’s meeting at Trump Tower with Russians for the express purpose of obtaining facts detrimental to Hillary Clinton, stated at Vol. I, p. 187:
[N]o judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law. Such an interpretation could have implications beyond the foreign-source ban, see 52 U.S.C. § 30116(a) (imposing monetary limits on campaign contributions), and raise First Amendment questions. Those questions could be especially difficult where the information consisted simply of the recounting of historically accurate facts.
B. Obstruction of Justice
The House may go so far as to claim that Trump obstructed justice by refusing to cooperate with the House’s “impeachment inquiry” regarding the Ukraine matter. This will not fly.
The House doesn’t normally have judicial power for the Constitution, at Article III, explicitly provides that the “judicial power” resides in the Courts. The House can assume “judicial power” for a limited period of time only if and when the House of Representatives authorizes it. Trump maintains that the House, which has repeatedly voted not to open impeachment inquiries against him, is operating unlawfully and his administration has no duty to comply.
Importantly, even as Trump has refused to respond to subpoenas, the House has assiduously avoided testing its subpoenas in Court. Law professor Alan Dershowitz dealt with this issue in a recent article at Gatestone Institute, Impeachers Searching For New Crimes:
This brings us to President Trump’s directive with regard to the impeachment investigation. Under our constitutional system of separation of powers, Congress may not compel the Executive Branch to cooperate with an impeachment investigation absent court orders. Conflicts between the Legislative and Executive Branches are resolved by the Judicial Branch, not by the unilateral dictate of a handful of partisan legislators. It is neither a crime nor an impeachable offense for the president to demand that Congress seek court orders to enforce their demands. Claims of executive and other privileges should be resolved by the Judicial Branch, not by calls for impeachment.
C. The Withholding of Aid
Aid for Ukraine was part of Public Law 116-6, which Trump signed on February 15, 2019. Nothing in the law states specifically when the funds must be released (just as there was none in the 2016 law), with the only proviso being that the administration disburse before the fiscal year in question ends.* When it comes to Trump and aid to Ukraine, his administration transferred or otherwise made the 2019 funds available to Ukraine by September 10, 2019, well before the end of the fiscal year.
One can argue whether any president has inherent power to withhold aid permanently from a foreign country once Congress has authorized the money — something President George H.W. Bush did when he unilaterally cancelled aid appropriated for Yemen in 1991 — but that is not a question applicable to this situation. Moreover, as David Rivkin points out at WSJ and in his blog, “Congress attempted to curtail this power [i.e., the President’s power over foreign aid] with the Impoundment Control Act of 1974, but it authorizes the president to defer spending until the expiration of the fiscal year or until budgetary authority lapses, neither of which had occurred in the Ukraine case.” Thus, nothing President Trump did conflicted with Congress’s Constitutional power of the purse.
II. Non-statutory basis for impeachment
Leaving the law behind, there seems to be a wide range of possible grounds for Democrats to impeach Trump (GrabieNews has so far compiled a list of 95 bases), almost all of which are ultimately nothing more than “orange man bad and we disagree with his policies.” That said, the only one that would pass the laugh test would be a charge that the President abused his power by conditioning foreign aid to Ukraine on opening investigations relating to the Russia hoax and to Joe Biden, a 2020 candidate for President. This is the “quid pro quo” that will almost surely be in any Articles of Impeachment. Passing the laugh test, though, so that the media can relay it to a credulous public with a straight face, still does not make it a valid impeachment charge.
There are multiple problems with this quid pro quo argument, the first being that presidents have primary authority over foreign policy. Historically, presidents have regularly used foreign aid as leverage when negotiating with foreign countries. As David Rivkin explained:
More fundamentally, the Constitution gives the president plenary authority to conduct foreign affairs and diplomacy, including broad discretion over the timing and release of appropriated funds. Many presidents have refused to spend appropriated money for military or other purposes, on grounds that it was unnecessary, unwise or incompatible with their priorities.
Thomas Jefferson impounded funds appropriated for gunboat purchases, Dwight Eisenhower impounded funds for antiballistic-missile production, John F. Kennedy impounded money for the B-70 bomber, and Richard Nixon impounded billions for highways and urban programs. Congress attempted to curtail this power with the Impoundment Control Act of 1974, but it authorizes the president to defer spending until the expiration of the fiscal year or until budgetary authority lapses, neither of which had occurred in the Ukraine case.
Presidents often delay or refuse foreign aid as diplomatic leverage, even when Congress has authorized the funds. Disbursing foreign aid—and withholding it—has historically been one of the president’s most potent foreign-policy tools, and Congress cannot impair it. Lyndon B. Johnson used the promise of financial aid to strong-arm the Philippines, Thailand and South Korea to send troops to Vietnam. The General Accounting Office (now called the Government Accountability Office) concluded that this constituted “quid pro quo assistance.” In 2013, Barack Obama, in a phone conversation with Egyptian President Abdel Fattah Al Sisi, said he would slash hundreds of millions of dollars in military and economic assistance until Cairo cooperated with U.S. counterterrorism goals. The Obama administration also withheld millions in foreign aid and imposed visa restrictions on African countries, including Uganda and Nigeria, that failed to protect gay rights.
So, all things being equal, Congress has no right to curtail the Executive’s historic powers. Again, to reiterate what Story said, Congress may not “make that a crime at one time, or in one person, which would be deemed innocent at another time, or in another person.” Moreover, under the statute as written, Trump had authority over the timing of aid to the Ukraine at least through the end of the fiscal year.
That being the case, we are left with one remaining question: Did Trump use his legitimate power towards an end that was itself an abuse of power?
The Democrats desperately want to answer that question affirmatively. They insist that asking for any investigative assistance into crimes that may have been committed in the 2016 Russia Hoax and any crimes committed by Joe Biden are so beyond the pale as to justify impeachment and overturn an election. Their problem is that nothing that Trump did is an abuse of the power because the Constitution imposes upon the president the obligation to “take care that the laws be faithfully executed.” Indeed, it is ludicrous to suggest to the contrary, at least unless we are to amend the Constitution, explicitly or implicitly, to hold that progressives are above the law. We will be in a shooting civil war before that happens, whether in fact or in deed.
Consequently, as Rivkin further states at the WSJ and in his blog,
Investigating Americans or Ukrainians who might have violated domestic or foreign law—and seeking the assistance of other nations with such probes, pursuant to mutual legal-assistance treaties—cannot form a legitimate basis for impeachment of a president.
It is common for presidents to ask their foreign counterparts to assist Justice Department investigations. House Democrats will not acknowledge this because they seek to delegitimize the Barr/Durham probe as a Trump 2020 campaign initiative; but it is not.
As to the former, the mere fact that the DOJ is reviewing the origins of the worst political scandal in our nation’s history, namely the attempted coup that was the Russian Hoax (let alone that it is now a criminal investigation), was a valid justification for Trump’s request for assistance from the Ukraine. Moreover, President Trump had a predicate — i.e., a reasonable indication to believe that a crime may have been committed — to ask for assistance investigating whether, when Joe Biden demanded that the Ukrainian Chief Prosecutor be fired as a non-negotiable condition for receiving American aid, the Prosecutor was investigating Hunter Biden directly or indirectly through his Burisma ties. Cry as the progressives might, this is a legitimate issue, one raised at the time internally during the Obama administration, one that Joe Biden proudly boasted about and, nevertheless, one that the Obama administration never investigated.
I can think of no other grounds for impeachment, though I am sure Schiff & Co. will have some inventive surprises. In the next post, I will deal with how the trial in the Senate should proceed, given that the House has denied any due process rights, including the right to be represented at the hearings, to the President. There are more than ample ways — fully Constitutional — in which the Senate can vindicate the rights of the President, hold a fair trial, and make the House Democrats rue their sins in the process.
*The law in 2016, which has the identical fiscal year proviso, was the law that applied when Biden was the Vice President. Thus, his threat to withhold the money did not violate the law. It was his threat to withhold the money to protect his son’s dubious business practices that raises eyebrows.
What are the issues at the heart of the impeachment farce, and, as between the President and the progressives in the House, who has the superior legal argument?
Everything wrong with progressives today is playing out in the Star Chamber that Democrats are running as an “impeachment inquiry” in the House of Representatives. The Democrats’ have dispensed with due process, precedent, and Constitutional limitation to create a juggernaut designed not to reach a just conclusion, but to ensure a vote impeaching the sitting President and bringing this nation half way to overturning the 2016 election. Today’s progressives feel themselves above the law and believe the rest of us, including very much President Donald Trump, are unworthy of its protection. Nowhere is that more apparent at the moment then in this impeachment farce.
The issues are two-fold. First, may the House exercise the power to conduct an impeachment inquiry without formal authorization voted upon by the full House? Second, is Nancy Pelosi constitutionally able to manipulate the House rules of impeachment to deny any due process or procedural protection to President Trump and to the minority members of the House? In other words, is it true that Impeachment is nothing more than a particularly one-sided Grand Jury investigation?
A bit of background first. A formal decision to investigate for impeachment is not a meaningless decision or a mere label. At a minimum, once the House formally decides upon impeachment, the House accrues powers beyond that which it normally possesses. Thus, it is a substantive legal question whether a House impeachment inquiry requires a House vote or whether the Speaker of the House can unilaterally announce the beginning of an impeachment inquiry. I know of no precedent in American or British history supporting Nancy Pelosi’s contention that she can accrue these formal powers of impeachment by simple fiat. More on that below.
The House of Representatives normally only has “legislative” authority. Thus House members are limited to investigating and holding hearings on matters that relate directly to producing legislation. As with so much in our Constitution, this is not a thing of bright line clarity. But as is almost always the case, the fact that there’s no bright line does not mean that there is no line. Perhaps the clearest example of line drawing outside of the impeachment context comes from recent House efforts to use a subpoena to force the IRS to release Trump’s tax returns. When Trump refused to honor the subpoena, his attorneys pointed out that the House, while its members may have a political interest in reviewing Trump’s tax returns, have no legitimate legislative interest.
The House of Representatives accrues an additional power (i.e., “judicial power”) only when conducting an impeachment action. That gives the House the power to overcome many claims of executive privilege for materials; to subpoena materials and testimony on topics beyond the House’s inherent legislative interests; and to access materials to which it otherwise has no legal right, such as grand jury testimony.When the House authorizes an impeachment, the question is no longer whether the House has a legitimate legislative purpose for its subpoenas, but whether the matter is relevant to its exercise of a judicial power on the specific matter before it.
Nancy Pelosi, the House Speaker, claims the unilateral right to assume this judicial power by fiat. Can Nancy Pelosi and House Democrats constitutionally get away with doing so?
Here is the nub of the Vox argument, which contends that the House is free of any constraints on its ability to initiate and conduct an “impeachment” inquiry in whatever way it pleases, without deference to the Constitution’s language, to historic precedence, or to Due Process rights:
The Constitution makes it clear the House has the “sole” discretion to impeach and the Senate has the “sole” ability to hold a trial.
In other words, impeachment is purely a function of the legislative branch; not the executive, and not the judicial. A 1993 US Supreme Court case around the impeachment of federal Judge Walter Nixon upheld this finding, saying the courts would not weigh in on Congress’s impeachment procedures because it could violate the separation of powers.
“The important thing is constitutionally, the president is making claims not supported by history, or fact, or previous judicial decisions,” Linda Fowler, a congressional and legal expert at Dartmouth College, told Vox. “This [letter] actually says Congress has no prerogative whatsoever with respect to the presidency.”
If your knee jerk reaction is not to believe anything that appears in Vox, you will be right far more often than you are wrong. Let’s pull this apart.
The Constitution, Article I, Sec. II, Clause 5, states that “The House of Representatives . . . shall have the sole Power of Impeachment.” Note that the language on its face establishes unambiguously that the power belongs to the House of Representatives collectively, not to the Speaker of the House and not to a House Committee Chairman. This makes sense because, to the extent impeachment overturns the People’s will, it’s important for the next election cycle that the People’s representatives go on record with their stand on the issue.
True, the Constitution does not set forth the precise procedure the House must follow for impeachment. That said — and I know you will find this surprising — contrary to Vox’s assertions, history does not support initiating a presidential impeachment using anything other than a resolution voted upon by the full House.
In our nation’s history, only three sitting presidents have been subject to impeachment proceedings. The House initiated Andrew Johnson’s impeachment after voting on a Resolution to Impeach, and only after that vote was counted did the House order the Judiciary Committee to meet and draw up articles of impeachment which the House then voted to approve and send to the Senate. Over a century later, the process to impeach Richard Nixon began when the entire House voted on a resolution to send the matter for investigation to the Judiciary Committee. And Bill Clinton’s impeachment likewise began when the full House voted on a resolution to begin the impeachment process. While Vox claims that history does not support the position that only the full House can vote to begin the impeachment process, the reality of Presidential impeachments is exactly the opposite.
Because federal judges are more frequently subject to impeachment, when trying to understand the impeachment process for a sitting president (when safeguards should be at their highest), it’s helpful to look at judicial impeachment proceedings. The following is one of several procedural examples found in the Congressional Research Service Reports for 2011, and it focuses on a situation in which a judge is being impeached upon a third party complaint:
Rarely, a third party will attempt to jumpstart an impeachment investigation against a judge by sending evidence, petitions, memorials, or other communications to the chair of the House Judiciary Committee directly. In the past 100 years, however, this has only happened on five occasions. Only one of these attempts successfully initiated an impeachment investigation against a judge. In this lone successful attempt, the U.S. Attorney General transmitted a report to the House Judiciary Committee in August 1913 to determine whether the House should make an impeachment investigation into the conduct of Judge Emory Speer (Southern District of Georgia). Ten days after the receipt of the Attorney General’s report, Representative Henry Clayton of the House Judiciary Committee brought to the House floor a resolution authorizing the Judiciary Committee to investigate Judge Speer, as well as providing for the creation of a special subcommittee to assist in that investigation, to which the House agreed. [Emphasis added]
And one can go back much further in time than the above example. Indeed, the Founders adopted the impeachment process from Britain’s historical practice, which dates back to the 14th century. For instance, in the 19th century series Precedents of Proceedings in the House of Commons, Vol. IV (Relating to Conference, and Impeachment), the author traces all of the impeachment proceedings in the House of Commons over a period of centuries, none of which, to the extent it can be ascertained, support initiating proceedings by anything other than a full vote of the body.
Next is Vox’s contention that there is a “1993 case” holding that procedural questions are non-justiciable, or as Vox puts it, “courts would not weigh in on Congress’s impeachment procedures because it could violate the separation of powers.” The case is Walter Nixon v. U.S. When the case reached the Supreme Court, Walter Nixon was a federal court judge sitting in jail after having been found guilty of several offenses. The House had formally impeached Judge Nixon, something he did not contest, nor did the Supreme Court consider it. The question before the Supreme Court was whether the Senate, in its role as the trier of an impeachment, had adopted Constitutionally sufficient procedures by which to try Nixon. As Justice Rehnquist recounted in his opinion:
The Senate committee held four days of hearings, during which 10 witnesses, including Nixon, testified. S.Rep. No. 101-164, p. 4 (1989). Pursuant to Rule XI, the committee presented the full Senate with a complete transcript of the proceeding and a report stating the uncontested facts and summarizing the evidence on the contested facts. See id., at 3-4. Nixon and the House impeachment managers submitted extensive final briefs to the full Senate and delivered arguments from the Senate floor during the three hours set aside for oral argument in front of that body. Nixon himself gave a personal appeal, and several Senators posed questions directly to both parties. 135 Cong.Rec. S14493-14517 (Nov. 1, 1989). The Senate voted by more than the constitutionally required two-thirds majority to convict Nixon on the first two articles. Id., at S14635 (Nov. 3, 1989). The presiding officer then entered judgment removing Nixon from his office as United States District Judge.
Nixon thereafter commenced the present suit, arguing that Senate Rule XI violates the constitutional grant of authority to the Senate to “try” all impeachments because it prohibits the whole Senate from taking part in the evidentiary hearings. See Art. I, § 3, cl. 6. Nixon sought a declaratory judgment that his impeachment conviction was void and that his judicial salary and privileges should be reinstated.
In other words, Nixon contended that, once the formally voted-upon impeachment arrived in the Senate from the House, the Senate rules, which tried him before a committee rather than the full Senate, failed to meet constitutional requirements. In announcing his majority opinion, Rehnquist held that, once a legislative branch is re-constituted as a court for impeachment purposes, it has the right to determine procedural matters that the Constitution (i.e., the text) does not address:
In the case before us, there is no separate provision of the Constitution which could be defeated by allowing the Senate final authority to determine the meaning of the word “try” in the Impeachment Trial Clause. We agree with Nixon that courts possess power to review either legislative or executive action that transgresses identifiable textual limits. As we have made clear, “whether the action of either the Legislative or Executive Branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.” Baker v. Carr, supra, 369 U.S., at 211, 82 S.Ct., at 706; accord, Powell, supra, 395 U.S., at 521, 89 S.Ct., at 1963-1964. But we conclude, after exercising that delicate responsibility, that the word “try” in the Impeachment Clause does not provide an identifiable textual limit on the authority which is committed to the Senate. [Emphasis added]
Fortunately, the Constitution, at Art. I, Sec. 2, Cl. 5, does have text explicitly addressing whether certain members of the House (as opposed to the collective House via a vote) may initiate an impeachment proceeding. That language holds that “The House . . . shall have the sole power of impeachment.” The key question, then, is what the Constitution means with the phrase “The House.” Is it the entire body of the House, or can Nancy Pelosi contort the text to hold that “the House” merely means “the Speaker of the House” acting by fiat?
As noted above, to the extent impeachment overrides the voters’ will, there is a good argument to be made that the entire House must go on record via a vote in order that the People, during the next election cycle, can make their pleasure or displeasure known. This, of course, is what Pelosi is avoiding — she knows that she does not speak for a majority. Emotionally, her party members may be all in with impeachment, but as a practical matter, many know that the voters will kick them out of office if they take a formal stand.
But to return to the Vox argument, examining the text in Nixon v. U.S. establishes that, at the very least, that decision does not control — indeed, it never addresses — whether the House of Representatives may validly initiate an impeachment proceeding without a full, on-the-record vote of the House members. Contrary to Vox, a House Speaker announcing without a formal vote that “we’re doing an impeachment investigation,” is a question of first impression. Indeed, there is no court case on point because, before progressives decided to turn the House into a Star Chamber with Trump and his voters below the law, this is an issue so far out of the normal and fair process that no American — nor, for that matter, any British citizen in pre-Revolutionary times — has had to litigate it.
The second question bedeviling Pelosi’s unusual “impeachment inquiry” concerns the deeply unfair and one-sided means by which Pelosi is conducting it. Precedent has always been the case, in both England and America, that the accused may participate in his or her impeachment inquiry and that the minority gets procedural protections. Outside of the old, hated Star Chamber, there is no historical precedent for procedures that hold proceedings in secret while shutting out both the minority party and the accused — yet these are the procedures Nancy Pelosi has adopted for her “impeachment inquiry.” What Pelosi and Schiff (who is effectively putting the Senate’s seal of approval on these proceedings) are doing is a mockery of due process. So, are Pelosi’s bizarre procedures also immune from challenge?
That is a closer question. Under Rehnquist’s sweeping holding in Nixon — to the effect that the Senate, when acting in a judicial capacity can make its own rules — the House rules, one sided as they are, are indeed immune to challenges. However, that’s too facile a conclusion. Unlike the Star Chamber now operating in the House, in the Nixon case, as Rehnquist made clear, even though the proceedings were held before a committee, rather than the entire Senate, Nixon had full due process rights, including a public trial.
The unique facts in Nixon meant that, while several justices agreed with the Court’s ultimate decision, they were troubled with the reasoning and therefore wrote concurrences explaining those concerns. Justice Souter, presciently, wrote in his concurring opinion that a situation could arise in which a Congressional body’s conduct was so devoid of constitutional protections that the Supreme Court could overrule its chosen procedures:
One can, nevertheless, envision different and unusual circumstances that might justify a more searching review of impeachment proceedings. If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin-toss, or upon a summary determination that an officer of the United States was simply ” ‘a bad guy,’ ” ante, at ____ (WHITE, J., concurring in judgment), judicial interference might well be appropriate. In such circumstances, the Senate’s action might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence. “The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder.” Baker, supra, at 215, 82 S.Ct., at 709. (Emphasis added.)
Put more simply, the question is not, as Vox would have it, whether the House may adopt its own procedures. The question is whether the House has the right to adopt procedures that promote “disorder” — that is, rules that are so one sided as to wholly “call into question the integrity of its results.” That, it would seem, is going to be something that can and should be litigated to the Supreme Court. And it is beyond irony that the House Democrats, who have created this Constitutional crisis by jettisoning procedural precedents to create this farce of impeachment theater, will certainly argue vociferously that the Supreme Court must honor Nixon’s precedent to find the House’s precedent-breaking acts non-justiciable by the Court. Does anyone else see a problem with that?
Some, in defending the one-sided rules the House adopted in order to manipulate an impeachment of President Trump, liken the House action to a Grand Jury proceeding wherein jurors determine whether the state has mustered a case strong enough to convince a majority of jurors that the matter should proceed to trial. These proceedings are always held in secret and the accused has no right to appear and make a defense. That is a ludicrous comparison to impeachment, where the House, an elected, representative body, is voting upon the very legitimacy of the People’s electoral choice.
Paul Mirengoff, writing at Power Line, addresses the argument that impeachment in the House can or should be treated as a Grand Jury proceeding:
. ., . As far as I can tell, the Democratic House wants to deny President Trump anything resembling due process. It seems to view its role as akin to a grand jury with the Senate acting as a regular jury. A suspected criminal has very few rights before the grand jury. His opportunity for due process is afforded at the trial stage.
This model has very little to recommend it, either by way of precedent or common sense, in the impeachment context. The two modern impeachment proceedings — of Richard Nixon and Bill Clinton — weren’t handled this way. In both instances, the House adopted procedures that afforded the president due process.
The procedures approved by the Judiciary Committee for the Nixon and Clinton impeachments stated “[t]he President’s counsel may question any witness called before the Committee.” President Clinton’s attorney questioned Ken Starr when he appeared before the Judiciary Committee and President Nixon’s attorney questioned each of the nine witnesses that appeared before the Judiciary Committee.
The procedures approved by the Judiciary Committee for the Nixon and Clinton impeachments stated “[t]he President and his counsel shall be invited to attend all hearings, including any held in executive session.” President Clinton’s attorneys were allowed to call and question 14 expert witnesses before the Judiciary Committee.
Finally, it’s my understanding that in every prior presidential impeachment inquiry in American history, the full House voted to authorize the inquiry.
So far, it looks like Nancy Pelosi has rejected each of these precedents.
Common sense tells us that the grand jury model should not apply to the impeachment of a president. . . .
Nothing about this model makes sense in the impeachment context. Congressmen aren’t pulled in randomly off the street. They are the elected representatives of the American people. In an impeachment proceeding, all members of the House should be able to vote on the basis of the fullest, most fairly developed record.
This entails a proceeding in which the president receives due process — one in which his lawyers can attend all hearings, question all witnesses, and call witnesses of their own.
The president, moreover, is not an ordinary criminal defendant. He is the chief executive officer of the U.S. government and commander-in-chief of the U.S. armed forces. He typically, and in this case, was elected president by the American people. He should not be indicted as if he were a ham sandwich.
Impeachment isn’t a trifling matter, it’s a momentous one. It entails a trial that will bring the Senate to a halt. It will divide the nation and suck the oxygen out of all other political and policy discourse. The matter won’t be resolved by a plea bargain or one week trial in some faraway court room.
None of this is an argument against impeaching President Trump. But it does counsel strongly in favor of an impeachment proceeding that is both transparent and fair to the president — one in which he receives due process, including the right to have his lawyers participate fully.
And this is before even raising the argument that the substance of the House’s impeachment claim is not within the original meaning of “a high crime and misdemeanor,” a point made by Alan Dershowitz writing recently at the Wall Street Journal. According to Mr. Dershowitz:
As for the allegations against President Trump, obstruction of justice is plainly a high crime, but a president cannot commit it by exercising his constitutional authority to fire or pardon, regardless of his motive. (It would have been an impeachable offense in Mr. Clinton’s case, but the facts were disputed.) Neither is it a crime to conduct foreign policy for partisan or personal advantage—a common political sin with no limiting principle capable of being applied in a neutral manner.
The Framers, by rejecting open-ended criteria such as “maladministration” and substituting more specific and criminal-like criteria, sent a message to future generations: Impeachment should not be a political measure governed by “the comparative strength of parties.” It should be based on “the real demonstration of innocence or guilt” of “the accused.” It is left to Congress to be reasonable and conscientious in interpreting the words “treason, bribery or other high crimes and misdemeanors”—a tall order in our hyperpartisan age.
To finish, let me add a parting thought: What is happening in the House — this abuse of power to manipulate the process of impeachment and strip the accused of all protections to reach a wholly political end — is rule by tyranny of the majority. Another way to frame that is to frame it as our Founder’s did in the 18th century, “pure democracy,” something that – like socialism and communism – sounds good, but that has been shown unworkable and disastrous in the pages of history.
Our Founders knew the problems of this rule by tyranny of the majority and it is why they designed a Constitution to minimize its impacts everywhere they could foresee it as a problem. As John Adams wrote, democracy unchecked by rules to protect the minority produces naught but “fraud, violence and cruelty.” Alexander Hamilton wrote of it that its “very character” is “tyranny,” its very “figure deformity.” And as Madison wrote, “A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party.” Marvin Simkin, writing in the Los Angeles Times in 1992, gave those sentiments a more modern cast:Democracy is not freedom. Democracy is two wolves and a lamb voting on what to eat for lunch. Freedom comes from the recognition of certain rights which may not be taken, not even by a 99% vote.
More openly than ever before in our Nation’s history, progressives desire pure democracy — at least so long as they hold a numerical majority by fair means or foul — for this country. We are seeing it at the micro level in this impeachment proceeding, but we are seeing it at the macro level in everything else progressives do. Whenever they achieve a majority, then they want the rules changed to a pure democracy so they can exercise unfettered power. And with those rule changes come such things as Court packing, so that they will tie the hands of non-progressives and always rule over this country, even when out of the majority.
Our system of government is designed to respect the will of the majority while protecting the rights of the minority and the individual. It is why our government is designed as a Republic rather than a democracy. In the legal sense, “due process” exists to insure that the individual does not unfairly become the victim of the passions of someone cloaked in the power of government. In the political sense, “checks and balances” exist to insure that, while the majority will is respected, the rights of the minority party are protected. Are all of those to be tossed out now, sacrificed on the progressive altar of “orange man bad” and the belief that only progressives have an inherent and moral right to rule over the rest of us?
With Rep. Clyburn admitting that the proggies would prefer to govern without a Constitution, it’s time to take a look at their constitutional goals.
By Wolf Howling
Let’s face it. Progressives have gone a long way to making our Constitution a dead letter already. But as Rep. Clyburn makes clear in the video below, they are not yet wholly satisfied with the result. Work remains to be done.
What progressives want is nothing more than permanent power. That would be impossible to accomplish were they starting from scratch, but clearly they aren’t. A lot of the most important groundwork has already been laid over the past century. So with that in mind, let’s take a look at the state of our Constitution today, how it has already been altered, and how it would look once the proggies are done rewriting it.
Art 1 Sec. 1: Out — All legislative power is vested in Congress.In — Government by regulatory bureaucracy and Executive fiat (Presidential pen and phone).
This is one we don’t have to imagine. Progressives won this fight nearly a century ago with FDR’s court packing scheme, but it was not until Obama that we were treated to Congress becoming a secondary, and comparatively unimportant, source of legislation. And that is how progressives want to keep it. It’s much easier to make “fundamental changes” to society when bureaucrats write the laws without being subject to any of the checks and balances written into the Constitutional scheme.
As Justice Kagan stated recently in Gundy v. U.S., if Art 1, Sec. 1 of the Constitution actually means what it says, that “all legislative power” resides in Congress and cannot be substantively delegated, “then most of Government is unconstitutional.” She says it like its a bad thing. Of course, this is the same Supreme Court Justice who accused plaintiffs of “weaponizing the First Amendment” by relying on it to challenge forced union dues. This is a woman who should not be allowed to sit on a public park bench in the U.S., let alone the Supreme Court bench.
Two notes — One, Senate Republicans and Democrats alike are fine the way things are. That way, they don’t have to make any of the tough decisions. It is the only way to interpret the fact that the Republican controlled Senate killed the REINS Act. Worthless bastards, all of them. Two, the Supreme Court as it is now sitting (and if it does not get packed by the next Democrat administration) signaled in Gundy that it is probably going to force legislative authority back into Congress, whether Congress likes it or not. The proggies will die to a man (woman, or pick your favorite fantasy gender) on the hill before they allow that to happen.
Art. 1 Sec. 2: Out — Each State is entitled to two Senators.In — Let’s have two Houses of Representatives.
Letting small conservative states have an equal vote in the Senate with large states (the Connecticut Compromise) was necessary in 1787, but there was no progressive imperative then; now, it just sucks. Per The Atlantic just a few months ago, this equal representation of states in the Senate is a problem in need of a progressive solution.
Today the voting power of a citizen in Wyoming, the smallest state in terms of population, is about 67 times that of a citizen in the largest state of California, and the disparities among the states are only increasing. The situation is untenable.
Under the new proggie Constitution, there will be equal representation in both Houses . . . at least so long as that continues to yield a progressive majority.
Art I Sec. 8: Out — Enumerated Powers of Federal Government;In — Unlimited Power of Federal Government (for Progressives Only)
It’s been a long, long time since progressives started running wild with the “Commerce Clause” to justify federal legislation reaching every aspect of life in America. Its reach is practically unlimited today, though it did suffer a small set back a few years ago in the Obamacare cases concerning the mandate to purchase insurance. Not to worry though, for while even the power of the commerce clause can’t be stretched that far, our inventive Supreme Court can find other justifications. Our modern taxing authority, as Chief Justice John Roberts reinterpreted it, can substitute in a pinch to save the progressive bacon.
We are already a very long way from the Founder’s Constitution of limited federal powers, but under the Constitution as rewritten this will be a settled issue.
Of course, the flip side of this new doctrine is also worthy of mention. As courts repeatedly make clear in the Trump era, most recently here, even if a Republican president uses federal power in a wholly legal way, s/he can be stopped by a progressive in a black robe who doesn’t agree with the policy.
Art II Sec. 3: Out — The Electoral College.In — Pure Democracy
The Electoral College is, according to Chiquita Khrushchev, a “RACIST scam” standing athwart the progressive will to power. We could be enjoying nirvana under President Hildabeast today were it not for the horrible, racist Electoral College.
One man (woman, or pick your favorite fantasy gender), one vote sounds fair . . . unless you know a bit about political history and why our Founders would not even consider democracy as a viable option for this nation. As John Adams said:
Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.
Democracy invariably devolves into mob rule. Of course, that’s okay with the proggies, for any rule that gives them a benefit at the moment is, to hear them tell it, the only one with moral standing — whether it is actually in the interests of minorities or not.
And in that vein, a special mention here of Art 1 Sec. 2 clause 3’s Three Fifths Compromise. While it hasn’t been operative since about 1865, word is that AOC wants to revive it as part of the new proggie rewrite of the electoral college. She wants to have the votes of white people counted as only three fifths of a vote. As quoted at the Bee, AOC said “What if we count all white people as three-fifths of a person instead of a full person? Then, good votes would count more than bad, racist votes. Like, four or five times more or something, because 3/5ths is only like 10% of a real vote.”
Sometimes it is hard to figure out whether the Babylon Bee is satire or not. No wonder Snopes is so confused.
Art II Sec II: Out — Limited Presidential Powers;In — Presidential Powers Limitations Depending on Party Affiliation
Art. III Out — An Independent Judiciary Limited to Exercise of Judicial Power;In — A Progressive Judiciary with Statutory Legislative and Constitutional Amending Powers
For nearly a century, our judiciary has leaned progressive and has busily been rewriting our Constitution by assuming the powers of legislation (Art. 1 Sec. 1) and amending the Constitution itself (Art. V) (abortion, gay marriage, etc.). Now, with the Court in danger of becoming non-Progressive, well, that cannot possibly be allowed. It would be too blatant to rewrite the Constitution to require a progressive majority on the Supreme Court, but the practical way of accomplishing that is to pack the Court.
Actually, I can’t think of anything more likely to ignite a shooting civil war in this country, but . . . what’s a civil war when progressive dominance over the evil that is non-progressives is at stake.
The Bill of Rights
1st Amendment: Out — Religious Conscience Clause;In — Progressive Conscience Clause
The whole purpose of the progressive embrace of sexuality, and in particular, homosexuality and gender identity as moral imperatives, has been as a cudgel to attack the Judeo Christian religions and drive those religions out of the public square. Bookworm had the definitive look at this years ago at American Thinker.
1st Amendment: Out — Anti-Establishment Clause;In — Secular Religion Clause
The progressive war on the Judeo-Christian religions has been ongoing in this country for over a century. Socialism requires the replacement of a monotheistic God with government. It has been that way from the moment of socialism’s inception:
Sixty years after the French Revolution, Karl Marx, socialism’s greatest philosopher, famously wrote in his Critique of Hegel’s Philosophy of Right that religion is the “opium of the people” and that “[t]he abolition of religion as the illusory happiness of the people is required for their real happiness.” The British socialist party wrote in their 1911 manifesto that “it is a profound truth that Socialism is the natural enemy of religion.” Lenin, the father of the Soviet Union’s bloody experiment in Communism, wrote in 1905, “The modern class-conscious worker, reared by large-scale factory industry and enlightened by urban life, contemptuously casts aside religious prejudices, leaves heaven to the priests and bourgeois bigots, and tries to win a better life for himself here on earth.” Lenin further noted that “every socialist is, as a rule” an “atheist.” And Hitler himself was of like mind – “National Socialism and Christianity cannot co-exist together.”
1st Amendment: Out — Freedom of Speech;In — Freedom for Progressive Approved Speech Only
4th Amendment: Out: General Warrants are per se Unconstitutional;In — The police power of government can be used against political opposition
Whether it was using the IRS to target the Tea Party or using general warrants under the guise of a counter-intelligence operation against the Trump administration, this obscene abuse of power is okay as long as progressives use it against evil non-progressives. The only surprising thing about the Obama administration’s incredible abuse of power as to the investigation of Trump is that the proggies found nothing to actually charge as a substantive crime. Beria would be most unimpressed.
So as you can see, the rewrite need not be too much more extensive than already exists. Then we can finally have progressive heaven on earth. Somehow, I think it is more likely to resemble biblical hell.
In their desperate grab for power, the Left is abandoning the unity of America’s ideas in favor of tribalism, with all its attendant violence.
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One of the books I’ve recommended for some time now is Steven Pinker’s The Better Angels of Our Nature: Why Violence Has Declined. The title pretty much says it all: We live in a safer, less violent world than at any time in human history. It’s the kind of book people should read if the news is getting them down. While our media operates on the “if it bleeds it leads” principle, the real world operates on an “it’s never been better” principle even in the worst parts of the world.
Pinker wrote the book in 2012, before the world felt the full effect of Obama’s lead from behind policy in Syria, his attack on Libya, and his passivity regarding the Arab Spring, all of which turned large parts of the Middle East and North Africa into blood-soaked hellholes, with Angela Merkel then helping the violence to leak into Europe, which means that his book is based on a less violent time than the one in which we live. Nevertheless, his greater point is still a good one: Over the centuries . . . no, over the millennia, we humans have become less violent. We’ve become less violent in warfare, less violent in daily life, less violent in dealing with criminals, and less violent in entertainment.
Just think that a “mere” 2,000 years ago, the Romans were the apex of civilization, complete with their “Pax Romana” (or Roman Peace). For those who forgot to pay attention in Roman history class, the Pax Romana was a relatively peaceful period from about 27 B.C. to about 140 A.D. when there was minimal strife within Rome itself.
Of course “minimal strife” is a relative term. Rome expanded rapidly during this period, so there was actually constant warfare. Indeed, it was during this time — in 70 A.D. — that the Siege of Jerusalem took place and it proved to be one of the bloodiest wars in which the Romans engaged. Josephus, who wrote the history, believed that over 1.1 million non-combatants died in Jerusalem alone. He was probably exaggerating, but a good guess is still about 350,000 non-combatant deaths.
This was also the time during which Tacitus said of Rome’s conquering tactics, “They make a desert [or desolation] and call it peace.” In other words, it was not “peace” as we think of it.
This so-called peaceful time also saw crucifixion — which is one of the cruelest forms of execution — routinely used as an ordinary punishment, including against Jesus. Entertainment during the Pax Romana consisted of up to 80,000 Romans gathering together in the Colosseum to watch gladiators fight each other to the death or, for a change of pace, enjoying the spectacle of seeing wild animals tear apart prisoners who had been sentenced to death. During big celebrations, thousands of people would die before a delighted crowd. (The same was true 1,500 years later under Aztec rule.) And of course, there were the depraved Roman emperors, who delighted in torture, especially sexual torture.
Cruelty was the name of the game — yet, as I said, Rome was the apex of world culture and its idea set European standards for centuries to come.
(As an aside, I’m very tempted to buy Jerry Toner’s new book, Infamy: The Crimes of Ancient Rome, which takes a close, and apparently very colorful, look at just how awful the Roman empire was for those not lucky enough to live at the very topmost rungs — and given how frequently emperors were assassinated in Rome’s waning days, even the topmost rungs weren’t very nice places.)
Outside of Rome, life was just as awful. Large chunks of the world — most of Europe outside of Rome’s borders, the Americas, Asia, Africa — were tribal.
Of course, given the Left’s relentless attack on Western civilization, that’s not what our children learn. In schools today, our children are routinely taught that Native America tribes were peaceful tree huggers. They were not. Sure, there were some tribes that really were peaceful harvesters (the coastal Miwoks in Northern California, for example), but for most of them, life was a series of endless battles with other tribes over scare resources.
Beginning with one of the proto Leftists, Jean-Jacques Rousseau, who was in love with the idea of the “Noble Savage,” and continuing with early anthropologists such as Margaret Mead who, in the wake of WWI and WWII, were in love with the idea of anti-civilization, we’ve been instructed that Stone Age tribes, especially the indigenous people in the Americas, were peaceful compared to modern man. And this is the point at which I loop back to the start of my post, to Steven Pinker. He addresses the type of violence attendant upon Stone Age tribes, whether 10,000 years ago or 5,000 years ago or, in the Americas, even 200 years ago (and do keep in mind that Native American tribes were devoid of writing and books, devoid of math and science, and devoid of smelting and metallurgy — in other words, they were Stone Age).
Pinker begins by noting that it’s easy to think of Stone Age tribes as relatively peaceful. In our imagination, neighboring tribesman face off against each other across a river, trash talking and shooting a few arrows. A couple of men are wounded or die and then the two sides retreat, having proven their honor and honored the process. As one historian, William Eckhardt, wrote, “Bands of gathering-hunters, numbering about 25 to 50 people each, could hardly have made much of a war. There would not have been enough people to fight, few weapons with which to fight, little to fight about, and no surplus to pay for the fighting.”
Those are all assumptions, though — and they are all wrong. In fact, Stone Age tribes were exceptionally deadly, opting for unending stealth warfare with an appallingly high attrition rate:
A party of men will slink into an enemy village before dawn, fire arrows into the first men who emerge from their huts in the morning to pee, and then shooting the others as they rush out of their huts to see what the commotion is about. They may thrust their spears through walls, shoot arrows through doorways or chimneys, and set the huts on fire. They can kill a lot of drowsy people before the villagers organize themselves in defense, by which time the attackers have melted back into the forest.
Sometimes enough attackers show up to massacre every last member of the village, or to kill all the men and abduct the women.
In North America, William Bradford, who arrived on the Mayflower, described how the Native Americans dealt with their enemies:
Not being content only to kill and take away life, [they] delight to torment men in the most bloody manner that may be, flaying some alive with the shells of fishes, cutting off members and joints of others by piecemeal and broiling on the coals, eat collops of their flesh in their sight while they live.
Pinker provides other examples of indigenous people brutality, whether the Yanamamo’s in Venezuela in the 1930s, the aborigines in Australia in the early 19th century, or the Inuits in the early 20th century.
So how bloody was all this tribalism — that is, one tribe fighting for resources or vengeance against another tribe? Pinker has the answer to that: Very, very bloody. While modern societies have killed in greater numbers, simply because we have a larger population, the percentage likelihood of death in pre-modern tribal society was tremendously greater. Men of fighting age had a 25% chance of dying in some form of tribal warfare.
For society as a whole, Pinker tries to give a relative sense of the risk of violent death. In pre-2015 Europe, before Merkel’s migrants raised the violence rate, Western Europeans had a homicide rate of about 1 per 100,000 per year. America, at its most dangerous in the 1970s and 1980s, had an average homicide rate of about 10 per 100,000 per year, with Detroit leading at 45 per 100,000 per year. (In 2107, by the way, Baltimore had a murder rate of 56 per 100,000, which is why President Trump characterized it as a hellhole for those poor people trapped within its borders.)
Pinker notes that a society with a rate of 100 homicides per 100,000 would mean that “violence would start to affect you personally: assuming you have a hundred relatives, friends, and close acquaintances, then over the course of a decade one of them would probably be killed.”
With the above numbers in mind, what does Pinker was happening in non-state tribal societies, i.e., tribal societies? “The average annual rate of death in warfare for the nonstate societies is 524 per 100,000….” Oh, my!
Pinker devotes a lot of time and words to explaining how and why violence has dropped. One of the main reasons was the creation of the state, which did away with constant Hatfield-McCoy types of revenge killings.
Another reason is one that Pinker doesn’t address, but that Nicholas Wade did in A Troublesome Inheritance: Genes, Race and Human History, the book that got him fired from the New York Times. In his book, Wade explains that Western society has bred out some of its most violent DNA. Because we created civil societies with the rule of law, violent people (especially violent men) ended up either imprisoned, executed, or simply socially disfavored, which prevented them from passing on their DNA. Meanwhile, in societies that remained tribal, violence continued to be a survival advantage, meaning it was also a genetic advantage.
Even though tribalism was eventually constrained by the state in most parts of the world, it continued in the form of nation-state battles. Across Europe, tribal battles were the norm, although they were on a grander, national scale. England and France were at war with each other for hundreds of years. The Serbians fought the Croatians, the Russians fought the Poles, the Italians fought the Yugoslavians and, of course, the Germans fought everyone. . . . The list of intra-European battles to death is the history of Europe.
The same is true for Asia — China versus Japan versus the Koreans versus the Vietnamese. . . .
And Africa! Oh, my Lord! Don’t get me started on Africa. The reason the African slave trade thrived was because Africans were busy selling their tribal enemies to Muslim traders who then sent those prisoners of war out to the rest of the world as slaves.
All of this was tribalism, which can be summed up in the Bedouin expression, “I, against my brothers. I and my brothers against my cousins. I and my brothers and my cousins against the world.”
There is something, though, that can stand against tribalism and that is the binding ties of ideas. And once again, this takes me back to Steven Pinker.
One of the things Pinker does not discuss in his book about violence is the rise of the Judeo-Christian ethic as an antidote to violence. To the contrary — in his first chapter, Pinker devotes a lot of pages to describing the terrible bloodshed in the Bible. He’s right that the early chapters of the Jewish Bible describe an a society riven by violence, but that’s because the stories are a history of pre-modern Stone Age societies. When it comes to the Biblical world, we don’t have to try to divine the past from bones and fragments of pottery. We can just read about it.
Take as just one example the story of Dinah: The son of a neighboring tribal leader rapes her, but then offers to marry her. Her brothers agree, provided that all the men in the other tribe get circumcised. Then, when the men are disabled by the procedure, Dinah’s brothers slaughter everyone. That’s Stone Age tribalism with a vengeance.
But the Bible is really two books. One of the books is a history of pre-modern man, a violent, bloody, vengeful, often extremely ugly history. The other book is the history of ideas, primarily those ideas expressed in the Ten Commandments. These are transcendent ideas that are not tied to tribes. Indeed, the Bible makes clear over and over and over again that the role of the Jews is to bring these transcendent ideas to the rest of the world. They are ideas about justice and the mandate for human goodness. When applied to society, any society, that society will be a better, more stable, safer society in which to live. It will be an imperfect society, because humans are imperfect, but it will be raised above a Stone Age, lawless society.
It may take centuries for people to incorporate the ideas into their day-to-day lives, but eventually they’ll back away from the norm of Roman violence and figure out Enlightenment civility. In this regard, let me point out that the worst violence in modern history — the 20th century violence of Nazi Germany and the endless, aching Cold War played out in one country after another — was triggered by nations that affirmatively rejected the Judeo-Christian doctrine in favor of what Americans once called “Godless communism.” (And need I point out that the Nazis were socialists and fiercely hostile, not just to Judaism, but to traditional Christianity, preferring instead their own version of Germanic paganism?)
In America, as an outgrowth of the Enlightenment, we had another blinding burst of binding ideas. Our Constitution, especially the Bill of Rights, is not written for Germans or English or Irish or or blacks or whites or Asians or Hispanics. It was written as a set of abstract principles that could apply in theory — and have applied in fact — to all people, regardless of race, color, creed, sex, or country of national origin.
I’m not arguing that imperfect men sought to deny these abstract principles to various peoples over America’s history and more shame to them. I’m just saying that the principles are color blind and sex blind and creed blind. Like the Ten Commandments before them, they are ideas that any people can embrace and, if they embrace them properly, all people will benefit from them.
That’s been the amazing compact of America: If you come to our country and embrace our creed, nothing else about you should matter. If you go to Switzerland and, slowly and laboriously, finally gain Swiss citizenship, you’ll still be an American, albeit one with legal rights unique to Swiss citizens. However, if you’re a Swiss citizen and you gain American citizenship — voila! you’re an American. By embracing our ideas, your DNA, your lineage, your natal land, all are irrelevant.
It’s that binding force of American ideas, though, that allows the Left to engage in the ridiculous fiction that there’s some homogeneous white mass of people in America that are all alike in their privileges and hatreds. Tell that risible fiction to every white Britisher, Frenchman, Dutchman, Pole, Russian, American, and Belgian who died at the hands of a white German. Tell that to every white Serb who died at the hands of a white Croatian. What unites white people in America isn’t skin color; it’s Americanism — it’s embracing the truths that we hold self-evident.
The same holds true for people of other races in America: Leftists try to tell us that blacks are just as homogeneous as whites, but we have only to look at Africa’s history to know how ridiculous that is. As I noted above, African slavery was made possible by the hatreds of African tribalism. It wasn’t black racism that caused the Tutsis to slaughter the Hutus. It was tribalism pure and simple. But here, if blacks will embrace the American credo, tribalism is irrelevant.
Given the violence inherent in tribalism, the Leftist desire to divide Americans once again by race, color, creed, sex, etc., is utterly appalling and, indeed, quite evil. Leftists are inviting onto American shores the horror that most Americans gratefully abandoned when they waved farewell to blood-soaked Europe, Asia, Latin America, Africa (at least those Africans who, in recent years, have come voluntarily), and headed for America.
Whenever tribalism has set foot in America, whether whites against blacks, blacks against whites, established whites against Irish whites, blacks against Hispanics in the inner cities, or any other tribal combination, bloodshed has followed. It’s only when we’ve embraced the notion that we, the American people, are one nation, indivisible, that we have thrived and achieved a level of peace and success that has made America the envy of the world.
We must reject the Left’s tribalism in favor of American homogeneity, or we are doomed to relapse into a history all of us should be grateful we’ve left behind.
The speech demands that transgender activists and other Leftists make on us exceed the bounds of good manners and enter the realm of pure totalitarianism.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” — United States Constitution, First Amendment (which, through the 14th Amendment, applies to all governments in America, not just Congress).
“The purpose of Newspeak was not only to provide a medium of expression for the world-view and mental habits proper to the devotees of Ingsoc, but to make all other modes of thought impossible. Its vocabulary was so constructed as to give exact and often very subtle expression to every meaning that a Party member could properly wish to express, while excluding all other meaning and also the possibility of arriving at them by indirect methods. This was done partly by the invention of new words, but chiefly by eliminating undesirable words and stripping such words as remained of unorthodox meanings, and so far as possible of all secondary meaning whatever.” — George Orwell, 1984.
“Monsieur l’abbé, I detest what you write, but I would give my life to make it possible for you to continue to write.” — Voltaire, letter to M. le Riche, February 6, 1770 (summarized in 1906 by S.G. Tallentyre as “I disapprove of what you say, but I will defend to the death your right to say it”). [UPDATE: But see the Babylon Bee’s take on the modern version of Voltaire. It’s satire . . . or is it?]
At this blog, I have written at some length about the lack of science behind the whole transgender movement. My two main posts on the subject are here and here. You can find most of my other posts about the transgender movement here. My point, over and over, is that the claim that someone is “transgender” has no basis in science, but that we are nevertheless being forced to change our language and even our thinking to accommodate a minute percentage of Americans who have severe body dysmorphia.
Speaking in a PragerU video, Abigail Shrier spells out in clear terms the way in which Leftists, through transgender activism, are upending the First Amendment and trying to implement IngSoc in America (AmSoc?).
I would sum up the video by saying that, without losing compassion for transgender people, who I believe suffer either from mental illness or imbalanced hormones (which should by treated by balancing those hormones), we must resist this totalitarian movement. Sympathy should not equal surrender.
Even before I was aware of the video, I added my mite to the debate only this morning when I put up the following tweet (which still lives there because my following is too small for Twitter to care about my challenges to the Leftists’ AmSoc):
It’s also worth pointing out that, until a few years ago, only Queen Victoria (the probably apocryphal “We are not amused”) and those whom people castigated as a-holes referred to themselves in the plural. Moreover, even Queen Victoria and the a-holes, while referring to themselves as “we,” did not insist that others refer to them as “they” or “them.”
In other words, that demand on us pluralizes the a-hole quality of those who insist on being referred to in the plural. The problem for them, of course, is that they can’t acknowledge that the English language has a very specific pronoun for a person or animal that is neither male nor female: “It.”
American conservatives, Trump included, by definition cannot be Right Wing, because their primary goal is to lessen government control over the individual.
John Lott wrote an article challenging the media’s contention that the New Zealand mosque shooter is “right wing” and, naturally, tying that right-winged-ness to President Trump and his supporters. Lott based his challenge on the fact that the shooter’s manifesto, aside from some trolling about Trump and Candace Owens, aligns perfectly with the Left’s ideology and is utterly unrelated to Trump’s words or policies. It’s a good article and I recommend it.
I want to head in a slightly different direction which is to say, as I have said before, that there is no Right Wing in America, meaning that neither Trump nor his supporters can or should be smeared in that way. Moreover, there is almost no relationship between ostensible conservatives outside of America and those of us in America who identify as conservatives. We are entirely different breeds. I have a tendency to be wordy, but I’ll try to keep this as streamlined as possible.
I’ll start with the absolutely true statement that there are only two forms of government: Bigger Government and Smaller Government. No matter the label affixed to the governing entity, it’s either Bigger, which means fewer individual rights, or Smaller, which means more individual rights. This is true whether the government is a monarchy, an aristocracy, an oligarchy, a republic, a democracy, a theocracy, a junta, or whatever. It’s not the label that matters; it’s the amount of government control versus individual liberty. Of course, socialist governments, whether denominated as socialist, communist, or fascist, are all Big (indeed, Biggest) Governments by definition.
“Right Wing” and “Left Wing” are purely European concepts, dating to the French Parliament in the lead-up to the French Revolution. The people to the right of the Speaker were monarchists; the people to the Left were revolutionaries in what came to be understood as the socialist mold. Both sides demanded Biggest Government with total control over the individual.
The battle between Bigger Government political powers raged in Europe through the 19th century and continued in continental Europe right into the 1930s. During that decade, the two rising political movements were both socialist. One socialist movement, communism, demanded nationalizing all private property as party of its Biggest Government plan. The other socialist movement, fascism, agreed to leave private property in private hands, provided that the government called the shots. It was therefore still a Biggest Government ideology.*
Another quality inherent in Bigger and Biggest Government is the need for more and more territory. This is necessary for two reasons: First, governments are invariably poor economic managers. Immediately after nationalizing, there’s a flood of money, but as the free market dries up, the money stops flowing. Taking new territory brings in new wealth. Second, as Bigger and Biggest Governments inevitably become more totalitarian and despotic, they can avert people’s attention from their failings and cruelty by creating scapegoats and stirring up war fever.
The only thing that separated Hitler’s fascism from other socialist movements was that he infused it with his insane racial theories, whether about alleged Aryan superiority, the other races’ alleged inferiority and, most specifically, the Jewish race’s alleged sub-humanity, which required extermination. As was true for any Big Government, he hungered for world domination. He added to that the Muslim policy (and Hitler adored Islam) of enslaving those who couldn’t or wouldn’t get with the Nazi program and wiping out Jews entirely.
Hitler and the Soviet Union are gone, but Europe is in many ways the same as it was in the 1790s and the 1930s. In Europe, no movement advocates for “power to the people” (or, more accurately, “individual liberty to the people”). All we see across Europe are different political parties arguing that they are the better Biggest Government For The People. European political parties are, in other words, the direct descendants of the French Revolution.
Sadly, Britain and its former colonies (except for America, but more about that later), have become infected with Europeanism. They all went socialist after WWII. Once having done that, they lost the idea of individual liberty. Whether in England or New Zealand or Canada, there is no argument about Bigger Government versus Smaller Government. Instead, as with Europe, the only arguments are between political groups that promise that their Biggest Government will be better than the other party’s Biggest Government.
America is entirely different. The genesis for America’s revolution was England’s Glorious Revolution in 1688. That Revolution was followed in 1689 by a written Bill of Rights. It contains many of the components we see in our Bill of Rights. If you’re wondering why, then British people no longer have those inherent rights, that’s because Parliament, in an effort to quash America’s nascent Revolution, pulled a switcheroo, and said that, while the King owed his subjects those rights, Parliament did not. That’s why Brits can go to prison for criticizing Islam, but (so far) Americans cannot. That’s also why Brits are denied arms, even when fighting off armed intruders in their own homes, while Americans (so far) still can.
The American Revolution was pickled in the 1689 Bill of Rights. Even as the French Revolution was in full flower, with two totalitarian ideologies squaring off against each other in a welter of blood, America had taken those Rights, expanded them, and enshrined these marvelous inherent individual liberties in her Constitution and Bill of Rights. These rights truly are about “individual liberty to the people.” Every single one is geared towards Smaller Government. Each describes inviolable areas of individual rights into which the government cannot intrude.
Since its inception, then, America’s political parties have not replicated the European pattern. That is, it’s never been about this Biggest Government party fighting that Biggest Government party for total control. Instead, the fight in America has always been between those who value the Constitution and therefore want Smaller Government and those who resent the Constitution and therefore want Bigger Government.
What all this means is that America definitely has a Left Wing. American Lefties, just like those people who sat to the Speaker’s left in the 1789 French Parliament, want a non-aristocratic, non-monarchic government, but one that nevertheless holds all power while individuals hold none. Barack Obama perfectly described the mindset of this American Left Wing when he complained that the Constitution is “deeply flawed,” “imperfect,” and imbued with a “fundamental flaw.” He later clarified that the problem was that the Constitution is a “charter of negative liberties.”
To the true Leftist — to the Obamas of America — America’s Constitution fails because its primary purpose is to prevent Bigger Government. Robespierre and Marat would have approved of Obama’s viewpoint. Franklin, Jefferson, Adams, Madison, and Washington would not.
As I pointed out above, though, America does not have two parties battling for totaling government dominance. Thus, while it has a Left Wing, just as other nations do, America does not have a Right Wing: The political party and people opposing Leftists are not arguing for a Bigger Government, albeit a different Bigger Government than that which the Leftists (aka Progressives or Democrats) demand. Instead, unique in the world, those opposing America’s Leftists demand Smaller Government.
Seen in this light, Trump, for all his bombast, is the perfect exemplar of American Small Government constitutionalism. Since the day he entered office, he has worked to shrink government.
Trump wants to shrink the regulatory state, which is an unconstitutional fourth branch of government that embodies Bigger Government. He wants individuals to keep their money, not have America’s police power grab it for government coffers that politicians, bureaucrats, and cronies can abuse. He does not believe America must be the world’s policeman or, worse, the world’s nanny. He is therefore ending the Wilson Doctrine, something that arguably has no place in the 21st century. Trump is working to reinstate the Rule of Law, starting at America’s border, something that exists, not to serve government, but to serve individuals.
Most importantly (I think), Trump believes in the inviolability of the individual right to bear arms. He understands that individuals are safest when the government fears them, rather than when they fear the government. In other words, while Obama and his ilk are classically Left Wing, Trump, and those who support what he is doing, are the antithesis of Right Wing.
Additionally, to the extent Right Wing is used as doublespeak for racist Hitlerites who want to enslave the world, Trump and his followers cannot possibly fall into that category. Even if some of them, including, solely for the sake of argument, Trump himself, have bad motives (hating blacks, LGBTQs, Muslims, etc.), this hatred is meaningless if the political party has willingly abandoned the engines of power necessary to effectuate those bad motives.
One last thing: For those wondering why American Republicans and conservatives (who seek Smaller Government and therefore cannot be Right Wing) are routinely labeled “fascists,” thank Leftists in academia for that. After Hitler left Europe in ashes, socialists in America and Europe needed to do everything possible to disassociate Hitler and his fascists from socialism. They therefore began to teach that fascism was Right Wing and that conservatives/Republicans are Right Wing . . . and therefore they are Hitlerian fascists. As George Orwell knew, it’s amazing what you can do if you control language.
And yes, the above was long, but I did cover more than two centuries of history and most of the world’s continents.
*England was anomalous in the 1930s because it still had something of representative democracy with individual liberty. However, the growing Labour movement (i.e., the rising socialist, Bigger Government movement) frightened many in the old landed classes. They had never trusted democracy and still yearned for a Bigger Government aristocracy. Seeing that this was not coming back, they were willing to throw their weight in with fascism because it would allow them the illusion of private property not to mention the money a fascist government was willing to pay private owners, in the form of retained profits, for ceding actual power to the government.