Barr, Slavery, and Lockdowns: Completely Wrong, But Not for the Reasons You Might Think

by Neil H. Buchanan

The big story from the recent appearance by Donald Trump's personal attorney William Barr at a religious college in Michigan is that Barr supposedly likened this year's COVID-related business shutdowns to slavery.  The Washington Post, for example, ran a news article under these words: "Barr under fire over comparison of virus lock-in to slavery."

 

I have absolutely no reason to bend over backward to give Barr the benefit of any doubt, but that is not what he said.  What Barr said was outrageous in other ways, as I will discuss, but what he actually said was this (per CNN): "'You know, putting a national lockdown, stay at home orders, is like house arrest. Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history,' Barr said as a round of applause came from the crowd."

 

Again, there is a lot going on there, but Barr was careful specifically to say that slavery was categorically different from what he was complaining about.  I am not saying that this makes Barr a good guy, of course, because it merely means that he is savvy enough to think in advance about how to give himself plausible deniability.  Sure, calling slavery "a different kind of restraint" is like saying that death is a "different kind of physical malady" from psoriasis, but he did at least say that there is an apples-to-oranges difference.  Still, he all but invited the outrage, and he deserves the thrashing that he is receiving; but he did not "compare" or "liken" them, for what little that is worth.

In any event, Barr has surprised everyone by reinventing himself as the embodiment of political evil -- a dishonest, sneering, calculating monster who has disgraced the office of the Attorney General and so much more.  On my naive/stupid/evil scale (or, with synonyms, the ignorant/illogical/malevolent scale), there is no doubt that Barr is neither uninformed nor incapable of if/then reasoning.  He simply chooses not to use his knowledge and his thinking skills to preserve the rule of law or the Constitution.  But what is he doing?

What's Wrong, But Also What's Right, About the District Court Ruling Invalidating Pennsylvania's Public Health Measures

 by Michael C. Dorf

On Monday, Federal District Judge William Stickman IV ruled that public health actions by Pennsylvania Governor Thomas Wolf--most centrally a stay-at-home order and business closures during the most acute phase of the COVID-19 pandemic--were unconstitutional infringements on liberty and, in one instance, a denial of equal protection. The ruling in County of Butler v. Wolf generated considerable news coverage, much of it in a partisan frame: a Trump-appointed judge who was confirmed on a close-to-party-line vote seemed to say that the arch-conservative 1905 decision in Lochner v. NY remains good law, and in so doing vindicated GOP resistance to coronavirus-fighting measures by a Democratic governor.

I have good news and bad news. The good news is that the opinion is more thoughtful and well-reasoned than it has been portrayed. The bad news is that it is nonetheless wrong on a number of key points. In this essay, I'll first describe what Judge Stickman gets right before turning to what I regard as his errors.

For the Zillionth Time, Being Fair Does Not Mean Treating All Views as Legitimate (Election Rigging Edition)

by Neil H. Buchanan

 

Donald Trump and his enablers are remarkably consistent in accusing others of Trump's own sins.  This reaches absurd new levels when Trump's campaign tries to say that any bad things happening today are "Joe Biden's America," but there has long been a consistent drumbeat of projection coming from TrumpWorld.

Trump constantly calls for companies to be boycotted and disfavored people to be shunned, but it is the "radical left" that is supposedly canceling everything in sight.  Trump pushes for big new military toys, but somehow it is the generals who have forced him to ignore the enlisted women and men.  Trump does everything in his power (and then some) to put an internal coup in motion, but he and his minions claim that the Democrats' efforts to hold Trump responsible under the Constitution and statutes (including oversight and impeachment) are somehow evidence of efforts to negate an election.

Bill Barr, Trump's personal attorney (and nominally the Attorney General), is especially practiced at this strategy of engaging in radical action while attacking his opponents for their supposed radicalism. In a speech last Fall, Barr reportedly "warned that Catholicism and other mainstream religions were the target of 'organized destruction' by 'secularists and their allies among progressives who have marshalled all the force of mass communications, popular culture, the entertainment industry and academia.'"

 

It is all culture war, all the time -- just as Republicans have long claimed that calls for income redistribution are "class warfare," which Warren Buffett rightly dismissed with this great line: "There’s class warfare, all right, but it’s my class, the rich class, that’s making war, and we’re winning."  Pickpockets screaming about being robbed have more credibility.

As Election Day and its sure-to-be-ugly aftermath approach, the new Alice in Wonderland claim is that Democrats are the ones who will be unwilling to accept the election's results if Trump wins.  That, unlike Trump, is rich.  Even so, this claim is now being reported as a serious concern.  What is going on?

Robert Jackson, Stan Van Gundy, Patriotic Rituals, and the Endowment Effect

 by Michael C. Dorf

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." -- Justice Robert Jackson, speaking for the majority in West Virginia State Board of Education v. Barnette (1943), which, in the midst of a world war, held that children in public schools may not be compelled to recite the Pledge of Allegiance.

"All the talk about national anthem protests begs the question — Why do we even play the anthem before games? Why do we have to honor our country before we play a game? We don’t play the anthem before movies, plays etc. It makes no sense. Let’s end the practice and just play."  -- Stan Van Gundy, former NBA head coach and front office executive, on Twitter on Friday.

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Justice Jackson's opinion is rightly celebrated as a brave and eloquent defense of freedom of speech and conscience. Yet note what it permits. Suppose some students object to saying the Pledge of Allegiance--perhaps because they and/or their family believe, as the plaintiffs in Barnette believed, that it is a form of idol worship, or perhaps because they believe its words ring hollow in light of American policy at home and/or abroad. The Barnette case gives them a right to opt out--to sit or stand respectfully and quietly. However, the case permits school authorities to put students to a difficult choice: recite the Pledge and violate your conscience or risk ridicule, ostracism, and perhaps even violence from outraged self-styled patriots.

Actions versus Inactions: Trump Is Better Off When He Does Nothing (and so are we)

by Neil H. Buchanan

 

The latest avalanche of news includes the release of excerpts from Bob Woodward's new book, supported by tapes of a series of his interviews with Donald Trump.  The most grimly amusing aspect of the fallout from the book's bombshells is Trump's attempt (parroted, of course, by the White House disinformation office and the right-wing mediaverse) to say that he was wise to decide to "play down" (his words) the coronavirus, even though he knew that it was a uniquely dangerous threat.

On that tape, and in his own followup comments since the release of the audio, Trump says that he did not want to create a "panic," and he and others are now saying that the public would have been in a "frenzy" if he had not been so rock solid in making calm decisions.  By contrast, many non-Trump sources have noted that stoking fear and panic is in fact what Trump is more than happy to do all the time -- Antifa thugs are moving into your neighborhood!  Cities have become anarchies!  Mexico is sending rapists and murderers to the U.S.!! -- which is absolutely true.  I am, however, interested in a different aspect of Trump's defense.

The best case that one can make that a person should not stoke panic is the classic "shouting 'FIRE!' in a crowded theater" scenario.  There, it of course makes sense to maintain calm, because people’s panicked reactions can themselves make matters much, much worse.  So far, so good.  But it is what one does next, after saying "better not to stoke panic," that truly counts.  A responsible person -- but especially a responsible leader -- would: (a) immediately try to get people to leave the theater in a safe, rapid fashion, and just as importantly (b) try to put out the damned fire.

Trump, by contrast, is saying in essence, "So rather than doing anything, I just walked away.  Wasn't I great for not stoking panic?  Vote for me!"

This is especially odd, because Trump's default in a lot of situations is to do something when he should have done nothing.  As suggested by the title of this column, I think that Trump generally makes things worse when he decides to do something.  And indeed, even in this case, he might be right that his version of taking action in January and February would have resulted in even more death and devastation than the country currently faces.  After all, in the ensuing months he did actively undermine Anthony Fauci and made it harder for states to respond to the pandemic, and he actively discouraged mask-wearing in public.

Saying that it would have been better if Trump had done the right thing (or even a small fraction of the options that might have had positive marginal outcomes), therefore, is different from saying that anything that he might do is worse than nothing.  When he acts, he makes things worse, which we can see in almost every aspect of his time in office.

 

Originalism Without Slavery and Sexism is a Dangerous Fiction and Other Absurdities: A Response to Professor McGinnis

 By Eric Segall

Noted Originalist John McGinnis of Northwestern University recently wrote a blog post with a title that, when I read it to my non-lawyer wife, made her incredulous. The title was "Can Modern Originalism Save American Constitutionalism?" Isn't "modern originalism" an oxymoron, my wife asked me. It was a good question but I was too busy being mad at the rest of the piece to answer her directly. Much that is wrong with "modern originalism" is reflected in McGinnis's piece.

McGinnis begins by quoting Sir Roger Scruton, who compared the French and American Revolutions. The former was intended to "transcribe into political ideas that had previously no overt presence there and which owed much to the abstract arguments of philosophers," while the latter "was designed to guarantee to the people what they had once enjoyed. It was a recipe for an already established practice rather than a recipe for a new order of things."

So right off the bat, anyone defending the American Constitution as "a recipe for an already established practice" needs to address the evils of slavery, complete subjugation of women, and the limited franchise at the time our Constitution was ratified. As usual, however, and like most originalists, new, old, and in-between, there is no mention of those pernicious practices in McGinnis's post. More on that failing later.

Doc Rivers, the Garrison-Douglass Debate, Thurgood Marshall, and the Nature of the Constitution

 by Michael C. Dorf

In an eloquent impromptu speech that quite appropriately received a great deal of attention, Los Angeles Clippers Coach Doc Rivers responded with a mix of outrage and sorrow to the theme of the Republican National Convention: fear. How grotesque, Rivers said, that the RNC brazenly tried to frighten its overwhelmingly white base and try to appeal to white suburban swing voters by grossly exaggerating the threat to civil order posed by the small minority of agitators who have used the occasion of generally peaceful protests demanding racial justice as an opportunity to loot, damage property, and provoke or commit acts of violence.

"We’re the ones getting killed," Rivers said. "We’re the ones getting shot. We’re the ones that were denied to live in certain communities. We’ve been hung. We’ve been shot. And all you do is keep hearing about fear."

The Rivers speech was extremely powerful and quotable. Here I want to focus on what he said at the end. Rivers observed that the movement for racial justice is hardly a movement for anarchy by noting, among other things, that his own father was a police officer and he believes "in good cops." He professed the patriotism of the African American community: “It’s amazing to me why we keep loving this country, and this country does not love us back." And he concluded this way: "All we’re asking is you live up to the Constitution. That’s all we’re asking, for everybody, for everyone."

It's the part about the Constitution that raises questions for me, because the Constitution has exacerbated many of our current problems. Were it not for the Constitution's essentially unamendable Senate ("no State, without its Consent, shall be deprived of its equal Suffrage in the Senate"), we might have a national legislature that better reflected the popular will, in which, among other things, the desperately needed $3 trillion COVID-19 package that the more democratic House proposed would have been enacted already, disproportionately benefiting the Black and Brown communities that have been disproportionately suffering the medical and economic impacts of the pandemic. Were it not for the combination of a very high bar even for ordinary constitutional amendments and life tenure for Supreme Court justices, we might have already reversed (through amendment or appointment) the judicial decisions that reinforce the disenfranchisement campaign that the Republican Party has waged against voters of color since Nixon flipped the parties' valences on race in the 1960s. Were it not for the Electoral College, Republicans would not have captured the White House in three of the last five Presidential elections despite losing the popular vote in all but one of those elections, and thus we would have been spared the catastrophic presidency of Donald J. Trump.

Given all of those terrible contributions that the US Constitution makes to our public life, why did Rivers ask that we "live up to," rather than abandon, it?