If the current Supreme Court had held comparable office in Weimar Germany, that is, its opinion in Trump v. United States would have rendered the judgment in this post’s headline. Never mind that the Weimar Constitution was different from the U.S. Constitution (importantly, in granting emergency powers to the President to rule by decree under Article 48). For, as Justice Sotomayor rightly observes in her blistering dissent, the majority’s decision that the President enjoys absolute immunity for his official acts has “no firm grounding in constitutional text, history, or precedent” (quoting Alito’s characterization of Roe v. Wade in Dobbs).
So let us set aside the law, which has nothing to do with how the Court majority arrived at its opinion. I am here to explore the majority’s mindset, which leads it down the path to utter lawlessness, and opens the door to dictatorship. Justice Roberts disparages this worry as overblown, much as Hindenburg imagined that Hitler was a mere blowhard, no real danger to the Republic. Never mind that Trump, like Hitler, habitually announces his malign intentions in advance–that he will not honor any election that does not place him in office, that he will abuse the powers of the President to wreak vengeance on his enemies, that he will rule as a dictator (on “day one,”–but now the Court has granted him a license for at least a 4-year term). Such announcements are the only times when it is prudent to take Trump at his word.
Roberts, like everyone else on the Court, knows that Trump conspired to overthrow the results of the 2020 election and stay in power by inciting a mob to shut down Congress’s counting of electoral votes. What could make him imagine that Trump’s actions were, if not lawful, then beyond the reach of any controlling law?
We have a precedent in Nazi jurist Carl Schmitt, whose book, The Concept of the Political, offers some insight into the Court majority’s mindset. If that mindset is not literally fascist, it is fascist-adjacent. Consider the parallels:
Schmitt claims that the essence of politics is an existential struggle between friends and enemies. The people are never wrong, he claims, in how they define themselves, and they define themselves in terms of violent opposition to their enemies (whether foreign or domestic). While Roberts backed off from such Manichean friends-enemies thinking in a secret recording, Alito signed on to the Christian nationalist version of this view, which is tied to anti-Black and anti-immigrant views. Trump, of course, has made Hitler’s replacement theory the centerpiece of his appeal to his base. This is a version of the existential friends-enemies narrative according to which Jews and their “woke” friends are conspiring to replace white Christians with immigrants who Trump claims are “poisoning the blood of our country.”
If you are inclined to think of politics as an existential struggle of us-against-them, you are liable to succumb to apocalyptic thinking. From rights to contraception, abortion, no-fault divorce, and gay marriage to, more recently, “open borders,” trans rights campaigns, and Black Lives matter challenges to police impunity (enabled by Supreme Court’s invention of qualified immunity for police and prosecutors)–“wokeness” has seemed to be steadily winning the culture wars over conservative Christians for a long time. 2016 was, in this mindset, “The Flight 93 Election,” in which Trump rode to rescue real Americans from “a Hillary Clinton presidency” of “Russian Roulette with a semi-auto.”
Such hysterical thinking naturally leads to Schmitt’s second key idea, the “state of exception.” This is the idea that in an emergency, the supreme leader needs the freedom to act lawlessly to rescue the people from its mortal enemies. Trump came to the rescue legally in 2016. But he didn’t stop the decline of Christians and the rise of the “nones.” Given that fact, it might seem to make sense to the Court majority to resort to heavier artillery in the culture wars, from a made-up doctrine of police qualified immunity to a made-up doctrine of Presidential absolute immunity and hence impunity to stage the equivalent of Hitler’s Reichstag fire and seize power. Trump didn’t pull it off the first time. But the Supremes have given him the artillery he needs if he gains office again in 2024.
The majority’s core idea underlying Trump v. U.S. is that without “absolute Presidential immunity” from criminal prosecution for “official acts,” . . . “the President would be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” All Presidents until now have acted under the shadow of a threatened criminal prosecution if they took bribes, obstructed justice, committed treason, staged a coup, or committed other criminal abuses of power. The majority does not cite a single case of a President being constrained from taking necessary bold action within the scope of his authority out of fear of criminal prosecution. But, in a fascist or fascist-adjacent mindset, one has no patience for logical thinking or drawing distinctions, nor for legal or even moral constraints on the bold action of the dear leader, who is second only to Jesus as the savior of his people.
{ 100 comments }
M Caswell 07.02.24 at 1:28 pm
The opinion appears to grant “absolute immunity” only to acts within the president’s “core constitutional powers,” not to “official acts” in general, as Trump had argued.
Liz Anderson 07.02.24 at 2:18 pm
In the hands of the Court majority, this will end up being a distinction without a difference, as Sotomayor points out in dissent. All official acts, the Court says, are entitled to at least presumptive immunity. Who can doubt that, with the thumb so heavily on the scales in favor of Presidential impunity, that the presumption will be in practice irrefutable? Particularly since the Court also bars the kind of evidence that would typically be required to prove otherwise–a President’s discussions with others in the Executive Branch.
engels 07.02.24 at 3:15 pm
Fifth Avenue foot traffic will be going off a cliff.
MisterMr 07.02.24 at 3:19 pm
The silver lining is that now if the election goes bad Biden has the right to ignore the results and storm the capitol. (sarcasm)
nastywoman 07.02.24 at 3:44 pm
‘Supreme Court Rules Hitler Immune from Prosecution for Burning Down Reichstag, Seizing Absolute Power’
AND!!
‘Der Führer’
(and all of his Followers)
would be/IS very proud –
that
FINALLY!!!
‘DAS NEUE DEUTSCHE REICH’
stretches from ‘Deutschen Osten’ to Hungary (and – Russia?) ALL the way to Alaska and Arizona (with the free republic of CALIFORNIA still resisting)
AS
nearly ALL the Right Wing Racist Science Denying Criminals of this World had adopted Hitlers philosophy
of
‘MEIN KAMPF’ nearly word for word and thusly the entire program of the German NSDAP Party -and it’s successor the AfD.
(and the only women who seems to have noticed the BEAUTIFUL –
(as trump would say)
IRONY – is my Italian sister Giorgia
(because. she thought to also include the old German SS into this ‘NEUE WELTREICH’ might be a step too far)
nastywoman 07.02.24 at 3:56 pm
and trying to see the whole ‘sink’ –
(as the other ‘Führer’ Elon Musk would say)
a bit more seriously:
Why in this World aren’t American Judges
aware – that they have copied the utmost important ‘Gesetz der Deutschen NSDAP’?
The FIRST law of very Fascist in this World:
‘FÜHRER BEFIEHLT WIR FOLGEN’
(and did Hitler thusly win WW2?)
Michel 07.02.24 at 4:12 pm
I don’t understand the premise that the President does or might need immunity from criminal prosecution for official acts. What are these actions, exactly? Because as far as I can see, most democracies and world powers get by just fine without that kind of protection.
And yet, this seems to be one of those things that American journalists and pundits just accept wholesale. I don’t get it.
somebody who was alive when the president ordered prisoners tortured 07.02.24 at 5:08 pm
dont worry everyone. the immunity will be withdrawn the minute a democratic president tries to use it. (just kidding, we will never have a democratic president again)
Nathan Lillie 07.02.24 at 5:19 pm
The issue is not just that the Supreme Court has granted de facto total immunity for official acts, but it has just shown that it will make up principles out of whole cloth and justify the unjustifiable in order to serve their God King. They bend themselves into logical pretzels to come to their desired outcome – that Trump should not face consequences – without regard for what other effects the ruling might have. It is argued that the immunity applies to Biden as well – if tested I think we will find it does not. Consistency is evidently no longer important, so I think they will come up with motivating reasoning to justify the immunity not applying to Biden, if they have to. The ground for this was prepared by the vagueness of the “official acts” immunity. Given this situation, I think we can expect more such rulings, every time Trump needs something.
Murray Reiss 07.02.24 at 5:21 pm
Admittedly, as a Canadian I’m somewhat clueless about how the US system works but is there nothing that can be done in the face of a lawless Supreme Court? Is there no way to fight back? Or is that it?
mw 07.02.24 at 6:38 pm
Michel @7. “I don’t understand the premise that the President does or might need immunity from criminal prosecution for official acts.”
The idea is that we cannot have a series of tit-for-tat prosecutions of the previous president each time power changes hands. Notably, this immunity applies only to official acts, so contra the headline, burning down the capitol building would certainly not qualify. It’s not even clear which of the current Trump cases would be covered by immunity — the lower courts will have to provide clarification as to whether or not the acts in question are ‘official acts’. Note, too, that (especially following the debate disaster), this immunity is as likely to protect Biden after the November election as it is Trump beforehand.
JimV 07.02.24 at 6:39 pm
I thought that legislatures made laws and judges checked actions against those laws and against the constitution, and checked laws against the constitution. The six conservative judges of the USA Supreme Court seem to have made up new law.
This is one of the worst political acts of my lifetime, second only to Nixon sending a message to the North Vietnamese in the Paris peace talks, to not accept a peace deal with LBJ because Nixon would give them a better one when elected. I note that Nixon would not have been liable for the Watergate conspiracy under this SC ruling and would not have needed Ford’s pardon. In particular, the Nixon tapes could not have been used in evidence, and would not have been turned over to congress.
From the pundits and journalists I follow (not including Fox News or the NY Times), I have received the notion that this was the culmination of a plan put forward by the Heritage Foundation several years ago (pack the Supreme Court and use it to impose their political views on the country undemocratically).
Mike Furlan 07.02.24 at 6:53 pm
The problem is not that Trump might seize power, but that the majority of our “white” fellow citizens want to thrust that power upon him.
It isn’t the court we have to worry about, it’s your next door neighbor and what the voices in his head are telling him to do.
Lee A. Arnold 07.02.24 at 9:25 pm
I already thought the SCOTUS majority were dim bulbs, but this decision is monumentally stupid
Or a mix of intellectual incompetence and moral corruption
There are so many questions
Who decides what an official act is? Does the Supreme Court have to decide every time?
January 6th case has a hearing. Judge rules no immunity. Trump appeals to appeals court. Appeals court says no immunity. Trump appeals to SCOTUS
Is this going to happen for all the counts in the indictment?
This and the Chevron decision: the courts get all this extra work to do, & it all gets appealed endlessly
Biden should just say, fuck it, I’m forgiving everybody’s student debt, if you already paid it off then I’m giving you a rebate, who gives a shit, the education was totally worthless anyhow, & what can they do to me
Second question: What official Presidential act ever needed to be criminal?
And so on…
They get rid of Roe because it’s not in the Constitution, but make up new doctrine when it suits them
steven t johnson 07.02.24 at 10:15 pm
Murray Reiss@10 Formally, the Congress can do many things to rein in the judicial branch. But it includes such tactics as ending lifetime retire-at-will appointment; writing a code of ethics with teeth; adding more judges; revising judicial districts; setting up new kinds of courts entirely (the most recent example is a FISA court, a bitter joke indeed); specifying regulations on which and when the SF hears cases (as in, abolish the shadow docket.) There is even the possibility of impeachment—virulent opponents of Earl Warren wanted this, but the impracticality of impeachment was demonstrated by Jefferson’s attempts to use impeachment.
But the real objection is, when the Supreme Court kept obstructing New Deal legislation on dubious legal grounds (most boiled down to subterfuges to deny the legislative branch to legislate, in my opinion,) it was condemned as “court packing.” Unlike other customs, this one is deemed sacred, because the current judiciary is largely stacked. Trump more or less openly committed to using Federalist Society lists for all nominations. (And Republicans had for years blocked as many judicial appointments as possible, witness the refusal to even hold hearings on the current attorney general.) Also my opinion, the RICO statute probably applies to the Federalist Society, if there was the will to use it.
There are many people in the US who firmly believe that limitations on majority rule is freedom. Thus the courts are sacred guardians of liberty precisely because they can effectively write law.
Michel 07.02.24 at 10:31 pm
mw @ 11
Yes, but that’s the thing; such immunity isn’t necessary in most other functioning democracies. So why is it necessary in the American framework? What aspects of US governance might require the President to commit a crime, such that he would need to be immune from prosecution?
I just can’t think of a plausible scenario. And, arguably, if the President does commit a crime in office, even in an official capacity, they should absolutely be vulnerable to criminal prosecution (e.g. Bush and co. should absolutely be spending the rest of their days in prison, and that they aren’t is part of the answer to how we got here today). That’s how it works elsewhere in the world, and it doesn’t seem to pose a significant obstacle to effective governance.
Alex SL 07.02.24 at 10:31 pm
This all seems exactly correct. The far right views politics not as a system for negotiating compromises that keep enough people content to avoid civil war, but as a fight against (often imagined) enemies. They also paranoically assume that liberal centrists and leftists have the exact same view but merely are dishonest about that. If that is one’s world view, then everything goes, including, of course, a dictatorship.
As always I am interested in bad arguments, so I noted with fascination the US right-wing response on social media and in interviews to liberal outrage at the decision that a US president can do crimes without consequence and is uniquely above the law. Hilariously, it seems evenly split between (1) this isn’t what the decision said, you obviously haven’t read it and are only trying to create panic, (2) [yes, that is what the decision said, but] this has always been the case, look at how Obama drone-struck that US citizen, the court merely clarified already existing arrangements. Plus the usual wallowing in liberals being upset, but that goes without saying.
Point is, only one of the two can be true, but the right cannot even get its message straight. This is, as if needed at this point, further evidence that they aren’t arguing in good faith. They want an authoritarian state, and what they say in response to this decision isn’t argument, it is chaff. And on that note: what Mike Furlan wrote. Ultimately, you can have an order that allows the president to incarcerate his opponents without cause but a gentleman’s agreement never to use that power, or you can have a constitution that has strong safeguards against authoritarianism but an authoritarian movement takes over and simply ignores those safeguards because there is nobody left to enforce them. The authoritarian movement is the salient factor, not what it says on paper.
JPL 07.02.24 at 10:48 pm
You could of course add “… and ordering the extermination of the entire Jewish people” to your headline list of Hitlerian unlawful official acts for which the SCOTUS decision grants the chief executive immunity. In the Republican case the immediately vulnerable group would be the “illegal aliens” in the country who they’ve promised to round up and detain in large buildings.
The decision is essentially an initial (false) premise of a reductio ad absurdum that the justices seem not to have pursued beyond the initial premise. But here the consequences would unfold in the real world, not just in an argument of logic. They really seem not to have engaged in any relevant thought beyond taking on Trump’s absurd repeated assertion (not even a principle, which he is incapable of stating as a principle) that “a president has to have absolute immunity, or else you won’t have a country”, or similar utterances. So yes, no legal reasoning at all; just the use of numbers to impose a desired outcome by force, i.e., power.
As I understand it (correct me if I’m wrong), the existing constitution makes the distinction between official and unofficial acts of a President subordinate to the distinction between lawful and unlawful acts, so that cases in the category of official acts that are unlawful are, unless specifically protected by law (or custom?), subject to impeachment and prosecution after leaving office. (The former (official/unofficial) is a practical distinction, the latter (lawful/unlawful) is an ethical distinction.) What they’ve done is to invert the logical dependency relation, making the practical distinction dominate the ethical one. The position of ultimate power is now outside the governance of ethical principles. But we know that ethical principles overarch all interpersonal activity (to put it roughly); practical considerations always enter the making of ethical judgments, but ultimately ethical principles are “overarching”, while practical exceptions must be supported by good reasons. This is the central change in the governing logical structure that the decision makes, apparently without regard for the logical and real world consequences. This will create a big mess going forward, and, I would suggest, it should be reversed as soon as possible and not accepted as valid. (The rank stupidity of the apparent thought process by which the right wingers arrived at their judgment is mind-boggling. E.g., what happens to the “just following (unlawful) orders” defense that was ruled invalid at the Nuremburg trials?)
JPL 07.02.24 at 11:01 pm
BTW, that’s how one responds to the need for “bold and unhesitating action” in some category of cases: by passing laws that explicitly allow such acts only in cases where violations of ethical principles are done for good reasons, as in the case of search warrants, not by overturning the whole governing system of the rule of law principle (that all subjects (people affected) are equivalent wrt the application of the laws of the land).
mw 07.02.24 at 11:11 pm
Michael @16. “I just can’t think of a plausible scenario.”
You really can’t think of a plausible scenario where a prosecutor in partisan jurisdiction (say, Texas) would gin up a charge against Biden or somebody in his administration? Not even in revenge/retaliation for the state prosecutions of Trump? You evidently have more faith in Republican human nature than I do.
bad Jim 07.02.24 at 11:45 pm
There’s no point in trying to understanding the logic of any of this court’s opinions, because it is not the result of a process of reasoning. Instead, the majority begins with the desired result and confects a justification from constitutional scripture.
Cheez Whiz 07.03.24 at 12:21 am
Michel @ 16
“Why is it necessary in the American framework?a”
I recommemd you read the opinion. It is short by SC standards, and ismlargely devoid of the Latin incantaions used to make them sound impressive. https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
It’s a remarkable piece of work. After a list of Presidential powers and responsibilities, they conclude there is a “presumptive immunity” from prosecution. That’s pretty much it. They presume. They also go to great lengths to avoid any specificty of any kind, specifically ruling out “intent”, only declaring “official acts” are immune and “unoffical acts” are not, with agressive avoidance of a definition. Therex’s an odd throwaway line about “private papers and recordings” not allowed in any indictment, which I believe is already in the Presidential Records Act. It’s deliberately vague, like most of the anit-woke legislation passed in Florida, probably for the same reason.
JPL 07.03.24 at 12:27 am
@bad Jim”
“Instead, the majority begins with the desired result and confects a justification from constitutional scripture.”
If you’re referring to my comment above, that’s what I said they did. I was attempting to describe the logic of what they said (what they expressed), not the logic of what they thought they were doing when they said it. But how does what they expressed affect real world consequences? (Especially the consequences of accepting what they said as logically valid.)
Sebastian H 07.03.24 at 12:45 am
I’m annoyed all over the place, but there isn’t any legitimate reason to remand this decision back to the lower courts. There are no new facts to be developed under the decision, and if they need arguments the Court can just call for a re-argument. If, as seems likely, Trump wins and the case vanishes, all the particulars remain unresolved and lie around like a loaded gun on a mantle waiting for some toddler to pick it up.
Seekonk 07.03.24 at 2:07 am
If the Dems ever win another election, they should legislatively repeal Marbury vs. Madison, the 1803 case in which the Supreme Court arrogated to itself the right to determine the constitutionality of legislation. The Constitution does not give that power to the Court.
The final say on the constitutionality of legislation could be given to the House of Representatives. https://en.wikipedia.org/wiki/Parliamentary_sovereignty
Michel 07.03.24 at 4:41 am
mw @ 20:
No, I can’t think of some crime the President might need to commit in the course of their official duties.
But, as you mention it, it looks like there’s a pretty good track record of partisan hacks not going after sitting or former presidents.
Alan White 07.03.24 at 5:38 am
MF @ 13 has it exactly right. We have gotten precisely what we collectively deserve.
Ken_L 07.03.24 at 6:06 am
The decision is another indication of the gradual collapse of constitutional governance in America. It’s had a pretty good run for 248 years, much better than most other developed nations. But the collapse is accelerating, as evidenced by the Court’s recent decisions. The president’s person has been rendered almost untouchable, while the executive government and the legislature have had their ability to govern seriously diminished. The states and the federal judiciary have been the big winners, but there is a tension between them – especially between BLUE states and the federal judiciary – which will lead eventually to a confrontation.
I don’t pretend to know how it will come about, but I would bet a lot of money there will be some kind of constitutional convention in the US before the end of the century, to try to restore some workable federal system. Historically in other countries, such conventions follow in the wake of traumatic events: civil wars, coups (violent or non-), “colour revolutions”, conquest by foreign powers for example. Sadly, while it is likely that an overwhelming majority of politically engaged people might agree that constitutional reform is necessary, I can’t think of an instance where it has happened in a peaceful, orderly process. Fear of ending up worse off keeps people postponing serious negotiations until some sort of crisis makes them unavoidable.
KT2 07.03.24 at 6:08 am
@18 “(or custom?)” … “The position of ultimate power is now outside the governance of ethical principles.” … “apparently without regard for the logical and real world consequences.”
It seems 200+ years of ‘customs’ and ‘ethics’ were what kept the US on top and from another civil war. Uncodified yet all basically had custom, morals / ethics as a basis. Even if they were R, D or others.
Trump maga et al don’t do customs and ethics, and most people – including most politicians – took this for granted. Me too I now realise.
So why can’t @14 “Biden should just say, fuck it, I’m forgiving everybody’s student debt, if you already paid it off then I’m giving you a rebate, who gives a shit, the education was totally worthless anyhow, & what can they do to me”
@17 “Ultimately, you can have an order that allows the president to incarcerate his opponents without cause but a gentleman’s agreement never to use that power,” … “The authoritarian movement is the salient factor, not what it says on paper.”
So Biden can now be authoritarian without custom or ethics and as lower courts now need to clarify specific acts, which seems the only wiggle room.
I realise CTers will be amused, dismayed or see these suggestions as the gambit of a lunatic, but hey!, you lot may be ruled by a lunatic tyrant soon. So…
Couldn’t Biden:
1) declare war – plenty of options.
“Instead, Congress has the authority to determine the timing of the election, as established by a federal statute enacted in 1845. It is important to note that no presidential election has been postponed since the enactment of this law.”
( afterdowningstreet dot org
u-s-presidential-elections-during-war-what-does-the-law-say )
See below. A two year window after declaration of war
2) issue directives on official acts due to wartime powers
3) stack SCOTUS
4) waive debts on education boost healthcare dreamers aliens citizens etc up social security – placate and sweeten electorate. All communication in wartime subject to Commander in Chief. Fixing Fox etc
5) @15 “RICO statute probably applies to the Federalist Society, if there was the will to use it.”… and a few others to RICO too, and
6) force new SCOTUS case/s to entrench power on the side of angels not Mango Mussolini devils.
Yes this will be hitting them in te gookies, but the timing, and time to reverse and reset the playing field seems very important. NOW.
The US and the Constitution has been operating on ‘principles’ and custom. If Biden doesn’t whack the supremes with their own ruling – until war declared “over”. The tangerine tyrant will do above in reverese. To you, me and humanity.
To our detriment.
Biiden would have 2 years.
“Constitutional Rights in Wartime
Clauses 11, 12, 13, and 14. The Congress shall have power * * * ; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years. To provide and maintain a Navy. To make Rules for the Government and Regulation of the land and naval Forces.”
https://law.justia.com/constitution/us/article-1/57-constitutional-rights-in-wartime.html
“The Senate approved a war powers resolution on Thursday that would curtail President Donald Trump’s authority to take military action in Iran without congressional approval in a bipartisan 55-45 vote.
“Trump could still veto the resolution. It would then take two-thirds of the Senate, or 67 votes, to override him.
“The House of Representatives passed a separate, nonbinding resolution last month after Trump ordered a drone strike that killed a prominent Iranian military figure–Qassem Soleimani. His decision reopened a potentially explosive debate about when presidents can use their military power without approval from Congress.”
…
https://www.pbs.org/newshour/politics/what-are-a-u-s-presidents-war-powers
“(a)Priority communications
“During the continuance of a war in which the United States is engaged, the President is authorized, if he finds it necessary for the national defense and security, to direct that such communications as in his judgment may be essential to the national defense and security shall have preference or priority with any carrier subject to this chapter.
…
“(f)Affect on State laws and powers
“Nothing in subsection (c) or (d) shall be construed to amend, repeal, impair, or affect existing laws or powers of the States in relation to taxation or the lawful police regulations of the several States, except wherein such laws, powers, or regulations may affect the transmission of Government communications, or the issue of stocks and bonds by any communication system or systems.
…
https://www.law.cornell.edu/uscode/text/47/606
Never ever thought I’d write something like above.
Unmoored from customs and ethics, anything is possible.
J-D 07.03.24 at 6:29 am
How would Canadians fight back against a lawless Supreme Court?
Tm 07.03.24 at 8:50 am
I’m pretty sure that Americans don’t like this. They like to pretend that the justice system works fairly and treats everyone equally, which of course was never true but it was claimed. Americans certainly don’t like the idea of the president being above the law. This must be offensively turned into a liability for Trump.
Americans who don’t agree witzh the idea of Trump being treated as godking (which I think is the majority) must now rally for justice and democracy.
Tm 07.03.24 at 9:00 am
Nathan: “it has just shown that it will make up principles out of whole cloth and justify the unjustifiable in order to serve their God King”
Absolutely. What has happened is nothing less than a coup d’etat by the lawless 6 Supreme Court justices. It’s not the first time they are rewriting the constitution as they wish but this is the most blatant they have done this. They have been deleting whole sections from the constritution (e. g. the civil rights amendments) and have invented ney amendments from whole cloth. Everybody agrees there is nothing in constitution or law that would grant immunity to a former president. They don’t even pretend that’s the case, they just make up what is essentially a constitutional amendment. And they leave no doubt they will do this again without restraint. Ominously it is now clear that if Biden wins and Trump contestst it based on whatever made up lies (which he certainly will), this SC will not hesitate to throw the election to Trump. This coup d’etat does indeed foreclose the possibility of a fair democratic election for the foreseeable future.
What is now necessary is to not give in to resignation. Organize and mobilize and rally for justice and democracy!
Anna M 07.03.24 at 9:53 am
While “those who matter” have mostly been exempted from consequences (de facto, if not always also de jure), formalising what was previously merely “informal understandings” (and, of course, leaving them malleable and open to “the right sort of interpretation”) will notably serve the class interests of the wealthy/powerful. In that sense, I tend to view Trump’s faux populism as being considered to be a “useful bulwark” against the liberating effects of social democracy (and, ultimately, the “threat” of a classless society). While I should be careful to note that I am not arguing everything is class, I do think what we see is largely the effects of class interests “putting thumbs on scales” to ensure that things which serve their interests tend to achieve prominence (as I previously argued in another thread, I would generally attribute much of the culture wars to something similar – though I realise some were not convinced).
Ultimately, I doubt the system will be able to save itself (I expect that, even in the best case, we would see a cascade of systemic institutional failures, as violating norms will be seen as far more catastrophic than the collapse itself, which be largely ignored), and the only real remedy (if such a thing is even possible at this point) will be on collective action and solidarity – as, to be frank, it always has been.
Akshay 07.03.24 at 10:48 am
Democrats need to support AOC’s announced impeachment proceedings against SCOTUS. If your response to the recent spate of SCOTUS YOLO outrages is merely to nag people to “Vote!”, which is always valid, you’re not taking the extremity of the current situation seriously, and your warnings will lack all credibility. Whether it works or not, a signal that SCOTUS isn’t legitimate is needed.
Sadly, these are the Dems we’re talking about, the most spineless and worthless political party in the industrialised world. They, or their donors/owners, have never wanted to do what it takes.
Ken_L@28 Surely there are many examples of gradual, or at least, non-violent, constitutional change? Many European countries have had gradual changes since 1848, it’s how we ended up with these silly constitutional (powerless) monarchies. I don’t think wars and occupations were always essential here, although of course they were for some countries, i.e. the Axis powers. The US Constitution is simply extremely hard to change, but even so, changes did happen until the Civil Rights era, not all due to Civil War.
Mike Huben 07.03.24 at 1:26 pm
KT2 @ #29 has the right of it. Some more ideas along those lines:
The problem is that the Republicans want to create a -like government which will create a . The whole Project 2025 is a blueprint for this, and has been facilitated by the recent supreme court judgments.
This is a result of an enormous, 50-year conservative project to train the populace to support conservative ideas, put conservative legislators, jurists, and executives in power with an ultimate end of changing the constitution to achieve permanent power. Hilary Clinton was wrong about “a vast right-wing conspiracy”: there have been several working together. Two major ones are the conspiracy by Christian nationalists and the conspiracy by the extremely wealthy.
According to the recent judgements, Biden does not need war powers to do pretty much anything he wants. He could “protect the Constitution” as he has sworn to from these subversive elements, either by war powers or simple executive action. He could use the plans of Project 2025 against the conservatives to destroy their power in current government, and be protected by the recent judgements.
He could simply remove opponents from office either by jailing them or killing them. If he jails enough conservative congressmen or senators, the remaining quorums could easily impeach the conservatives of the supreme court for fabricating supposedly constitutional decisions, ignoring stare decisis, and lying about their intentions and beliefs during confirmation. Then, of course, he could fast-track new confirmations. Lower courts as well, adding the cause of being unqualified. He could reduce the supreme court below the 6 member quorum, both protecting himself and forcing appointment of non-right-wing judges.
A new Supreme Court could reverse the harmful decisions of the past several years, including the powers that legitimated Biden’s actions. Cases could be rapidly generated, accepted, and ruled on. Alternatively, he could arrange a Constitutional Convention as the right wing has been trying to do for the past few decades, and dictate the changes needed.
The right-wing money apparatus that has fueled this massive propaganda and subversion effort could also be defunded, starting with confiscation of the riches of right wing corporations, billionaires, and foundations. This is no different than what the founders did with British supporters.
Conservatives at all levels could be removed from their positions for supporting Trump, Project 2025, opposing abortion and hard-won civil rights, being sponsored by the conspirators, etc.
After that, Biden could resign taking full responsibility for these actions and allow his VP to take over. Hopefully after installing more protections, checks, and balances so that this will not recur.
All this could be done quickly, before or after elections. If Congress won’t go along with this, he could privately threaten to include them in the turnover or to execute the conservatives he has captured.
As Biden and his staff are astute politicians, they can probably think of less draconian methods than I can, but all of this could be accomplished. None of this is worse or much different than what Trump and the conservatives are threatening: it would be nice to see them hoist by their own petard.
steven t johnson 07.03.24 at 3:41 pm
Since Trump has never won a popular vote, it is entirely unclear why the people as a whole should be condemned for pushing Trump into power. If one wishes to convict them of pre-crime a la Minority Report (which is SF not a documentary) the precedent of 2000 and 2020 powerfully suggests the election will be characterized by many shenanigans. I think the conviction of moral treason of the entire population is debatable.
It seems to me discussion probably would be more in depth including the decision reversing the Chevron precedent. Then we easily see I think how much of this is a return to the Lochner era. The long-term project of undoing the New Deal has has led to an return in slightly different form to the die-hard opposition of 1936.
There are three things to realize about Biden I think. First, Biden, ex-senator from MBNA, is indeed a loathsome figure because he has continued so much of Trump’s policies. For instance, the war against Iran restarted by Trump’s exercise of the exit clause Obama left in JCPOA may be mostly economic warfare against the Iranian people as a whole, but that’s still war.
Second, I think BIden should be officially dubbed President Band-Aid because his attempts to reform are invariably insufficient. He’s like a kindly grandpa who pats a kid on the head, then offers a cookie and a band-aid. But it doesn’t matter if the kid has just lost a limb or has leukemia. All efforts by Biden to service the people are limited to gestures that will not cost too much, will not require too much from the owners. Even the government aid while they still cared about Covid was limited by the insistence on massive giveaways to businesses, largely disguised as the Paycheck Protection Program. By an irony of history, even the titanic military budget is just a band-aid. It is a joke compared to the real needs of the war against Russia/Palestine/Iran/PRC/Cuba/Venezuela. We are already started on a hybrid version of WWIII and that costs real money. But Prez Band-aid can’t even now conceive of inflicting a war economy on the master of wealth.
Third, all factions of the MSM have turned against Biden. It’s not just the band headed by Fox News anymore. After Afghanistan, the owners turned against him. That’s why the demented wreck image initiated by Trump has gained so much traction. Trump also was demented in his debate. The claim Democrats are murdering babies in their hospitals alone was insane. The spectacle of people crying out Genocide Joe is edifying in one sense (I’ll say no more ) but not when Trump madly accuses Biden of merely giving the IDF a band-aid.
The relevance of this is due to the partisan nature of this decision. Trump apologists in my personal experience simultaneously argue that such decisions doesn’t matter to ordinary people and that it actually serves the cause of justice, somehow. People may admit to not caring about politics, but politics cares about them. I think this bitter truth is why there is such a cultivated disdain for “politics.” Cheap cynicism about “politics” is far better than the dread prospect of the masses engaging in politics. The winners can always interpret sullen indifference as tacit consent. But that takes us back to the folly, as I see it, of indicting the people for voting in Trump when he’s never won a popular vote.
Seekonk@25 proposes legislation explicitly denying the right of judicial review to the Supreme Court. This is impractical in several ways. Even if laws could be written in a completely coherent manner that sufficiently addressed all probable issue (a rather large claim I think) experience shows that despite or because of the large number of lawyers, Congress simply hasn’t the skill. There were a bunch of lawyers in the Constitutional Convention too. But the legal incompetence that so quickly led to the Eleventh and Twelfth Amendments demonstrates the problem.
It was almost the custom for presidents to limit the use of the veto, given the presumption that legislation represented the will of the people. Hence, it was often the case early presidents justified veto of what they deemed unconstitutional actions due to a lapse in the people’s judgment. Legislation stripping the right of constitutional review from the Supreme Cesspool would lead to the president attempting to exercise this right.
The further suggestion such supremacy be vested in the House suffers from the existence of both the Senate, a rival for the power and the states. An amendment depriving the Senate of legislative powers, turning it into a court of impeachments, pardons, and debate might work. But would it fly? Lost Cause ideas may currently eschews shameless neoConfederate dress, but they remain. They even appear to be getting stronger. The states, laboratories of corruption (not so much democracy in my view) will contest a national body. Indeed that’s why Supreme Courts liberal and conservative have been so committed to limiting the scope of the Civil War amendments so far as I can tell.
Last note: Project 2025 is a convenient tag. Trump isn’t even as good an administrator as the comatose Biden, as his term proved to us. That’s why the lists of personnel that are a discreet part of the scheme are apt to play in the end a major role. (As I understand, fundraisers for Heritage liked to boast Reagan carried out 60% of their ideas back in the day.) But outfits like this, despite use of the misleading acronym PMC are not independent conspiracies. They are in a sense fiduciary agents, doing donkey work of actually thinking* for their donors. The ultimate problem is not that the bestial rabble are pushing their God Trump into power, it’s that the owners are pushing Trump.
*The wealthy, despite self-flattery and claques, are not notable for their intelligence and hard work. In practice almost all ideology is petty bourgeois, because the bourgeoisie as a group finds it hard to make up their own.
nastywoman 07.03.24 at 5:23 pm
and that really needs a response:
‘The ultimate problem is not that the bestial rabble are pushing their God Trump into power, it’s that the owners are pushing Trump’.
Some of them do BUT the problem is -(like it was in Hitlers case) that ‘the bestial rabble’
(not our words) are so… let’s say –
numerous?
nastywoman 07.03.24 at 5:28 pm
and isn’t it… ‘strange’?
that in contemporary Germany some political dude who would run by claiming that he has some kind of immunity -(for his crimes)
NEVER EVER
would be… erected to any ‘political Führerrolle’ –
BUT
in America it suddenly is possible?
What is wrong with THE HIOMELAND?
LFC 07.03.24 at 7:07 pm
I’ve read much, though not yet every word, of Roberts’s majority opinion, and it’s clear that the distinction between “official” and “unofficial” acts now becomes extremely important. Roberts gives lower courts a little bit of guidance on how to draw that distinction, but not very much guidance.
What this means, or seems to mean, as a practical matter is that the case will go back to the district court, where the judge will have to decide which of the acts charged in the indictment are “official” and which are “unofficial.” Trump’s lawyers will then likely appeal Judge Chutkan’s decision. This will of course take a lot of time, and by then Trump may be in the White House and his Attorney General might well have ended the whole prosecution.
Roberts purports to be concerned that a President’s “vigorous” and “energetic” performance of his/her job will be put at risk if the Pres. knows that he/she can be prosecuted for official acts after leaving office. Roberts says, in effect, that he’s unwilling to trust in the “good faith” of government prosecutors to avoid this result. That, of course, is a not-so-veiled insult directed at government prosecutors who, Roberts implies, can’t be trusted to discharge their professional obligations properly. (I assume the dissenting opinions make this point, but I haven’t really read them yet.)
Alex SL 07.03.24 at 11:26 pm
Two themes that have come through in this thread are suggestions for alternative constitutional arrangements for the USA and the irony of how the recent decision potentially empowered Biden.
Regarding the former, that is all very nice in theory, but we all know that there is no plausible path to a reform of the political system of the USA without first moving through societal collapse or at least another civil war. The very reason why reform would be needed is that the people who would fight tooth and nail against such reform have become so powerful and entrenched that reform is impossible.
Regarding the latter, we all know that Biden isn’t going to make use of the powers the supreme court hands the presidency, and the supreme court knows this too.
steven t johnson,
Completely agree with the band-aid presidency. But it isn’t just Biden, it is endemic across North America, Europe, Australasia. There is a ratchet in place where the right wing deregulates, cuts taxes on the rich and large corporations, dismantles environmental protections, and suppresses wages, and every few elections the nominal centre-left gets in and does nothing to substantially reverse any of that. The next country to experience that dynamic will be the United Kingdom.
Regarding the voters, we’ve gone around this before, sorry. Yes, there is no collective responsibility falling onto people voting against Trump if, say, the result is Trump 44% to Biden 40% (just picking one recent poll at random) but the former wins only thanks to an absurd electoral system despite not having a majority. Even less so if the result is Trump losing the popular vote but winning via the absurdity that is the electoral college.
But there is no getting around the fact that this still means that 44%, tens of millions of people, look at a convicted criminal, an obvious fraud, somebody who cannot formulate a coherent thought during his rallies, somebody who is infamous for being disloyal and entirely selfish, and think, I will have me some of that, this will be a great steward of our nation. This is very close to half the voting population! Some polls even have him at 50%! That is a problem that can’t simply be memory-holed because it is “arrogant” to call millions of voters hateful, part of a cult, or uninformed. Sometimes, that is simply what they are.
Circling back to the band-aid presidency, the problem is, unfortunately, also broader. It is no accident that the nominal centre-left never does anything proportionate to the problems we face, because voters only vote them in when the promise not to do anything serious. Australian voters rejected Shorten as too radical on housing, so they got Albanese, who does little except approve coal mines right left and centre. UK voters rejected Corbyn for being too radical, so they will get Starmer, who has promised not to do anything that would improve the UK economy. Germans could vote for the Left, and the French could vote for Melenchon, but neither do in sufficient numbers. So, Scholz and Macron are the best they will ever get, and then comes disillusionment. “We’ve tried nothing and we’re all out of ideas.” At least the USA have the excuse of having a two party system by design, making it nearly impossible to push from the left without handing the presidency to the right, but voters in a proportional representation system don’t have that excuse excuse when they consistently vote against their own economic interests and against any policies that would keep most of the planet habitable for their grandchildren.
steven t johnson 07.04.24 at 12:39 am
For once I understood a nastywoman comment. The implication @36 Hitler came into power by winning the majority is worth a little bit of time.
Von Schleicher, a group nicknamed the Keppler circles, von Papen, von Hindenburg invited Hitler into a coalition government, which included a Rupert Murdoch of the day, Hugenberg. It was not a because Hitler won the majority. The Nazis won 280 seats, about 37% of the vote in July 1932. But in November, when the internecine political crisis forced new elections, the Nazis lost 34 seats, vote share dropping to 33%. Even worse, the SPD lost share to the Communists, who won a hundred seats, vote share 17%. Enlisting Hitler as a partner may even have seemed easier precisely because he’d peaked, but still had enough parliamentary clout to fight the Communists and those Socialists no longer interested in Blutmai festivities.
In the upshot, after the Reichstag fire, even with massive financial support from big business (admitted even by the likes of Henry Turner Ashby if I remember correctly,) two emergency decrees from von Hindenburg permitting such electoral help as the arrest of some 4 000 Communists and street violence, even then the Nazis won just 288 seats, vote share about 44%. But the Communists, who still won about a 100 seats, vote share about 12% nevertheless, couldn’t take their seats as they would face arrest. The Enabling Act of late March 1933 contributed immensely to the irrelevance of the minority status of the NSDAP.
It is religious dogma that the rise of Hitler was either the Communists fault or the people’s fault, or somehow both, but is any of these anything more than popular mythology?
J-D 07.04.24 at 1:01 am
In theory, the Constitutional possibility of impeaching Supreme Court Justices exists as a check on their power. In practice, under current circumstances, there’s no chance of getting a majority of the House to agree to it (and if there were, there’d be no chance of getting sixty-seven Senators to convict)–not that this is a conclusive argument against initiating the process, noting the fact that–
–the Democrats, however much you despise them, did vote to impeach Donald Trump, not once, but twice, even though they knew there was no chance of conviction, because they still thought it was the right thing to do.
Ken_L 07.04.24 at 6:00 am
Akshay @ 34 I wasn’t suggesting every other country has had some kind of traumatic event. My point was that (a) the US pretty obviously needs fundamental constitutional reform, but that (b) history suggests it will take some kind of traumatic event to trigger it. Yes there are countries – not many – where incremental change has occurred over the centuries without a lot of drama, but that doesn’t seem to be an option for America. The moment one party suggests even the most modest constitutional amendment, massive forces combine to oppose it.
Tm 07.04.24 at 7:05 am
str 41: It is an old hat that the Nazis never actually won a majority in a meaningful election. They needed, and received, the support of other right wing parties to gain power, and that is (or maybe has been until recently) generally understood as the biggest lesson from the Nazis’ rise to power: don’t make a pact with the fascists, keep the firewall between democratic parties and antidemocratic parties strong (the Nazis weren’t the only antidemocratic party on the right, of course). The situation in 1932 was however that there was no majority for the pro-Republican parties. A clear majority of voters had supported parties that wanted the Weimar Republic destroyed. In that sense it’s not accurate to say that voters had nothing to do with the outcome.
Tm 07.04.24 at 7:24 am
The mainstream media reaction to the ignominious SCOTUS decision is puzzling. They face the prospect of Trump, who hates the press, becoming president again with a free hand to engage in full authoritarianism with full immunity and the blessing of the highest court. Yet mainstream journalists seem completely oblivious to the likely consequences. They don’t seem to have any self-preservation instinct. Amazing.
Tm 07.04.24 at 12:58 pm
Ken 43: The problem is precisely that the US constitution precludes the incremental change that is normal in other constitutional countries, which means that Americans are stuck with a petrified 200 years old constitution that has become almost useless and that can’t be changed without a revolution.
Admittedly few other constitutional orders have survived for as long as the American but Switzerland comes close. The constitution of 1848 was adopted after a brief civil war. In 1874 the constitution was fully revised in accordance with the constitutional process, no need for a revolution. At that time it was almost certainly the most modern, most liberal constitution in the world. The amendment process requires >50% of the popular vote and a majority of the states, which allows for frequent amendments.
Another revision was approved in 1999. This one didn’t change the substance much. Rather it had become necessary because in the meantime, the constitution had been amended so many times that it had become cluttered and needed redaction.
Americans, perhaps out of that absurd cultlike reverence for the “Founders”, don’t understand that it’s normal to amend and revise constitutions. The Northern states didn’t even take the opportunity of the civil war victory to make substantial changes (as the Swiss liberals did in 1848). That may have been the last chance. Perhaps of Trump wrecks the country badly enough, there’ll finally be a revolution.
As an aside, US right-wingers e. g. the Heritage Foundation are getting drunk on talk about Trump bringing the revolution. They use that word, interspersed with warnings of an impending civil war. Trump himself has called for military tribunals and executions of political opponents, statements that have resulted in practically zero major media headlines and next to no attention (it’s not as if Trump had a stutter, now that would be news).
Since we are ta Crooked Timber, let’s take the opportunity to give a shoutout to former CTer Corey Robin who never tired telling the world about Trumpism’s respect for constitutional norms.
Must read: https://thomaszimmer.substack.com/p/the-anti-liberal-left-has-a-fascism
Colin R 07.04.24 at 3:19 pm
@TM 45
My impression from the media is that they were quite comfortable with their position in the Trump administration. The previous administration was a viper’s nest; there was a constant stream of courtiers willing to exchange gossip with reporters, and Trump himself was a daily firehose of outrage. Easy job for political reporters. Even the ‘hatred’ seemed like mostly a game where everyone understood their role, or a sports rivalry.
That a future Trump administration might be much more hostile and dangerous is not something that really seems to register, because a lot of people didn’t take it seriously the first time around.
steven t johnson 07.04.24 at 3:29 pm
Alex SL@40 takes two tacks in rebuttal, to reaffirm moral condemnation of the people whose moral depravity impels the political system to be what it is. One is to counterpose the result in PR systems. Generally I prefer to comment on issues where I have decades of life experience, decades of wide reading and decades of much (obsessive?) thought. Absent a fit of temper, I’m too vain usually to venture much boldness (arrogance?) unarmored by feeling I’m right. Internet discussion seems to be conducted on an adversarial debate model and while I don’t feel bad when it seems like the other iwins by playing to the gallery, so to speak, I don’t like to venture into unknown waters. In short, I don’t really know enough about how PR systems work in practice to genuinely argue this, at least not in the properly definitive manner appropriate to amicus curiae.
So I can only tentatively suggest that two characteristic of PR systems that I think I’ve seen, are respectively, a wild variability in turnout and voting that to me is evidence that even in PR systems parties are not so directly embodiments of the masses’ value and preferred policies. Maybe I take too much from Italy and France.
The other is that in PR systems the role of institutions is magnified even above. They serve in practice as the formally democratic equivalents of Iran’s Guardian Council and Expediency Council, one reason Iran’s credentials as a democracy are roughly on par with Israel’s. In Europe the role of the media in marginalizing this party or faction seems to be particularly disproportionate. They of course are owned, with all that implies. (And state-owned media are carefully limited in what’s acceptable, if not subverted.) There are also judges, the military, the security services and in the EU, briefly Brussels. And I’m afraid I really do think internal subversion by such forces into the parties themselves does occur and is always significant. I also think perhaps this is worth thinking about.
The other tack, addressing the US which is not PR, is to insist that all votes for Trump are votes for Trump. This is not an oxymoron. All my experience convinces me that many people really do insist on believing you can vote against someone. I say again, no is never on the ballot. And anyone can and will insist that sullen indifference is tacit consent. I think that underlies the “defenses” of Biden that basically say, vote against Trump. I say we don’t have a meaningfully free election, many or most of us don’t have a choice for what we want. In my area, votes for others are not even reported in the mass media, especially locally. So it is moot whether even protest votes are allowed to be effective.
TM@44 should address most of the comment to nastywoman who doesn’t seem to know what’s “old hat.” The effort to sort the people into pro and anti (Weimar) Republican parties and thus condemn the masses suffers from two problems. First, it is not at all clear who was pro-Republican. Bruening’s rule by Hindenburg decree was not pro-Republican in any clear sense, for one glaring example. The independent role of the army was not pro-Republican either, and key to Hitler’s rise (von Schleicher!) That was closer to being a feudalistic remnant in the Junker element in the officer corps, not popular in any meaningful sense. The implication really does seem to be an endorsement of the view that the Communists were as much part of the problem as the Nazis. This is precisely the way the issue was posed back then so far as I can tell and the solution was for Hitler to help fight that menace. I’m sorry, I’m not even sure you would have been so resolutely pro-Republican then as now, with hindsight.
The second problem is forgetting the Great Depression. It seems to me to be imprudent to reduce an objective disaster like that to a single moral issue in order to condemn the people as thrusting Hitler into power. The apparent presumption that people should be condemned for confusion and desperation seems ungenerous, bordering on contemptuous.
bekabot 07.04.24 at 3:45 pm
“all the particulars remain unresolved and lie around like a loaded gun on a mantle waiting for some toddler to pick it up”
Most toddlers are too short to pick up random guns lying around on mantleshelves, which is one if the things the Supreme Court is betting on. Most adults who pride themselves on their grown-up-ness are too smart to do it — and that’s another.
steven t johnson 07.04.24 at 4:39 pm
Colin R@47 blames lazy and complacent reporters for positive Trump coverage. I think this is refuted by remembering that hyping the horse race aspects of Sanders vs. Clinton would have been just as easy. But no, because Sanders wasn’t really acceptable to the owners and the monied customers buying advertising. News media are not driven by audiences, they sell audiences. That’s why they work so assiduously to cultivate an audience suitable to the ends of the owners and the true customers, those buying advertising.
MisterMr 07.04.24 at 5:18 pm
@TM 46
This is a bit OT since it is about France, but for example in France the “far left” alliance is instructing its candidates to step down in seats where macron’s candidates have a larger chance to defeat Le Pen, whereas only some of Macron candidates are doing the same for the “far left” alliance (even if the “far left” won more votes than Macron), as some believe that the “far left” is as bad as Le Pen.
Macron himself used this argument that the far left is as bad as the far right at the beginning of his campaign, so it will be awkward if he will have to ally with said “far left”.
This is to say that the idea that the “centrists” in center-left are using the fear of the Big Bad to fight an internal battle against the “leftists” in the center left is not that strange.
I think that the “centrists” in the “center left” are quite blind to the level that, as they beated the “left” in the internal squabbles, they basically let the “far right” (or rather the “social right”, aka right wing authoritarians, aka fascists) into center stage.
Another example is austerianism, that while today is not all that strong characterized the “center left” for like two decades between 1995 and 2015 in Europe, and left a lot of scars (and still partially exists). Austerianism IMHO had a big role in putting forward the far right parties, more that leftists inttelectuals playing the “I’m leftier than thou” game.
mw 07.04.24 at 6:46 pm
TM @ 46 The problem is precisely that the US constitution precludes the incremental change that is normal in other constitutional countries
But the U.S. Constitution has been amended many times (27 in total). Not many have been adopted in recent decades, but that may be because the Supreme Court got into the habit of ‘amending by interpretation’. Now that that era seems over, it’s at least possible that the amendment process may come back into vogue. Eventually.
But, yes, the bar for amending the Constitution was intentionally set high. It’s far from impossible, but it is difficult, and garnering the necessary supermajority needed for pretty much anything is probably not going to happen with current levels of evenly divided polarization. Given that, it’s probably a good thing — a bare majority being able to ram through major constitutional changes against the will of a nearly-as-large (and probably temporary) minority seems a recipe for disaster.
steven t johnson 07.04.24 at 6:52 pm
Missed this before, sorry to comment so much.
Tm@46 writes “The Northern states didn’t even take the opportunity of the civil war victory to make substantial changes…” I submit that the 13th, 14th and 15th amendments are in fact major changes. Constitutionally, collectively, they were Freedom National, to borrow from James Oakes. They were implicit invitations to the “new birth of freedom,” to borrow from another writer. That’s why the decades long efforts by the Supreme Cesspool to whittle them away with bad law.
The fundamental reason in my view for the ultimate failure of the Civil War (Second American Revolution, though this is still not accepted as manifest!) amendments promise was the commitment to bourgeois democracy. Transfer of lands to the freed population was ruled out, a commitment to hard money, a determination to suppress labor and the ultimate defeat of the giant labor upheaval, the defeat of Populism all contributed to the long fight for Redemption It is commonplace to condemn the amendments, as in the notion the 13th codified slavery, and see the defeat of Reconstruction as the plan all along, but I think that is gross historical falsification.
Nonetheless I see the ultimate defeat of Reconstruction and Redemption, the rise of Jim Crow, as the long run result of a commitment to bourgeois democracy. Bourgeois democracy I think was premised on fighting tyranny, conceived as a violation of property and rights. The protection of the slaveholding class and the rebel officers and government officials (overlapping groups, yes) in the name of avoiding a Robespierrist Reign of Terror was not viewed as a tragic strategic error but a moral vindication of the innate goodness of the American people. Candidly I write this as someone who thinks no democrat who hates Robespierre is a good democrat.
MisterMr@51 Largely agree here though I would add that I’ve never seen how any political formation today that is premised on anticommunism domestically/imperialism abroad for the sake of bourgeois democracy can rationally be conceived of as left. That seems more self-flattery than truth.
Phil H 07.04.24 at 7:23 pm
I’m really struggling to understand this. Comparisons to the Nazis are all very well, but why should I think that Roberts et al. really are Nazis? Alito and Thomas do seem to have particularly loathsome aspects, but the rest… not so much?
Obviously, this ruling is designed to help Trump. That’s clear. I just haven’t been able to work out the motive. If they were driven by conservative principles, they would surely be dead against Trump, who is ideology-free and populist. If it were allegiance to the Republican Party, you might think that they’d help remove Trump in order to steer that party back to some semblance of normality. I guess the motive is something like, the court doesn’t want to appear to be intervening in an election, plus some sense that working with Trump will enable them to make more radical decisions, whereas Biden might sooner or later take action against them? I dunno.
JPL 07.04.24 at 10:16 pm
According to the ruling, apparently, the category of “official acts that are unlawful” is empty of possible instances. Or, at least, empty of possible prosecutable instances, which amounts to the same thing, if Justice Sotomayor’s conclusion in her dissent is correct. Correct me if I am wrong, but this can’t be consistent with the text of the existing constitution. So Nixon’s sentiment that, “if the President does it, it’s not illegal” (which even he probably didn’t see as open-ended) has been affirmed as the new law of the land. Trump may not have the necessary imagination and blood-thirstiness, but I don’t know about the Heritage Foundation. It is a reductio ad absurdum; you can’t have that and have a practical social system governed by rationality (ethical principles applied to the process of adaptively effective truth-seeking). It doesn’t work out. The practical worries that Roberts expresses can be handled in the usual ways; you don’t have to mess up the whole system just to save one special man. Of course “conservatives” have never seen anything wrong with maintaining the principle of special pleading.
Alex SL 07.04.24 at 10:55 pm
Tm,
The implied positive “Admittedly few other constitutional orders have survived for as long as the American” and the negative “Americans are stuck with a petrified 200 years old constitution that has become almost useless” are the same thing. It simply isn’t a great idea for arrangements to survive that were made for a tiny electorate of slave-owning male aristocrats whose idea of “arms” is a front-loading musket instead of a machine gun and whose imagination for democracy extended only to like a monarchy, but time-limited.
steven t johnson,
Of course, the left plays politics on Hard Mode given that they have everybody with lots of money against them, meaning they have media owners against them. But I remain puzzled why people who I would assume you trust to marry, raise children, run businesses, buy alcohol, and operate heavy machinery suddenly have no responsibility whatsoever for what they do when at the ballot box. Your perspective infantilises everybody except a couple of billionaires, their thugs, and presumably yourself.
But I am also uncertain how even in theory a system could ever be designed where political parties are “directly embodiments of the masses’ values and preferred policies”. The masses aren’t homogeneous, and indeed I would consider the view that there is a simple, unified “will of the people” to be a core aspect of fascism. I may vote Green because I want more sustainability but am put off by their flirtation with ‘alternative’ medicine crankery; another person over there may vote Green because they want more sustainability but are put off by the Green’s ‘wokery’. How do you square that as directly embodying both our values unless every voter creates a one-person party? And even if everything is run through plebiscites (ignoring for a moment the legitimate interests and values of the 48% who lose a given vote), such a system can easily arrive at incoherent policies even if every voter is individually coherent and rational, simply because complex, interrelated decisions involving trade-offs do not map easily onto a series of majority votes.
Brexit is, of course, an excellent lived example, because while there was transiently a very narrow majority for what people didn’t want, there was never a majority for any specific solution outside of EU membership, leaving the vast majority of people dissatisfied with whatever would have happened after exit. And it has to be thus for anything of even minor complexity and nuance, down to something as trivial as bus routes, unless the vast majority of the population have completely identical values and interests, which they don’t and never will.
mw,
I think Tm is right. Instead of the Supreme Court getting politicians to return to the practice of constitutional amendments, is it possible that they are just going to let conservatives do what they want and block everything liberals want? Given that the court interpreted an amendment that says the USA should have a reservist army as saying that everybody should be allowed to walk around with automatic guns, I do not doubt that they could interpret a new amendment that says abortion is legal as saying that contraceptives are banned. Even that is purely theoretical, given that today’s Democrats would never be able to implement an amendment, nor even seriously try to. Maybe once their entire current leadership has been replaced with a new generation.
Phil H,
Putting aside the definition of Nazi, if you find it puzzling why they would do what they are doing under the assumption that they are decent people, and given that Biden is never going to take action against them, it seems easy to reason out the logical conclusion: These judges are right-wing authoritarians who want a right-wing authoritarian state. That is what their actions will likely result in, they are smart enough that they must know that, and they were incubated in a support network that openly works towards such a state.
engels 07.05.24 at 12:51 am
The centrist playbook is to drive out the left and then campaign on “anybody but Bush/Trump/fascism/etc”. One problem with this it actually gives them a vested interest in the right’s relative strength and unhingedness. Another is that people eventually get tired of it and either stop voting or go over to the right.
Tm 07.05.24 at 8:25 am
Mw 52 and others: 15 amendments in 220 years, 1 amendment in the last 50 years. That is not „many times“. You don’t seem to grasp how unusual such a tiny degree of change is in modern constitutional states. A political order so structurally incapable of adapting to social change is doomed.
The Swiss currently celebrate the 175th birthday of their constitutional order (not really much of a celebration, it’s not a big deal around here). I gave this example of a long-lived, stable order that is nevertheless adaptable and gets amended every year or so, as opposed to once a decade or once in 50 years.
Admittedly Switzerland is an outlier being almost the only European country not ravaged by the world wars. But in that respect it’s comparable to the US.
Tm 07.05.24 at 8:45 am
MisterMr, no disagreement but it still comes down to the voters. Only 28% supported the United Left. If voters wanted the left to govern, they could have voted for them. They apparently don’t. I don’t know why.
engels 07.05.24 at 10:11 am
If voters wanted the left to govern, they could have voted for them.
Not in Britain (except in Islington, where they did).
https://www.bbc.co.uk/news/articles/cv2g4x97jpwo
mw 07.05.24 at 10:42 am
TM @58. I suppose we can disagree on whether or not 27 counts as ‘many’ or not — but you claimed it was impossible, and it’s clearly not. Some of the amendments (even if you throw out the bill of rights which should have been part of the initial constitution), are very significant. The last truly consequential amendment in play was the equal right amendment for women (that fell just short, mostly, it seems, based on fears that any law providing special protections for women would be invalidated).
Alex SL@56. “Given that the court interpreted an amendment that says the USA should have a reservist army as saying that everybody should be allowed to walk around with automatic guns”
The idea that all the 2nd Amendment means is that the government is allowed to have an army reserve never made any sense — why would that clause be added to a list of individual rights and freedoms that restrict the kinds of things that the government can impose upon the citizenry? A who would ever doubt that governments could establish a reserve army or local militias?
And, no, ‘automatic guns’ (machine guns) are generally illegal now. What would make sense, I think, is for progressives to start the process of repealing the 2nd amendment. There are a number of progressive states where it would pass, and it would create political activity around the issue. Right now, there’s no national majority needed to pass it, but that, in itself, is the problem to be solved for proponents of gun control. Why should this seem any more hopeless, long term, than the national majority that emerged in favor of gay marriage? Change enough voter’s minds, and you can change the constitution.
Tm 07.05.24 at 4:41 pm
Mew, one can disagree on whether 15 amendments in 220 years are adequate (I don’t really see how one could make that case but it’s a matter of judgment people can I suppose disagree on). But one cannot disagree on whether that number qualifies as „many“. Especially given that we have the comparison of other countries that have far more frequent amendments. Anyway no need to take this further.
Tom Perry 07.05.24 at 5:55 pm
Speaking as an American right-winger, it’s all true. We worship President Trump, and we would do anything for him. He promised detention and re-education camps with million-person capacity, and I can’t wait for it to happen. Trump explicitly promised I would be allowed to participate in the murder, rape and torture of Trump’s (and my) enemies. I’m looking forward to it with all my heart.
Of course, if Donald Trump is elected and doesn’t go on to fulfill any of these promises, I shall feel very stupid indeed.
Nathan Lillie 07.05.24 at 8:31 pm
Tom Perry, you might not have been personally promised it by Trump, but the murder, rape and torture of Trump’s enemies is what will happen when he takes power. I don’t know if the number of victims will be in the millions, but it is entirely plausible; authoritarian regimes differ in this regard and the detailed mechanisms of repression make a big difference to the body count. The groups that are already the victims of the American right-wing have only a truly terrible fate to look forward to; prominent left-wingers do as well. Or perhaps you’re being facetious? Because it is hard to tell the difference. I am disgusted that you are looking forward to it, but I guess you wouldn’t be a “right-winger” if you weren’t.
nastywoman 07.05.24 at 8:40 pm
and how did the following pass moderation?:
‘Speaking as an American right-winger, it’s all true. We worship President Trump, and we would do anything for him. He promised detention and re-education camps with million-person capacity, and I can’t wait for it to happen. Trump explicitly promised I would be allowed to participate in the murder, rape and torture of Trump’s (and my) enemies. I’m looking forward to it with all my heart.
Of course, if Donald Trump is elected and doesn’t go on to fulfill any of these promises, I shall feel very stupid indeed’.
As I just spoke as a German NonRightWinger and my comment didn’t make it?
Who do I have to torture and murder?
nastywoman 07.05.24 at 10:54 pm
and
as –
Es lässt uns keine Ruhe –
whatabout@
‘Tom Perry 07.05.24 at 5:55 pm
Speaking as an American right-winger, it’s all true. We worship President Trump, and we would do anything for him. He promised detention and re-education camps with million-person capacity, and I can’t wait for it to happen. Trump explicitly promised I would be allowed to participate in the murder, rape and torture of Trump’s (and my) enemies. I’m looking forward to it with all my heart’.
Couldn’t moderation at least have added the disclaimer:
THIS IS NOT A JOKE?
Alex SL 07.05.24 at 11:28 pm
Mw,
Look, I am not a lawyer, and certainly not a constitutional lawyer in the USA, but it is extremely difficult for me to understand how a paragraph that starts with “A well regulated Militia, being necessary to the security of a free State” is about anything but muskets in a reservist’s locker so that the nation can be defended when necessary, as opposed to only active professional soldiers being allowed access to muskets in their barracks. The authors spelled out their intention extremely clearly: something like Switzerland, not the Wild West.
Point is, a judge who reads “a well regulated milita” as “you are allowed to walk around the supermarket with a loaded gun in your jacket” isn’t operating in good faith but on an ideological mission. When you are dealing with people like that, it is largely irrelevant what your constitution or the laws say, because they will claim the opposite if it suits them, and nobody dares do anything about it.
steven t johnson 07.06.24 at 1:52 am
Alex Sl@56 is probably just being rhetorical, but technically this is a question without a question mark. “I remain puzzled why people who I would assume you trust to marry, raise children, run businesses, buy alcohol, and operate heavy machinery suddenly have no responsibility whatsoever for what they do when at the ballot box. Your perspective infantilises everybody except a couple of billionaires, their thugs, and presumably yourself.”
It’s not clear why these things would be assumed. No socialist regime has simply abolished marriage, true. But I would suggest the tendency to abolish coverture, bride price or dowries, legalize divorce directly implies a distrust of all people being able to get marriage right. Similarly, inflicting penalties for child abuse, prohibition of child labor, requirements for public education and vaccination of children suggests a skepticism about the ability of all people to raise children. Alcohol is regulated, including production but again, laws against public drunkenness and restrictions on minors still suggest a certain distrust about the ability of all people to use alcohol. Ditto the usual licensing requirements for automobiles, compulsory purchase of insurance and supervision of safety in manufacturing, mining etc. includes the training in operation of heavy machinery.
It may be objected that such things are strenuously opposed largely by the open reactionaries, which is largely true I think. But I cannot see how such a criticism applies to me, absent a general confusion of socialist sympathizers with libertarians or traditional conservatives? Or barely possibly an insistence that the anticommunist social liberals are part of the “left?”
But there should be zero confusion about the notion a sympathizer like me endorses the right of “people’ to run businesses! That means endorsing the right of private parties to control the economy!
The charge that somehow it infantilizes people forgets one simple thing. Voting is not something anyone can learn easily in this system. Learning to operate heavy machinery, for example, is much easier because it operates consistently to achieve obvious goals. I think it is worse than infantilizing people to expect them to operate politics like that. A farm tractor does not lie. Nobody could easily learn to operate heavy machinery that only works at all intermittently or produces different outcomes with the same operations by the would-be operator. It’s like condemning people as unspiritual or unbelievers if they can’t reach the proper conclusions in theology.
The second paragraph verges on openly claiming socialism is totalitarian. It definitely claims some sort of horseshoe theory. It verges on openly claiming majority rule is fascist. It definitely implies the people as a whole are irrational (which arguably infantilizes them more than I did, even if you accept that charge, which I deny.) It tacitly presumes that the mob cannot possibly learn to distinguish questions of who gets what or war and peace from laws enforcing social regimentation. One wonders how people ever learned that society would not fall to pieces without a King or a single Church! I’ve noticed before how often the most serious and most heartfelt attacks on socialism devolve into the reactionary condemnation of democracy in general. Or in economic matters, the impossibility of defying the natural laws of the market, which prove people must be able to run their businesses.
The specific example of Brexit looks to me a proof of the objection that plebiscites (much less opinion polls)
Liz Anderson 07.06.24 at 11:35 am
I took Perry @63 to be snark.
nastywoman 07.06.24 at 3:39 pm
@’I took Perry @63 to be snark’.
But there is NO other way to take what Perry wrote deadly serious –
or everything you -(and I) – wrote would be even less than ‘snark’ –
It would be just a silly internet joke?
nastywoman 07.06.24 at 3:57 pm
and@63 Perry –
I don’t know if you are one of ‘the Perry’s who work for the Trump Campaign and if you had attended the briefing about ‘How to beat the Libs on the internet’ and as we were referencing this article in the comment section of the NYMag and you guys are currently try very hard to take over that section -(as it always annoyed your Führer immensely that the NY Mag and the NYT and most of it’s readers were no fans of your Führer) just the question – when you wrote:
‘Of course, if Donald Trump is elected and doesn’t go on to fulfill any of these promises, I shall feel very stupid indeed’.
Is that really true?!
Liz Anderson 07.06.24 at 5:59 pm
Trump has never promised–not even implicitly–to build re-education camps to hold millions, or that his followers would be able to participate in the murder, rape, and torture of his and their enemies. Hence, I took Perry to be mocking the worries of anti-Trumper and anti-MAGA people by grossly exaggerating them. But even if Trump would not go that far (and I doubt that he would), he and his movement still pose a grave danger to democracy that even many Republicans who do not see themselves as anti-democracy tend to minimize. Perry’s minimization-by-mocking is not that different from Justice Roberts’s chiding of Sotomayor’s dissent in the Trump immunity case for worrying that the majority opinion threatens democracy. I don’t think Roberts is trolling. I think he thinks his side is so righteous that it can be trusted not to use the shield of absolute immunity to bring down democracy. Obviously, in light of Jan. 6, it takes a lot of motivated reasoning to think that. But I think it also reveals that Roberts has a fundamentally different conception of democracy, akin to Orban’s “illiberal democracy,” or Herrenvolk democracy. This was the perverted notion of democracy shared by many of the Founders of the U.S. Constitution, and rejected only at the “Second Founding” when the Reconstruction Amendments were passed. It’s no accident that the current Supreme Court majority obsesses over the 1789 Founding and minimizes the radical changes promised by the Reconstruction Amendments.
Seekonk 07.06.24 at 9:30 pm
”the radical changes promised by the Reconstruction Amendments.”
There is a view, loathed by Alito, Thomas, et al, that the Reconstruction Amendments, particularly the 13th, imply the necessity of affirmative action to remedy the “badges and incidents of slavery”, e.g., racial discrimination.
“Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.” Jones v. Mayer (1968). https://supreme.justia.com/cases/federal/us/392/409/ [prohibiting racial discrimination in the private sale of real property]
JPL 07.06.24 at 10:46 pm
I also took Mr Perry’s comment to be not what it seemed to be on the surface. Apart from the lack of verisimilitude, a true Trump supporter would never say, “I shall feel very stupid indeed”. A Trump supporter would never think of admitting to be ashamed of being so stupid and credulous, but also I suspect that Mr Perry is a Brit. But Mr Perry, or his persona, could have been more helpful if he had tried to offer credible reasons why his persona, or anyone, would want to “murder, rape and torture” complete strangers “with all [his] heart”. Were a Trump supporter to express this kind of sentiment, they would not be able to offer any credible reasons, unless they were an actual psychopath, but if Mr Perry is not one, perhaps he at least has an imagination. Trump (and “the right” in general) uses these kinds of promises in order to grift off of them. So my question is, why do Trump supporters continue to send their hard-earned money to Trump’s legal fund or to Bannon’s “build the wall” scheme and the like? If they want tangible benefits, why don’t they vote for, or at least appeal to, Democrats? (They’ll never get them from the Republicans.)
In any case, by now Trump is just a front man (with no policy goals of his own apart from vengeance and staying out of jail) for the Heritage Foundation, hedge-fund managers and people like that. So the question wrt SCOTUS is, why have they not been just addressing the case at hand in these recent cases (Roe, Colorado 14th amendment, immunity, etc.), and rather making sweeping changes that are not consistent with or supported by the existing constitution. It violates not only their previously stated principles of jurisprudence, but amounts to pushing through invalid judgments by mere force of numbers in violation of logical and ethical principles, which looks like an abuse of power.
Tom Perry 07.07.24 at 2:12 am
lack of verisimilitude
I face a similar problem in the right-wing forums I frequent. I really am curious to study their folkways, but despite my best efforts to fit in and join the conversation, somehow they always identify me as an outsider.
This Oxford degree is just no good.
Alex SL 07.07.24 at 5:10 am
Yes, this reads as facetious. In contrast to Nathan Lillie, I do not even expect that “murder, rape and torture of Trump’s enemies” will happen, although I would not exclude the possibility of some arrests on trumped-up charges (no pun intended). But Hungary style control of the media and seeding the public service and judiciary with autoritarians who will ensure that Republicans cannot ever lose an election in the future unless well over 60% of the voters vote Democrats would bad enough. With the caveat, of course, that under rampant gerrymandering, arbitrary purging of voter lists, and making voters in minority and poor areas queue for several hours on a working day, the USA are already half there anyway.
For everything bad somebody might do, a facetious response can be formulated that casts those objecting to it as hyperbolic, all the way to, “yes, this regime murdered tens of thousands of people from a minority, but you are exaggerating when you compare them to the Nazis because they didn’t specifically murder six million specifically Jews specifically in gas chambers”, as if that would make the bad thing not a bad thing…
At any rate, the supreme court has given any future president a loaded gun, the question is more what exactly the right-wing overall will do with it rather than any specifics Trump might do. He may not even live many more years, one expects, and who knows who becomes the next leader of the right in the USA. It might be somebody much more focused and competent at entrenching power.
steven t johnson,
Sorry, I just don’t understand you. To defend against the perception that you infantilse voters by painting them as sheeple who merely do what the billionaires want them to, you list regulations that protect vulnerable people from the powerful and licensing requirements for dangerous machinery. I don’t follow the argument, as none of it means that people don’t have their own values and interests and act on them. You imply that nobody should be allowed to run a business because somebody owning a farm or a car repair shop would mean they “control the economy” (all of it?).
I did not claim that socialism is totalitarian, indeed I am a socialist myself, albeit one who has noticed that people have different values and interests, like, say, the owner of a shop may have different interests than their staff when it comes to negotiating the latter’s wages or if they should have the right to unionise, an insight that is kind of fundamental to socialist theory. I did not claim that majority rule is fascist, but that believing in a homogeneous will of the people, where the minority loses all rights to have their interests considered, is a core tenet of fascism – the will of the people as realised by the Führer to the exclusion of e.g. the 30% who voted communist and social democrat in 1933, or the will of the people as proclaimed in the UK in 2016-2019 to the exclusion of not only the 48% who had an extremely different will but also of those many among the 52% who had very different ideas of where the UK should end up outside of the EU.
So, there is lots of confusion here, but very little concrete on how you would organise politics to magically achieve complete alignment of the people’s values with policy outcomes. As mentioned, that appears impossible in principle unless you first force everybody to have identical values. But all this is rather off-topic for this thread anyway.
bekabot 07.07.24 at 6:49 am
“I don’t think Roberts is trolling. I think he thinks his side is so righteous that it can be trusted not to use the shield of absolute immunity to bring down democracy.”
Is there a difference? If so, what would it be?
“Obviously, in light of Jan. 6, it takes a lot of motivated reasoning to think that.”
In what respect (again) is motivated reasoning different from trolling? After all, what is trolling? Trolling is motivated reasoning, plus a platform, plus a dearth of reserve, plus (and here one touches upon the imponderable) a certain actual or perceived absence of manners. Is Roberts not-a-troll because his manners are better than Donald Trump’s or Elon Musk’s? If so (again) how are they better, and what are they better in regard to? More to the point, whom are they better in regard to? Are Robert’s manners better when he’s talking to Sotomayor? Besides — conservatives like to emphasize the fragility of manners, and it has to be admitted that they have a point. So, in matters of life-and-death importance to millions, such as the making and breaking of nations, is it wise to lean so hard on such a fragile support? Would the bridge the troll makes impassable hold up under the troll?
Just asking questions.
innocent bystander 07.07.24 at 9:24 am
Re-education camps is a bit much, but I really do hope that mainstream media’s promise of 2024 being the last election will materialize. If what’s happening now is democracy, then I want monarchy. It can’t be worse than this. Imagine: no debates, no polls, no talking heads on tv, no damn elections, no post-election riots. None of this psychotic, colossal, and absolutely meaningless waste. Peace and tranquility. You may say I’m a dreamer, but I’m sure I’m not the only one.
mw 07.07.24 at 10:36 am
Alex SL @67 “Look, I am not a lawyer, and certainly not a constitutional lawyer in the USA, but it is extremely difficult for me to understand how a paragraph that starts with “A well regulated Militia, being necessary to the security of a free State” is about anything but muskets in a reservist’s locker so that the nation can be defended when necessary”
I am not a constitutional lawyer either, and this has obviously all been discussed at great length in many places, but here’s a quick answer. The colonies had just gained independence in a war where irregular, volunteer, self-organized local militias had played key roles in fighting alongside the actual government sponsored and controlled Continental Army. And, at the outbreak of the war, there had been attempts by British forces to seize local armories and powder warehouses before rebellious citizenry could access them. They were clearly not putting an amendment (again in the bill of rights) to assure that the citizens could be armed only when under close government organization and control (something that would have made the revolution impossible, is an incontrovertible capability of virtually every government everywhere, and would have no place in a bill of individual rights) . This is parallel to other amendments that were specifically intended to prevent other things that they saw as abuses by the British before independence — so there are bans on bills of attainder, on general search warrants, and even on the quartering of troops in private homes.
Tom Perry 07.07.24 at 3:05 pm
absolutely meaningless waste
Hear, hear! To begin with, the United States was never a democracy, and if it was it would have been worse than the Balkans in the Nineties. The only thing the US has in common with democracy is that the government is supposed to be accountable to the people, if only indirectly and with various anti-democratic institutions in place.
The US government is not, in fact, accountable to the people or to their elected representatives. Donald Trump’s second-gravest crime against humanity was when he demonstrated that the US government simply wasn’t answerable to him. Joe Biden put an exclamation point on that: nobody believes this duly-elected executive is in charge of anything. The US government is not answerable to Congress either; no serious controversy exists on this point.
Donald Trump’s gravest crime, the one they never want to see repeated, was his four-year failure to start any wars for money. Trump is the only President in living memory to neglect this duty of office, which can only lead to grievous surpluses in unused war materiel and unharmed human bodies.
Trolling: I already had this conversation with JQ ten years ago. Look, I don’t think you should put up with anyone who comes here for the sole purpose of being a nuisance. But if you’re going to claim to be an intellectual elite, you can’t just hide behind the moderator. You need to be able to sort out rational arguments from provocative language. You can’t just say, oh, you hurt my feelings so I win.
Donald Trump never promised me camps. Rachel Maddow did, and does every day. When people on the right talk about putting their enemies in camps, it’s mostly in obscure threads that can’t be found on a search engine. When people on the left talk about putting enemies in camps, they do it on cable TV.
Comment #63 is a specular reflection of leftist fantasies. You’d have to be a vampire to look at that mirror and not see yourself. Well, except for the last part.
When your fantasies don’t happen, you won’t feel stupid for having indulged them. You should, but you won’t.
steven t johnson 07.07.24 at 3:28 pm
Alex SL@76 “You imply that nobody should be allowed to run a business because somebody owning a farm or a car repair shop would mean they ‘control the economy’ (all of it?).” Yes, the principle that property is freedom has long standing in political conservatism. Equating such small property with big property that really does control the economy is a standard tactic.
As it is, I’m not sure that price supports, tariffs, export subsidies etc. means that farmers are self-made men and infringing their rights over their property is tyranny. I don’t know how it works where ever you are, but people faced with car repair bills for unexpected problems are not always convinced the owner’s untrammeled rights to do what they will with their property is the essence of freedom either.
The underlying assumption that any challenge to property are challenges to freedom is in my view entirely erroneous. And the view that people are incapable of rejecting the existing property arrangements while accepting both the fundamental equality of people as all equally people in both the economy and simultaneously accepting they are not identical is, I still believe, far more demeaning than observing the current political system deprives them of a choice, leaving their votes rather meaningless…with a corresponding lack of rationality. Nobody can vote rationally in a fundamentally irrational system. I still believe blaming them individually is far more demeaning.
The general presumption that a majority agreement on property arrangement demands a totalitarian uniformity in mind and soul is just a slander, I think, popular with political conservatives. We live in a system where the minority enforces a considerable uniformity in politics and economy, I simply cannot feel the horror at the idea of the majority doing the same. There’s no principle requiring majority rule requires such a thing and no principle demanding total conformity. Majority rule is just as compatible in principle to compromise as minority rule. Moral panic against the filthy masses is not even an objective fact.
And the reversion to the theory that Nazism was the untrammeled rule of the majority against the minority is outrageous. Fascist dictatorships are untrammeled rules of the minority against the majority. I made my thoughts about the folly of blaming Hitler on the people clear, or so I though, back @41.
As I wrote, we are again back at the topic of the OP. The recent Supreme Court decisions remove trammels on minority rule. The decisions overthrowing the Chevron precedent is an example. The point is not that we are immediately going to mass internment camps—although Trump has announced “plans” to deport millions!—the point is that we can’t tell where we are going to end up and worse that we are losing what little ability we have to change course.
The issue of whether Biden personally or the Democrats are genuinely opposed to most reactionary aspects of the shift of the ruling class to the right is a separate question. There is no Chinese wall between domestic and foreign policy. The Democratic foreign policy is war in Ukraine (not allowed to say what politics that is!) and Palestine and Iran and the PRC and Africa and Cuba and Venezuela. Trump’s appears to include economic warfare against the EU as well, though it’s anybody’s guess as to what he will actually do, given he’s a decompensated loon.
bekabot 07.07.24 at 3:55 pm
“You can’t just say, oh, you hurt my feelings so I win.”
Unconditional agreement, except that “hah, I hurt your feelings so I win” is not much better.
(Added: “I hurt your feelings so I win” is exactly the kind of victory the society-farmers are willing to allow to the crops.)
wacko 07.07.24 at 4:45 pm
steven t johnson: “Trump’s appears to include economic warfare against the EU as well, though it’s anybody’s guess as to what he will actually do, given he’s a decompensated loon.”
A minor (but perhaps indicative of something?) point: calling import tariffs “economic warfare” is (ironically) akin to Trump’s own hyperbolic language. There is an actual ongoing economic war against Russia and Belarus, and to a lesser extent against China, going on right now. And it’s not anywhere near the most draconian measures Mr. Trump could possibly, by any stretch of imagination, introduce towards the EU. European finances and properties (state or private) will not be expropriated by Trump. EU banks will not be excluded from SWIFT. Third countries and their banks and businesses will not be punished for trading with the EU. EU pipelines will not be blown up. Well, other EU pipelines anyway.
M Caswell 07.07.24 at 5:53 pm
“Donald Trump’s gravest crime, the one they never want to see repeated, was his four-year failure to start any wars for money. Trump is the only President in living memory to neglect this duty of office, which can only lead to grievous surpluses in unused war materiel and unharmed human bodies.”
Measured in increased deaths abroad at US hands, Trump is innocent of this crime.
nastywoman 07.07.24 at 8:37 pm
@Tom Petty –
as Mrs.Anderson has caught you doing the ‘minimization-by-mocking shtick’ –
please rather sing:
‘But I won’t back down’ –
AS all the ancient: ‘Donald Trump’s gravest crime, the one they never want to see repeated, was his four-year failure to start any wars for money’ – has been so often rendered ad absurdum by any… people – who just noticed that the FIRST Right Wing Führer had to be stopped from ‘Firing and Furying -(as Trump probably would call it) –
and the not ‘starting a war’ was actually done by Iran – as it. was them – who decided not to start – even as Trump had their General –
How again did ‘the Warlord call it?!
And about all these other ‘sinks’ -(as Elon Musk would call them) you try to through at
US or another one of our sisters – or just the stone old stereotypical use of the stereotypical Trump Campaign Slogans –
like
‘leftist fantasies’ –
The are actually not even as funny as your murder, rape and tortured jokes.
And I know that at one of the last briefings of the Trump Campaign about how ‘the Führer’ wants to win – some of his ‘Gauleiters’ praised the strategy of ‘minimization-by-mocking’ as one of the utmost BEAUTIFUL ‘sinks’ –
BUT as we are now
ALL!!!
aware of it –
Right?
Just singk!
nastywoman 07.07.24 at 9:00 pm
AND about:
‘There is an actual ongoing economic war against Russia and Belarus, and to a lesser extent against China, going on right now’.
If there would be really a ‘war’ about that –
it’s impossible that somebody who writes something like that –
isn’t –
to say it very simple –
‘On the side of Russia and Belarus and China’
As all of US – who live in Europe or/and the US and suffer from the attack of the War-criminal Monster just DEFEND ourselves.
Understand – DEFEND?
(and especially in economics – to have the Aggressor’s finances and properties (state or private) expropriated and to exclude War Criminals from SWIFT isn’t that a far too…
‘peaceful’ defenc?)
Alex SL 07.07.24 at 11:01 pm
Conversations work much better if participants respond to what others have actually said. I am extremely perplexed because, with the sole exception of Nathan Lillie, I cannot find anywhere the statements that Tom Perry is arguing against, although admittedly, not being a USAn, I don’t watch Rachel Maddow, whoever that is. Nor do I understand what steven t johnson’s latest response has to do with what I wrote. Much of this thread is like somebody getting attacked for eating meat because they said they like chocolate.
Mw,
Thanks, that line of argument makes sense for personal ownership of guns. But best I can tell, that would still mean for defence of the nation as opposed to paranoid fantasies of good guy with a gun saves the day, and locked safely away from the kids instead of concealed carry in the supermarket.
Tm 07.08.24 at 7:49 am
Trump has explicitly promised to:
– Deport millions of foreigners
– Intern political opponents (a category so wide it includes Trump sycophants like Mitch McConnell) in camps, put them before televised military tribunals and execute them.
There’s more but nobody can keep track of all of it.
Other Trumpists/fascists have promised “revolution” (the president of the Heritage Foundation, https://www.rollingstone.com/politics/politics-news/kevin-roberts-heritage-revolution-bloodshed-1235052706/), “bloodshed” and “civil war”.
You guys are still in denial. I can’t believe how deep in denial you still are. Read some hostory books. I don’t know what else to say.
First rule for survival: “Believe the autocrat”.
https://www.nybooks.com/daily/2016/11/10/trump-election-autocracy-rules-for-survival/
Tm 07.08.24 at 8:36 am
North Carolina GOP gov nominee Mark Robinson endorses political violence in June 30 video surfaced by The New Republic: “Kill them! Some liberal somewhere is gonna say that sounds awful. Too bad! … Some folks need killing! It’s time for somebody to say it.”
Get real folks. This is where you are in the US.
https://bsky.app/profile/atrupar.bsky.social/post/3kwkc5slns726
Tm 07.08.24 at 12:00 pm
Another must read:
“Far more than his first and second campaigns, Trump has made vengeance the central theme of his re-election platform, even reposting an wordcloud analysis of his campaign speeches that highlighted this theme.”
https://donmoynihan.substack.com/p/the-future-is-terror
A remark concerning “Supreme Court Rules Hitler Immune from Prosecution”
In 1934, almost exactly 90 years ago, during events misleadingly known as “Röhm Putsch”, the Nazis murdered 100-200 people deemed politically dangerous, including the former Chancellor von Schleicher and his wife. A few observations:
1) This was the early phase of the Nazi terror, far from its climax.
2) Most contemporaries had not believed anything like this possible, and although the conservative elites were shocked, many erroneously believed that it was an exceptional episode rather than the new normal of Nazi rule. Many, including the KPD in exile, even believed that it marked the beginning of the end of Nazi rule.
3) The murder spree was “legalized” retroactively by a sham law as “Staatsnotwehr” (self-defense of the state, https://de.wikipedia.org/wiki/R%C3%B6hm-Putsch#Rechtfertigung_und_Konsequenzen), which obviously contradicted the formally still existing Rule of Law. At this time, there were still remnants of an indipendent judiciary in Germany (Dimitroff had been cleared in the Reichtsagsbrand trial a few months earlier). But no judge or prosecutor did anything about the murders.
4) Under the constitutional amendment recently proclaimed by Justice Roberts, if Trump orders Röhm-Putsch like murders (or, even better, commits them himself, as Hitler did), he would enjoy full immunity from prosecution. There is absolutely no ambiguity in that respect.
Get real, folks in the US. Read some history books. Organize, mobilize, rally, vote against the fascist takeover at your doorsteps. You still have a few months. Use them wisely. [html corrected]
steven t johnson 07.08.24 at 2:34 pm
wacko@83 accuses me of Trumpery, as if Trumpery is merely strong talk. I think that sadly misreads Trump, perhaps wacko isn’t a US citizen. I did think someone might read this, then object that import tariffs are not so much paid by the foreigners as by the domestic population paying higher prices. If by some chance this happened I would have pointed out the political goal of forcing NATO/the EU/UK to massively raise defense spending on US weapons. Given that the previous tariff regime was working rather well, it is impossible for me to consider this project anything but an economic attack. Relatively free trade with Europe wasn’t broke and proposing to fix it is to my eyes quite aggressive…which is why I commented on it.
The rebuttal that it’s not one of the usual economic wars, where the goal is to destroy the target government by attacking the population en masse is at least an argument. Those wars are premised on unconditional surrender. Trump’s proposed war has terms of surrender, as I see it. If you truly wish to call that therefore not really a war I suppose you can. I’m afraid I think that really reflects a rather geopolitics (aka “nature”) red in tooth and claw set of values. Seeing this as an implicit endorsement of the IDF ethos of, annihilate the enemy and take their land approach, is a reasonable reading. Or if you prefer, as an implicit endorsement of the Schmittian friends/enemies analysis of politics.
Along the way, Tom Perry, wacko and M Caswell spout nonsense on stilts. The presumption that Trump was terribly persecuted is nutty enough. Jimmy Carter was also fiercely criticized for both incompetence at governance and a contemptible inability to take military action. The factions of the mainstream media that attacked Trump rather consistently tried to attack him from the right (yes, that’s nuts too) with the same kinds of tactics long used to demonize Clintons and Obama. If Trump is a whiny little bitch who can’t take the heat, he should get out of the kitchen.
Further, the idea that economic warfare is not an attack on the people of the targeted countries is merely vicious. Economic warfare kills. And there are also the covert operations and open assassinations. It is grotesque to charge Trump with pacifism, much less imperialism. What’s next, claiming Trump withdrew from Afghanistan while condemning Biden for the debacle in Afghanistan? Claiming Trump as a peacemonger after he attacked Biden for not supporting the IDF enough as a peacemonger is both ridiculous and repulsive.
The last two paragraphs are my opinions of course.
steven t johnson 07.08.24 at 2:44 pm
On the byplay about the Second Amendment?
In context it is best to read this as a formal acknowledgement of the right of the states to organize a militia. It is not honestly read as acknowledging a personal right to bear arms. No sane person thinks that meant slaves could bear arms. Also in context of recent memories of such things as the Paxton boys disorders or Shays’ rebellion, the phrase “well organized” potentially authorizes the seizure of personal weapons held by badly organized or unauthorized by the state militias. It seems to me likely this was deliberately ambiguous, agreed upon by different parties who had different ideas about how this might actually work out, determined by political legislation and executive precedent.
I know originalists of every stripe assume an actual discernible intent that never includes the Framers kicking the can down the road. But this in my opinion is like those theologians who assume the Bible expresses a single intent or meaning.
wacko 07.08.24 at 4:42 pm
@steven t johnson,
Both tariffs and the insistence on compliance with NATO’s rules on military spending are garden variety examples of protectionism and economic nationalism. This is what he was elected to do, and, again, in my opinion none of it is a “war” by any stretch of imagination.
And here, again, calling his NATO budgets demand “an economic attack” is perfectly reminiscent of Trump’s own rhetoric. I would be surprised if he hadn’t called Germany only spending of 1% of its GDP on military, instead of obligatory 2%, an “economic attack” on the US. With a slightly different spin, you could be his speech writer (this is a joke, no offense, brother).
Whirrlaway 07.10.24 at 10:14 pm
What I don’t get is that SCOTUS has collectively made itself irrelevant? If they ever say no, or even stop applauding before other people do (or just because), Trump will surely treat them same as he always does, eg his hack at the NYT the other day. Are the Dominionists foreseeing the withering away of the state or what?? Roberts imagines the leopard will never eat HIS face??
LFC 07.11.24 at 3:32 am
TM thinks that people are “in denial” if they consider probabilities. For example, is it probable or likely that Trump will order the murder of 200 political opponents, including e.g. Democratic Senators, editors of certain news outlets, denizens of left-leaning think tanks etc.? No, it is not probable. It could happen that, say, Sen. Schumer is found murdered the day after Trump is inaugurated (should that inauguration come to pass), but it’s not likely.
That, however, does not mean that Trump will not threaten democracy in other ways; he will. Relatively few people planning to vote Democratic are “in denial” about that.
Tom Perry 07.13.24 at 11:33 pm
Good news! Looks like word is getting out!
Just kidding. Donald Trump has been shot in the head at a campaign rally. I give it one star: do not recommend.
Tm 07.14.24 at 8:53 pm
LFC, what kind of argument do you think you are making? What is your assessment of the likelihood of Trumpian crimes even based on other than pure American exceptionalism?
I think the Röhm Putsch example is revealing precisely because practically nobody at the time thought that kind of thing was likely, and yet it happened, and of course much worse things happened that were considered even less likely by contemporaries. Don’t you think a little bit of epistemically humility is called for before claiming based on zero evidence that nothing bad could ever happen in the US? Btw if I really need to spell this out: I don’t claim, and nobody claims, that Trump will act exactly like Hitler. That would be silly and your insinuation is silly. What I claim, and what authors like Masha Gessen, Timothy Snyder, John Ganz, Don Moynihan and others have pointed out, is that Trump is a dedicated authoritarian who will act the way authoritarians always act. He will use threats, intimidation, violence, and terror to get his way.
Yes you are absolutely in denial about what Trump and his minions are capable of. You simply claim that their permanent threats of violence are not to be taken seriously, based on absolutely no argument or evidence, just because you want to believe that they won’t act on those threats, despite the fact that they have already done so (on January 6) and are clearly willing to do so again., and will then likely be in a much better position.
Barry 07.15.24 at 12:19 am
Whirrlaway @40:
“What I don’t get is that SCOTUS has collectively made itself irrelevant? If they ever say no, or even stop applauding before other people do (or just because), Trump will surely treat them same as he always does, eg his hack at the NYT the other day. Are the Dominionists foreseeing the withering away of the state or what?? Roberts imagines the leopard will never eat HIS face??”
The clear foundation of this is that Dem Presidents will not exploit this, and that the system will fight them. I’ll wager good money that SCOTUS and the rest of the Federalist Society judges will still happily restrain the power of Dem Presidents with no real concern for precedent, consistency or logic.
This is intended to be a one-way ratchet.
In addition, given a Trump administration with these powers, the odds of a free and fair 2028 federal election is poor. There are a large number of Red State governments and Federalist Society judges who’ll put both feet on the scale.
That leads to a Federal Government solidly under the partisan control of the GOP, with a neutral civil service being but a memory.
Under those circumstances, I can see the SCOTUS Six figuring that this sword will be single-edged for long after they are dead.
LFC 07.16.24 at 3:25 am
Tm @97
Lots of bad things will happen if Trump wins in November. On that much we can agree. Of course I never said that “nothing bad could ever happen in the U.S.” That is a misrepresentation on your part. Since, to take just one example, the U.S. practiced slavery and then systematic and de jure racial discrimination for decades, not to mention genocide against the Native American population in the course of what is euphemistically labeled “westward expansion,” the notion that “nothing bad could ever happen in the U.S.” is ludicrous on its face.
Tm 07.16.24 at 1:03 pm
“the notion that “nothing bad could ever happen in the U.S.” is ludicrous on its face.”
Indeed it is, and yet probably the majority of the liberal intelligentsia is convinced that fascism could never happen in the US. That is delusion on a gigantic scale.
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