Monday, October 31, 2016

Justice Thomas' 25 Years of Conservative Politics not Law

By Eric Segall

This year marks the 25th anniversary of Justice Clarence Thomas serving on the United States Supreme Court. Ever since Anita Hill came forward with allegations that he sexually harassed her, the second African-American jurist to sit on the Court has been perhaps this country’s most polarizing governmental official. Although he is a darling of the right for his strong statements about the importance of text and history to constitutional interpretation, his general embrace of conservative values, and his willingness to overturn precedents that the right disfavors, he is generally despised by the left for his consistent opposition to progressive goals such as the legalization of same-sex marriage, the separation of church and state, affirmative action, and federal regulation of our national economy. Justice Thomas’ controversial career is perhaps best symbolized by the failure of the recently opened Museum of African-American History to devote an exhibit to his career.

Jeffrey Toobin recently argued that after twenty-five years on the Court, Justice Thomas has left and will inevitably leave “very few fingerprints” because of his “radical” views.  Toobin is likely right but, in response, a former law clerk of Thomas’ wrote that “it is a shame that “in this day and age, a belief in applying the law as written—divorced from the preferences and predilections of the age—makes one a radical.” But that description of Justice Thomas is a myth. Far from applying a text and history approach to constitutional cases, Justice Thomas consistently reaches conservative results regardless of whether those results can be justified by reference to the actual words of the Constitution or their original meaning. I am not suggesting that Thomas follows the law any less than the other Justices simply that his frequent statements about text and history do not reflect how he actually votes.

In 1993, the federal government was working on a comprehensive computer database to use for background checks for gun purchases. As an interim measure, federal law required the Chief Law Enforcement Officers of the states to help implement the measure. The issue in the case was whether the federal government could use its enumerated powers, in this cased the power to regulate commerce among the states, to require state cooperation in a federal program.

Justice Scalia’s majority opinion conceded there was not one word in the United States Constitution suggesting there was such a limit on federal power. In addition, history was at best unclear on the issue. Nevertheless, the five conservatives including Justice Thomas concocted the rule that Congress could not “commandeer” state governments in this way. Regardless of whether as a policy matter such a rule makes sense, it cannot be gleaned from text or history.

Justice Thomas’ short concurrence, while joining in full the majority opinion, also argued that Congress’ power to regulate “commerce among the states” did not extend to the intrastate purchase and sale of firearms. Thomas was repeating an argument he, and he alone, has made repeatedly that Congress’ power to regulate “commerce among the states” does not extend to local economic activities that “substantially affect” commerce among the states.

Not only is this idea inconsistent with over 100 years of Supreme Court precedent (a fact that Thomas brushes aside), but it would deprive the Congress of the ability to do what was the major impetus behind ratification of the United States Constitution-giving Congress the power to regulate the national economy. Justice Thomas’ view is much more in tune with the Articles of Confederation, the first document to govern this country, than our current foundational law.

In making his argument, Justice Thomas completely ignores a part of the Constitution that has been an integral component of Congress’ powers since at least the early 19th century. Article I, Section 8 gives Congress the authority to pass all laws “necessary and proper” to carrying out its enumerated powers. The Supreme Court has consistently held that this provision allows Congress to use all reasonable or rational means to carrying out its lawful authority. Thus, Congress may use a draft to implement its duty to raise an army, and it may punish people who steal the mail so that it can run a Post Office even though neither a draft nor the ability to punish mail-theft is listed in the Constitution. Even Justice Scalia believed Congress has the power to regulate local practices that substantially affect commerce, as he argued when he voted to uphold the federal criminalization of the possession of marijuana that was never bought, sold or moved in commerce. Thus, just as Congress may prohibit the local non-commercial use of marijuana to assist in its overall War on Drugs, Congress may regulate the sale of guns as part of a more comprehensive plan to prevent dangerous people from owning firearms. Thomas’ view to the contrary ignores the plain text of the Necessary and Proper Clause, and its original meaning.

There are numerous other examples of Justice Thomas ignoring or distorting constitutional text and history. He has interpreted the phrase “another state” in the Eleventh Amendment to mean the “same state” so that states may be immune from federal lawsuits in ways not supported by the text; he has signed on to a rigid “personal injury” test that all federal plaintiffs must satisfy before having “standing to sue” in federal court even though neither Article III nor its history suggest such a requirement; and he has strongly rejected all affirmative action programs based on a principle of “color-blindness” that is nowhere in the text of the Constitution and is inconsistent with the original meaning of the Equal Protection Clause. The list goes on and on.

After twenty-five years on the Court, Justice Thomas has proven over and over that he doesn’t take text and history, or law, seriously at all. Instead, he is just a loyal, conservative, Republican with a strong libertarian bent-a politician through and through, and not a very effective one at that.

Sunday, October 30, 2016

The "Loving Analogy" in the New SCOTUS Trans Case

by Michael Dorf

Among the law nerds in whose circles I move, there is a developing view that the public will misunderstand the trans school restroom case of Gloucester County School Board v. G.G, in which the Supreme Court just granted cert. In the law-nerdy view, the public will view the case as fundamentally about trans equality, but in fact it's mostly about administrative law. In this post, I'll explore the possibility that the uninformed public are mostly right and the law nerds are mostly wrong. If so, then the administrative deference issue is secondary: the core question is whether anti-trans discrimination is sex discrimination.

I'll start with as brief a recap as possible. G.G. is a transgender boy who was denied access to the boys' restroom in his high school. The school board eventually offered three single-user restrooms, but G.G. was unhappy with that accommodation, regarding it as stigmatizing. G.G. sued under the Equal Protection Clause and Title IX. The equal protection claim has not yet been adjudicated, but the district court initially denied a preliminary injunction on the statutory claim. Then the Fourth Circuit reversed.

The two key provisions are:

Title IX: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."


a Department of Education Reg (codified at 34 C.F.R. § 106.33): "A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex."

The Fourth Circuit held that the reg was ambiguous with respect to classifications of who counts as what sex. It then turned to recent Department of Education guidance documents that say that Title IX forbids recipients from classifying students in a manner that contradicts their gender identity. The court invoked the doctrine of Auer v. Robbins, under which courts give substantial deference to agency interpretations of ambiguous agency regulations. Granting such deference, the Fourth Circuit found that the district court had erred in rejecting the claim of sex discrimination under Title IX and remanded to the district court, which then granted the injunction. Before the school year started, however, the SCOTUS stayed the injunction, with Justice Breyer providing a "courtesy" fifth vote for the stay. (I discussed the courtesy fifth vote here.) Unsurprisingly in light of the earlier stay, the Court granted cert.

The cert petition posed three questions. The first was whether the Supreme Court should overturn Auer, but the Court denied cert on that question, granting only on the second two: (1) Assuming Auer remains good law, does it apply to an unpublished agency letter adopted in the course of the dispute at issue? (2) With or without deference, is the agency construction correct?

Now let's move on to the possibility I want to explore: Maybe the Fourth Circuit opinion, the cert petition, and even the respondent's brief in opposition all make a fundamental mistake: They accept that the Dep't of Education policy regarding gender identity construes the reg. The Fourth Circuit and the respondent say that in doing so, the agency is entitled to deference; the petitioner and various amici say that it is not entitled to deference; but none of the relevant actors appears to realize that the Dep't of Education was not construing the reg--except in a negative sense.

Here's what I mean by a negative sense. The reg does not forbid anything. It is an authorization for sex-segregated restrooms by recipients of Title IX funds. Thus, the Dep't of Education was construing the reg only in the sense of saying that the reg doesn't authorize classifying schoolchildren contrary to their gender identity. That's not nothing, of course. But it doesn't win the case for G.G., because it doesn't establish that classifying students on the basis of biological sex at birth even when that disagrees with gender identity is sex discrimination in violation of Title IX. To get to that further crucial point, a court must either defer to the agency's construction of Title IX or simply agree that, considered de novo, Title IX's prohibition on sex discrimination forbids classifying students born biologically to one sex as that sex even if their gender identity corresponds to the other sex.

Is there a basis for deference to the Dep't of Education's construction of Title IX? If so, it's not Auer, because Title IX is a statute, not the agency's own reg. What about Chevron deference? Notably, even the respondent does not think that the sort of agency guidance at issue here (which was not promulgated as a reg) is entitled to Chevron deference. Absent Auer deference, the respondent argues that the agency's approach is entitled to so-called Skidmore deference (so-named for a 1944 case). But since United States v. Mead, it has been fairly clear that Skidmore deference is practically de novo review. As Justice Souter characterized the test in Mead, "under Skidmore" an agency determination "is eligible to claim respect according to its persuasiveness."

If "respect according to its persuasiveness" sounds like no deference, there's a reason for that. In Mead, Justice Souter (writing for the Court) explained that Skidmore deference takes account of the specialized knowledge and expertise of the agency in addressing a technical subject. Granting that there are contexts (such as the setting of tariffs, as in Mead itself) in which that is something more deferential to the agency than a de novo judicial assessment, Title IX does not seem to be one of those contexts. Whether forbidding trans students from using the restroom corresponding to their gender identities counts as sex discrimination is a moral, philosophical, and/or linguistic question; but it is hardly a technical one.

Accordingly, I think that the Department of Education probably should not receive any real deference with respect to the crucial question presented in the case. I hasten to add that I also think that G.G. should win even without deference. I'll now briefly explain why.

At first blush, the argument for G.G. that there is a prima facie violation of Title IX looks like a slam dunk. After all, Title IX forbids sex discrimination and the school tells him he can't use a particular restroom because of (what it deems to be) his sex. (Biologically born) boys can use the boys' restroom; G.G. can't because the school regards him as a girl. That's sex discrimination, plain and simple. The only way that the school district can win is by relying on the reg authorizing sex-segregating restrooms, but in doing so it must overcome Auer deference. Right?

Well I think so, but I'm not 100% confident that a majority of the Supreme Court will think so. To see the difficulty, think about same-sex marriage. Why didn't the Court simply say that laws forbidding same-sex marriage were a form of presumptively impermissible sex discrimination? During the oral argument in Obergefell v. Hodges, Chief Justice Roberts himself raised the issue with the following question:
I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?
The lawyer for the state gave what I regard as a not-very-persuasive answer about how the Court's sex discrimination cases all "involved treating classes of men and women differently" and how sex distinctions drawn on the basis of biology are not presumptively suspect. Evidently that satisfied Chief Justice Roberts, however, because he dissented from the Court's recognition of a right to SSM without even addressing, much less rejecting the sex discrimination argument. Notably, the majority in Obergefell didn't address the sex discrimination argument either, even as it discussed equal protection principles. And prior to Obergefell, even some judges who ultimately concluded that there is a right to SSM rejected the idea that laws banning SSM are sex discrimination.

Put differently, in the SSM context, in order to get the Court to take seriously the obvious existence of sex discrimination, advocates for the right to SSM first had to persuade the Court that there really was sex discrimination going on. In the SSM litigation, the typical move was by analogy to Loving v. Virginia.

Based on the cert petition in the new trans restroom case, it could be said that the school district has waived any objection to the prima facie determination that there is sex discrimination under Title IX itself, relying entirely on the reg. However, the Court has been known to expand beyond the scope of the cert questions, and thus it is possible that in considering the case, one or more justices might question whether there is even a prima facie violation. If so, the Loving analogy would be the obvious response. 

Suppose two high school boys: G.G., a trans boy, and F.F., a cisgender male. Under the school district policy, F.F. but not G.G. is entitled to use the restroom that corresponds with his gender identity. What's the difference between F.F. and G.G.? Why, biological sex at birth. Thus, the policy literally draws distinctions on the basis of sex in violation of Title IX. QED.

The district might argue that the Congress that enacted Title IX did not have trans cases in mind, but so what? As Justice Scalia wrote for the unanimous Court in the 1998 Oncale case, "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."

The school district still might argue that it is not distinguishing based on sex. After all, whether a student was born a biological boy or born a biological girl, that student is not entitled to use the restroom for students of the opposite sex. Following the logic of the state's lawyer in response to CJ Roberts during the Obergefell argument, the claim would be that there is no adverse treatment of either boys or girls as a class. This rejoinder is closely analogous to the losing argument in Loving. The Court rejected the argument in Loving, but its failure to consider it in Obergefell leaves its status outside of the race context unclear.

To my mind, the best (but still not very good) argument against the Loving analogy in the SSM context asserts that it is merely a formal analogy: Yes, a man told he can't marry another man is formally suffering discrimination based on sex, because a woman could marry a man, but (this objection to the Loving analogy goes) the state is really discriminating based on sexual orientation, not sex.

So too here, one can imagine the school district and others pushing back against the Loving analogy by saying that there's no real sex discrimination, only formal sex discrimination conjured up through clever lawyering to disguise what is at worst a failure to accommodate a trans student in the way he prefers.

I didn't like that response to the Loving analogy in the gay rights context and I don't like it any better in the trans rights context. The reason is that the analogy isn't just formal; in both contexts it's substantive too. Laws that discriminate on the basis of sexual orientation or on the basis of trans status instantiate the fundamental problem with sex discrimination: sex-role stereotyping. Anti-SSM and other anti-gay laws stereotype based on sex with respect to the object of sexual attraction. Anti-trans laws stereotype based on sex-stereotyped assumptions about gender identity. So it won't do to say that these laws aren't really discriminating on the basis of sex but on the basis of sexual orientation or trans status, because discrimination on the basis of sexual orientation and trans status are both formally and substantively forms of sex discrimination.

If the Court were to accept that the school district's policy is prima facie sex discrimination for the sort of reason I've just outlined, then the district might try to invoke the reg to say that sex-segregated restrooms are nonetheless permitted. It's only at that point, if at all, that Auer deference would kick in to benefit G.G.: De novo interpretation of Title IX yields the conclusion that the district is in violation, and the agency is acting reasonably in construing the reg so as not to authorize barring a trans boy from the boys' restroom. But the Auer deference question only arises once the Court has already determined either de novo or under Skidmore (which in this context is de facto de novo review) that there is a prima facie violation of Title IX.

As I said, I think this should be a winning case for G.G. He should win under Title IX without any deference, and then the school district should not have permission for its policy under the reg because of Auer deference. However, I'm not confident that a majority of the Supreme Court will go along with the first step in this argument because of the uncertain status of the Loving analogy. Much will depend on whether there is a ninth justice and, if so, who that ninth justice is.


Postscript 1: In the foregoing, I have not attempted to answer the question whether, assuming there is sex discrimination here, the school district's interests in modesty, privacy, and security might nonetheless justify the discrimination. I've covered enough for one post.

Postscript 2: Above I use the categories of sex and gender identity as binary, but some people identify as gender non-binary. In using binary language above, I meant only to capture the issues of the current case. I did not mean to exclude other possibilities for gender non-binary students.

Friday, October 28, 2016

The Future of Gun Regulation

by Michael Dorf

In a recent article in the University of Chicago Law Review, Duke Law Professors Joseph Blocher and Darrell Miller discuss how the law might treat incidental burdens on Second Amendment rights. A law imposes a direct burden on a right when the law targets the exercise of the right. By contrast, an incidental burden arises when a law applies to a broad category of conduct--much of it constitutionally regulable--but incidentally infringes a right.

For example, a regulation forbidding camping in national parks except in designated campgrounds is unobjectionable as applied to someone who sets up a tent directly adjacent to Old Faithful, but raises at least a prima facie issue under the First Amendment as applied to people spending the night in tents on the National Mall in Washington DC to protest homelessness policy. (The Supreme Court nonetheless upheld the law as applied to the homelessness protest in a 1984 case, applying what was essentially intermediate scrutiny.)

Just about any right can be the object of an incidental burden, but prior to the Blocher and Miller article, no one paid any serious attention to incidental burdens on Second Amendment rights. Nearly all of the focus had been on direct burdens of the sort at issue in cases like DC v. Heller and McDonald v. Chicago, in which a law specifically limits firearm possession. Yet, as Blocher and Miller explain, challenges to laws imposing incidental burdens on Second Amendment rights are not only conceivable; they are likely. Their article asks:
Does the Second Amendment apply to civil suits for trespass, negligence, and nuisance? Does the Amendment cover gun-neutral laws of general applicability like assault and disturbing the peace?
Rather than provide definitive normative answers, Blocher and Miller identify the stakes of the problem. Some concern the specifics of the Second Amendment. Others are more cross-cutting, borrowing from the somewhat conflicted case law regarding incidental burdens on other rights.

No doubt because I had previously written about incidental burdens (in a 1996 article in the Harvard Law Review), I was asked by the editors of the University of Chicago Law Review to comment on the Blocher and Miller article. I was happy to do so, because I think their paper is first-rate. My response--Incidental Burdens and the Nature of Judicial Review--appears in the online companion to the University of Chicago Law Review, The Dialogue. Here I will very briefly summarize my response and then make a further point about the likely future of Second Amendment rights.

My response article makes three basic points:

(1) Blocher and Miller somewhat undersell their achievement. Their analysis has important implications for direct burdens on Second Amendment rights, not just incidental burdens, because much of that analysis looks to the purpose of Second Amendment rights. For example, their approach has implications for direct limits that seek to make certain people categorically ineligible to possess firearms and for those that restrict any individual's ability to stockpile more weapons than are reasonably necessary for self-defense.

(2) Using the analysis set forth by Blocher and Miller as a launch pad, I draw a distinction between the Second Amendment and the First Amendment to which it is frequently compared by its champions: Unlike the First Amendment rights to free speech and free exercise of religion, the Second Amendment right to keep and bear arms cannot plausibly be read as including an equality norm. That observation also has potential implications for how courts ought to treat direct burdens on Second Amendment rights.

(3) As I explain using examples that I first developed on this blog, especially in response to Holder v. Humanitarian Law Project, we lack a coherent approach to figuring out what the "rule" that is being applied to someone is when that rule is a sub-rule that derives from the application to specific circumstances. I say: "Sometimes the application of a general rule or policy to particular conduct that appears to be the exercise of a right can be fairly characterized as targeted at the right, while sometimes it cannot or should not be so characterized." The problem isn't simply that the case law is internally inconsistent. The problem is that what seem like sensible intuitions sometimes point in one direction and other times point in other directions, making the formulation of any general approach problematic.

My response article is short (16 pages) so I don't see much point in summarizing it further. Anyone interested in more can read the article. Meanwhile, I want to conclude with a suggestion that the problems that Blocher and Miller identify could go away upon the confirmation of a ninth justice--either Merrick Garland or a different nominee of a President Hillary Clinton. (I'm not assuming the inevitability of a Clinton victory or of the Senate confirming any Democratic nominee; it's just that the hypothesis I want to explore depends on a fifth liberalish vote.)

The possibility of a solid liberal majority on the Supreme Court raises the question of which conservative precedents would likely be most vulnerable to being overruled. I confess to not having thought this question through too carefully--partly because I am not yet sure we will get a solid liberal majority--but if I were to make a list, I think it would have four categories:

1) Conservative Burger/Rehnquist/Roberts Court precedents that a liberal majority overrules.

2) Conservative Burger/Rehnquist/Roberts Court precedents that a liberal majority reads as narrowly as possible, essentially hollowing them out in much the way that, as described in an important 1996 Michigan Law Review article by Professor Carol Steiker, the Burger and Rehnquist Courts left the edifice of Warren Court criminal procedure jurisprudence standing, but severely blunted its impact by adding trapdoors to it. (The article is not available on a free database. Here's the first page from a pay one.)

3) Conservative Burger/Rehnquist/Roberts Court precedents that a liberal majority applies in reasonably good faith without extending them in the way that a conservative majority would.

4) Conservative Burger/Rehnquist/Roberts Court precedents that a liberal majority applies and extends much in the way that a conservative majority would.

I would guess that Heller and McDonald would likely fall into either category 2) or 3). (There isn't a sharp boundary anyway.) Litigants pressing for gun rights would lose nearly all cases in the Supreme Court, but the Court would not formally overrule Heller and McDonald.  The opinions would be issued over furious dissents by conservative justices claiming that the (liberal) majority was betraying Heller and McDonald.

The techniques for avoiding any extension of Heller and McDonald would necessarily vary based on the case, but it is easy to imagine that in any case involving an incidental burden, that fact would weigh heavily against the Second Amendment claim. There are, after all, good arguments for limiting various rights to protecting only against direct burdens, so the Court would be on defensible ground--even though there are also good arguments for granting protection against incidental burdens.

This prediction leads me to think that the Supreme Court will be a poor forum for addressing the interesting questions that Blocher and Miller raise. When everyone agrees that there is a right--as with free speech, say--then the argument over incidental burdens can be fairly joined. But where there is contestation, even if beneath the surface, over the wisdom of recognizing the right in the first place, then arguments over second-order questions such as how to treat incidental burdens on that right tend to be insincere. The accusations and counter-accusations of procedural distortion in the abortion case law make that clear. And as we have seen repeatedly in our public life, including most recently in the third presidential debate, gun rights rival abortion as a site of constitutional contestation.

Bottom Line: Blocher and Miller raise fascinating and important questions that we cannot reasonably expect the Supreme Court to address in good faith. Luckily, the law journals are available for that task!

Thursday, October 27, 2016

Do Clinton's Supposedly Negative Poll Numbers Mean Anything?

by Neil H. Buchanan

If there is one narrative that has taken root during the long course of the 2016 U.S. presidential campaign, it is the idea that both Hillary Clinton and Donald Trump are widely loathed.  It has become a staple not just of political commentaries but of late-night comedy to point to polls that seem to show that both candidates are historically unpopular.

But a factually true statement can be still be grossly misleading and damaging.  Lazily pointing to some poll numbers to attack both Clinton and Trump is apparently good sport.  Unfortunately, it also distorts the way that people think about the candidates.  Even worse, it allows voters to say, "Well, I don't want to make a choice, because they're both so bad.  Everybody thinks so."  It has thus become a self-reinforcing distortion.

Much of my discussion here will involve criticizing the use of public opinion polls, so let me first clear up a few possible misunderstandings.  Most importantly, I am not buying into the usual criticisms of polls as a general matter, for example, the claim that polling is inherently inaccurate.

The fact is that, as a matter of forecasting election results, polling has become impressively precise.  Although there are always unscientific (which usually means deliberately biased) polls that prove nothing, the last few elections have shown that careful analysis of independent polling can lead to accurate predictions.  Candidates who are behind in the polls disparage those polls, of course, but that means nothing.

Moreover, it is not true that polling cannot capture "soft" ideas.  For example, a relatively new branch of social science known as "happiness research" has made it possible to try to measure people's well-being in ways that stand up to replication and that can prove helpful to policymakers.

Properly done, therefore, public opinion polling can quite usefully improve our knowledge of the world.  Even so, it is still true that even the best pollsters ask questions that are ambiguous, and too many people (including the pollsters themselves) are willing to over-interpret the results.  A few examples will make the point.

Last month, I wrote a guest piece for a British publication called The World Financial Review (TWFR). (The column is, unfortunately, behind a paywall.)  There, I quoted from a Pew Research Center report from July -- "Campaign 2016: Strong Interest, Widespread Dissatisfaction."  Pew is one of the top polling organizations in the world, but it is not immune to analytical errors.

Summarizing a national survey of voters, Pew wrote that "large numbers of the supporters of both Trump and Clinton view their choice as more of a vote against the opposing candidate than an expression of support for their candidate."  This, according to the report, was "another sign of voter discontent."

But is it, really?  Is it not possible that at least some people are very happy with their candidate but simply dislike the other person more?  I happen to know that to be possible, because I am one of those people.

As the campaign has moved along, I have become ever more impressed with Hillary Clinton, to the point where I now view her as a potentially great president.  On the other hand, although I would not have thought it possible, my opinion of Trump is now lower than it was a week, a month, or a year ago.

Because Trump scares me so much, my honest answer to Pew's question -- "Are you voting more for your candidate or against the other candidate?" -- would have to be that I am voting against Trump.  Yet that response does not at all comport with the conclusion that Pew draws that both candidates are reviled.

Moreover, the pure hyper-partisanship of the current election all but guarantees that poll numbers are going to look more negative than in previous elections.  To find "high negatives," a pollster does not even have to do what Pew did.  All you have to do is contrast the number of people who dislike Clinton and Trump with the number of people who disliked Bush and Dukakis or McCain and Romney.  This is a new era.

Consider another example of a poorly worded question that can be badly misinterpreted.  Over the summer, The Guardian published "The Death of Neoliberalism and the Crisis in Western Politics."  Because I am a critic of neoliberalism, I suspected that this would be a pleasant read.

In some ways, it was indeed an insightful piece.  At its conclusion, however, the article cited an unspecified poll to support the claim that "[r]oughly two-thirds of Americans agree that 'we should not think so much in international terms but concentrate more on our own national problems.'"

But what does that really mean?  The author of The Guardian's piece presented it as proof that the xenophobia that Trump has tapped into is going to continue to express itself in "opposition to the hyper-globalisers."  Possibly, or possibly not.

A respondent to that poll could be saying that "we should not be getting involved in more foreign wars, given the problems with poverty here at home," even though she wants the U.S. to fight poverty abroad as well.  Another person might sincerely believe that we should close our borders and ignore the world entirely.  That poll's results do not prove what the author claims they prove, because two people with widely divergent views could give the same answer.

Similarly, the Washington Post published an article last month citing poll results showing that "[o]nly 21 percent of Latinos say the GOP cares about their community," whereas "70 percent say that Trump has made the Republican Party 'more hostile' to them."

How could thirty percent of Latinos not believe that Trump has made his party more hostile to them?  Perhaps they think that the Republicans could not be more hostile than they were before Trump came along, so that his arrival has done nothing to change their views of the Republican Party.  That would not mean that they have a benign view of Trump, but only that they already saw the Republican Party for what it had become.

Another poll, cited by a columnist in The New York Times last month, asked people to respond to the following statement: "It bothers me when I come in contact with immigrants who speak little or no English."

Could I honestly agree with that statement?  Yes.  It bothers me because it reminds me that I never learned another language, which I regret.  It bothers me because I would like to be able to communicate with everyone.  It bothers me because I worry that they will view my clumsy attempts to communicate with them as condescension or worse.

None of that would mean that I am uncomfortable with immigration, or that I am in favor of English-only laws, or any of the rest of the nativist line.  But if I were being completely honest, I would have to say that I agree with the statement in the poll.

And this is where things become especially interesting.  People can be quite savvy, and they often know what the "right" answer is to many poll questions.  Some Latino voters who hate Trump might know to say "yes" to the question of whether Trump has made Republicans more hostile to Latinos, because that is the way to register anti-Trump sentiment.

Similarly, someone in my position would be a fool to agree with the statement that coming into contact with non-English-speaking immigrants is uncomfortable.  Respondents frequently know how to register their approval or disapproval.

Thus, even if a Democrat is genuinely worried about the racism that has surfaced during Obama's presidency, she would be crazy to give an honest answer to a polling question that asks whether "the country has been moving in the right direction or the wrong direction since Obama took office."

When interpreting such polls, therefore, we really do not know how many people answer "naively honestly" or "strategically honestly" (much less dishonestly).  And the difference matters.

All of which brings us back to the meme that "both Clinton and Trump are historically unpopular."  As I noted above, my complaint is not with polling in general, but with bad questions and poor interpretations of responses.  Fortunately, just this week a helpful analysis was published by the poll-meisters at FiveThirtyEight.

Under the helpful title, "Clinton Voters Aren't Just Voting Against Trump," Harry Enten examines apples-to-apples polling from 1980 onward regarding voters attitudes about their candidate and against the other candidate.  Because this is a comparison over time, it is possible that any bias introduced by my concern above -- that being "more against" Candidate B can obscure the degree of affection for Candidate A -- might be relatively constant over time.

If so, Enten's analysis is especially interesting, because he notes that although "56 percent of Clinton’s voters ... affirmatively supporting her may not seem like a lot, ... it’s about average for a presidential candidate."  (Consider just how amazing it is that Clinton is hitting the historical averages, given how much the anti-Clinton narrative has taken hold even among Democrats who plan to vote for her.)

Moreover, Enten writes, "The most interesting thing about these numbers is how few of Trump’s supporters are his fans. No candidate since 1980 has had a lower percentage of voters say they plan to cast a vote for their candidate."

Again, that latter result could simply be a measure of just how much hatred there is out there for Hillary Clinton.  But viewed in historical context, these results do paint a rather different picture from the threadbare "two terrible choices" story line.  I am not saying that Enten's polls are better than other polls, but I am saying that his analysis is simply more careful and complete.

And remember, this is all in a media environment where voters have been told for months that they are supposed to hate both candidates.  That there is nonetheless so much positive support for Clinton has to be a good sign for her presidency.

Wednesday, October 26, 2016

Conservative Word Police

by Neil H. Buchanan

When all else fails, conservatives accuse their opponents of "political correctness."  This has been going on for thirty years or so, which means that Donald Trump's use of the anti-PC attack line is one of the ways in which he has ingratiated himself with his Republican base.

Professor Dorf recently contrasted two theories of Trump's rise in U.S. politics: Trump as truth serum, in which Trump says bluntly what Republicans have been saying obliquely for years; or Trump exceptionalism, in which Trump is unlike anything that we have seen before.

The long history of right-wingers' screaming about political correctness indicates that this is yet another way in which Trump is anything but a deviation from the Republicans' norm.  Indeed, Trump is not even out of the ordinary in degree or kind.  For decades, conservatives have been shouting, "Stop being so PC!"  Trump is simply unexceptional, at least on this score.

I will set aside for now the central problem with the anti-PC meme, which is that the concept has no core meaning.  As used by conservatives, political correctness can be applied to anything, ultimately meaning, "You're saying things that I disagree with, so I'll attack you for being too sensitive."  It is very much like "judicial activism," an attack line that is useful precisely because it is so empty (yet unmistakably negative).

If pressed, I suspect that most people who deplore political correctness would say that it means that liberals care too much about word choices.  "When did 'girls' become 'women'?  Why can't I call someone 'Oriental' anymore?  And what's so wrong about telling a joke about Polish people -- or even using the derogative version of 'Polish people'?"

Ultimately, the claim is that liberals are being hyper-sensitive.  What difference does it make, conservatives ask, whether you call someone a  dwarf or a little person?  Words only hurt if you let them be hurtful.  Why do liberals imagine that using belittling terms can lead people to take negative actions against the people who are being belittled?

This would be annoying enough on its own.  But it is positively infuriating because conservatives are, in fact, positively obsessed with forcing people to use certain words and phrases.  To listen to prominent conservatives, including those who wail about PC culture, the many problems facing this country are caused (or are at least made worse) by liberals being unwilling to speak certain phrases.

For example, during the first presidential debate, Trump said, "Secretary Clinton doesn't want to use a couple of words, and that's law and order."  Similarly, Trump and nearly all prominent Republicans have faulted Clinton and President Obama for not being willing to say the words "radical Islamic terrorism."

For decades, Republicans have been developing a vocabulary that is now a matter of ideological identity.  Obamacare instead of the Affordable Care Act; Democrat Party rather than Democratic Party; religious freedom to mean the right to discriminate; class warfare for redistributive policy; IRS code; death tax; patriot; freedom fighters; pro-life.

Some usages are especially odd, such as using the Dred Scott case as a dog whistle for anti-abortion politics.  Others become a moving target, with climate change first being the preferred conservative alternative to global warming before itself becoming unacceptably PC.

There are, of course, always fresh attempts to use words as weapons.  Trump, for example, recently used the new conservative favorite government school (as in "failing government school"), because the public likes public schools but hates the government (at least, conservatives hope that they do).

Interestingly, when Senator Ted Cruz refused to endorse Trump at this year's Republican convention, he used the words "vote your conscience."  To non-conservatives, that sounded like a phrase that simply meant what its constituent words implied.  To Trump's supporters, however, if meant "Don't vote for Trump."  Cruz's audience got the point, which is why he was booed off the stage.

And who can forget the totemic importance of those two dueling December greetings: "Happy Holidays" versus "Merry Christmas"?

Trump, again, has gladly seized on conservatives' obsession with word choices, telling his listeners that something far beyond words is at stake -- even though he is also willing to dismiss his much more specific words as mere "locker room talk" that tell us nothing about his actions.

For people who think that their opponents are overly concerned with mere words, therefore, conservatives spend an awful lot of time policing everyone else's word choices.  Where did this come from?

To a certain degree, this could be dismissed as mere political gamesmanship.  George Orwell's dystopian novel Nineteen Eighty-Four depicted the use of language as a mind-control device.  Orwell introduced neologisms like doublethink into the language and showed how mantras like "freedom is slavery" can change how people live their lives.

For conservatives, all of their careful word choices are no more nor less than an acknowledgement that words are weapons.  That conservatives have convinced themselves (and some others) that only their opponents are obsessed with words is merely a successful political strategy of deflection.

But merely saying that "everyone does it" does not mean that everyone does it in the same way, or that the effects of different politicians' word choices degrade the political conversation to the same extent.

By analogy, we know that everyone in an economic market can be expected to compete to gain an advantage, but there is a huge difference between one person who uses flowery language to make his product sound appealing, another person who flirts with antitrust violations while driving her rivals out of business, and a third person who threatens to kill his competitors' families.  There is a lot of ground covered by the phrase "aggressive competitive behavior."

Conservatives became extraordinarily aggressive in their obsessive policing of language over the course of the last generation.  Why did this happen?  This past July, I wrote: "The seeds of ugly political discourse that Newt Gingrich so deliberately planted and nurtured have fully flowered."

One might imagine that no single individual could be blamed for what has become such a pervasive problem.  After all, it might simply be that language degrades over time, and that all politicians contribute to that decline in the ways that Orwell identified.

That, however, requires ignoring the reality that terms like death tax and partial-birth abortion show up in conservatives' lexicons after having been focus-group tested in the same way that movies and toothpaste commercials are tested.  And it in particular requires one to be willfully blind to the uniquely negative impact of former Speaker Gingrich.

It is no surprise, of course, that Gingrich has managed to muscle his way back into the national spotlight, using his surrogacy for the Trump campaign to renew his assault on the English language.  Just this week, Gingrich engaged in a bizarre argument with Fox News's Megyn Kelly, accusing Kelly of being "fascinated with sex."

The payoff moment, however, was this: "I just want to hear you use the words, 'Bill Clinton, sexual predator.' I dare you. Say, 'Bill Clinton, sexual predator.'"  Most people would hear or read Gingrich there and think, "What an immature bully!"  My reaction, however, was that this was Gingrichism distilled to its purest essence.

The fact is that Gingrich is not merely one of the people who jumped on a bandwagon, repeating and amplifying the degradation of political conversation.  If any one person can be said to have started us down this road, it is Gingrich.  And his doing so is very well documented.
 For example, the political analysts Norman Orenstein and Thomas Mann recently wrote: "Newt Gingrich, first among other Republican leaders, took this polarization to a new level. He was key in the transformation of the party into a destructive and delegitimizing force in American politics (which makes his recent bonding with Trump very fitting)."

It was not an exaggeration for Michelle Cottle to write in The Atlantic earlier this year that Gingrich "broke politics."  Others have gleefully joined Gingrich over the years, but Gingrich has spent his entire life leading people down this dangerous path.

Back in the 1990's, what is now known as "the GOPAC memo" (named after a Republican lobbying organization) presented Gingrich's strategic use of extreme language, telling Republicans how to use specific words to attack their opponents.  The memo, titled "Language: A Key Mechanism of Control," included this list of words to use against opponents:
decay, failure (fail) collapse(ing) deeper, crisis, urgent(cy), destructive, destroy, sick, pathetic, lie, liberal, they/them, unionized bureaucracy, "compassion" is not enough, betray, consequences, limit(s), shallow, traitors, sensationalists, endanger, coercion, hypocricy, radical, threaten, devour, waste, corruption, incompetent, permissive attitude, destructive, impose, self-serving, greed, ideological, insecure, anti-(issue): flag, family, child, jobs; pessimistic, excuses, intolerant, stagnation, welfare, corrupt, selfish, insensitive, status quo, mandate(s) taxes, spend (ing) shame, disgrace, punish (poor...) bizarre, cynicism, cheat, steal, abuse of power, machine, bosses, obsolete, criminal rights, red tape, patronage.
The memo described those words as "tested language from a recent series of focus groups where we actually tested ideas and language."

Earlier this year, when Trump was criticized for attacking the family of a dead war hero, he defended himself by saying that he had been "viciously attacked" by the Khan family.  Even though the word "vicious" is not on the list above, Gingrich's influence on that framing is obvious.

Back in 1988, Gingrich reportedly said: "When in doubt, Democrats lie."  In Republican circles today, we have moved further down this slope, with supposed falsehoods by Democrats not merely being lies, because they must also be vicious lies.  Gingrich also instructed his incoming class of "Contract on America" congressional freshmen to call their opponents "traitors."

By the time Gingrich ran for president in 2012, he was claiming that Obama was a "food stamp president" and using "urban" as code for African-American.  Defending his food-stamp comment, he once said: "I know among the politically correct you're not supposed to use facts that are uncomfortable."

Maybe the problem, however, is using "facts" that are simply false.  As a writer in The Economist put it in 2012: "Barack Obama has put no one on food stamps. Population growth together with the most severe recession since the advent of the modern American welfare state ... conspired to make a record number eligible for government food assistance."

But none of this matters to Gingrich and his acolytes.  After the Republican convention this past summer, Gingrich went on TV to defend Trump's claims that the U.S. is a crime-ridden hellhole.  When the interviewer pointed out that crime rates are lower than they have ever been, and that the small number of cities which have seen increases this year did not change those broad trends, Gingrich smiled and replied that he would rather appeal to what people think is true, not what is true.

This is especially revealing, of course, because what Gingrich is really saying is that he has taught his people to use language as a weapon, which changes what people think is true.  And then Republicans can run on what people think is true, rather than on the truth.  So if, for example, people just happen to think that mouthing the magic words "radical Islamic terrorism" would win the war on terror, whose fault is that?

Even so, Republicans are sure that it is Democrats who are obsessed with language.  Like Trump's claim that Hillary Clinton has "tremendous hatred in her heart," this looks like yet another example of conservatives projecting their psychoses onto their opponents.

Again, this did not begin with Trump, and it will not end with him.  Gingrich led the way, and conservative word policing is now deeply embedded in the DNA of the conservative movement.

Tuesday, October 25, 2016

Trump: Motiveless Mendacity or Denial as Justification

by Michael Dorf

On Saturday Donald Trump gave a speech at Gettysburg that was billed as a major policy address in which he announced that after the election he would bring defamation lawsuits against each of the eleven women who have recently come forward to state that Trump made unwanted sexual advances against them. Fittingly, the editors of the NY Times ran the story under the headline "Donald Trump Pledges to 'Heal Divisions' (and Sue His Accusers)."  By chance, that evening I saw a film about another instance of denial and litigation. The parallels inspire this post.

Denial dramatizes the lawsuit brought by Holocaust denier David Irving against historian Deborah Lipstadt for having called him an antisemitic and racist liar in her book on Holocaust denial. Because English libel law allows recovery in circumstances where U.S. law would not, Irving's suit went to trial. The burden fell on Lipstadt and her lawyers to prove that Irving deliberately mischaracterized the historical record. In other words, they had to prove that (spoiler alert) the Holocaust in fact happened.

Denial is a fine film that deserves to be seen and discussed on its own merits. But here I want to use it as a launchpad for a discussion of Trump.

At one point in the film, after Irving has been exposed on the witness stand as a racist (by Lipstadt's lawyer reading from a part of Irving's diary in which he recounts a racist and antisemitic ditty he taught his young daughter), Irving is speaking to the press, denying that he is a racist. As evidence, he offers the fact that among his personal house staff are black and brown women, even noting that he finds the women's breasts attractive. The scene was a kind of mirror image of Trump's explanation that he couldn't have sexually assaulted those of his female accusers whom he claimed were unattractive. It was also striking in its relevance to Trump because, as portrayed in the film, Irving appeared to be completely unaware of the fact that he had said anything even eyebrow-raising.

That scene resonated with another. During the closing argument of Lipstadt's lawyer, the judge interrupts to ask a question that suggests an arresting line of defense. He inquires whether Irving's antisemitism could actually work on his behalf. In order for Lipstadt to prevail, she had to prove the truth of her claim that Irving lied about the Holocaust. Her lawyer argued that one could not attribute all of the false statements in Irving's books to mere sloppiness because they all point in the same direction: to exonerate Hitler. But the judge asked whether these might not be "honest" mistakes, suggesting that because Irving was genuinely antisemitic he could have made his errors innocently, given his beliefs.

In the end, the judge rejects the argument, but it is worth pausing for a moment over the George Costanza-esque "it's not a lie if you believe it" because it may explain what is otherwise a deep puzzle. What could Trump possibly be thinking when he doesn't merely deny that he is a racist or a sexist but boasts that nobody is less racist than he or has greater respect for women?

Part of the answer is that this is simply how Trump talks. He does not have merely good people working for him. They're "the best." He does not merely promise more jobs but "tremendous jobs." And so when Trump denies that he is a racist and a sexist, he naturally does so in the most extreme way possible.

But Trump's penchant for hyperbole is not a complete explanation. There is also the lying. If a normal person were going to deny something he knew to be true, he might be careful to deny it cagily. Not Trump. He goes all in. Why?

So long as I'm discussing the Holocaust, I should address the possibility that Trump is executing Hitler's "Big Lie" strategy: If you tell a big enough lie and tell it frequently enough, people will believe it. I think that the big lie strategy is indeed partly at work in the Trump campaign, but so much of Trump's lying is unstrategic and even counterproductive--at least if his goal is to persuade undecided voters. Trump forcefully denies having said things that he is clearly recorded having said.

Accordingly, the big-lie strategy can only account for some of Trump's lying. What accounts for the rest?

One possibility is that Trump is simply a pathological liar. When he hears something that challenges his ego or his goals, he says something to contradict it. Or he lies purposelessly. There is controversy among psychiatrists over whether pathological lying is itself a disorder or a symptom of other disorders, but in any event, it is a sufficiently encompassing diagnosis to be unhelpful in understanding Trump's motivation. Saying Trump is a pathological liar does not explain anything; it simply restates the facts. If Iago exhibits "motiveless malignity," as Coleridge famously wrote in his copy of Shakespeare's Othello, then Trump as pathological liar displays "motiveless mendacity."

Accordingly, I want to explore the Costanza possibility. Might Trump actually believe he isn't a racist or sexist? Might he believe that he didn't sexually assault various women over the years? That answer could be consistent with being a pathological liar. Some pathological liars don't realize they are lying.

Yet this answer seems at best only partial. The Trump denials lack credibility because of Trump's boast to Billy Bush about engaging in the very behavior that the women who have come forth allege. If Trump were unaware of or had forgotten that he routinely engages in sexual assault, he would not likely speak about it. So what gives?

By circling back to Holocaust denial, I believe we can gain insight into the mind of Trump. Holocaust deniers are typically antisemitic. They are popular among neo-Nazis. That looks like a contradiction. One would think that virulent antisemites and neo-Nazis would be proud of the Holocaust, not seek to deny it. We must therefore understand Holocaust denial as not simply a historical claim but as a normative claim: In denying the Holocaust, they also mean to say that the Holocaust was not in fact a great evil.

Indeed, Denial includes a portrayal of David Irving speaking to an antisemitic crowd and saying that he finds the Holocaust "boring," even as he adds, in proto-Trumpian fashion, that saying so is not "politically correct." To profess to be bored by the Holocaust is to say that it is not an important historical evil. To borrow a term from a 1992 article by Prof. Colb, Holocaust denial is a form of Holocaust devaluation.

A similar phenomenon can be seen in the typical pre-rape-shield-law-era rape trial. The accused rapist denies that he forced the alleged victim to have sex with him, but meanwhile, the defendant's lawyer slut-shames the accuser, sending the unmistakable message to the jury that what happened to her was not a harm at all because she either wanted it or deserved it. Denial of the factual charge of rape is logically consistent with condemnation of rape when it occurs, but the practice of denial frequently works to minimize the harm of rape instead.

Against this backdrop, we can see Trump's dismissal of the Access Hollywood recording as mere "locker room talk" in a different light. At one level, he was saying that it was "just talk" as opposed to action. But that's not all Trump was saying, and it wasn't even most of what he was saying. Recall that in the second presidential debate, Trump only denied actually dong the things he boasted about to Billy Bush after repeated efforts by Anderson Cooper to pin him down. If Trump's chief goal were to distinguish between words and deeds, he would have made that point immediately and unequivocally.

Thus, there is an alternative account of what Trump was saying. By calling his confession mere "locker room talk," Trump was playing out the Holocaust denial and rape-defendant's-slut-shaming lawyer's dual move. He was saying "it didn't happen" but what he meant was "it wasn't so bad."

Meanwhile, Trump's threat to sue is almost surely empty. In an interview with a Miami CBS affiliate on Monday, Trump said that he would like to see the U.S. move towards the English approach to defamation, but this is not England. For a public figure like Trump to prevail in a libel suit filed in the U.S., he would have the burden of proving that his accusers recklessly disregarded the truth.

However, the point of Trump's threat is not to carry it out. Threatening to sue his accusers is Trump's way of showing how adamantly he denies their allegations. And if I'm right that the denial is itself a form of minimization of the conduct, then the adamance of his denial is likewise a way for him to minimize the wrongfulness of his conduct adamantly as well.

I suspect that Trump's followers understand his dual meaning--much in the way that neo-Nazis understand the dual meaning of Holocaust denial. It's long past time for the rest of us to catch on as well.

Monday, October 24, 2016

Do Voters Care About Constitutional Interpretation?

by Michael Dorf

On Tuesday night last week, I gave a lecture at Johns Hopkins University with the title Does the Dead Constitution Have a Future? Reflections on the Legacy of Justice Antonin Scalia. After exploring some deficiencies of various versions of originalism, I advanced the thesis that despite its flaws, originalism remains an appealing form of justificatory rhetoric because it sells itself as a brand of formalism and the general public are substantially more formalist than warranted by what over a century of legal realism teaches about how courts in fact decide cases. I also explained that originalism has been a formalism of the right, but that formalisms of the left (including liberal originalism) are also available. I offered evidence of the grip of formalism on the public from a variety of sources, including Supreme Court confirmation hearings.

Rarely does one have the opportunity to test an academic thesis immediately after propounding it, but I was given that opportunity the very next night, when the first question of the third presidential debate asked the candidates where they wish to see the Court take the country and to expound on their respective views about how justices ought to go about construing the Constitution. In a Postscript (below), I quarrel with the way in which moderator Chris Wallace framed the second part of his question, but for now it suffices to summarize that part as follows: Do you favor originalism or living constitutionalism?

Not only did neither candidate give a formalist or originalist response; neither candidate even tried to answer that question on its own terms. Instead, each talked exclusively about substantive outcomes that would be favored by the justices he or she would nominate to the Court. For Clinton, that meant preserving constitutional rights to same-sex marriage and abortion, while overturning Citizens United; for Trump, it meant preserving DC v. Heller, while overturning Roe v. Wade. There ensued a policy discussion about guns and abortion.

Taken together, the candidates' non-responses to the constitutional interpretation question seemed like a stunning refutation of the thesis I had propounded just 24 hours earlier. Because the broad topic areas had been announced in advance, each side was ready for one or more questions on the Supreme Court. And thus each campaign could have and undoubtedly did anticipate the possibility of a question about the "judicial philosophy" of his or her prospective nominees. Yet they chose to ignore the issue entirely. Assuming that the campaigns have a reasonable sense of what plays well with the electorate, the answers to the Supreme Court question strongly suggest that I was wrong. The voters don't care at all about interpretive methodology, formalist or otherwise.

Yet willing as I am to confess error when I am persuaded that I have erred, I'm not entirely convinced that the candidates' immediate flight from interpretive methodology to hot-button policy issues provides us with that much insight into the public's views about constitutional interpretation more broadly.

To state the obvious, the fact that Trump didn't discuss issues of constitutional interpretation tells us very little about the electorate. Given how little he prepared for the debate and his background ignorance on matters of constitutional law (e.g., not knowing how many Articles the Constitution has, not understanding that federal judges don't vote on bills), Trump might have simply whiffed. Perhaps his debate prep team (such as it was) advised him to say something about the framers or original meaning, but it didn't stick.

Of course, it's harder to attribute Clinton's answer to poor preparation (because she prepared prodigiously) or ignorance (as she is a well-educated lawyer). Surely Clinton could have said something about constitutional interpretation before pivoting into her substantive pitch. I might have scripted an answer like this:
To keep faith with the Constitution, each generation must give effect to freedom and equality in accordance with our fundamental values. I will appoint Justices who defend our rights against old threats like Donald's irresponsible calls for religious discrimination and against new threats, like the vast influx of unaccountable money that decisions like Citizens United allow. I will not appoint Justices who think the government can control women's bodies or tell people whom they can love. Etc.
It only would have taken one or two sentences at the beginning of her answer for Clinton to be responsive to the interpretive methodology question and still get in her substantive points. The fact that she didn't do so suggests that she and her team didn't see any advantage in pressing the jurisprudential point.

But that could be consistent with my thesis if either or both of two explanations holds:

(1) Perhaps Trump could have scored some points by appealing to formalism. A more disciplined GOP candidate with knowledge of constitutional law (Ted Cruz, let's say), would have begun by saying something highly formalist: "The first duty of judges is to apply the law, not to ignore it in the way that so many Democrat-appointed judges do." And then he would have gotten in his substantive policy talking points. In this view, Trump's incompetence meant that he simply left money on the table by not going formalist/originalist, whereas Clinton's greater preparation and knowledge led her to avoid endorsing living Constitutionalism, which would have alienated more people than it attracted, due to the naively formalist views held by so many people.

(2) Each candidate was speaking to the base and any potentially undecided voters. To the extent that the base cares about judicial appointments, they're sophisticated enough to know where the candidates stand: the GOP candidate will appoint people who claim to be originalists or at least claim that original understanding is very important; the Democratic candidate will appoint Justices who advance progressive values in a living Constitution framework. Thus, the only real audience for the answers here were relatively unengaged voters. Trump was appealing to the low-information conservatives; Clinton was appealing to low-information liberals. Neither would have gotten anything out of discussing interpretive methodology, because low-information voters don't know anything about it.

Accordingly, I do not read the candidates' non-answers on interpretive methodology as signaling general public apathy about interpretive methodology. It's just that given the reachable audience in a presidential debate, such matters necessarily have low (okay, zero) priority.

Postscript: Overall, I thought that moderator Chris Wallace performed reasonably well. At least for the first half of the debate, he managed to elicit substantive answers from the candidates. If one could put aside the fact that Trump was mostly lying, it was almost a conventional debate.

However, throughout the debate, Wallace embedded right-wing assumptions in his questions. As Prof. Buchanan explained in his post-mortem post on Thursday, these included some doozies with regard to economic policy: E.g., we have an unsustainable level of national debt; Social Security is at risk of bankruptcy; and most absurd of all, the stimulus in the early Obama administration "led to" anemic growth (when in fact it helped prevent a depression even though it was too small to lead to stronger economic growth). As Prof. Buchanan explained, the problem was not that Wallace's questions were biased. Given the magical thinking underlying Trump's tax proposals, he was even more of a target of the deficit-scold-conventiona-wisdom Wallace was assuming than was Clinton. The problem was that Wallace did not even appear to be aware that things he takes for granted -- e.g., debt bad, Social Security bankrupt, stimulus was wasted -- are not just contestable but wrong.

Something similar happened with Wallace's question about constitutional interpretation. Here's the question he asked, with the boldface added by me for emphasis:
What’s your view on how the constitution should be interpreted? Do the founders' words mean what they say or is it a living document to be applied flexibly, according to changing circumstances?  
That is an amazingly question-begging formulation. It juxtaposes living constitutionalism against a view in which the "words mean what they say," thus tacitly but unmistakably asserting that living constitutionalists do not consider themselves bound by the words of the Constitution. But nobody who subscribes to living constitutionalism actually thinks that.

The interpretive debate is over how to figure out what the words of the Constitution mean. Concrete-expectations originalists say that the words mean what the framers and ratifiers would have intended them to mean. Semantic originalists say that the words mean what the public would have understood them to mean at the time they were adopted. Living constitutionalists say that the words mean what they appear to mean in light of the many social, economic, and political developments that have occurred in the generations since they were ratified. The choice isn't between adhering to the words of the Constitution and making stuff up, as Wallace's question assumed, but about how to ascertain the meaning of the words of the Constitution and what to do when that meaning is unclear. Roughly since Justice Chase's 1798 opinion in Calder v. Bull, it has been generally accepted that arguments for flexible interpretation must be run through the text of the Constitution, not by going around it.

I do not mean to say that Wallace was deliberately begging the question in order to make originalism look better than living constitutionalism. On the contrary, I think it is highly unlikely that Wallace--a journalist but not a lawyer--had any idea that he was gilding the originalist lily. But that is my point. Wallace is also not a macroeconomist, but that didn't stop him from gilding the right-wing lily on economic policy. Just as Wallace assumed deficit-scold nonsense to be truth because it is conventional wisdom among the pundit class (with rare exceptions such as Paul Krugman), so Wallace assumed that originalists are faithful to the words of the Constitution while living constitutionalists make stuff up in the service of contemporary values because that is the conventional wisdom among non-lawyers.

Put differently, the completely unintentional gross unfairness of Wallace's framing of the constitutional interpretation question is strong evidence for the thesis I advanced in my Johns Hopkins lecture the prior night: Formalism in general and originalism in particular have a much stronger appeal among the general non-specialist public (including elite but non-specialist elements of the public such as journalists) than they deserve.

Saturday, October 22, 2016

Beware of Demons

by William P. Hausdorff

The scary prospect of a close election

Clinton remains favored in almost all poll summaries, though individual polls still come up with surprisingly narrow margins.  But the pollsters’ emphasis on likelihood of winning, regardless of the electoral vote gap, may set American democracy up for a fall: a tight election, combined with a House and Senate possibly both still Republican may be one of the worst situations.  Under that scenario, Trump’s allegations of rigging and lack of legitimacy could run rampant, and completely discredit democratic institutions under an endless series of Congressional investigations. 

What accounts for the continuing tightness in the polls?  I once conceived of an amusing evening parlor game with friends:  try to imagine what Trump could possibly say or do that would finally cause a significant portion of his supporters to bail.  As untreated sewage continues to flow freely from Donald Trump’s mouth, including explicit racist attacks, his boasts of paying no taxes, of contemptuously stiffing small businesses and of lurid claims of sexually harassing women, we finally have an answer: nothing.  

So what really fuels the Trump supporters, and even the hesitancy of many young people to commit themselves to voting?  Hatred of Hillary Clinton, stoked up by decades of Republican Party efforts, clearly looms large.  My attempts to discuss with Trump supporters how they can possibly believe their candidate will implement what he says, given his pathological narcissism, self-aggrandizement, sense of entitlement, and personal greed, are almost immediately answered, not with explanations, but with attacks on Clinton.  This just mirrors Trump’s own pattern in the debates:  almost every request for him to provide his position immediately became an attack on Clinton. 

The demonization of Hillary Clinton

The catalogue of scandals, events, and terrorist groups that she is responsible for is a textbook example of “demonization.”  As Richard Hofstadter put it, the paranoid style in American politics includes

 the attribution of gigantic and demonic powers to the adversary.

In this case, it’s not even a metaphor: Trump mentioned in a debate what he previously said in August:  "He [Sanders] made a deal with the devil. She's [Clinton’s] the devil."

Perhaps this is just part of politics, and all of us succumb to the notion that certain political opponents are completely devoid of positive value. Towards the end of Bush Jr’s 2nd term I was stunned to realize that neither I, nor most of the politically knowledgeable friends and colleagues I queried, could come up with ONE positive thing his administration had accomplished.  This might be taken as evidence of demonization, as even under previously detested presidents like Nixon and Reagan it wasn’t difficult to find some positive aspects.  I was therefore relieved when a few savvy friends noted that the Bush administration’s PEPFAR program on AIDS research in Africa was, all in all, quite a good thing.

I don’t recall, however, anyone ever positing that Bush was a demon or even the “focus of evil in the modern world” as Reagan had described the Soviet Union in his 1983 address to the National Association of Evangelicals.  At the time, it was easy to dismiss Reagan’s statement as inane Cold War hyperbole—were hunger, poverty, environmental destruction, ethnic and religious strife really all the Soviets’ fault? 

But Reagan wasn’t in a silly mood.  In that same speech, immediately before he spoke about the Soviet Union, the amiable President proceeded to demonize another group—non-believers in God--through this sinister anecdote: 

A number of years ago, I heard a young father, a very prominent young man in the entertainment world, addressing a tremendous gathering in California. It was during the time of the Cold War, and communism and our own way of life were very much on people's minds. And he was speaking to that subject. And suddenly, though, I heard him saying, "I love my little girls more than anything -- -- "And I said to myself, "Oh, no, don't. You can't -- don't say that."

But I had underestimated him. He went on: "I would rather see my little girls die now, still believing in God, than have them grow up under communism and one day die no longer believing in God."

There were thousands of young people in that audience. They came to their feet with shouts of joy. They had instantly recognized the profound truth in what he had said, with regard to the physical and the soul and what was truly important.

Fortunately, Reagan’s endorsement of the idea that it would be better if one’s own children died, rather than grow up and become non-believers, did not receive much publicity.   

The dangers of demonization

Demonization can nonetheless become dangerous.  One problem is that we then suspend rational thinking, presumably because demons can only be stopped by violence. The most consistently demonized entity in the American press is usually whichever member of the Kim family is currently leading North Korea. During the Bill Clinton administration in the 1990s Kim Il-Sung suddenly became the focus of all evil in the popular press, and it became impossible to consider that the North Korean dictator might actually be a rational actor, amenable to negotiation.  As ex-President Jimmy Carter tersely phrased it:

I think we were on the verge of war.

It was only when Carter decided to make a controversial, personal visit to Pyongyang did it became clear that Kim was ready to deal, and tensions were effectively defused. 

The demonization of Saddam Hussein made many otherwise reasonable people unable to imagine what could be worse than a vicious dictator and, of course, led directly to the invasion and destruction of much of Iraq, not to mention the expansion of Al-Qaeda and birth of ISIS. 

In the case of Trump, it would have been nice to think he was being amusing in a Hugo Chavez-sort of way.  In Chavez’s 2006 address to international leaders at the UN, he referred to George Bush:

This is another abuse and another abuse of power on the part of the devil. It smells of sulfur here, but God is with us and I embrace you all.

However, Trump’s pattern of demonization tends to be tinged with violent rhetoric, such as his comments that 2nd amendment supporters have “ways” to prevent judges from being named, and that Clinton should consider forgoing Secret Service protection.  Demonization of Hispanics and Muslims may already have inspired actual violence.

The demonization of Vladimir Putin

These days, demonization is not just the province of Trump.  We are deluged by depictions of a thuggish, kleptocratic regime led by Vladimir Putin in which reporters and political opponents are mysteriously murdered.  Taken together with events in Crimea, Ukraine, Syria and especially Aleppo, it can be difficult to believe Putin is not the essence of evil. 

Of course, Trump’s bromantic infatuation with Putin’s “toughness,” his fantasy-world depiction of Russia, Iran and Syria merrily targeting ISIS and his complete denial of US intelligence conclusions regarding Russian interference in Ukraine, not to mention the US presidential campaign, is unseemly at best.  Frankly, it is almost unbearable to envision Trump in Putin’s dacha’s sauna as they down shots of vodka (or just orange juice, for the Donald), roll in the snow, and gently whip each other’s naked sweaty backs with willow switches. 

Nonetheless, not everything Trump says—such as the idea of not-demonizing Putin--is wrong. 
In fact, a strong argument can be made that Putin is quite a rational actor, and that misguided policies by successive US governments have triggered some of his actions.

For that reason, it was encouraging to hear Hillary Clinton note in the 2nd debate her experience in negotiating agreements of mutual interest with Putin.

The demonization of Donald Trump vs the MacArthur alternative

If we look beyond the election, demonizing Donald Trump, very popular among despairing newspaper columnists these days, is probably not a long-lasting solution answer either.  It is perhaps worth reflecting as to how some in the political establishment once handled another serious threat to American democracy, a charismatic figure with presidential ambitions who also didn’t want to participate in a traditional campaign:  General Douglas MacArthur, hero of the Pacific battles in World War II and military ruler of the defeated Japan. 

As Commander of United Nations forces in the Korean War, MacArthur openly advocated the bombardment of China and its invasion by Chiang Kai-shek’s troops, in the process utterly disregarding the potential for nuclear war, and directly challenging the war policies and authority of then-unpopular President Truman.

In April 1951 he was dismissed by Truman for insubordination, but as vividly described by Robert Caro, MacArthur’s “forceful, colorful rhetoric” and “his hold on the public imagination,” subsequently led to a series of wildly popular rallies in San Francisco and New York.  He gave a nationally televised speech to a Joint Session of Congress that elicited a rapturous response. 

Caro quotes a Senator saying,

This is new to my experience; I have never feared more for the institutions of my country. I honestly felt back there if the speech had gone on much longer there might have been a march on the White House.”

That speech was followed by a parade down Pennsylvania Avenue that further crystallized the fears of many.  One journalist recalled it as

 the only time in my life that I ever felt my government to be fragile…. I’ll never forget watching him go up Pennsylvania Avenue. I had a very strong feeling that had he said ‘Come on, let’s take it’ and had started to charge toward the White House…. [T]he adoring crowds that thronged the streets would have gone with him.”

This threat was eventually defused by allowing MacArthur (and other generals and officials) to offer their views within the context of a Congressional hearing on US administration policies in Korea. The hearing was managed in a way that showed how isolated and uninformed MacArthur really was, and allowed passions to ebb.

In Caro’s retelling, there appear to be two key elements here:  first, the involvement of a senior, well-respected conservative political leader (segregationist Georgia Senator Richard Russell).  Through the use of cogent questioning of MacArthur and eminent witnesses, Russell helped to courteously, dispassionately, and systematically dismantle MacArthur’s uninformed and delusional ideas. 

Secondly, the hearings were carried out in a controlled setting, in untelevised Senate Hearing Rooms, which precluded both revelation of secrets as well as grandstanding displays to the masses, and which took place over a period of several days.  MacArthur wasn’t demonized, but shown to be na├»ve, absurd, and dangerous.

In and amongst his intensified ravings about rigged elections, Trump recently launched a thunderous tweet based on zero evidence that the firebombing of GOP headquarters in Orange County, North Carolina was carried out by “animals representing Hillary Clinton and Dems.”  As far as I can tell no other Republicans, not even Breitbart and Fox News, have yet echoed these Reichstag-like accusations, but neither have they condemned them.

Where are the calm, right-wing Republicans here who perceive Trump as a threat to American democracy?  Will any stand up to forcefully and dispassionately dismantle Trump’s wild claims that the devil’s supporters are violently attacking the Republican Party, and that US elections are rigged?

If not, perhaps it’s time to only let women vote.