Free Speech and Guns in 2037

By William Hausdorff and Eric Segall

Grandpa, I learned in school today that not so long ago American hate groups were allowed to march through the streets of our town, shouting threats and racial slurs at people, and to carry guns while they did that.  And that some people got killed.

I’m so glad they can’t do that anymore. Can you explain this to me?  Because I really didn’t understand it.  Is all that really true?   

Well, you're too young to remember this, but it all began to change with what happened in Charlottesville, Virginia back in 2017—just about 20 years ago. 

The Company Trump and His Supporters Keep

by Neil H. Buchanan

We have long since passed the point where it makes sense to try to compare Donald Trump's outrages.  "A new low."  "Most depressing."  "Even more dangerous." "Unprecedented in its depravity."  The inventory of negative superlatives has been depleted.  Everything, it seems, is the worst.

I will not, therefore, try to claim that there was one Trump statement in the last week that shocked me more than any other.   I will, instead, take one of his moments of awfulness as a starting point to make a larger argument.

As most observers know, Trump claimed in his indescribable press conference on Tuesday, August 15, that there were "some very fine people on both sides" of the Charlottesville protests.

Trump's claim seemed to be that some fine people marched alongside groups of men carrying Nazi and Confederate flags who were chanting anti-semitic slogans, but the company they kept that does not reflect badly on them, because they were merely there to protest the removal of a statue and the renaming of a park.

Even giving a complete (and undeserved) pass to people who would defend statues and other public honoraria that exist "to celebrate white supremacy," the best response I have seen to Trump's whitewashing (unfunny pun intended, of course) of bigotry was offered by the late-night host Jimmy Kimmel:

"If you’re with a group of people and they’re chanting things like 'Jews will not replace us' and you don’t immediately leave that group, you are not a very fine person."

Failing to notice the company that people choose to keep is an act of willful moral blindness.  Any person who could say, "Well, these people shouting hateful slurs and carrying the symbols of America's defeated enemies don't make me want to leave their presence," is a person who himself is morally bankrupt.

The question is how far this extends.  And it brings into sharper focus a question about Trump's voters that far too many commentators have been failing to understand for the past two years.

A Pregnant Minor's Best Interests

by Sherry F. Colb

In my Verdict column for this week, I discuss an Alabama law regulating the judicial bypass hearing that minors get if they cannot or will not go to their parents to obtain consent for an abortion. The purpose of the judicial bypass hearing is to allow minors who are uncomfortable approaching their parents about their unplanned pregnancy (or whose parents refuse to consent) to approach a judge instead. The judge will then decide (1) if the minor is mature enough to make the decision on her own, and (2) assuming that the minor is not mature enough, whether an abortion is in the minor's best interests. The Alabama statute was unusual in that it provided that the minor's parents, the local District Attorney, and a Guardian Ad Litem for the embryo or fetus could or would also be parties to the bypass hearing. A federal court held this unusual statute unconstitutional, and I elaborate that holding in my column, which then discusses the communicative significance of inviting a prosecutor, the girl's parents, and a representative of the embryo or fetus into the courtroom. In this post, I want to focus on one of the two questions that a judicial bypass is in place to answer: if the minor is not mature enough to make the decision on her own, then is an abortion in her best interests?

What's the Difference Between Confederate Leaders and Slave-owning Founding Fathers?

by Michael Dorf

Baltimore's overnight removal of Confederate statues and similar actions elsewhere raise the question also raised by President Trump in his remarks yesterday expressing solidarity with the "many fine people" who just happened to participate in explicitly racist and antisemitic events in Charlottesville: "Is it George Washington next week? And is it Thomas Jefferson the week after?" The short answer to Trump's question is that we honor Washington and Jefferson despite the fact that they owned slaves, whereas memorials to the likes of Robert E. Lee, Jefferson Davis, and Stonewall Jackson honor them because they fought for the Confederacy, a secessionist movement that had the preservation of slavery as its organizing principle.

Yet the longer answer is more complex. The nationwide movement to strip honors from people who participated in slavery and institutional racism has as its object some people whose contemporary honors can fairly be said to be based on other accomplishments. For example, the movement at Princeton to take away Woodrow Wilson's honors proceeds despite the fact that almost no contemporary Princetonians who seek to retain those honors thereby wish to honor Wilson's virulent racism or his "accomplishment" of segregating the federal workforce. Just as most Americans honor Washington and Jefferson despite rather than because of slavery, most Princetonians who honor Wilson do so despite rather than because of segregation. So what's the difference?

Trump Has the Opposite of a Poker Face

by Neil H. Buchanan

No one who has been paying even a little bit of attention to Donald Trump could have been surprised by his abject failure of leadership after the violent white supremacist rallies in Charlottesville this past weekend.

Trump's White House staff includes people who have built their careers by fomenting racist hatred, and Trump has enthusiastically embraced their themes and resentments.  He had no inclination to criticize a part of his base that he has actively courted.

There has already been an outpouring of excellent commentary regarding Trump's contemptible evasions.  Jennifer Rubin, a conservative columnist for The Washington Post, posted a blizzard of insightful blog entries, including one in which she decried "Trump's moral idiocy."  (On the other hand, some nominally respectable right-wingers are now busily trying to create false equivalence between Trump and Barack Obama.)

But by far the best responses thus far have come from the political comedian John Oliver, whose opening segment on his HBO show on Sunday night (August 13) offered a string of brilliant comments.  Two lines were especially devastating.

First, after showing a clip of David Duke praising Trump, Oliver dead-panned: "I've got to say, David Duke and the Nazis really seem to like Donald Trump, which is weird, because Nazis are a lot like cats: If they like you, it's probably because you're feeding them."

Then, Oliver showed a clip from earlier in the day in which Trump failed to respond to repeated opportunities to control and undo some of the damage of his earlier condemnation of violence "on many sides, on many sides."  After Trump's last failure to respond, Oliver said: "He had one last shot before the buzzer on the racism clock hit zero, and he threw an air-ball so far away it landed in the Third Reich."

Michael Dorf did a fantastic job of imagining the speech that Trump could have delivered under these trying circumstances -- not the speech that Dorf would want Trump to give if Trump were suddenly to become a progressive pluralist, but simply one that expresses "sentiments that are appropriate to the gravity of the occasion but also consistent with the views that President Trump's least objectionable supporters attribute to him."  Like all of us, however, Dorf knows full well that Trump could never deliver such a speech.

I suspect that I will find myself writing directly about those topics soon, but I want to use this column to put Trump's far-too-late, scripted attempt at damage control in the context of his tendency to say things in a way that cannot be adequately captured in written transcripts.

To put the point simply, Trump has the opposite of a poker face.  No matter the words coming out of his mouth, it is always obvious what he actually means.

Some initial steps if the Democrats are really serious. Start by looking different.

By William Hausdorff

I’m a little ashamed to admit that I already miss the Mooch.  Unlike Spicer, Huckabee Sanders, Conway, and the rest of that robotically mendacious crowd, Anthony Scaramucci, the effervescent but sadly evanescent White House communications director, appears to be occasionally capable of unprogrammed, human-like opinions.

Nevertheless, only after the Mooch was dismissed for delivering his must-read interview-rant, could I (momentarily) pull myself out of reach of the daily splattering of untreated sewage that passes for White House communication.  I decided to try to think about where Trump and the Republicans are heading. 

The Speech A Presidential Trump Would Give

by Michael Dorf

In response to the Charlottesville violence at a white supremacist rally, President Trump condemned the "egregious display of hatred, bigotry and violence on many sides"--a statement that can be read to place primary responsibility on the white supremacists but that falls short of doing so expressly. Even if we acknowledge that some counter-demonstrators were responsible for some of the violence, does Trump mean to suggest that the hatred and bigotry come from many sides? Why does he not unequivocally condemn and separate himself from white supremacists?

The answer may well be political. Perhaps Trump fears alienating his alt-right base. If so, nothing I can say here will persuade him to do anything other than continue to issue ambiguous platitudes. Still, on the off-chance that Trump wishes to say something presidential, I humbly offer a speech for him to deliver. To be clear, this is not the speech that I would write for a president whose views I found closer to my own. Instead, it expresses sentiments that are appropriate to the gravity of the occasion but also consistent with the views that President Trump's least objectionable supporters attribute to him.

Trump and North Korea: Where is Congress?

By Eric Segall

Donald Trump might be the last person on the planet I would trust with making reasonable decisions concerning what to do about North Korea's nuclear capability. Having said that, we shouldn't trust any President with the unilateral power to commit a non-emergency, no-need-for secrecy, act of war without congressional consent. The founding fathers wanted to separate the war declaring function from the war fighting function, yet here we are in a world where the President can unilaterally start a war. Congress must act, and act now.

A Tepid Defense of the "Diversity" Rationale for Affirmative Action

by Michael Dorf

My most recent Verdict column (now also available via Newsweek) discusses the recent announcement that the DOJ is committing resources to investigating and potentially suing American colleges and universities over their affirmative action programs. I describe the potential peril that the announcement--if the DOJ follows through--holds for colleges and universities that push the edge of the envelope of what the SCOTUS precedent currently permits and even for those that hew strictly to the line between permissible "plus-factor" affirmative action and impermissible de facto quotas. For the latter, the greater danger would be another SCOTUS appointment for President Trump (or, in the event of his removal, any other Republican president).

Here I want to discuss a related issue. Defenders of affirmative action--and even some of its critics--frequently criticize Justice Lewis Powell's controlling opinion in the Bakke case on the ground that it rejected the most compelling justification for race-based affirmative action while validating a relatively weak justification. I'll offer a hesitant defense of Powell's position (which subsequently was adopted by a SCOTUS majority).