SYCOPHANTS AND DOUBLETHINK -- HOW TRUMP SURVIVES

SYCOPHANTS AND DOUBLETHINK -- HOW TRUMP SURVIVES

All authoritarians have their yes-men, their sycophants, their specialists in the arts of disinformation.  

Some of them bathe their mendacity in the warmth of a reasonable demeanor, killing as it were with a form of kindness. In this version, disinformation is disguised on the grounds that  no one so nice could be so wrong. Others, however,  cast their mendacity as an impaling sword, slaying their opponents with fevered lies launched within insults. In this version, disinformation is disguised on the grounds that no one so ugly (or weak or little or . . . choose your ad hominem)  deserves any less.

In the first case, what is false prevails because it is made to appear true.  In the second, it prevails because the critic himself is made to appear false.

Authoritarians are not required to choose their poison.  There is no handbook on this. Sometimes, they embrace the first tactic, other times the second.

And then there are times when the sycophancy is double-barreled.  

Both tactics are practiced.

A la foi, as the French would say.

We are in one of those times now. 

As the Trump Administration enters its second year this week, the big stories are the Mueller investigation and the porn star.  The first is a continuing saga.  The independent counsel has now questioned Trump's attorney general, the FBI's former director, and assorted members of the Trump campaign. It has obtained a couple of guilty pleas, and it appears to be focusing on whether the President obstructed justice -- principally in firing James Comey but also in the now infamous Air Force One edit of Don Jr.'s account of his meeting with the Russian lawyer who was billed as having promised dirt on Hillary Clinton. 

In the meantime, the Steele Dossier has been given new life via the release of Glenn Simpson's testimoney to the Senate Judiciary Committee.  Simpson is the Fusion GPS head who hired Christopher Steele, a respected MI6 operative in Great Britain, to do the dossier, and his testimony revealed extensive Trump ties to Russian money, ties Mueller is no doubt looking into as well.  The "collusion" in this case may turn out not to be a quid pro quo  where the Russians got a policy promise in exchange for their Internet campaign against Clinton (though this cannot be eliminated yet as a possibility).  Instead, it may turn out to just be a case of old-fashioned extortion, with Trump forever going light on the Russians and Putin -- and he clearly has done that -- because he knows  he is in hock to them on the financial side in ways never disclosed during his you'll-never-see-my-tax-returns Presidential campaign.

This is all serious stuff.

And then there is the porn star.

Which would be serious in any other Administration.

But is a back pager in this one.

The porn star is Stephanie Clifford, whose nom de guerre or stage name is Stormy Daniels. In 2006, she reportedly had an affair with Trump just after his wife gave birth to their son, and in 2016 the Trump campaign arranged through one or more shell entities to pay her $130,000 to stay silent.  This, moreover, she has done.  Her account became public only because a pre-pay off 2011 interview with In Touch magazine was unearthed. In any case, in addition to the pay-off and the affair, the soup was made more salacious when one of Stormy's fellow travelers said that she too was invited to "party" with the Donald and Stormy.

When the words "porn star,"  "menage a trois," "tidy whities," and "Donald Trump" appear in the same sentence, the picture is . . .

Not something anyone wants to see.

So, can't we just end the show, change the channel?

Last night, evangelist Tony Perkins was on the tube defending Trump on the porn star front.  Perkins is head of the Family Research Council, a prominent evangelical activist group.  In the interview, he said that evangelicals are giving Trump a "mulligan" on his past sins.  The lewdness, cursing, p**y grabbing, misogyny and porn stars of the past are being forgiven.

As long as Trump doesn't relapse.

Perkins was insistent about this last point.  Evangelicals have been labelled hypocrites for their embrace of Trump.

Michael Steele, the former head of the Republican National Committee, went so far as to say that evangelicals should "shut the hell up." As he put it, "After telling me how to live my life, who to love, what to believe, what not to believe, what to do and what not to do and now you sit back and the prostitutes don’t matter? The grabbing the you-know-what doesn’t matter? The outright behavior and lies don’t matter? Just shut up.” 

But Perkins is having none of that.

“We see right and wrong. We see good and evil, but also among evangelicals, there’s an understanding that we are all fallen, and the idea of forgiveness is very prominent,” Perkins says. “And so, we understand that, yes, there is justice, but there is mercy.”

Perkins was nothing if not sincere.

And well-mannered.

And he smiled.

Really hard to dislike.

So isn't Trump entitled to a second chance?

Or even a two-hundredth?

This is the show that has playing for the past two and a half years.  

Nothing ever matters.  Trump embraces white supremacists in Charlottesville, insults hurricane victims in Puerto Rico, labels Mueller's investigation a hoax,  belittles every opponent, calls the press the "enemy of the people," and insults female critics with age old retreats to menstrual cramps, all without ultimate consequence.  He is truly gross, and he lies with impunity, so much so that no one believes his denials (or even his promises, vide Sen. Schumer on last week's putative DACA deal) anymore. 

Except Tony Perkins. 

In 1984, Orwell defined doublethink as "To know and to not know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it, . . . to forget whatever it was necessary to forget, then to draw it back into memory again at the moment it was needed, and then promptly to forget it again: and above all, to apply the same process to the process itself." 

Today, that passage defines many a Trump speech . . .

Or Huckabee Sanders press conference . . . 

Or Fox broadcast.

Masha Gessen has just published The Future Is History: How Totalitarianism Reclaimed Russia.  In it, she explains how "[w]hat Soviet people were required to believe and proclaim was counterfactual, and the requirement itself was . . .  a mechanism of control."  Trumpism is engaged in the same type of project in this country.  His crowds are bigger despite incontrovertible evidence to the contrary; the economy is better despite growing inequality; the country is respected despite his Administration being held in disrepute throughout most of the world; and the Russian investigation is a "hoax" despite the fact that four intelligence agencies have concluded otherwise.  "Repudiating morality while laying claim to it," he asserts that nineteen women he allegedly sexually harassed are all lying, as is the one porn star who was reportedly paid to stay quiet, and that his "locker room talk" admitting harassment was just that and no more.

Trump has an approval rating that averages about 38%.  No one has ever gone this low this soon.  And he has been there for the better part of his first year.  Between the serious stuff in the Mueller investigation,  the seedy stuff with Stormy, and the sheer breadth of his lies,  he by rights should not be surviving.

But he is.

Why?

It's the sycophants, stupid.

And the doublethink they all preach.

TWAS THE NIGHT BEFORE CHRISTMAS

TWAS THE NIGHT BEFORE CHRISTMAS

I have been thinking about Christmas this week.

Actually, I have been thinking about Christmas Eve, which is today. And which, it seems to me, captures more of the essence of Christmas than even the day itself.

Christmas is about anticipation. About what will happen, not what has occurred. It's about the future, whether that future is mere hours in the offing or a millenia away. And it unites, in perhaps a way that no other holiday can or does, the pedestrian with the profound. In fact, it makes the pedestrian profound.

Kids will go crazy tonight. Most won't be able to sleep. Those not afraid of some cosmic retribution will sneak a peak out the window or down the stairs in search of Santa Claus. Others will become inveterate Holmes-es (Sherlock, that is), carefully processing every errant sound from a squeaky baseboard to determine if he has come down the chimney, with care or otherwise, along with a satchel of goodies. A few years ago, a friend told me his son had come into his bedroom in the middle of the night, swearing to his father that "Rudolph was in the driveway."

Two thousand years ago, it was all about anticipation too. We have encrusted that day with layers of theological speculation, so much so that we are now almost in need of theo-archaeologists to carefully remove the layers without destroying the initial insight. It was, after all, about the future, about hope -- cosmic and otherwise. Lots of us call it salvation, and tonight or tomorrow, when many of us cross the church threshold (some for our biennial visit, others for the second time this week), we will hear the ancient story of the incarnate One and be told it was the day we were saved.

Which has, of late, got me to wondering.

What for?

And the best answer I can come up with is . . .

Tomorrow.

And so that's what Christmas is about for me. Tomorrow. All the endless tomorrows. With their hopes and dreams and disappointments. Their risings and fallings. And tears and laughter. Even on the day I die, when tomorrow will be unpredictably exciting. In fact, especially then.

A friend recommended a book earlier this year by a theologian named John Haught. In it, Haught talked about the need to square Christian theology with the fact of evolution. One point he made is that theology should never compete with science, that the truths of the latter are not to be denied by the former, and vice versa. So the earth and all its inhabitants weren't created in six days, the universe (or multi-verse, we really do not know) is billions of years old, the human story represents hardly a nanosecond in this evolutionary time line, and the possibility of intelligent life in spheres beyond our third rock from the sun is hardly remote. The one thing certain is that, whoever and whatever we and our world are, it will not be the same tomorrow.

In fact, in the deep time of our evolutionary tomorrow, it's gonna be very different.

Which brings me back to Christmas. Or more precisely Christmas Eve. The one day when we think about nothing but tomorrow. And really look forward to it.

I am ready this year. All the presents are wrapped. The house is clean (I vacuum). Charles Darwin and Jesus Christ have become bosom buddies in my mind, the former telling me that nothing is forever as the world and its inhabitants constantly morph into newer forms, the latter teaching me that this in itself is a good thing and that somewhere over this evolutionary rainbow there is still a tomorrow that embraces us all.

And I have a shovel ready.

In case Rudolph leaves something in the driveway besides a missing sleigh bell.

Merry Christmas.

(This post was first published on Christmas Eve 2008.  A lot has changed since then. But not my view of Christmas.)

SEX, LIES AND VIDEOTAPE

SEX, LIES AND VIDEOTAPE

We are in, I am told, a "moment."

"Moments" are today's version of what was once called a "hinge of history," a turning point.  They signal the end of one era and the beginning of another.  Some are clear at the time -- the dawning of the atomic age in 1945, the fall of the Berlin Wall in 1989.  Some only become clear years later as consequence follows event -- the stock market crash in 1929, the Dodgers signing Jackie Robinson in 1946.  And some . . .

Turn out not to be moments at all.

Over the course of the last few months, the ostensible moment that is America's current focus on the sexual harassment of women has emerged, phoenix-like, from the ashes of Harvey Weinstein's loathsome career as a serial abuser.  Since then, dozens of  men have been outed -- actors, producers, politicians, publishers -- spanning all ages and races and regions.  The "outings" themselves have not been the "news."  Outings have occurred many times in the past, and often been characterized as pivotal -- think Anita Hill and Clarence Thomas and 1992's ostensible "year of the women," when five women were elected to the US Senate.

This moment, however, is not about outing.

It's about believing.

Because the central -- and different -- feature of sexual harassment, circa 2017, is that . . .

The women are being believed.

They are presumed to be telling the truth.

I am trained as a lawyer and know a lot about "presumptions."  They are part of an attorney's stock in trade and come in many shapes and sizes.  The most famous is the "presumption of innocence," that bedrock principle of criminal law that presumes the accused innocent until found guilty beyond a reasonable doubt.  Because it is the most famous, and operates to shield the guilty as well as the innocent, it is often hijacked into political and cultural disputes, including disputes about sexual harassment.

But, as any good lawyer knows, it is not the only presumption at work in the world imposed on anyone who walks into a court.

There are a whole host of evidentiary presumptions, rules that establish what the facts are at a certain point in the process and then place the burden of contesting them on those who claim they are false.  These rules operate in large swaths of substantive law.  In antitrust law, anti-competitive effects are presumed from certain mergers. In immigration law, there is a presumption that one who commits an expatriating act does so voluntarily. The object falling from a high window under the defendant's control creates a presumption that the injury to the passer-by hit by that object was caused by the defendant's negligence. Ditto the surgical instrument left in the patient; the doctor is presumed negligent in leaving it there.  And in cases of racial discrimination, there are presumptions that require those who would dispute racial animus produce proof once apparent evidence (e.g., statistical realities) of discrimination has been introduced.

Something of the same sort has now happened to the issue of sexual harassment in the court of public opinion.

And here's the rub, boys.

There's nothing wrong with this.

Presumptions mirror common sense.  They allow us to accept as true what we all essentially know to be true, or far more likely to be true, anyway.  They save us both the time and the burden of confirming the obvious.  And they advance justice in cases where the burden of actually finding that confirming evidence is onerous but the failure to move forward would be unjust.

This last feature is most important in cases of sexual harassment.

Because . . .

If a serial harasser accosts his victims in private, and leaves no incriminating DNA evidence, there is really no absolute way to determine who is telling the truth in the subsequent "he said, she said."  If, however, that serial abuser has harassed a dozen others, all of whom come forward, how likely is it that they are all lying?

The counter-argument, of course, is that innocent men will be caught up in some sort of analogue to the "red menace" dragnet of the 1950s, that accusations will suffice, lies will be accepted, and lives will be ruined.  This is a risk.  Especially in politics, where partisanship courts both hypocrisy and a cold acceptance of the destructive effects visited upon one's opponents.

The risk, however, is small.

As last week's events more than clearly prove.

Roy Moore is the Republican Party nominee for the US Senate in Alabama.  To date, he has been accused of sexually molesting both a fourteen year old and a sixteen year old when he was in his thirties, and of having attempted to date numerous teenage girls during the same period.  All of the girls, now grown women, have come forward to report their encounters.  Moore has denied the molestation claims and been vague on the others, admitting to having known some of the girls and to having dated very young ones.  He has also stated that he never dated a teenager without first asking permission from the girl's mother. 

Al Franken is a Democratic Senator from Minnesota.  In 2006, while on a USO tour to entertain American troops, he took a picture in which he appears to be fondling the breasts of another member of the tour, Leeann Tweeden.  Ms. Tweeden also reported that, in a rehearsal of a skit the two were to perform on the tour, Franken forcibly kissed her and stuck his tongue in her mouth.  Though Franken has stated that he does not recall the rehearsal the way Tweeden does, he also said that didn't matter. He unequivocally admitted that taking the photo was wrong and that he was ashamed to have done so.  He  apologized to Tweeden, both publicly and in writing, and has asked to meet her, where he will presumably do so again in person.  He also asked the Senate Ethics Committee to investigate him and it will do so.

Donald Trump is President of the United States.  In last year's campaign, a tape was made public from an "Access Hollywood" episode in which he was featured.   In that tape, Trump boasts to Billy Bush that he, Trump, the owner of a beauty pageant and then host of "Celebrity Apprentice," often kissed women without their permission and, as a television star, could get away with anything. As he put it, "when you're a star, they let you do anything," including "grab 'em by the pussy."  After the tape was made public, a dozen women came forward to report that Trump had molested or harassed them. Trump said all of them were liars, and last week his press secretary, Sarah Huckabee Sanders, repeated that defense.

We are now in a world where all these women are presumed to be telling the truth.

Are any of these men being unfairly accused?

Franken is not claiming innocence but Moore and Trump are.  Neither, however, is.  In Moore's case, the number of accusers on either molestation (two) or cruising for teenagers (seven) is supplemented by contemporaneous reports of the molestation and by contemporaneous reports of Moore's habitual come-ons to teenagers in a mall.  With Trump, his own words in the Access Hollywood tape constitute stark admissions and many of his accusers told friends or family of the abuse at the time Trump accosted them.

As Shakespeare would say, they doth protest too much.

In tweets last Thursday night, the President condemned Franken, noting that he had fondled Tweeden's breasts and then accusing him of a lot more in what Trump called pictures "2, 3, 4, 5 and 6." In a press conference on Friday, Huckabee Sanders, pressed on the difference between Franken's case and her boss's, said that "Sen. Franken has admitted wrongdoing and the president hasn't."

No.

The difference, Sarah, is that the President is lying and Franken is telling the truth.

Meanwhile, in Alabama, Moore has hunkered down and is just reading from the old playbook.  His lawyer is asking that a victim's yearbook with Moore's apparent signature and Christmas greeting be examined by a handwriting expert, suggesting that the victim somehow forged the yearbook entry.  Nineteen of twenty-nine pastors who previously supported Moore before release of the allegations against him have reaffirmed their support, with at least one invoking the "presumption of innocence" and another labeling the charges against Moore "an attack on men."  The state's Governor has said she will still vote for Moore, even though she earlier said she believed the women.  And the state GOP has stuck with him.

So, is this a pivotal "moment" or just another mirage?

The signs are mixed.  

The fact that Trump, a pathological liar, won the Presidency even after the Access Hollywood charges were aired, and that Moore is still a good bet to win in Alabama, where his defenders are embracing either outright hypocrisy or the usual misogynistic defenses, suggest -- if they do not prove -- that nothing has changed.  Supporters of Clarence Thomas slut-shamed Anita Hill in 1992 ("a little bit nutty and a little bit slutty," said David Brock at the time, who has since repudiated his attacks on Hill), and Trump's and Moore's defenses are just as raw and offensive.  They both attack their accusers as utter liars, and they both embrace the false notion that the failure to come forward at the time of the harassment makes later reports unbelievable.  Trump's assertion that his Access Hollywood comments were mere "locker room talk" is the type of garbage he regularly spouts when facts get in his way, and Moore's admitted conduct -- involving minors and children -- is more than a little creepy.

On the plus side, however, if there was any evidence of a "moment" last week, it came in the person of Franken.  He did not dodge or weave.  He did not slut shame or attack.  His not recalling the rehearsal precisely as Tweeden had was essentially followed by a but-that-doesn't-matter. He had harassed her. And whether the photo was intended to be funny was, he admitted, beside the point.  It was wrong.

He then apologized, in both a public statement and in a letter to Tweeden.

There is a big difference between Trump and Moore on the one hand  and Franken on the other.  

Though the jury is still out, Franken could be part of the hoped for moment . . .

One in which women will be believed, and men will change and make amends.  In some cases, those amends will be terribly painful.  They may involve resignations and criminal sanctions.  In all,  they will involve sincere apologies.  

Sexual harassment is a continuum.  It moves from offensive comments, through inappropriate non-consensual contact, to heinous acts which have always been deemed criminal.  It also includes gray areas, where comments not intended to harass, or contact thought to be innocent or acceptable, in fact is not.  And it includes both the one-off and the repeated.

Where Franken falls on this continuum is, at this point, unkown.  His harassment appears to have been a singular event.  No woman in his Senate office or in his decades long association with Saturday Night Live has called him anything other than supportive in both careers, and his public record has been exemplary.   His shame last week was transparent, his apology sincere.  Indeed, Tweeden has accepted it.

If there are no other shoes to drop . . .

So should we.

If not . . .

We won't and we shouldn't.

WAKING UP -- POLITICAL TRIAGE IN THE AGE OF TRUMP

WAKING UP -- POLITICAL TRIAGE IN THE AGE OF TRUMP

I was tired.

For seven months I'd been waiting for the pivot.

That magic moment when the guy who is President stops acting like the guy who never thought he'd be President . . .

When our man-child in chief, the narcissist with nukes, grows up . . .

When he does something else between 4 and 9 in the morning -- hugs his wife, says hello to his kid, eats breakfast even -- besides tweeting.

Oh well.

Not gonna happen.

I took a hiatus from Trump for the past two months.  I didn't write about him and I tried not to think about him.  I thought this approach functional for a least two reasons.  The first was that, as Thomas Friedman has put it, "Trump is a brain-eating disease." "[H]e sucks up all the oxygen in the room," said Friedman, but we get nothing for it.  Friedman again: We're "not really learning anything."

This is spot-on. 

Trump is an existential no exit.  He never changes.  He doesn't surprise anymore.  Even the outrageous is expected.  This week he announced that he was "discouraged" and "frustrated" that he couldn't order the Justice Department and the FBI to "go after Hillary Clinton" on "her emails" and the Steele "dossier."  Wholly apart from there being nothing to go after on either account, and an elaborate investigation already having concluded in Clinton's favor on the first, we now have a President openly lamenting his legal inability to abuse power by ordering up phony investigations of his political opponents.  When Nixon did this, he covered it up and tried to keep it secret.  When we found out, he was impeached.  With Trump . . .

We're yawning.

Or at least a lot of us are.

This is not the best approach.  We need to be vigilant.  We need to resist.  We cannot afford to turn that which should be impeachable into something now deemed normal.

But we can't all do this at once.

We'll exhaust ourselves.

In the past two months, Trump told the courts to kill a terrorist-suspect before he's even been convicted, told Sen. Schumer that an old immigration law made Schumer responsible for that terrorist attack, told Sen. Corker he couldn't get elected "dog catcher" in Tennessee, told hurricane victims in Puerto Rico they weren't doing enough to recover,  told an Army widow that her husband knew what he'd signed up for, told NFL owners to fire any National Anthem kneelers, told Secretary of State Tillerson he was wasting his time trying to negotiate with North Korea, told Tillerson not to worry about this because Trump himself was on it, and told all of us those Facebook ads paid for in rubles were just another part of the "Russian hoax."  

In response, Tillerson said Trump was a "moron",  Corker said Trump was "debasing" the US with his "lies", "name-calling" and "bullying", and Republican Sen. Flake pointed out that Chuck Schumer actually would have rescinded that immigration provision long ago.  Lots of football players remain kneeling and 70% of the power is still out in Puerto Rico. North Korea will reportedly do another missile or nuclear test during Trump's upcoming Asia visit, and Facebook rebutted the hoax claim  -- the Russian ads were real and targeted and probably made a difference.  Meanwhile, House Republicans just announced that their version of "tax reform" means enormous cuts for the super-rich along with increases for middle and upper middle incomers in the form of eliminating deductions for state and local taxes and capping the deduction on mortgage interest.  Their proposal will also increase the deficit.

All of this follows Trump's summer swoon with Charlottesville's white supremacists, the spring firing of James Comey for investigating Russian collusion,  and the winter of our discontent highlighted by Trump's demonic Inaugural Address.

Our plate is and has been more than full.

And I haven't even mentioned the Special Counsel's investigation.

Political triage is required.

Here's mine.

Defeat the tax bill first.  

The fundamental problem that generated Trump's improbable victory is economic inequality.  For the victims, it saps the will and creates the fertile ground in which racism, xenophobia and nativism can take root.  This is not to say that any poor, rural, white guy (or gal) in Appalachia who voted for Trump is a racist who hates Mexicans.  But some -- maybe many --are, and Trump's excuse for inequality always fingered trade deals and immigrants as the responsible culprits when, in fact, it's our inability to do any New Deal-like redistribution that is and remains the real cause.  The last thing this country needs is a tax cut that depletes federal revenue while loading the pockets of the super-rich and depositing cash in the accounts of corporations that already have plenty.  Far better to kill the tax bill and use the revenue to solve the opioid crisis.

Or raise the minimum wage.

In the meantime, Trump will tweet and we will continue to learn nothing we do not already know.

Which brings me to the second reason it was functional to ignore him for the last sixty days.

I'm rested.

And . . .

Instead of being depressed by Trump, I'm inspired by Corker and Flake. 

And McCain 

In the past month, they've all taken on Trump.  

Here's McCain just this past Monday: "We are asleep in our echo chambers, where our views are always affirmed, and information that contradicts them is always fake." Though he had more than Trump in mind, Trump was clearly on his mind. "We have to fight isolationism, protectionism and nativism.  We have to defeat those who would worsen our divisions. We have to remind our sons and daughters that we became the most powerful nation on earth by tearing down walls, not building them."

John McCain is dying from brain cancer.  But as he moves toward whatever form of eternal rest awaits us all, his message last Monday is part of a last act that makes this his finest hour.

"It's time to wake up," said Sen. McCain to this year's Naval Academy. 

And so it is.

THE COUNTER-MAJORITARIAN  DILEMMA

Back in law school in the late '70s, one of the big debates in constitutional law was whether the Supreme Court, in holding federal or state laws unconstitutional, was improperly turning itself into a super-legislature neither elected by nor beholden to "We the People." 

The problem was even named.

It was called the "counter-majoritarian dilemma," the puzzle that plagued an un-elected Court every time it overturned the wishes of majority-elected legislators or Congress.

The debate became heated -- some would say over-heated --  at the time of Roe v. Wade, the Court's decision overturning state laws banning abortion.  Critics almost universally claimed there were two problems with Roe.  One was, so they claimed, that the 14th Amendment's due process clause does not explicitly name abortion as a protected substantive right, nor do any of the Bill of Rights some deemed incorporated in the substance of due process. In their view, the right to privacy which underpins Roe was simply invented.  The other was that Justice Blackman's trimesters approach to abortion, which announced an absolute and near absolute right while embryos and then fetuses were not viable followed by a post-viability regime where fetal life could be protected so long as the mother's life or health was not jeopardized, looked more like a legislative statute than a judicial opinion.

Following Roe, the originalist movement took off, gaining real traction in the '80s with the appointment of conservative jurists by the Reagan Administration.  Justice Scalia was the most prominent of these appointees, but by no means the only one once appellate and district court appointments were factored into the mix.

Originalists ostensibly avoid the two problems they claim plagued Roe by restricting their constitutional determinations to the strict text and the meaning of that text in the minds of its framers.  So, whether abortion is a a protected right under the 14th Amendment depends upon whether the framers of that amendment in the 1860s thought it was; whether the eighth amendment's ban on "cruel and unusual punishment" precludes the death penalty depends on whether the drafters of the Bill of Rights in the 1780s thought it did; and whether the second amendment's "right to bear arms" allows for bans of hand guns or assault weapons depends on whether those same drafters thought the right was an individual one.  In each of these cases, the answer becomes, so the originalists claim, simple -- in the first two they didn't and in the last they did.

Ergo, abortion can be outlawed, the death penalty is permissible, gun control is unconstitutional . . .

And the Supreme Court -- or at least the so-called originalists on it -- can sleep soundly, knowing the Court has not created rights that don't exist or usurped legislative power it does not enjoy.

In truth, however, the originalists need to wake up.

Because they are violating the very rules they so avowedly profess.

Start with strict adherence to the text.  The first problem is that originalists don't really mean it.  The text of the Constitution's substantive rights clauses speaks in abstract terms alone.  It bans "cruel and unusual punishment," deprivations of "due process," and violations of "equal protection of the law." It protects the "right to bear arms" on the basis of a need for a "well regulated militia."  If text alone were sacred for the originalists, they'd stop there. 

But they don't. 

To the contrary, they demand that we enshrine the drafters' unexpressed meaning in those terms.

Why?

If the drafters had wanted their unenshrined meaning to be forever honored by generations unborn, they surely could have written that meaning into those texts.  If, for example, only the rack and screw or walking over hot coals (or whatever other depravities characterized  the middle ages) were all the eighth amendment forbade, the drafters could have written out a list and said so.  Similarly, if -- contrary to the common law's understanding -- "due process" had no (or limited) substantive component, the common lawyers who drafted the Bill of Rights (and there were many of them) could have made that clear as well.

But they didn't.

Because, pace the originalists, they didn't want to straight-jacket American constitutional law.  In other words, they thought it could and would change over time, and that judges, deciding cases in courts, would be the agents of that change as the content of abstract terms was filled in over time.

Does that mean judges become -- or risk becoming -- super-legislators arrogantly overturning the wishes of the majority of We the People?

The short answer is "No."  The facts of cases and the craft of adjudication contain inherent limits in the form of precedents, rules of evidence and procedure, and jury trials.

And the longer answer is that originalists should be careful what they condemn. 

For today's Court is hardly protecting majoritarian rights.  In many instances, in fact, it is doing the precise opposite.

The vast majority of the country demands gun control.  78% of Americans do not own guns and 3% own more than half the guns out there.  The reason Congress cannot pass gun control -- it didn't in the wake of Columbine, Sandy Hook or Orlando and very likely won't in the wake of Las Vegas either -- is not because majorities do not favor regulation.  It's because the minority of those who oppose regulation have disproportionate power in the Senate (where all states have two Senators) and in a gerrymandered House of Representatives (where 45% of the voters are now determining 55% of the seats).  

At the same time, gun manufacturers routinely produce firearms in numbers that far exceed demand in states without strict controls,  knowing the created gun surplus will make its way to states that would otherwise ban or regulate them.  

In protecting these acquisitions, the Court is not respecting the will of the majority.

To the contrary, it is simply aiding and abetting the avoidance of majority rules by a determined (and well financed, thank you NRA) minority.

Originalism is thus a canard.  And as the  expressed view of all the jurists our current President would appoint to the Supreme Court were another vacancy to arise, it is a very dangerous canard.

Because . . .

It gives more rights to embryos than victims of gun violence . . .

And underscores an old critique of the right wing.

For them . . .

The right to life ends at birth.

TWO DAYS THAT SHOOK THE WORLD

TWO DAYS THAT SHOOK THE WORLD

Last weekend, neo-Nazis, the Ku Klux Klan, and assorted white supremacist groups descended on Charlottesville, Virginia, for what they billed as a "Unite the Right" rally.  

Their ostensible purpose was to protest Charlottesville's decision to remove a statue of Confederate General Robert E. Lee from Emancipation Park. The real purpose, according to the former Grand Wizard of the KKK, David Duke, was to "take [the] country back [and] fulfill the promises of Donald Trump."  As explained in the signs and slogans on offer at their initial march through the University of Virginia campus on Friday night and again at the start of their Emancipation Park rally on Saturday morning, those promises --  to the ears of white supremacists -- included vows that "white lives matter," "you will not replace us," "Jews will not replace us," "the Jewish media is going down" and "Jews are Satan's children." To underscore their commitments, they waved Nazi swastika flags and repeatedly shouted  "Blood and Soil," the Nazi slogan demanding Aryan racial supremacy and control during the Third Reich.  

They were also violent.

On Friday night, white nationalists encircled a smaller group of counter-protesters, at which point fights ensued with the racists throwing their lit tiki-torches at the counter-protesters.  On Saturday, James Fields, a 20-year old who worshipped Adolph Hitler and once described Dachau as a place "where the magic happened," accelerated and then reversed his car into groups of counter-protesters, injuring nineteen and killing Heather D. Heyer. Ms. Heyer was a 32-year old paralegal. Because of the violence, both the City and the Governor issued decrees declaring a state of emergency stopping the rally, both of which the Nazis, or at least some of them (including Fields, who murdered Ms. Heyer shortly after the Governor issued his), proceeded to ignore.

On Saturday, all eyes were fixed firmly on the ostensible leader of the free world, Donald Trump, waiting for his comments on the biggest neo-Nazi event in the US since Skokie in the '70s.

Trump, of course, has a history which can only charitably be characterized as "race baiting."  The day he announced his candidacy, he called Mexicans rapists.  During his campaign, he said an American judge could not fairly adjudicate his case because of that Judge's Mexican heritage.  His principal adviser, Steve Bannon, is widely viewed to be a white supremacist.  And in his campaign rallies, Trump openly advised supporters to take out opponents, promising that he, Trump, would pay any legal bills occasioned by the assault.

So, Trump took to the podium on Saturday and proceeded to denounce the violence on . . .

"Many sides."

He didn't name the neo-Nazis, or the KKK, or the host of other white supremacist groups that showed up in Charlottesville armed to the the teeth and spewing racist anti-Semitic rants.  Instead, he "condemn[ed] in the strongest possible terms the egregious display of hatred, bigotry and violence on many sides, on many sides." He called for "a swift restoration of law and order," and said that neither he nor his predecessor was responsible for what "has been going on for a long, long time."

Say what?

In addition to not naming any racist, neo-Nazi or white supremacist groups, the statement was false on multiple levels.  The display of "hatred, bigotry and violence" was one sided, not many sided.  The clergy who organized the counter-protests aren't bigots and preached love, not violence; the same goes for Ms. Heyer, whose only apparent fault in life was an unerring sympathy for those who are marginalized in this world.  

Nor was "law and order" remotely a solution.  Nazis and the KKK don't preach law and order.  They demand white supremacy and will take up arms to insure it.  

And finally, Trump is responsible for what went on in Charlottesville. His racist dog-whistles over the past two years and love affair with the alt-right's Bannon are widely perceived  by white supremacists as permission slips.  In fact, on Saturday, Andrew Anglin, the creator of The Daily Stormer Nazi web site, praised Trump's statement.  Said Anglin: "[Trump]  didn't attack us. [H]e implied that there was hate on both sides. So he implied the [anti-fascists] are haters.  There was virtually no counter-signaling of us at all." Another post on the Daily Stormer site said, "Trump comments were good . . . Nothing specific against us."

No kidding.

Over the next forty-eight hours, Trump was met with a firestorm of criticism.  Republican eminence grise Orrin Hatch said, "We should call evil by its name.  My bother didn't give his life fighting Hitler for Nazi ideas to go unchallenged here at home."  Colorado Republican Sen. Cory Gardener said much the same.  Ted Cruz called Fields's rampage "domestic terrorism," as did South Carolina Sen. Tim Scott. The Democrats seemed almost amazed.  Said former Vice President Biden: "There is only one side."

Two days later, Trump issued a new statement.  This time he named the KKK, neo-Nazis and white supremacists, saying their acts were "repugnant to everything we hold dear as Americans." And following it, the GOP came to his defense. Said conservative Oklahoma Rep. Tom Cole: "Because of the nature of the attack, he should have been more specific.  Within 48 hours, he was.  Probably he missed an opportunity, but we are all singing from the same song book now, and that's a good thing."

No.

It isn't.

There aren't a medley of available tunes for a President to sing on Nazism or white supremacy or the KKK.  

There's only one.

It's called condemnation.

And it shouldn't take two days to sing that song.

This isn't a subject that is pregnant with ambiguity or otherwise difficult to get right.  It's not open to debate or one on which reasonable positions exist on both sides.  David Duke and white nationalist Richard Spencer are not spokesmen for any defensible argument or point of view.  They are racists. As a consequence of the very freedoms they would deprive anyone without a white skin, Spencer and Duke (and Fields and all the other tiki-torch carriers on parade last week in Charlottesville) can speak all the want.  

But that is all they can do. 

And when they do that, any President from any party should condemn them.

Immediately.

Trump didn't just miss an opportunity this week and last.

He failed a test. 

                                          *       *        *

Postscript -- As this essay was being written and published, Trump held another press conference in the lobby of his Trump Tower in New York City.  In that conference, he defended his Saturday comments, repeated the disingenuous claim that there had been violence on "both sides," and even uttered the preposterous claim that there were "fine people" in the group that included the KKK, neo-Nazis and white supremacists.  

There was no singing from the same songbook, just an angry regurgitation of the false moral equivalence offered up on Saturday.

Not surprisingly, Duke and Spencer praised him for his latest equivocation.

So, we now have a President -- with a Jewish daughter, son-in-law and grandchildren --  praised by a Klansman and a neo-Nazi as he air brushes their evil and tars and feathers their opponents.

I don't know if all of this is a "high crime and misdemeanor."

But it should be.

PROFILE IN COURAGE

PROFILE IN COURAGE

It was a dramatic moment, a Hollywood moment, a moment about which movies will be made and books will be written.

A senior Republican Senator from a very red state walked bleary-eyed to the well of the Senate in the early hours of the morning.  The Senator voted "No" on the motion.  The "No" killed the GOP's Health Care Freedom Act, an eight page piece of legislation unveiled only hours before. The Act was a walking misnomer.  For the 15 million who would have lost their medical insurance as a consequence, it provided neither health nor freedom.  

The "No" saved Obamacare from the inevitable death it would have suffered at the hands of this misnomer.  Everyone -- even the GOP -- wants insurance companies to cover those with pre-existing conditions while keeping  premiums affordable. That can't be done if the pool of insured is either too small or too sick.  Costs soar in either case; the Congressional Budget Office (CBO) predicted premium hikes of 20% had the misnomer become law. Hence, Obamacare's individual mandate, the requirement that everyone  have health insurance, and pay premiums,  so that the sick can be treated at prices we can all afford.

The "No" restored some common sense to the health care debate. Once it happened,  the Majority Leader, GOP Sen. Mitch McConnell, was forced to concede that his party must now move on to other matters.  This probably means that health care returns to the Congressional committees within whose jurisdiction it rests; no more midnight votes on unknown bills where there have been no hearings, perhaps the end of legislating ignorance. 

The Senate, like the country, is exhausted.  It is tired of Trump and tweets and twilight sessions designed to fulfill  promises Republicans made but never thought they'd have to honor.  Repealing Obamacare was one of those promises.  Everyone sitting in the Senate last night thought Trump would lose last November . . .

And that Hillary would save them from the consequences of their vote.

Alas, Hillary was at home in Chappaqua and The Donald was at home in the White House.  

His Hairness, as he told us repeatedly throughout the week, had "pen in hand," ready to sign anything the Republican Congress sent him. The Health Care Freedom Act would do. He wanted a bill, any bill. He vigorously lobbied the Senator who would ultimately stop the GOP in its tracks and prevent Trump from claiming his obsessively sought "win". Though his campaign promise to insure that all have health insurance had become, as another failing President once famously said, "inoperative" . . . 

The "No" saved us from that as well.

When it was over, Republicans cried but Democrats did not gloat. They knew how close they had come to a GOP "Yes" that spelled disaster for 15 million and a lot of premium pain for the rest of us. 

Earlier in the week, a motion to repeal Obamacare and replace it with the Senate's amended version of the House's repeal and replace had failed by a fourteen vote margin, and on Wednesday a motion to just repeal Obamacare without any replacement had failed by ten votes. In both cases,  more than a half dozen GOP Senators had voted against. 

By Thursday night, however, the GOP had come up with a pared down version that became known as "skinny repeal."  It eliminated the individual mandate, funding for Planned Parenthood, and some taxes (over a period of years).  But it didn't  touch Medicaid, and because of that, it seemed to thread the needle, allowing GOP Senators from states that had accepted the Medicaid expansion under Obamacare to satisfy their Governors while repealing the provisions of the Affordable Care Act Republicans hated most.  Nevertheless, the  CBO predicted that 15 million would lose insurance if skinny repeal became law.

At 2:00 a.m. today, those 15 million breathed a sigh of relief.  Skinny repeal was defeated . . .

By one vote.

In a rare profile in courage at a time when there's lots of the former but almost none of the latter,  the vote came from a senior Republican Senator from an implacably red state.

A state that Donald Trump easily carried last November.

I'm speaking, of course, of . . .

Alaska's Lisa Murkowski.