Monday, June 29, 2020

John Roberts And The Men Who Made Him

This morning, the US Supreme Court issued its latest pro-abortion ruling, June Medical Services v. Russo, in which it struck down a Louisiana law meant to make getting an abortion in that state a lot harder. The big news now is that Chief Justice John Roberts, who voted against striking down a similar Texan law in 2016, has switched sides – and without his vote, the liberals wouldn’t have won this time around.

Honestly, this whole month has been a steady stream of let-downs for conservatives. Last week, Roberts voted with the liberals to preserve DACA yet again, and both Roberts and Gorsuch helped rewrite the Civil Rights Act of 1964 to include LGBT+ in the list of people that an employer can be sued for discriminating against.

Now, John Roberts said that his abortion decision was all about upholding precedent. Perhaps he’s telling the truth, though as Roberts had previously helped reverse at least 17 precedents since he joined the Court in 2005, I think that something bigger is going on here.

Pessimistic conservatives – basically, the only kind worth listening to these days – predicted that this would happen. Back in 2005, during his confirmation hearings, John Roberts was questioned by the Senate about anti-abortion legal briefs he had written while working in the Reagan and Bush Sr. administrations. Unlike some judicial candidates, who simply refuse to talk about issues on which they might rule, Roberts distanced himself from the opinions he had once expressed. “Senator, I was a staff lawyer,” he said, “I didn't have a position.” Roberts also described Roe v. Wade as a “super-precedent” entitled to even more respect than ordinary precedents.

The Republican party pretty-much ignored this, and every Republican in the Senate voted to confirmed Roberts, as did half of the Democrats. This would be the last time that a Justice got so much bipartisan support.

Roberts was a consistent conservative vote for most of his career – or in other words, he voted with the conservatives when it didn’t matter all that much because Anthony Kennedy was still the swing vote. Now, with Kennedy gone and America’s conservatives deludedly thinking that their country might actually have a constitution again, Roberts has made his true colors known. Indeed, he has voted with the liberal bloc in most of this term’s high-profile cases,  culminating an epic run to the left that began when he saved Obamacare back in 2012.

The main exceptions to the Chief Justice’s newfound liberalism are his continued preference for siding with corporations in class-action lawsuits, and his continued opposition to environmental regulations. Keep those in mind – they say something important about Roberts and the forces that brought him to power.

Now, I can bet that the typical Republican politician will blame the outcome of the abortion case and the immigration case on bad luck, and tell his or her constituents that if they just keep voting Republican, then maybe they’ll have better luck next time. But the evidence tells a different story.

Republican appointees have been a majority on the Supreme Court since 1969, so the fact that the Court has created a right to abortion, defended it for nearly 50 years, and also advanced every other socially liberal cause during that time has a simple explanation: these things happened because influential people in the Republican Party wanted them to happen. And that is the uncomfortable truth that today's Republicans don't want to admit.

Our country isn’t moving the way it’s moving because the Republicans, as a whole, are losing some sort of struggle to the Democrats. Rather, America has the policies that it has – both foreign and domestic – because those are the policies that have been advanced by moderate Republicans. Chief Justice Roberts is a moderate Republican, he was put on the Supreme Court by moderate Republicans, and he is now using his practically-unlimited power to advance the agenda of moderate Republicans.

Every Republican president in the post-Roe v. Wade era (possibly excluding Trump, whose nominees have yet to be tested) has appointed at least one Supreme Court justice who upheld that decision. Ronald Reagan is unique in having appointed two. These presidents all knew that the judges they had picked had either previously spoken in favor of legal abortion (i.e. Sandra Day O’Connor, who tried to legalize it while a member of the Arizona State Senate) or else were just go-with-the-flow type lawyers who had no strong opinions about whether or not the constitution still ought to mean what it meant when it was written (i.e. David Souter).

The plain fact is that, as often as not, these Republican presidents chose unprincipled moderates over constitutionalists like Edith Jones, the woman whom some of Bush Sr.’s advisors tried to get him to pick instead of Souter. And they did this because they knew that Republican senators were fine with taking the easy way out and confirming a jurist about whom they knew nothing, so long as they could spin it as a win to their gullible voters.

Democrats, obviously, have different standards – can you imagine a Democratic president appointing a judge who made a mystery of whether or not he or she supported abortion rights? I can’t.

Now, there are things which moderate Republicans won’t leave to chance when choosing their judicial nominees. Siding with corporations in class action lawsuits is a mainstay of moderate Republican jurisprudence, as is siding with employers in labor disputes, and either striking down environmental rules or interpreting them as narrowly as possible. John Roberts has consistently lived up to expectations in these areas.

I also think it likely that the Republican donor class isn’t much bothered by Roberts’ decisions in favor of illegal aliens – after all, these people like them their cheap labor.

Perhaps Donald Trump will win a second term, another Supreme Court seat or two will be vacated when Ginsburg and Breyer shuffle off their mortal coils, and Trump will get another shot at building a conservative majority.

His best choice in that scenario is, I think, to appoint Amy Coney Barrett. Honestly, Trump should have picked Barret the last time around; having three women on the liberal side of the Court and none on the conservative side is a huge weakness, for the simple reason that wishy-washy justices like Roberts are less likely to vote conservative if it means being on the wrong side of a battle-of-the-sexes. Am I going to hold my breath waiting for Trump to do this? No – Donald Trump is mostly bluster, and Republicans in Congress have shown no intention of holding him to account on judicial appointments or any other issue.

But it may turn out that Trump doesn’t appoint the next justice at all. Ginsberg and Breyer might outlast him, and it's also worth noting that Joe Biden could win in November (I know that I said a few months ago that this was impossible, but Trump is handling this year’s black swan events so badly he might get abandoned by his voters anyway). If either of these things happen, then Ginsberg and Breyer will be replaced by likeminded liberals, and John Roberts will be free to keep advancing the left’s agenda for as long as he draws breath.

The Democratic leadership will not be bothered by Roberts’ jurisprudence, and as many liberals who do complain about it – that is, those who believe that their party is telling the truth when it says it is against corporate power and against mass incarceration and in favor of protecting the environment – will have to learn the hard way that the Republican party isn’t the only party that has spent the last few decades luring idealistic voters with empty promises.  

Saturday, June 20, 2020

The Heart of the Magna Carta

The post I wrote last November, on that month’s military coup in Bolivia, seems to have raised uncomfortable questions for my audience. (In case you don’t recall, that’s the one in which I defended the generals’ ousting of President Evo Morales after the President persuaded Bolivia’s Supreme Court to rule that the country’s term limits were a violation of his human rights, and that he was thus entitled to run for as many terms as he wanted.)

Morales had previously tried to remove the term limit in a referendum, and failed.

The coup against Morales was supported by the United States, but because it’s a principle of neoliberal orthodoxy that military coups are always bad, a lot of American pundits were spinning in circles in their attempts to characterize what had happened as anything other than a coup.

My own position was somewhat blunter – it was totally a coup, but it was also justified, because in a free and democratic country, the Army owes no allegiance to a President who doesn’t recognize legal limits on his power. That the Court sided with Morales is irrelevant, because, as I put it, “a constitution that means whatever the people in power want it to mean is the functional equivalent of no constitution at all.”

This post, according to one of my readers, “opens up a big question: laws have to be interpreted by people. What if those people make perverse interpretations? How long do you go along with it?  I think this is a very tricky question ... and would require some extended discussion to do it justice.  At the one end of a logical interpretation of what you're saying lies the 'Sovereign Citizen' insanity.

As it turns out, I think that now is a good time for that ‘extended discussion,’ on account of this week marking the 805th anniversary of the granting of the Magna Carta. And what is the common thread that runs through the Magna Carta, the Bolivian coup, and innumerable other victories for the cause of liberty throughout the ages? They are united by a realization, among the men involved, that constitutional limits on government are only meaningful if they are backed up by a threat of insurrection.

King John’s barons and Evo Morales’ generals both had to deal with a similar problem: how were they to handle a ruler who considered himself to be above the law? 

Unlike the Bolivian crisis, the Barons’ War of 1215, which came at the end of King John’s very, very bad reign, was not a struggle for democracy in the modern sense of the word. It was fought in response to a specific set of very medieval grievances, and to understand them, we need to take a detour into medieval history.

During much of the middle ages, the English Kings held extensive lands on both sides of the English channel, something which started with William the Conqueror in 1066. In England, these men were sovereign, but they ruled their French territories as vassals of the French King. The French Kings never liked this arrangement, because their various vassals, who in theory were supposed to be loyal to the royal court in Paris, were in reality constantly waging war against both their King and each other. Thus, having one particular vassal who also controlled the whole resources of England made the situation a lot worse.

John became King of England after his elder brother, Richard the Lionheart, died childless in 1199. But there was a problem: John’s twelve-year-old nephew Arthur, whose deceased father Geoffrey was younger than Richard but older than John, had a better claim to the throne. The English noblemen, fearing the consequences of having a child ruling over them, crowned John as King, but the French King, Philip Augustus, saw an opportunity – if he could make Arthur ruler of the French lands while leaving John on the throne of England, the problem of having a third of France owned by the King of England would go away.

So Philip and John had a war over the matter, in which John fought so badly that he earned the epithet “John Softsword.” He eventually lost almost all of the land, but in a stroke of good luck he captured Arthur, by then 15 years old, who was taken to an English-held castle and never seen again. Sources disagree as to how the boy died: some say he was beaten to death by his uncle in a drunken rage, others say that he was castrated and died of the wound. One fisherman claimed to have seen his body floating down the river Seine.

But even with Arthur gone, John had still been dispossessed of his French territories. He spent the rest of his life trying to get them back, which meant raising huge amounts of money from the tired kingdom of England in order to pay his mercenaries and bribe other nations into taking his side. It didn’t work – the mercenary armies were all defeated – but in the meantime, it drove King John to new levels of ingenuity in coming up with ways to extract money from his wealthier subjects.

Under John, England was taxed even more heavily than it had been taxed to pay for Richard’s crusades – the Robin Hood folktales date from this time for a reason – but taxes were only the beginning.

The prices for writs in the Common Law courts (back then, justice wasn’t free) were raised so high as to virtually guarantee that the richest party would win. King John also decreed that if one of his subjects owed money to a Jew, and the Jew died, then the loan would thenceforth be repaid, not to the Jew’s heirs, but to the King.

In those days, the King had the right to appoint guardians for young noblemen who inherited estates before they came of age; King John abused this power by auctioning off guardianships to the highest bidders, who would use their time in control to loot the estates for personal gain.

By longstanding feudal custom, the King could also demand payment from high-ranking widows for the right not to remarry; before John’s reign, the usual amount was £100, but John often demanded £700, and if the widow couldn’t afford it, he would marry her off to whoever offered him the largest bribe.

I could go on for a long time – feudal rights and duties do not lend themselves to easy summary. But the point is that by the spring of 1215, England’s leading barons had had enough. They revolted against the King and, aided by the townsfolk of London, they took the capital. Without his treasury, John had no hope of hiring mercenaries to turn the tide of war in his favor.

John's only choice, then, was negotiation. The negotiations were carried out on a meadow called Runnymede, twenty miles upriver from London. Steven Langton, the Archbishop of Canterbury, acted as mediator. The barons drew up their demands, and the King granted them in the form of a royal charter.

The Magna Carta had 63 clauses, most of them dedicated to spelling out very precisely the plethora of feudal grievances to which John had to grant redress. It was written in Latin with the King referring to himself in the plural (the royal ‘we’ goes back a long time). The only parts of the Magna Carta that are frequently quoted today are clauses 38, 39 and 40, which read:

38. No bailiff is in future to put anyone to law by his accusation alone, without trustworthy witnesses being brought forward.

39. No free man is to be arrested, or imprisoned, or disseized, or outlawed, or exiled, or in any other way ruined, nor will we go or send against him, except by the legal judgment of his peers or by the law of the land.

40. To no one will we sell, to no one will we deny or delay, right or justice.

This passage, in which “disseized” is an old-fashioned way of saying “deprived of property,” became the basis for the principle in constitutional law that the government can’t deprive you of life, liberty, or property without summoning witnesses and proving its case in court.

As important as this may seem to us, it wasn’t the most radical provision in the Magna Carta. No, that would be the Security Clause, in which a council of 25 leading barons were appointed as enforcers of the Magna Carta, with the King saying that if he didn’t uphold the liberties he had granted, then ‘those twenty-five barons, with the community of the whole realm, shall distrain and distress us in all ways possible, by taking castles, lands, and possessions and in any other ways they can, until it has been put right in accordance with their judgment, saving our person and the persons of our queen and children. And once redress has been made let them obey us as they did before.’

Needless to say, the idea of a law which explicitly authorizes a group of influential men to start a civil war if their rights aren’t respected is foreign to modern sensibilities. But as it turned out, the Security Clause was an absolute necessity. No sooner was the charter granted than King John went looking for ways out of it; one came just a few months later, when Pope Innocent III heard John’s complaint, declared the charter annulled, and forbade the King, on pain of excommunication, from observing it.

The barons responded by renewing the war. They were still at war a year later when King John died of dysentery, leaving the throne to his nine-year-old son, Henry III. The new King’s regent, William Marshall, wanted an end to the fighting, so he reissued the Magna Carta, the barons ceased their rebellion, and the liberties which they had fought for were upheld for many years.

 And while later generations of revolutionaries, both in Europe and America, seldom resorted to anything as blunt as the Security Clause, they all shared the basic belief on which it was premised, namely, that the only rights that meant anything were the rights that they were willing to wage an insurrection in order to defend.

So how is that related to what happened last year in Bolivia? And how is it related to the ‘big question’ that my reader posed at the beginning of this post?

Laws have to be interpreted by people,” he said. “What if those people make perverse interpretations? How long do you go along with it?”

The answer comes from acknowledging that the power to interpret is the power to destroy.

Obviously, not every judicial opinion that leaves one of the parties thinking that justice was denied represents an attack on a nation’s constitutional structure. But occasionally, such an opinion does indeed come along.

When Evo Morales convinced the Bolivian Supreme Court that Bolivia’s presidential term limit violated the American Convention on Human Rights, he wasn’t acting out of a sincere belief that the two dozen or so signatories to that convention intended to abolish term limits throughout North and South America. Rather, Morales was doing the same thing that King John was doing when he asked the Pope to annul the Magna Carta – that is, he was appealing to an authority which he thought had the power to release him from all obligation to follow the laws.

Every political system in the world suffers crises of this sort from time to time, crises in which someone in the government – be it the President, the King, the Supreme Court, or whoever – decides that they either aren’t bound by any laws, or else that the laws have no meanings other than the meanings which they choose to give them (and there is no functional difference between these two situations). When this happens, the people only have two options: they can have a revolution, or they can decide that living under a dictatorship isn’t that big of a deal, after all.

Having an independent judiciary is not a solution. In Bolivia it was the judiciary itself which was destroying (or, if you prefer, interpreting) the constitution. In King John's England, there was no independent judiciary, because judges were simply the King’s servants, with the King himself presiding over the final court of appeal. The idea that the royal government could be made subject to the law by splitting it in half, and then making one half subject to the other half, would have seemed very silly to anyone alive at the time.

And what of my reader’s claim that at the one end of a logical interpretation of what you're saying lies the 'Sovereign Citizen' insanity?

Well, I suppose that if you put ‘revolutions are never justified’ on one end of a spectrum, then you could also put ‘nobody owes obedience to any laws at all’ on the other end. I suppose that is what the “sovereign citizens” believe. This will not be a surprise to anybody who is familiar with the tried-and-true rule that the opposite of one bad idea is usually another bad idea.

Some people profess to believe that they are “sovereign citizens.” But in real life, almost nobody acts on this belief, because insurrections and rebellions are costly and dangerous, and unless they are founded on a widespread consensus that the government is abusing its power and needs to be reigned in, they will always fail.

The need for balance is specifically addressed in the Declaration of Independence:

‘Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.’

And that principle, known to the American founders in 1776, to the English barons in 1215, and to the Bolivian generals today, is the only grounds upon which any form of government, other than a dictatorship, can be preserved.  

Saturday, June 6, 2020

Uncomfortable Lessons from the George Floyd Riots

As city block after city block burns, the George Floyd Riots are forcing Americans to confront some uncomfortable facts. One of these is that, from the Left’s point of view, riots are an effective way to get political change. Another is that the people who claim to stand for law and order are all pushovers.
A lot of people on the right have spent the last week or two talking about how infuriating or appalling it is to hear the media call the George Floyd Riots a “protest.” I am not one of those people, for the simple reason that I have long since ceased to get emotionally wound up in the behavior of the American news media.

And yet, while I am not infuriated or appalled, I must admit I am at least surprised by what’s going on. I honestly didn’t expect the glorification of random violence to so quickly become the norm among the chattering classes. After all, if I recall right, nobody ever insisted on calling the Rodney King Riots anything but a riot. This time, though, it’s different.

Now I am not going to go so far as saying that this marks the beginning of the end for America, or that it’s some sort of tipping point. Right now, we are still quite a ways away from the level of violence that our country trudged its way through in the 1960s. Even so, there are some uncomfortable lessons here, especially for those of a conservative temperament, who value public order and continuity.

1. This Stuff Works

It’s a pretty common thing to look at any outbreak of political violence (or even just plain old civil disobedience), say that the problem that sparked it is real (in this case, that George Floyd’s death was a clear case of murder), but that breaking the law is always the wrong way to deal with it, and then go back to one’s ordinary, comfortable life in the confidence that eventually, everyone else will too.

At the same time, hardly anyone at all would be talking about the death of George Floyd if the riots hadn’t happened. It’s ugly, but it’s the way the world works. The price of being a polite, nondisruptive protester is that almost everybody ignores you.

A riot is different. Just consider the biggest long-term consequence of the Rodney King Riots. Ever since 1992, it has been common all across America for police departments, when training new officers, to show them the video of the LAPD beating Rodney King and say “don’t do that.”

Are there more ethical ways of getting attention than burning and looting random, private businesses? You bet. This is not like the Boston Tea Party, in which Sam Adams’ boys made a point of destroying no other property except the tea whose importation they were protesting, and they carefully searched departing tea partiers to make sure they hadn’t yielded to the temptation to stuff any tea in their pockets.

No doubt a more ethical way for Black Lives Matter to protest would be to erect barricades on prominent streets, defend them with clubs and stones, and burn hated public figures in effigy, while avoiding even the appearance of random mayhem or self-aggrandizement.

Would conservatives still wail about the rule of law? Of course they would. But if the goal is to put a halt to business as usual – which of course it is – then a ‘Day of the Barricades’ is a tried-and-true tradition with a long history of effectiveness in revolutionary politics.

2. Nobody Has The Courage To Fight Back

At this point, the rioters are winning. What they’re doing is an effective (though clearly immoral) way of making George Floyd a household name and getting the people who killed him arrested and charged.

Obviously, not everybody involved in this madness shares that goal. One side is concerned with getting everyone in America to talk about police brutality (and maybe also getting a new TV from Target while they’re at it). The other side is supposed to be concerned with defending law and order, and protecting both public and private property from senseless destruction.

And the people on the law and order side are nearly all pushovers.

Why did the Minneapolis Police Department evacuate their police station and allow the rioters to burn it to the ground? There’s no need to guess: the department’s spokesman said it was “in the interest of the safety of our personnel.” Why did President Trump hide in the bunker of the White House when the rioters showed up on his own lawn? Probably for the same reason.

And even in the midst of the burning and looting, the media still managed to hound Drew Brees, quarterback for the New Orleans Saints, into apologizing for his ‘racist’ former belief that NFL players shouldn’t kneel during the national anthem.

This is the behavior of people who have no courage. It’s also the behavior of people in the comfortable classes who feel, deep down, that they have no skin in the game.

Drew Brees used to claim – as many conservatives claim – an emotional attachment to the American flag that required him to speak up whenever it was disrespected. As it turned out, that emotional attachment wasn’t as strong as his emotional aversion to being called a racist.

Donald Trump, despite all his bluster, would rather hide in a bunker during the peak of the rioting than actually order his forces to quell the riot. If you’re the president, you can hide for a while, and then walk right back out into the same life of wealth, power, and status that you had before. If you’re just an ordinary businessman whose bookstore or restaurant got razed, then you don’t have that option.

The Minneapolis police let their station burn because they didn’t want the media to whine in the event that defending it meant shooting somebody. They know that eventually the storm will blow over, and they can go back to work in a new police station, paid for by somebody else's money.

This won’t go on forever, but I’m pretty sure it will go on for at least another decade or two, because…

3. America’s Culiacán Moment is Coming, but it’s Still a Long Way Off

Back in January I wrote about how the future of the United States will likely look like the present situation in Mexico, in which the central government, too weak to keep order, slowly surrenders control of large parts of the country to heavily armed gangs. In Mexico’s case, an important nobody-can-ignore-this moment came last October, in the Battle of Culiacán. That’s when 700 Sinaloa gunmen, wielding 50-cal rifles, rocket launchers, grenades, and armoured vehicles, defeated the Mexican National Guard and demanded that the Mexican government release the imprisoned son of the Sinaloa Cartel’s leader.

The Mexican president, Andrés Manuel López Obrador, complied, as many people expected him to; he had, after all, run for office on a platform of rapprochement with the drug cartels. His reasoning – that surrender was necessary to prevent further loss of life – was the same as that of the Minneapolis police who let their station get burned down by the mob. (To be fair, the city that the cartel had just captured was home to over 700,000 inhabitants, and had Obrador not acquiesced, he would have been facing a huge massacre).

As for the situation here in the United States, one can only imagine how much worse the riots will be during the next round of the political cycle, when a Democrat holds the White House and the whole administration is sympathetic to the rioters.

In an eclectic article at the American Conservative entitled Fleeing the Collapsing Imperium, Rod Dreher is comparing President Trump to Tsar Nicholas II, a weak and indecisive leader who failed to react to the Bolshevik threat until it was too late.

A key difference between Russia then and America now is wrapped up with the fact that to have a 1917-style revolution, you don’t just need a Nicholas II, you also need a Lenin. You need an insurgency that is organized enough, and intellectually coherent enough, to actually take over the government, not just burn some stuff, yell about how the police department should be defunded or abolished, and then go home.

The modern American left is incapable of producing a Lenin, either now or at any time in the foreseeable future. Give them a few more decades, though, and we could have our own President Obrador, and our own Battle of Culiacán.