The following is a dialogue as a result of a comment on
Facebook by Charlie Davidson regarding my earlier post entitled “Unmooring of
America – We need a new dock”: https://backusec.blogspot.com/2019/12/unmooring-of-america-we-need-new-dock.html
In response to my blog post, Charlie writes:
“Didn't have time to read all your references (only got
through Barr's speech and the article by the mayor) but a few thoughts:
1 - How Trump got elected: The majority of the people
ripping on Trump seem absolutely confused with what got him elected in the
first place. Your piece is at least in touch with real arguments from
conservatives and/or other Trump voters. There is little-to-no belittling of Trump
voters/supporters' intelligence or morals rather, you address them in
relatively good faith by analyzing and arguing against those reasons strength.
In other words, you argue against our positions with more or less respect which
is the best way to bring people together, even though I still disagree with a
few things in there that were mentioned. This is an important for the next
thought.
2 - Where to go from here: Can we return to a time where the
majority of Americans held the creed of believing in individual freedom and
responsibility? The belief that the only thing you have a right to is the
adventure of your own life? I fear that this may not be possible. There is a
feeling on the right that our constitutional rights are under a heavy assault.
Andrew Klavan said on of his shows not too long ago that you can't maintain
your rights indefinitely. All you can do is try and hold on to the rights you
currently have. Despite your best efforts, however, eventually your rights are
stripped away and your constitution dies. I recently learned that America has
the oldest constitution, yet our country is incredibly young! This is amazing
because it proves how strong our institutions are but I fear that like with any
old person, things are starting to wear out. As the democrats continue to move
further to the left and expose their opinion on the 1st and 2nd amendment,
conservatives, libertarians, and classical liberals feel left behind. Moderates
feel less represented by the democratic party and turn instead to Trump, a
president who really isn't even all that conservative (look at his spending). I
think that many people genuinely feel their way of life is less threatened by
Trump (the reality-TV-star-turned-president) than the majority of the
democratic candidates. Beto O' Rourke said he was going to take our guns and
remove a church's tax-exempt status if it didn't support gay marriage. Kamala
Harris wanted Trump to be banned from twitter because she didn't like him.
Buttigieg tries to imply late-term abortion is supported by the bible and
implies you're a bad Christian if you disagree. Warren and sanders both want to
eat the rich (which includes people like me and you since there aren't enough
rich people to pay for their crazy plans). I could go on with other issues I
have with the candidates but they are threatening to me and what I hold dear:
My ability to decide for myself what I do with my life. They want to infringe
upon me and my rights. (Look at Virginia with its upcoming gun ban). Trump is
not threatening my way of life or the constitution. He's cooperated with the
checks and balances of the three branches of the federal government (except
when he banned bump stocks via executive order and not through congress. I will
be voting for Trump because that is an attempt to conserve what we have left.
Trump infringes on my rights less. I wish Dan Crenshaw was president because
then I would feel truly represented, but he's not and Trump is the best option
I have.
3 - How does this case for impeachment make any sense? There
aren't any underlying crimes. He's being impeached for a management decision
that he had the right to make. As far as my understanding goes, foreign policy
quid-pro-quos happen all the time and are not impeachable when in the interest
of America. And as for this obstruction of congress thing, he was again
operating within his legal rights. My sources have made the argument that he's
not obstructing anything without being ordered by the courts to comply with
subpoenas. Is this wrong? If you don't like the guy, vote him out. Don't
impeach him because he made a management decision you disagree with. I could
keep going but overall, I think your transparency and good faith arguments are
a step in the right direction.”
My response (on 31 December 2019)
Charlie, thanks. Here
are some responses, just to further the dialogue (a bit long, but as full as I
can do in a short time):
1) As to the first point, thanks. I agree we need to have a healthy dialogue
that gets at the real core issues rather than the superficial ones. That said, it is critical we start from a
position where we first acknowledge the validity of one another as people. That is what really prompted my blog post
here. There are legitimate issues that
need to be addressed. The problem I
often see, however, is the tendency to avoid the “we together” and go to “us”
and “them”. As much as conservatives
dislike liberal ideas, the same is true in reverse. Instead of attacking ideas, however, we
attack people and make them to be the enemy.
There are real enemies out there and I, for one, have actually engaged
them. We need to get a grip and
recognize we are often friends and neighbors, and fundamentally still Americans. Because we hold liberal or conservative ideas
as true, doesn’t make us enemies, it means we have differing points of
view. That is core to what America has
stood for and ought to continue to stand for.
What does put us into enmity is when we allow lies to pervade and allow
the entry of what are our true enemies take over. That is what is prompting me to write with
continued concern, we are loosing focus.
A part of this is the unmooring I talk about in the post, but it’s also
an active campaign of forces from without to only exacerbate that problem. Thus, we need to get our collective “crap
together” before we are in a much more desperate situation than we are in
now. Trump, as a symbol, as a person,
and as a movement, is the antithesis to that effort. As I explain in an earlier post, we need a
Churchill, a FDR, a Lincoln; and at present we lack them.
2) On point two, let me start with that part of my
post is getting at this sense of “feeling”.
That is why, other than Barr’s speech, I used opinion pieces (and Barr’s
speech was essentially his opinion).
Feelings are really important here, because it is at the core of what is
happening. Our moral and ethical basis
and our financial wellbeing are things that are felt more than almost anything
else in our society. This is why
historians of the Great Depression understand that it wasn’t just an economic
downturn, but it was a sociological and mass psychological trauma that kept it
as prolonged as it did. The feeling of
not being able to get out of the problem was often reinforced more than it was
fought back against, and often belied the facts of what was happening. The same can be said now. We are experiencing, especially since the
Great Recession, a similar problem, with some in denial of it, others
explicitly using it to their advantage, and others recognizing the real issues
we have to contend with. Sadly, most are
in the prior cases and few are in the latter.
Secondly, as you state and go on to speak
to: “There is a feeling on the right
that our constitutional rights are under a heavy assault.” This is where two things are important to
consider: a) the true basis of your
feelings and b) the difference between a right and a privilege.
a.
Basis: So
let’s start here on the heels of my response above. As I said feelings are critical, the question
though is what are they based on? You
cite Andrew Klavan, and his show, which is an offshoot of the Daily Wire. One of the things I touch on in blog post
(one of my four points) is we aren’t really even talking about things well
together. We continue to talk past each
other rather than to each other. I am
not any less guilty on occasion, but I work really hard, as evidenced here, to
engage and listen. Much of what we feed
on, and social media has exploded this, is what gets us the rush of feeling,
often confirming what we want to believe, not what is really true (aka
confirmation bias). Is that really the
best basis for our feelings? Is it
hearing from infotainment purveyors? I
submit it isn’t, but we do it anyway.
Why? Because we want to believe
and want to be believed. This is at the
core of the unmooring problem, there isn’t a collective belief anymore. Until and unless we can buy into a common
basis for our belief in who we are as Americans, we will have a serious
problem. The post WWII world forced us
to have at least some broad outlines of consensus, which largely held even
amidst the uproars of the 1960s through the Regan era, but has been really
unmoored since 1989. The externality
helped focus us, but I submit we can do it without that if we have the right
kind of leadership (as we did in the late 19th and early 20th
century). In the near term the best we
can do is to stop give in into our impulse, as best we can, to feed into our
confirmation bias. This means digging deeper. This means confronting lies, especially found
within our own ideological tribes. It
means gaining more satisfaction on proving ourselves wrong than in being able
to prove someone else is misguided. And if
nothing else, stop giving credence and support (monetarily, intellectually, viewership,
click bait, or otherwise) to those that are feeding into further devolution,
whether they are Rachel Maddow or Sean Hannity or Lou Dobbs. We have to begin with a moral agreement that
using information as a weapon to make money is simply wrong, and vote with our
feet, pocketbooks, and attitudes to stop it.
b.
Rights and Privileges: Feeding into this is the disabuse of the word
“rights”. We use this term so loosely
these days that it almost becoming meaningless.
One of the ones I distaste the most of late is “the right to healthcare.” But there are others: a “right to a license to drive,” a “right to free
contraceptives,” the “right to own any weapon I want,” and so on and so
forth. Succinctly, none of these are actually
“rights.” What we loose in all this “rights”
talk is that there are differences between what are properly called “rights”
and what are “privileges.”
Rights, properly defined (borrowing from Locke et al) are things that are
ineffable to our being and exist whether they are granted or not. Privileges, however, are things that are granted,
often tied to a right, are based on status, and can be transitory. This is why Article IV, Section 2 of the constitution
articulates that “The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States,” noting that the
word “rights” doesn’t appear there. Nor
for that matter does it appear in the entirety of the base Constitution. That is why patriots like George Mason spoke against
its ratification in the first place, and also why Madison and the first
Congress established a Bill of Rights, to rectify that issue (even though in Federalist
Paper 84, Hamilton argued that “… bills of rights are, in their origin,
stipulations between kings and their subjects, abridgements of prerogative in
favor of privilege, reservations of rights not surrendered to the prince … they
have no application to constitutions professedly founded upon the power of the
people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender
nothing; and as they retain every thing they have no need of particular
reservations.”). In the end, rights in
the Constitution are merely expressions of those already extant but now made
explicit. And those extant rights, based
in Lockean philosophy, are based on natural rights, which are much more simplistic
than even stated in the Constitution’s rights statements (Amendments 1-10, 14, 15,
19, 24, 26). For instance, the right to
free press, free assembly, free exercise of religion, and right of petition are
encapsulated in the dual natural law concepts of free expression (coming from
Locke’s right of property, which includes the right to your ideas) and free
participation (from Locke’s assertion that all government is based on the
consent of the governed).
With these rights also comes the responsibility for their use, in so much
as they don’t do harm to or interfere with the rights of others. As a consequence, the details, then, are
often privileges that vary under context and circumstance, meaning that the constitutional
rights are not absolutes. For instance, yes,
there is the natural right to free expression that is enshrined as freedom of
speech. However, falsely yelling “FIRE”
in a packed theater is an abuse of that right.
You therefore, have the privilege of using your right in society so long
as it conforms with your responsibility for the use of that right, and if
violated can result in consequences that either abridge that right or may
result in criminality (if you yell “FIRE” in the middle of the woods with no
one around, you are still free to do so).
I am offering all of this preface material to offer that in reality,
most of the time when people “feel their rights are being taken away,” what is actually
happening is that your rights are not being taken away. What is happening is that your privilege of
use of that right might be abridged or you may often be mistaking a privilege
for a right that really doesn’t exist. Further,
not all rights are individual, many are corporate in nature, thus you may not
be granted a right as an individual person even as a group is (e.g. right of
assembly is a good example, where loitering can be illegal but assemblies are
permitted). So when I see someone was
denied free contraceptives crying that their rights have been violated, they
haven’t been. What has happened is that their
privilege has been withheld. What they
are banking on is their natural right of life (as Locke and the classical
liberal tradition defines it, within the concept of “property” we have a right
to, including ourselves). That right,
however, doesn’t specify that birth control pills are inherently a part of “life”
(making note that I am not making a medical judgement here, but making a
natural law argument). This is very
similar to the goings around I often see in the world of gun rights advocacy and
in much of your foregoing to that topic.
To that topic, I encourage you to read carefully the Militia Acts of
1792, passed by the same people (with few exceptions) that wrote and passed the
second amendment: https://www.constitution.org/mil/mil_act_1792.htm.
When you do, if you don’t have a greater
appreciation for how “[a] well regulated Militia, being necessary to the
security of a free State” constrains or provides key context and conditions on “the
right of the people to keep and bear Arms, shall not be infringed,” then we
need to talk more.
At present, much of the debate about rights, then is hyperbolic and often
over sensationalized. You cite the Virginia
gun control legislation, have you actually read the bills in question in the
Virginia state legislature? If not, here
is a good link: https://lis.virginia.gov/cgi-bin/legp604.exe?192+lst+ALL. Probably the one giving folks the most hey is
HB4006, dealing with minors: https://lis.virginia.gov/cgi-bin/legp604.exe?192+ful+HB4006. I’ll submit that these are not the best
written pieces of legislation (and should, in HB4006, have excepted lawful gun
safety and use provisions in places like schools, scout camps, etc.), but when
you actually read the laws, it’s a much different story than what you get from
reading the NRA page. Instead of really
looking at what is going on and detailing the issues with the proposals, it’s
been an all or nothing campaign and super sensationalized. I submit that there are good points on many
sides of the debate on firearms in society, and this is where I emphatically go
back to the need to realize one-size-fits-all answers will not work. But we have to stop being immediately
inflamed and prejudicial. And we have to
recognize when our rights are actually being violated vice that of our privileges. I will submit that there are assaults on our
various privileges going on every day, and they should concern us. I would also submit, that having the republic
in place that can meet these out is even more critical, because the
alternatives are much worse. To that
end, one of my long standing contentions is we need to make some serious structural
changes in the republic through the amendment process as well as clarifying
some of the foregoing amendments so as to make them applicable in today’s
context. There are force, however, that
are enjoying the extra constitutional times we are living in, where we have
refused to make those changes and have often operated outside what the
constitution envisioned or allowed, for good and not so good reasons.
3) On your last point on impeachment, relies on the
facts and what they mean. You state it’s
a management decision he has the “right” to make that is at the center of his
impeachment and that he didn’t break any law (note that the above discussion should
make you want to use the word “privilege”).
First, make note that the base constitution was ratified well before we
had “laws” on the books, and that document had the impeachment power within
it. This means that impeachment is not
dependent on subsequent laws, it is based solely on Article 2, Section 4 where
in states that “[t]he President, Vice President and all civil Officers of the
United States, shall be removed from Office on Impeachment for, and Conviction
of, Treason, Bribery, or other high Crimes and Misdemeanors.” These are loaded terms, especially the last
of “high Crimes and Misdemeanors” as it was open to a very wide interpretation. Ultimately, because of Article 1, section 2,
it is up to the House of Representatives to determine what this ultimately
means and because of Article 1, Section 3, for the Senate to agree it is worthy
of removal. So the point is, its not
about laws, it’s about the Constitution itself.
And among the things that the Constitution itself says is that “no
Person holding any Office of Profit or Trust under them, shall, without the
Consent of the Congress, accept of any present, Emolument, Office, or Title, of
any kind whatever, from any King, Prince, or foreign State” (Article 1, Section
9, aka the “emoluments clause”).
So this goes back to the question about “quid-pro-quo”
in the President Trump’s dealings with the Ukrainian President vis-à-vis foreign
aid. Yes, nations make “this for that”
trades all the time in pursuit of their NATIONAL interests. The core contention is that President Trump engaged
in this kind of trade not in the interest of the United States, but instead in his
PERSONAL interest, resulting in the garnering of a personal gift. As such, this would be in direct violation of
the aforementioned emoluments clause and did so by abusing his power as
President to “take Care that the Laws be faithfully executed” (Article 2,
Section 3). As for the second charge, obstruction
of Congress, this is a contention that through his actions to not release
information required by subpoena and to intimidate or order subordinates to do
likewise regarding said dealings with Ukraine, President Trump obstructed
Congress’s power “[t]o constitute Tribunals inferior to the supreme Court” and “to
make all Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers [including the power to establish and execute tribunals],
and all other Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof” (Article 1, Section 8; ergo, the Congress has
direct subpoena power outside of the courts as they are able to constitute
their own inquiries/”tribunals” with the weight of the laws they create and are
signed by the President, excepting impeachment where it is exclusively the
House’s purview).
To the first charge, it depends on your
thoughts as to whether what President Trump was doing in relation to the President
of Ukraine was for personal interest reasons or for national interest
reasons. The contention by some
Republicans has been that the Congressionally approved foreign aid was withheld
in relation to concerns about corruption in Ukraine, although many have
acknowledge the personal nature of this and have merely excused it. Given the numerous witnesses and documents
that we have seen so far, it is hard to argue it was for national interest
reasons. While I contend you can’t make
any call either way, the President did not avail himself of providing evidence
to the House impeachment hearings leaving no real defense at this point to this
charge (reminding you the House effort is on par with a Grand Jury effort, not
a trial; so the House didn’t have to do this nor did Trump have to respond,
albeit optics are important). The Senate
trial will have to make the final determination, with (what I hope is) a fuller
representation of the facts. As for the
second charge, there isn’t a question that Mr. Trump has taken numerous actions
to obstruct the House’s efforts. That
said, does it rise to level of a “high Crimes and Misdemeanors,” to have
usurped Congresses power to effectively execute its investigative powers as enshrined
above? That is a very good question. I would offer, however, that one has to
consider that question in the abstract.
Should the President, any President, be able to wantonly thwart Congress’,
and Congress’, explicitly named powers?
I fall on the side of no, he or she should not, even as there needs to
be some allowance for executive privilege (note, again, not a right, a privilege). As such that constitutes a violation worthy
of the label “high Misdemeanor” in my estimation. Ultimately, again, it is up to the Senate to
make the call if this is worthy of removal or not.
As a final note, I go back to again, that I appreciate honest
open debate. The key is the
honesty. To that end, I have responded
less to prove any points, but to express what I think is the honest
situation. We have to build this kind of
trust more than ever. I hope to have
done that in some way here.
