Sunday, June 25, 2017

"RULES OF ENGAGEMENT" -- trying to maintain civil discourse on my Facebook feed

Copied here from my Facebook feed for convenient reference -- i.e. so I don't have to do endless keyword searches to find it again.

RULES OF ENGAGEMENT I keep hoping to back off posting so much political content on Facebook, but so far I haven’t been able to because: (1) I’ve always been a political junkie; and (2) I’ve decided I need to be politically active until funding is restored for human services and higher ed. I intend to use social media, including FB, as a tool, and some of my posts to closed discussion groups will appear on my feed.

However, I’ve been mulling this over since January and I’ve decided: 1. I’m not going to share ad hominem attacks on anyone who is not a public figure, as defined by Times v. Sullivan as those who have “thrust themselves to the forefront of particular public controversies.” If you’ve run for office, you’re fair game. If not, you’re not. It’s as simple as that.

2. I’m not going to share memes that I consider misleading, slanted or insulting to rank-and-file supporters of politicians with whom I disagree. Unless a meme’s point is clearly supported by widely known evidence, I don’t like to post memes, period.

3. I’m not going to share posts from what I consider “Fake News” websites, and extremely partisan websites, even those, e.g. Daily Kos, whose editorial policy I agree with. If one cites a professional, objective source, I will make an exception in that case. But I’d rather go to the source and link it instead.

4. If any of my Facebook friends post material I consider objectionable, or demeaning to people of opposing political views, I will quietly hide or unfollow those posts. I have friends and family who share those views, and I don’t want them insulted on my FB feed.

So what am I going to post?

1. I will continue to post links to responsible journalism about public affairs from professional, objective sources like the New York Times, the Guardian, CNN; objective long-form journalism like the New Yorker; and respected magazines of opinion like the Jesuit magazine America, Christian Century, Rolling Stone or National Review.

2. I will post links to editorial cartoons, satire and humorous writing about public affairs. When the intent of these posts is not blindingly obvious, I promise to label them S-A-T-I-R-E.

3. I will try to balance my political posts with cat pictures, baby goats, flash mobs, trad music, Lutheran hymnody, humor, dulcimers and psalmodika (the plural of the funky little Swedish instrument I play), and updates from Appalachian Bear Rescue, Il Gattero di Aleppo (Alaa, the cat man of Aleppo) and other animal rescue agencies. That’s to try to maintain my own sanity, but I suspect others will appreciate it, too.

FB friends who were my students at Benedictine will recognize that these rules are an adaptation of what I’ve been doing since we started blogging in class 10 and 12 years ago. I fully intend to use FB as a tool for political activism, but I want it to be a relatively safe space (sort of like our classroom used to be) where people will not feel themselves under personal attack. I’ve endured too much of that myself, from those who consider me a “libtard,” a commie or a “snowflake,” and I don’t want to return the favor to folks I disagree with.

For a good example of civil discourse on a political blog, consult Capitol Fax, Rich Miller's Illinois politics and government blog at At the bottom of each post, he has a comments field with this warning: "Inappropriate or excessively rabid comments, gratuitous insults and "rumors" will be deleted or held for moderation. Profanity is absolutely not acceptable in any form. "Sock puppetry" is forbidden. All violators risk permanent banishment without warning and may be blocked from accessing this site. Also, please try to be a little bit original."

Miller also has a link, labeled "All new commenters should click here before proceeding." The link takes you to a six-year-old post (June 17, 2011) headed "Question of the day," in which CapFax commenters give their advice on how to be civil and smart. The blog's readers include legislators, lobbyists, agency liaisons, political operatives and other participants in the legislative process. Their comments are uniquely informative, and their advice is good. Click here:

Monday, December 05, 2016

Resistance 101


Selected excerpts from stories on how to go about creating a resistance movement as Donald Trump takes office ...

  • Dan Rather Facebook status, Nov. 30.

    Should we normalize Donald Trump? Matthew Yglesias of Vox has a very provocative and thought-provoking take that might strike many of his fellow progressives as counterintuitive.

    The case he is making is that authoritarian populist leaders abroad have been beaten by attacking their policies more than their personalities. And with Donald Trump outlining a far-right Republican buffet of initiatives, from the environment, to taxes, to entitlements, to abortion, to the law, etc. the Democrats would be better served getting out of the reality show mindset and try to push the debate into the realm of normal politics.

    [links to:]

  • Matthew Yglesias "The case for normalizing Trump." Vox Nov. 30.

    Trump genuinely does pose threats to the integrity of American institutions and political norms. But he does so largely because his nascent administration is sustained by support from the institutional Republican Party and its standard business and interest group supporters. Alongside the wacky tweets and personal feuds, Trump is pursuing a policy agenda whose implications are overwhelmingly favorable to rich people and business owners. His opponents need to talk about this policy agenda, and they need to develop their own alternative agenda and make the case that it will better serve the needs of average people. And to do that, they need to get out of the habit of being reflexively baited into tweet-based arguments that happen on the terrain of Trump’s choosing and serve to endlessly reinscribe the narrative of a champion of the working class surrounded by media vipers.

    * * *

    Corruption alone won’t win the argument ... But Jan-Werner Müller, a Princeton political scientist who recently published an excellent little book about authoritarian populist movements, finds that Trump supporters’ indifference to Trump’s corrupt leanings is actually rather typical. Even when clear evidence of corruption emerges once an authoritarian populist regime is in place, the regime’s key supporters are generally unimpressed.

    “The perception among supporters of populists is that corruption and cronyism are not genuine problems as long as they look like measures pursued for the sake of a moral, hardworking ‘us’ and not for the immoral or even foreign ‘them,’” he writes, “hence it is a pious hope for liberals to think that all they have to do is expose corruption to discredit populists.”

    * * *

    Remember why Republicans support Trump The Trump era has featured frequent plaintive cries from liberals who just can’t understand how honorable, decent Republicans could support a man who openly courts Vladimir Putin, tweets attacks on individual journalists, poses with taco bowls as Hispanic outreach, and engages in massive financial conflicts of interest.

    But Republican Party elected officials, whether you agree or disagree with them, have some pretty clear reasoning. They were obviously uncomfortable with making Trump their party’s standard-bearer, but having won both the nomination and the general election, he is now pursuing a very recognizable version of the GOP’s partisan agenda. ...

    [dot points omitted]

    Of course, if Republicans decide they want to change course on this and start reeling Trump in, Democrats should happily join them and cooperate in a bipartisan drive against lawlessness, corruption, and subversion of American foreign policy by the government of Russia. But as long as Republicans are backing Trump, ignoring his partisan agenda in order to avoid normalizing Trump is an enormous danger because it ignores the main reason Trump is able to get away with abnormal behavior.

    A November 22 Quinnipiac poll revealed both the risks and the opportunities currently facing Democrats. It showed that attacks on Trump’s character have set in, and most people agree that Trump is not honest and not levelheaded. But it also showed that a majority believe he will create jobs, that he cares about average Americans, and that he will bring change in the right direction. Yet at the same time, Quinnipiac also finds that most voters favor legal abortion, oppose tax cuts for the wealthy, oppose deregulation of business, and oppose weakening gun control regulation.

    Which is to say that the most normal, blandly partisan parts of Trump’s agenda are also among the least popular. And yet Trump’s support for them is what immunizes him from Republican criticism and oversight over the abnormal stuff. Defending the basic norms of American constitutional government is important, but doing it as a partisan agenda won’t work — it turns off Trump’s core supporters and signals to wavering ones that his opponents are focused on abstractions rather than daily life. As long as Trump is enjoying the lockstep support of congressional Republicans, his opponents need to find ways to turn attention away from the Trump Show and focus it on his basic policy agenda and the ways in which it touches millions of people.

  • Jesse Singal "Why Some Protests Succeed While Others Fail." SCIENCEofUS, New York magazine, Nov. 20.

    Since those [inauguration day] D.C. protests are coming up, and are likely to be massive, they are a natural focal point for the complicated questions surrounding protest and organization. So I asked several scholars of activism, protest, and movement-building what advice they would give to the organizers, and how their own work fits into their predictions about what could go well or poorly in January.

    * * *

    Taken together, then, all this research points to three general rules for the organizers of the D.C. protests, as well as the other protests that are likely to crop up in the days ahead:

    1. Trump can be useful as a galvanizing force, but keep things focused on whatever your particular issue is. That issue will be around long after Trump is gone, and will, in many cases, require forms of activism and advocacy that have little to do with the man himself. The goal should be to give people ways to make progress on the specific issue threatened by Trump, not to protest the man himself endlessly.

    2. Make everyone who is interested in your cause, or who exhibits curiosity about it, feel welcome. Other than wanting to help, there should be almost zero prerequisites. If someone doesn’t speak the lingo, or doesn’t know what intersectionality is, or anything else — it doesn’t matter — they can still contribute. And the more you can make activism part of their social life, the more of a meaningful role you can give them, the more likely they will be to stick around and to spread the word. Education on specific ideological issues can always come later.

    3. Stay nonviolent. At a time when passions are high there is a real potential for backlash. There are times when disruptive protests can be strategically deployed, but nonviolence is key.

  • Stephanie Kirchgaessner "If Berlusconi is like Trump, what can America learn from Italy?" The Guardian Nov. 21.

    Political opposition: ‘Stop crying and try to understand his voters’ For years, Berlusconi’s boorish behaviour was a gift to political opponents and journalists who were free to ridicule him. But ultimately they did not prove an effective opposition.

    “Berlusconi’s opponents had a very wide and open avenue and they couldn’t resist walking down that avenue. This brought them to a number of defeats. Because when he said: ‘The west is [superior]’, and opponents said: ‘How politically incorrect, white imperialist’, the reality is that a huge part of the Italian voters said in private: ‘He is right,” said Giovanni Orsina, author of Berlusconism and Italy, an exploration of how Berlusconi held on to power.

    * * *

    Everyday sexism: prepare for a new feminist fightback Berlusconi was ultimately acquitted of knowingly hiring an underage prostitute at his infamous “bunga bunga” parties, and of abusing his position to cover it up. But his tenure became synonymous with the everyday demeaning of women – particularly on television – as sex objects, as the prime minister regularly insulted and mocked women in public, even making sex jokes at public events meant to honour women’s achievements.

    * * *

    But in Italy there was also a backlash, and an awakening among some Italian women, according to Emma Bonino, the former foreign minister and feminist who helped secure abortion and divorce rights in Italy in the 1970s.

    “Berlusconi’s attitude prompted a sort of revolt from women, and women’s groups, who had been silent and absent for years, even on important women’s issues,” Bonino said. It prompted opposition to female stereotypes, particularly in the media, and the scourge of domestic violence, which had often gone unacknowledged, she said.

    Berlusconi and the law: a worrying precedent Last week Trump settled fraud lawsuits relating to Trump University for $25m, removing a legal headache despite having pledged to fight the cases to the bitter end.

    He has also alleged that he is the subject of an audit by US tax authorities and, before his election, had threatened to sue women who had accused him of sexual harassment and assault.

    Berlusconi faced similar entanglements with the judicial system and the issues ultimately pressured him and constrained his ability to pass legislation. Prosecutors who sought to charge him with crimes were derided as unelected communists, and there a poisonous relationship soon developed between judges and prosecutors and the prime minister’s office.

    “Berlusconi tried to use his political power to defend himself, making laws and using his position as prime minister to delay trials. There were also several legal attempts – like making a law that as president of the republic you cannot go to trial as long as you are in power – but he never really succeeded,” said Orsina.

    Trump enters the White House after a contentious election in which he derided federal investigators at the FBI, but also after he was seen as having been helped by the FBI director, James Comey, who made a surprise announcement about the continuation of a probe into Hillary Clinton – which was later dropped – 11 days before the election. Trump has also sought to delay a civil fraud trial into one of his businesses until after his inauguration.

Friday, December 02, 2016

Emails to U.S. Sen. Lamar Alexander and members of the Illinois delegation regarding ACA "replace and repeal" legislation

Posted today and yesterday to my Facebook page at in the hope it will inspire others to write Congress regarding this issue. The emails are posted below.

I've been posting to FB my emails to our congressional delegation, urging a bipartisan effort to keep the pre-existing conditions clause if the Affordable Care Act is repealed, for three reasons: (1) It is a life-and-death matter for Debi and me: (2) the political discourse has been way too nasty, divisive and partisan this year, even though survey research indicates a majority of people want bipartisan solutions; and (3) I'm still naive enough to believe our political institutions can work as intended, and even if they *are* irreparably broken, I'll be damned if I'm going to let them perish without putting up a fight.

One more reason: I don't want to suggest myself as any kind of role model or my emails as any kind of template, but I hope others will join me in keeping the politicians on task. Google how to contact your representatives, elected officials, etc., for tips. But I think they usually boil down to two things -- (1) say what you want the reps to do, e.g. support HB _____, or the pre-existing conditions clause, or whatever your issue is; and (2) explain, factually and politely, how if affects you personally. To the extent I can, I always try to personalize the message, if I can do so without BS'ing them. One last tip: Be brief, be civil and click on "send." But do it.

The Hon. Lamar Alexander

Dear Senator Alexander –

While I’m not a constituent of yours anymore, I read in Politico today about your sensible, measured approach to replacing and repealing “Obamacare,” and I want to do everything I can to support it. Accordingly, I am writing my congressional delegation – Sen. Durbin and Sen.-elect Duckworth of Illinois and Rep. Rodney Davis of the Illinois 13th Congressional District – urging them to work with you and anyone else on both sides of the aisle who is willing to devise a commonsense, effective, compassionate health care system to replace what we’ve got now. This is a life-and-death issue for millions of people with pre-existing conditions, and it is far more important than partisan politics.

I don’t have words to say how encouraged I am to learn you are taking this position toward the Affordable Care Act, and Medicare as well. Many years ago, I covered you when you were governor of Tennessee and I was a beginning reporter for The Oak Ridger. I moved up north in 1982, but I’ve followed your career with interest since that time – most recently as your Senate committee played such an important role in working out a reasonable compromise last year on the reauthorization of the Elementary and Secondary Education Act. My family is directly impacted by ACA – my wife has pre-existing conditions, she is not yet eligible for Medicare and she was unable to obtain insurance at any price before the present law was enacted – and we hope and pray for your success on this issue as well.

/s/ Peter Ellertsen
2125 S. Lincoln Ave.
Springfield, IL 62704

The Hon. Rodney Davis

Dear Rep. Davis – Copied below is an email I sent tonight to the Hon. Lamar Alexander, chairman of the Senate Education, Health, Labor and Pensions Committee, urging bipartisan cooperation on any legislation, in Sen. Alexander’s words, to “replace and repeal” the Affordable Care Act in the next session of Congress. (Notice that he believes new legislation should be in place when ACA is repealed.) I strongly urge you to take the same pragmatic, compassionate approach to the issue. I have followed your career closely and believe you are becoming an effective advocate for the wide variety of interests in the 13th District.

What happens to ACA is a life-and-death issue to my family, since my wife has pre-existing conditions and was unable to get insurance before it was enacted; however, especially in light of your advocacy for children’s health initiatives and the pledge on your website “to build on some of the good provisions in the law like covering preexisting conditions,” I am sure we can trust you to do the right thing. After hearing all the partisan rhetoric during the election and its aftermath, I was greatly encouraged by Sen. Alexander’s approach. (I’m a former constituent of his, anyway, and I’ve always known him as one of the guys who gets things done in Washington.) I urge you to follow his example. This is an issue that goes far beyond partisan politicking, and it offers you an opportunity to rise above it and stand up for those of your constituents who have to rely on ACA while you devise a better system to replace it. /s/ Peter Ellertsen


The Hon Richard Durbin

Subject: urging bipartisan effort to replace pre-existing conditions language and other strong points before ACA is repealed

Dear Senator Durbin –

Copied below is an email I sent last night to the Hon. Lamar Alexander, R-Tenn., chairman of the Senate Education, Health, Labor and Pensions Committee, urging bipartisan cooperation on any legislation, in Sen. Alexander’s words, to “replace and repeal” the Affordable Care Act in the next session of Congress. I’m terrified that my wife will lose her health insurance if they repeal the ACA, and I am encouraged that a key Republican in the Senate at least says new legislation should be in place when it is repealed. I am unalterably opposed to repealing Obamacare, but I would urge you and the Senate Democrats to do everything you in your power to seek bipartisan compromise language that would mitigate the worst effects of repeal, especially on people with pre-existing conditions.

For us, this is literally a life-and-death issue because my wife Debi has pre-existing conditions, she was unable to obtain health insurance before ACA and she is not yet eligible for Medicare. I carried her on my group policy from Benedictine University at Springfield, but I was able to retire after ACA was enacted and Benedictine has now closed the undergraduate program in which I taught. I couldn’t go back to my old job if I wanted to – it no longer exists. I am sure I am not the only person caught in a comparable situation, especially with the cutbacks in state government and higher ed throughout Illinois in recent years. I cannot urge you strongly enough to do whatever it takes to delay and mitigate the suffering created by the extremist right-wing agenda now advocated by the President-elect and his majority in Congress.

/s/ Peter Ellertsen


The Hon. Tammy Duckworth

Dear Representative Duckworth –

Congratulations on your election to the Senate – I have followed your career in the House and in Veterans’ Affairs at the state and local levels, and I look forward to being one of your constituents now in your new office. I am writing now to urge your support of any and all bipartisan efforts to replace the pre-existing conditions language and other strong points of the Affordable Care Act before it is repealed.

Copied below is an email I sent last night to the Hon. Lamar Alexander, R-Tenn., chairman of the Senate Education, Health, Labor and Pensions Committee, urging bipartisan cooperation on any legislation, in Sen. Alexander’s words, to “replace and repeal” the Affordable Care Act in the next session of Congress. I’m terrified that my wife will lose her health insurance if they repeal the ACA, and I am encouraged that a key Republican in the Senate at least says new legislation should be in place when it is repealed. I am unalterably opposed to repealing Obamacare, but I would urge you and the Senate Democrats to do everything you in your power to seek bipartisan compromise language that would mitigate the worst effects of repeal, especially on people with pre-existing conditions.

For us, this is literally a life-and-death issue because my wife has pre-existing conditions, she was unable to obtain health insurance before ACA and she is not yet eligible for Medicare. I carried her on my group policy from Benedictine University’s branch campus at Springfield, but I was able to retire after ACA was enacted and Benedictine has now closed the program at Springfield in which I taught. I couldn’t go back to my old job if I wanted to – it no longer exists. I am sure I am not the only person caught in a comparable situation, especially with the cutbacks in state government and higher ed throughout Illinois in recent years. I cannot urge you strongly enough to do whatever it takes to delay and mitigate the suffering created by the extremist right-wing agenda now advocated by the President-elect and his majority in Congress.

/s/ Peter Ellertsen


Tuesday, November 29, 2016

SPLC report on harassment, intimidation in first 10 days after Trump's election

Cassie Miller and Alexandra Werner-Winslow. "Ten Days After: Harassment and Intimidation in the Aftermath of the Election." Southern Poverty Law Center Nov. 29, 2016

Just a week before the November 8th election, attackers set a church in Greenville, Mississippi, on fire. The historically black church was targeted in what authorities believe was an act of voter intimidation, its walls spray-painted with the phrase “Vote Trump.”

“This kind of attack happened in the 1950s and 1960s,” Greenville’s mayor said, “but it shouldn’t happen in 2016.”

The incident was just a harbinger of what has become a national outbreak of hate, as white supremacists celebrate Donald Trump’s victory.* In the ten days following the election, there were almost 900 reports [n=867 -- see pie chart at left -- pe] of harassment and intimidation from across the nation. Many harassers invoked Trump’s name during assaults, making it clear that the outbreak of hate stemmed in large part from his electoral success.

People have experienced harassment at school, at work, at home, on the street, in public transportation, in their cars, in grocery stores and other places of business, and in their houses of worship. They most often have received messages of hate and intolerance through graffiti and verbal harassment, although a small number also have reported violent physical interactions. Some incidents were directed at the Trump campaign or his supporters.

* * *

In his 60 Minutes interview that aired on November 13, President-elect Trump claimed that he was “surprised to hear” that some of his supporters had been using racial slurs and making threats against African Americans, Latinos, and gays. He shouldn’t have been. In his November 23 interview with The New York Times, Trump claimed he had no idea why white supremacists — the so-called “alt right” — had been “energized” by his campaign. Again, it’s no mystery. Both the harassment since the election and the energy on the radical right are the predictable results of the campaign that Trump waged for the presidency — a campaign marked by incendiary racial statements, the stoking of white racial resentment, and attacks on so-called “political correctness.”

At this point, it is not enough for Trump to look in the camera and say “Stop it!” to the harassers, as he did on 60 Minutes. Nor is it enough for him to simply “disavow” the white supremacists who see him as their champion, as he did at the Times. If he is to make good on the first promise he made as the president-elect — his pledge to “bind the wounds of division” in our country — he must repair the damage that his campaign has caused. Rather than feign ignorance, he must acknowledge that his own words have opened “wounds of division” in our country. Rather than simply saying “Stop it!” and disavowing the radical right, he must speak out forcefully and repeatedly against all forms of bigotry and reach out to the communities his words have injured. And rather than merely saying that he “wants to bring the country together,” his actions must consistently demonstrate he is doing everything in his power to do so. Until president-elect Trump does these things, the hate that his campaign has unleashed is likely to continue to flourish.

* * *

Resisting Trump's rule of law: "[Lawyers] don't do revolution if a strongly worded footnote would suffice." -- Dahlia Lithwick -- plus reax to today's flag- burning Tweetstorm

In no particular order ...

Dahlia Lithwick. "Will Trump’s Rule of Law Be Our Rule of Law?" Nov. 9, 2016

Subhed: "The fate of the entire legal apparatus of government is in the balance."

* * *

For those of us who believe—as the Clintons do—in the basic tenets of constitutional democracy, in respect for the law, and the courts, and for neutral processes, Trump is the end of that line. These words that we use, due process and equality and justice have actual force and meaning. They are the tools and also the end product of the entire enterprise of democracy. They are the only bulwark against totalitarianism we know.

Donald Trump has never seen the law as anything beyond another system for self-enrichment. Judges are tools. Laws are malleable. True justice flows in a singular direction: toward him. And Wednesday the entire edifice of the American legal system answers to that vision, unless it opts not to.

Lawyers are by definition small-c conservative, incrementalist, and cautious. We don’t do revolution if a strongly worded footnote would suffice. We believe in facts. We believe in neutral rules and principles of fairness. We believe in judicial independence. We will be more apt than anyone to try to shift along in Trump’s America, doing our best. Hoping to make it a little more just for the weakest around the margins.

* * *

B.A. (English), Yale, 1990, J.D. 1996, Stanford Law School

Ken Paulson. "Trump tweet set Constitution ablaze: Column." USA Today Nov. 29, 2016

Donald Trump is a master at unsettling the settled in 140 characters or fewer.

In a provocative tweet Tuesday morning, the president-elect declared “Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!”

As with so many Trump tweets, it’s hard to know whether he’s seriously considering trying to overturn long-established constitutional principles. Sometimes it seems like he’s throwing a rock at a crowd of people just to see them scatter.

* * *

Tweeting proposals has some clear advantages for the president-elect. There’s no need for detailed policy papers and no annoying reporters to ask follow-up questions. One tweet ignites cable television and social media, and suddenly no one’s talking about his cabinet choices or potential business conflicts.

But let’s be clear. This isn’t real. Congress could pass a law punishing flag-burning, but there’s no likelihood the Supreme Court would overturn its 1989 decision or reverse a half-century of protection for symbolic speech.

Justice Antonin Scalia, the man Trump has described as a model for his future Supreme Court appointments, was among the majority that struck down the flag-burning prohibition. Last year, he revisited the decision, drawing on the distinction between his personal views and what the Constitution mandates. "If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag," he said. “But I am not king.”

Justice John Paul Stevens, who voted to uphold the flag-burning ban in 1989, had clearly changed his mind by 2004, when he said, “Burning the flag conveys a far different message than it once did. If one were to burn a flag today, the act would convey a message of freedom that ours is a society that is strong enough to tolerate such acts by those whom we despise.”

* * *

There’s some irony in the fact that this nation’s earliest flag desecration laws were designed to in large part to curb the use of the American flag in advertising and marketing. In 1907, the U.S. Supreme Court upheld a Nebraska ban on “Stars and Stripes” beer. Today, flags are ever-present in product marketing and this past summer Budweiser even marketed itself as "America.” Let’s drink to that.

Ken Paulson is the president of the Newseum Institute’s First Amendment Center, dean of the College of Media and Entertainment at Middle Tennessee State University and a member of USA TODAY’s Board of Contributors.

Scott Bomboy. "Justice Antonin Scalia rails again about flag-burning 'weirdoes'." Constitution Daily Nov. 12, 2015

Supreme Court Justice Antonin Scalia was in Philadelphia last night, making remarks about the Court, a controversial flag-burning ruling from 1989, and diversity among his fellow Justices.

Scalia appeared at a Union League in an event moderated by Princeton University’s Robert George, and as usual, the Justice made comments about the original meaning of the Constitution. And according to reports from the event, Scalia also talked the historic Texas v. Johnson flag-burning decision, which is still debated to this day.

Scalia said as a jurist who believes in a pure texualist reading of the Constitution, he has made some tough calls in his career, especially in free-speech cases where his vote went against his personal principles.

“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said. “But I am not king.”

Scalia made similar comments at a March 2014 appearance in Brooklyn, where he called Gregory Lee Johnson, who brought the 1989 flag-burning lawsuit, a “bearded weirdo.” (He made similar comments at a 2012 appearance in Wyoming, a 2005 appearance at the University of Michigan event and in 2004 at a William and Mary event.)

Back in 1989, Scalia was the fifth and deciding vote in the Texas v. Johnson decision that upheld flag burning in Texas, and a year later, he voted against a federal law that banned flag burning in United States v. Eichman.

Jonathan Chait. "Donald Trump Wants You to Burn the Flag While He Burns the Constitution." Daily Intelligencer, New York Nov. 29

... But why would he choose to pick this strange fight? Here is a case where the common complaint that he is distracting the public from unflattering stories rings true. Proposing a flag-burning ban is a classic right-wing nationalist distraction, and Trump has a number of ugly stories from which to distract: his plan for massive, unprecedented corruption, the extreme beliefs of his appointees, a controversy over a recount that highlights his clear defeat in the national vote.

Trump does not want coverage of his plans to enrich himself and his family or to strip the safety net. A fight over patriotism and citizenship frames the president-elect as the champion of American nationalism — giving a kind of legitimacy that overcomes his defeat in the national vote, much as standing on the rubble at Ground Zero erased all complaints about George W. Bush governing from the right after losing the national vote. There may not be flag-burners to fight at this very moment, but surely the president highlighting the issue will encourage protesters to burn flags in defiance, drawing media attention. Thus the opposition will demonstrate that their hatred for Trump is actually hatred for the country. And he will proceed to enrich himself and his party’s donor class.

Trump’s flag-burning tweet is a frightening moment not because his proposal stands any chance of enactment, but because it reflects one of the few signs that his dangerous and authoritarian politics is calculated, and not merely crazy.

Stephen Collinson, "Trump takes aim at First Amendment." CNN Nov. 29, 2016

The early morning blast was classic Trump, picking at an emotive political scar that enlivens his most loyal supporters, hijacking news coverage and forcing everyone in Washington to respond to his own controversial views -- and then wonder if he really means it. It's a tactic familiar from the presidential campaign when Trump's mastery at wielding Twitter as a weapon was at the heart of his battle plan that demolished the Bush and Clinton political dynasties.

"It is pretty remarkable that the President-elect of the United States is calling for penalties, criminal penalties for protected speech," said CNN senior legal analyst Jeffrey Toobin on Tuesday. "Why is he doing this? That is the question. Is he trying to distract attention from something else? I don't know why he would be, his transition seems to be going pretty well. What is the purpose behind this? I don't really get it."

David Axelrod, a CNN political analyst and former strategist for President Barack Obama, encouraged his Twitter followers Tuesday to pay less attention to what Trump says and more to how he behaves.

"Pressing issue of the day? Best to ignore, unless & until it becomes something more than an AM red meat serving from Dr. Trump & Mr. Tweet," Axelrod tweeted.

Still, the spectacle of a President-elect calling for someone to be disowned by their nation for exercising their constitutional rights -- albeit while acting in a way many Americans find distasteful -- is a shocking one.

* * *

Sunday, November 27, 2016

Rex and lex according to Trump and Henri de Bracton, De legibus & consuetudinibus Angliæ (ca. 1235)

Cross-posted from Hogfiddle Nov. 25.

The Idea of limited government in English history plays during the reign of Elizabeth I, 1558 - 1603. By Edwin Peter Ellertsen. 1975.


Donald Trump, transcript of editorial board interview with The New York Times, Nov. ___, 2016: As far as the, you know, potential conflict of interests, though, I mean I know that from the standpoint, the law is totally on my side, meaning, the president can’t have a conflict of interest. That’s been reported very widely. Despite that, I don’t want there to be a conflict of interest anyway. And the laws, the president can’t. And I understand why the president can’t have a conflict of interest now because everything a president does in some ways is like a conflict of interest, but I have, I’ve built a very great company and it’s a big company and it’s all over the world. People are starting to see, when they look at all these different jobs, like in India and other things, number one, a job like that builds great relationships with the people of India, so it’s all good. But I have to say, the partners come in, they’re very, very successful people. They come in, they’d say, they said, ‘Would it be possible to have a picture?’ Actually, my children are working on that job. So I can say to them, Arthur, ‘I don’t want to have a picture,’ or, I can take a picture. I mean, I think it’s wonderful to take a picture. I’m fine with a picture. But if it were up to some people, I would never, ever see my daughter Ivanka again. That would be like you never seeing your son again. That wouldn’t be good. That wouldn’t be good. But I’d never, ever see my daughter Ivanka.

Oxford University Press, Online Resource Centres. Endicott Administrative Law 2e [Online Resource Centre materials written by Timothy Endicott and Emer Murphy. Updated July 2011.]

Notes on key cases

Chapter 1: Administration and the principles of the constitution

Case of Proclamations (1611) 12 Co Rep 74: Lord Coke held that the Crown has no prerogative to change the common law or statute, or to create new offences. He also held that the King only has the powers that the law allows him. This case is important as it is a move away from arbitrary government. It cements the separation of powers and the subjection of the executive to the rule of law.

Prohibitions del Roy (1607) 77 ER 1342, 12 Co Rep 64: All judicial power is exercised in the name of the monarch, but Lord Coke held that the King could not determine legal disputes in person. The separation of powers required that the task be delegated to the King’s judges. This case reinforced the separation of powers between the executive and the courts.

This is the single most dangerous thing Donald Trump said in his New York Times interview By Chris Cillizza November 22

Trump's statement carried considerable echoes of Richard Nixon's famous/infamous line to interview David Frost three decades ago: "Well, when the president does it, that means it is not illegal.”

It's impossible to know whether Trump was purposely channeling Nixon. (I personally think he wasn't doing so consciously.) In truth, it reminded me as much if not more of Sylvester Stallone as Judge Dredd declaring "I am the law."

No matter where Trump got the idea, it's a very dangerous one for any president to hold: That you (or anyone) is effectively above the law.

U.S. code Title 18 Section 208,

Hiding behind the "well, there's no law that says I can't do this" is not exactly presidential. And a belief that the president isn't bound to do everything he can to avoid the appearance of conflicts of interest suggests a dangerous slippery slope about what a president can and should do in office.

Trump’s Kleptocracy Is So Astounding It Already Feels Like Old News By Jonathan Chait

Nov. 23

The question receded into the background, in part because an endless series of other controversies obscured it, in part because Americans couldn’t fathom what Trump had apparently promised: the presidency as an adjunct of his real-estate and branding business. The developing world is filled with ruling families that use the state to amass huge and usually secretive fortunes. Such an arrangement has been heretofore unimaginable in the United States. And yet the surreal has quickly become real.

Astonishingly, the president-¬elect has treated the sanctity of government as a nonissue. In a recent tweet, he pronounced the question of his own enrichment through power to have been settled by the voters (or at least the Electoral College). “Prior to the election it was well known that I have interests in properties all over the world,” he wrote. “Only the crooked media makes this a big deal!” He is not even claiming innocence — he is placing the question itself off-limits.

Bracton on the King of England: “The king has a superior, namely, God. Also the law by which he was made king. Also his curia, namely, the earls and barons, because if he is without a bridle, that is without law, they ought to put the bridle on him.” [31]

"The king has no equal within his realm. Subjects cannot be the equals of the ruler, because he would thereby lose his rule, since equal can have no authority over equal, not a fortiori a superior, because he would then be subject to those subjected to him. The king must not be under man but under God and under the law, because the law makes the king... for there is no rex where will rules rather than lex. Since he is the vicar of Jesus Christ, whose vicegerent on earth he is..."[32]

De legibus & consuetudinibus Angliæ The laws and customs of England 1235 AD, 1569

Calvin’s Case (1608).

The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction; and this is lex eterna [the eternal law], the moral law, called also the law of nature. And by this law, written with the finger of God in the heart of man, were the people of God a long time governed, before the law was written by Moses, who was the first reporter or writer of law in the world.

. . .

This law of nature, which indeed is the eternal law of the Creator, infused into the heart of the creature at the time of his creation, was two thousand years before any laws written, and before any judicial or municipal laws. And certain it is, that before judicial or municipal laws were made, Kings did decide causes according to natural equity, and were not tied to any rule or formality of law, but did dare jura [give laws].

… the Laws of Nature and of Nature's God … -- DECLARATION OF INDEPENDENCE

Dan Rather, FB, Nov. 22, 10:44 a.m.

Now is a time when none of us can afford to remain seated or silent. We must all stand up to be counted. HIstory will demand to know which side were you on. This is not a question of politics or party or even policy. This is a question about the very fundamentals of our beautiful experiment in a pluralistic democracy ruled by law.

When I see neo-Nazis raise their hands in terrifying solute, in public, in our nation's capital, I shudder in horror. When I see that action mildly rebuked by a boilerplate statement from the President-elect whom these bigots have praised, the anger in me grows. And when I see some in a pliant press turn that mild statement into what they call a denunciation I cannot hold back any longer.

Our Declaration of Independence bequeaths us our cherished foundational principle: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

These truths may be self-evident but they are not self-replicating. Each generation has to renew these vows. This nation was founded as an opposite pole to the capriciousness of an authoritarian monarch. We set up institutions like a free press and an independent court system to protect our fragile rights. We have survived through bloody spasms of a Civil War and a Civil Rights Movement to extend more of these rights to more of our citizens. But the direction of our ship of state has not always been one of progress. We interned Japanese Americans, Red Baited during the McCarthy era, and more. I feel the rip tide of regression once again swelling under my feet. But I intend to remain standing.

In normal times of a transition in our presidency between an incoming and outgoing administration of differing political parties, there is a certain amount of fretting on one side and gloating on the other. And the press usually takes a stance that the new administration at least deserves to have a chance to get started - a honeymoon period. But these are not normal times. This is not about tax policy, health care, or education - even though all those and more are so important. This is about racism, bigotry, intimidation and the specter of corruption.

But as I stand I do not despair, because I believe the vast majority of Americans stand with me. To all those in Congress of both political parties, to all those in the press, to religious and civic leaders around the country. your voices must be heard. I hope that the President-elect can learn to rise above this and see the dangers that are brewing. If he does and speaks forcibly, and with action, we should be ready to welcome his voice. But of course I am deeply worried that his selections of advisors and cabinet posts suggests otherwise.

To all of you I say, stay vigilant. The great Martin Luther King, Jr. knew that even as a minority, there was strength in numbers in fighting tyranny. Holding hands and marching forward, raising your voice above the din of complacency, can move mountains. And in this case, I believe there is a vast majority who wants to see this nation continue in tolerance and freedom. But it will require speaking. Engage in your civic government. Flood newsrooms or TV networks with your calls if you feel they are slipping into the normalization of extremism. Donate your time and money to causes that will fight to protect our liberties.

We are a great nation. We have survived deep challenges in our past. We can and will do so again. But we cannot be afraid to speak and act to ensure the future we want for our children and grandchildren.

FAL. God save thee, my sweet boy!

KING. My Lord Chief Justice, speak to that vain man.

CH. JUST. Have you your wits? Know you what 'tis you speak?

FAL. My King! my Jove! I speak to thee, my heart!

KING. I know thee not, old man: fall to thy prayers.
How ill white hairs become a fool and jester! …

Henry IV, part 2 | Act 5, Scene 5



Amy Davidson

In terms of Trump’s own transition to office, there are indications that the arc of his character is more like a loop. His attacks on everyone from the NBC News reporter assigned to cover him to the cast of “Hamilton” are a repeat of his campaign behavior. He seems unwilling to view the Presidency as an office, which has defined limits, instead of as a new way to express his personal desires, which have none. This is reflected, too, in his supposed gestures of moderation. His waning interest in locking up Hillary Clinton, which he expressed in an interview with the Times last week (“I don’t want to hurt the Clintons. I really don’t”), reveals a view of prosecution as something that a President can decide to unleash or withhold arbitrarily. In the same interview, Trump spoke in vague terms about keeping an “open mind” on international climate-change accords, but he also expressed a distrust of climate scientists, echoing the conspiracy-minded attitude of his campaign.

Trump also seems unwilling to engage seriously in the project of moving from the private sector to the public. The possible conflicts of interest posed by his many businesses, which operate in countries from Turkey to Argentina, can play out in farcical ways, such as when he complained to Nigel Farage, the acting leader of the United Kingdom Independence Party, about the wind farms that mar the view from his golf course in Scotland. But the conflicts potentially involve politicians with more real power than Farage and interests that are more damaging to the United States. It would be difficult to manage them even if Trump were willing to give it a good-faith try, which, so far, has not been the case. “Prior to the election it was well known that I have interests in properties all over the world. Only the crooked media makes this a big deal!” he tweeted last week.

He had said that he would hand the management of his business interests over to his adult children, but they are now advisers to the transition. He claims that, if critics had their way, “I would never, ever see my daughter Ivanka again.” But there has to be distance: if it is not between him and his children, then between his children and the business.