Response to Charlie in regards to Unmooring of America Post

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 19^th and early 20^th 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.