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Amor Mundi: The Honor System

The Honor System

In an interview with Michael Judge, Garry Kasparov elaborates on his off-the-cuff remark that Donald Trump’s press conference resembled a Soviet press conference.

“If I recall, it was a joke made while the press conference was still going on, and I was struck by all the flags around him and the scripted questions early on. It was his first real press conference as president-elect, and it was all show and campaign-style rhetoric, despite the large backlog of important policy questions that he faced. To be fair, he actually did answer a few questions that weren’t staged, which never would have happened in the USSR. But while all traditional politicians understand the importance of messaging and perception, they realize that avoiding substantive questions only leads to more of them. During the campaign, and during his presidency, Trump has attempted—with considerable success—to transcend that norm, as with so many others. He responds instead with counterattacks and bold statements and accusations, knowing they will get more attention than subsequent fact-checks. It’s one of many ways that Americans are learning from Trump that much of their democracy was run on the honor system, on agreed standards, not laws, and now there’s someone who isn’t going to play by those rules. It has very dangerous implications, especially since this is a theme that plays well with many of his supporters….

I hope the foreign press can take the lessons they are slowly learning about covering Trump and apply them to Putin and other dictators. Call things what they are. Lies are lies. Facts are facts. Dictators are dictators. The tell-both-sides media attitude that generally works in the free world falls apart completely when dealing with a dictatorship that doesn’t operate in good faith, that lies and actively fabricates constantly. The US media are now learning this with Trump, to treat his administration like a hostile witness, or at least an unreliable narrator. Russia’s elections are a complete joke. Putin isn’t an elected leader any more than Kim Jong-un at this point, so why play along with the charade? To be “objective” or “fair”? This is how the bad guys win, because the free world’s leaders and media want to play by rules that assume fair play and a degree of scrupulousness that doesn’t exist for people like Putin, who see this tendency, accurately, as a weakness to exploit.”


I Will Faithfully Execute..

Benjamin Wittes and Quinta Jurecic ask why it is that the Federal judiciary are acting so aggressively against Donald Trump’s executive orders on immigration? They argue that while there are possible legal justifications for the judicial orders, it is just as likely that the judicial resistance comes from a “judicial suspicion of Trump’s oath.”

“But also there is a third possibility, and we should be candid about it: Perhaps everything Blackman and Margulies and Bybee are saying is right as a matter of law in the regular order, but there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply.

In this scenario, the underlying law is not actually moving much, or moving or at all, but the normal rules of deference and presumption of regularity in presidential conduct—the rules that underlie norms like not looking behind a facially valid purpose for a visa issuance decision—simply don’t apply to Trump. As we’ve argued, these norms are a function of the president’s oath of office and the working assumption that the President is bound by the Take Care Clause. If the judiciary doesn’t trust the sincerity of the president’s oath and doesn’t have any presumption that the president will take care that the laws are faithfully executed, why on earth would it assume that a facially valid purpose of the executive is its actual purpose?

In this scenario, there are really two presidencies for purposes of judicial review: One is the presidency when judges believe the president’s oath—that is, a presidency in which all sorts of norms of deference apply—and the other is a presidency in which judges don’t believe the oath. What we may be watching here is the development of a new body of law for this second type of presidency.

This, we suspect, is the true significance of all of the references in both district court opinions to the many statements made by Trump and his aides about the Muslim ban and the true purpose of the policy effectuated in both orders. These references present, of course, as discussions of whether there is truly a secular purpose to the policy in an Establishment Clause analysis using the Lemon test. But there’s at least a little more going on here than that. The lengthy recitations of large numbers of perfectly objectionable presidential statements about Muslims coexist with a bunch of other textual indicia showing not merely that the judges doubt Trump’s secular purpose but that they doubt the good faith of his purpose at all—indeed, that they suspect that he is simply lying about his own motivations.

For example, Judge Chuang pointed to the fact that “the core concept of the travel ban was adopted in the First Executive Order, without the interagency consultation process typically followed on such matters” as evidence that “the national security purpose is not the primary purpose of the ban.” Given that the first order was issued “without receiving the input and judgment of the relevant national security agencies,” the national security rationale behind the order is post hoc at the very least. Judge Chuang further argues that under Lemon, it doesn’t actually matter if the national security rationale is legitimate—all that matters is that it’s secondary to the motive of religious animus. He also terms the case “highly unique,” again suggesting that he’s not describing a regular mode of judging. He’s describing a mode of engaging with a President who is acting in bad faith.

In his essay on the second executive order and the Establishment Clause, Blackman alleges of Judge Leonie Brinkema’s analysis of the first executive order that, “At its heart, the court’s Establishment Clause analysis isn’t about the executive order. Rather, it is about the person who signed it.” Writes Blackman:

Judge Brinkema has applied a “forever taint” not to the executive order, but to Donald Trump himself. For example, the government defended the selection of the seven nations in the initial executive order because President Obama approved a law that singled out the same seven nations for “special scrutiny” under the visa waiver program. Judge Brinkema rejected this reasoning: “Absent the direct evidence of animus presented by the Commonwealth, singling out these countries for additional scrutiny might not raise Establishment Clause concerns; however, with that direct evidence, a different picture emerges.” That is, if Barack Obama selected these seven countries for extreme vetting, it would be lawful, because he lacks the animus. But because Donald Trump had that animus, it would be unlawful. No matter that Trump excluded forty-three other Muslim-majority nations that account for 90 percent of the global Muslim population. Even though three of the included nations are state-sponsors of terrorism! It will always a “Muslim ban” because of comments he made on the O’Reilly Factor in 2011, a policy he adopted in 2015, and abandoned after his lawyers told him it was illegal. She admits as much. “A person,” she writes, “is not made brand new simply by taking the oath of office.” Not the policy. The person. Trump.

We suspect there is a lot of truth to this. The question is whether that decoupling of the presidency from the person of the president, which we anticipated in our original essay on the oath, is quite as indefensible as Blackman assumes—or whether it’s an inevitable consequence of vesting someone as volatile and fundamentally disingenuous as Trump with “the Executive Power” of the United States of America.”


The Making of Islamophobia

Bethany Allen-Ebrahimian tells the story of “The Making of Islamophobia Inc.” through the story of the recent fracas surrounding a lecture by Jonathan Brown.

“It all started with good intentions. Brown is one of the majority of Muslims around the world who believes the Islamic State practices a warped interpretation of Islamic thought that blesses slavery, rape, and other crimes. But Brown also knows that not all Muslims are so quick to dismiss the jihadi group’s theology. Certainly the hundreds of foreign fighters who have trickled into Syria and Iraq to join its ranks find its ideas seductive. For some others, the veneer of religious authenticity used to justify Islamic State atrocities has led to a crisis of faith. And the cacophony of violence plaguing much of the Muslim world tends to drown out the voices of those most qualified to referee the religious confusion.

But Brown felt that he was called to try, hence his public lecture at the International Institute of Islamic Thought in Herndon, Virginia, on Feb. 7. In the first of what he intended as a three-part series, Brown addressed slavery in Islam, hoping to combat the idea that Islam could ever condone the subjugation and exploitation of human beings.

That was when he encountered a cacophony of a different sort — America’s far-right, anti-Muslim ecosystem that has adopted the same twisted interpretations of Islam that the Islamic State promotes. After the lecture, Brown endured a cascade of online attacks from conservative and alternative-right heavyweights such as Ann Coulter, Robert Spencer, and Milo Yiannopoulos, who claimed that he had actually condoned the acts he had set about to condemn. His university department was flooded with demands that he be fired.

Brown is the victim of an increasingly empowered industry of Islamophobia that constricts the space for balanced and open dialogue, sidelining the very Muslims who are doing the most to promote peaceful, orthodox interpretations of Islam.”


How Conflict is Handled

Hedge funds are known for rigorous analysis of economic trends. Recently, Ray Dalio’s Bridgewater Associates, published a 50 page analysis of populism that examines in depth 13 past populist leaders and their records. The analysts conclude that the most important indicator of whether a populist leader transforms into an authoritarian or totalitarian leader is how that leader and his opponents approach conflicts.

“Populism is a political and social phenomenon that arises from the common man, typically not well-educated, being fed up with 1) wealth and opportunity gaps, 2) perceived cultural threats from those with different values in the country and from outsiders, 3) the “establishment elites” in positions of power, and 4) government not working effectively for them. These sentiments lead that constituency to put strong leaders in power. Populist leaders are typically confrontational rather than collaborative and exclusive rather than inclusive. As a result, conflicts typically occur between opposing factions (usually the economic and socially left versus the right), both within the country and between countries. These conflicts typically become progressively more forceful in self- reinforcing ways.

Within countries, conflicts often lead to disorder (e.g., strikes and protests) that prompt stronger reactions and the growing pressure to more forcefully regain order by suppressing the other side. Influencing and, in some cases, controlling the media typically becomes an important aspect of engaging in the conflicts. In some cases, these conflicts have led to civil wars. Such conflicts have led a number of democracies to become dictatorships to bring order to the disorder that results from these conflicts. Between countries, conflicts typically occur because populist leaders’ natures are more confrontational than cooperative and because conflicts with other countries help to unify support for the leadership within their countries.

In other words, populism is a rebellion of the common man against the elites and, to some extent, against the system. The rebellion and the conflict that comes with it occur in varying degrees. Sometimes the system bends with it and sometimes the system breaks. Whether it bends or breaks in response to this rebellion and conflict depends on how flexible and well established the system is. It also seems to depend on how reasonable and respectful of the system the populists who gain power are.

In monitoring the early-stage development of populist regimes, the most important thing to watch is how conflict is handled—whether the opposing forces can coexist to make progress or whether they increasingly “go to war” to block and hurt each other and cause gridlock.”


Freedom and Censorship

Robert Boyers understands one of the peculiarities of the current campus debates around free speech. The very same people who profess to be liberal supporters of freedom and equality also imagine themselves as censors. There is a doublethink moment amongst many students and faculty according to which they believe that Censorship is Freedom.

“Confront contemporary left-liberal academics — I continue to regard myself as a member of that deeply troubled cohort — with a familiar passage from John Stuart Mill’s On Liberty, and they will be moved at once to proclaim that Mill espouses what virtually all of us have long taken for granted. Of course we understand that “the tyranny of the majority” must be guarded against — even when it is our majority. Of course we understand that “the peculiar evil of silencing”— or attempting to silence — “the expression of an opinion is, that it is robbing … posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: If wrong, they lose … the clearer perception and livelier impression of truth, produced by its collision with error.”

What can be more obvious than that? Of course we understand that there is danger in abiding uncritically with the views of one’s own “party” or “sect” or “class.” Who among us doesn’t know that even ostensibly enlightened views cannot entitle us to think of those views, or of those who hold them, as “infallible”?

And yet a good many liberal academics are not actually invested in the posture to which their avowals ostensibly commit them. Mill noted among his own contemporaries, more than 150 years ago, what is very much in evidence in our own culture: that certain opinions have come to seem so important “to society” that their usefulness cannot be legitimately challenged. Thus a great many contemporary liberals subscribe to the belief — however loath they may be to acknowledge it — that certain ideas are “heretical” or “divisive” and that those who dare to articulate them must be, in one way or another, cast out. The burning desire to paint a scarlet letter on the breast of those who fail to observe the officially sanctioned view of things has taken possession of many ostensibly liberal people in academe, which has tended more and more in recent years to resemble what the Yale English professor David Bromwich calls “a church held together by the hunt for heresies.””


When Silence is Betrayal

Yascha Mounk once dreamed of popping Champaign in public after becoming a U.S. citizen, risking a citation that finally would not threaten his continued life in his adopted country. But this month, after wearing a pin saying “silence is betrayal” to the ceremony where he became a U.S. citizen, he celebrated by exercising his right to protest and protect the U.S. Constitution.

“One of the things I most admire about the United States is its fierce attachment to the Constitution. Americans have as deep a commitment to democratic institutions, and as active a civil society, as the citizens of any other country in the world. If the defenders of democracy don’t make it here, it is doubtful that they will make it anywhere.

But one of the things I most fear about the United States is that the veneration of the Constitution is always in danger of turning into complacency. While the country’s system of checks and balances gives Americans the tools to safeguard their freedoms, the Constitution cannot defend itself. The defenses it puts in place will work only if citizens are prepared to use them.

As this realization dawned on many Americans in the past months, and a valiant fight for the soul of the country got underway, I felt increasingly self-conscious about my status as a “resident alien.” While I had plenty of opportunity to speak to Americans, I could not speak as an American. And that is why the election of a dangerous demagogue to the presidency of the United States made me more, not less, determined to take on citizenship. Now more than ever I want to be a fully paid-up member of this society — and fight for the survival of liberal democracy alongside my new compatriots.

The oath of citizenship moved me more than I had expected. For a moment, I choked up and found it difficult to get the words out. But then my voice took on a new resolve: proud and determined, I swore to “defend the Constitution and the laws of the United States of America against all enemies, foreign and domestic.”

After the ceremony, I did not go to a park with friends. I did not have any champagne. I did not try to get a cop to give me a ticket in celebration of my newfound freedom. Instead, I did something that millions of others cannot do without fear: I joined a protest in Boston against the revised executive order on immigration.”


Avid To Be Stimulated

My colleague Daniel Mendelsohn eulogizes the extraordinary Bob Silvers.

“The enthusiasm, bonhomie, and openness to possibility in that triple salutation were characteristic of Bob and defined his approach to editing “the paper.” Despite his immense erudition and considerable worldliness, he was never jaded; he was avid to be stimulated and educated by his writers (who would have argued that he already knew everything), and his mission, as he saw it, was to provide them with whatever resources they needed, editorial or material—from plane tickets to Saigon to boxed DVD sets of Friday Night Lights—to produce the work that, as he liked to say in the handwritten notes and rapid-fire e-mails that started to accumulate as a deadline neared, he was “very eager to see.” Eager: the adjectives that recur in an interview he gave in 2012, as the Review neared its fiftieth anniversary, belong to the vocabulary of the born enthusiast. “I admire great writers, people with marvelous and beautiful minds, and always hope they will do something special and revealing.””


Full Words, Empty Words

In the wake of this past week’s terror attacks in London, Stig Abell wonders what’s left to language after an event that escapes words:

“I have been thinking about cliché a lot over the past twenty-four hours or so. When murderous carnage happens (bursting into our consciousness, untrumpeted by any warning), when innocent victims are thrown under buses or off bridges, when an unarmed police officer is butchered defending the seat of our country’s democracy, it always feels – must feel – that our linguistic and emotional response is inadequate. We count the clichés: “thinking of the victims and their families”; “at this difficult time”; “standing in solidarity”; “shoulder to shoulder”; “pray for London”; “we stand together”; “our thoughts and our prayers go out”; “there are no words”. They are used by politicians from around the world, in a variety of languages; they emerge from the lips of our own leaders.

It is easy to dismiss the commonplaces, the impossibility in using words to deplore the lack of words. But the very fact of reaching for words – of trying to talk about it – is an appropriate response. And, at moments of crisis and trauma, the use of comprehensible and familiar phrasing is itself a sign of something important: it is a bid for connection. Cliché demonstrates community, our intention to understand one another. It does not matter that “standing in solidarity” has no practical import, or that prayers may be just so much shouting into a void. It does not matter that there is unresolved tragedy in a violent world that makes consolation a commonplace.”


Immigration As Crime

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DOUGLAS, Ariz. (March 17, 2009) Two men scale the border fence into Mexico a few hundred yards away from where Seabees from Naval Mobile Construction Battalions (NMCB) 133 and NMCB-14 are building a 1,500 foot-long concrete-ined drainage ditch and a 10 foot-high wall to increase security along the U.S. and Mexico border in Douglas, Ariz. (U.S. Navy photo by Steelworker 1st Class Matthew Tyson/Released)

Alan A. Aja and Alejandra Marchevsky describe how the discourse about good immigrants and bad immigrants has fit into a widening definition of deportable offenses and helped to create an increasingly untenable status quo:

“In late February nineteen-year-old “Dreamer” Josue Romero was arrested by the San Antonio police for possession of under two ounces of marijuana. Even though the Honduras-born youth had been granted relief from deportation under the Obama-era Deferred Action for Childhood Arrival (DACA) program, police handed him over to Immigration and Customs Enforcement (ICE). Romero’s detention evoked immediate public outcry at the possibility that a misdemeanor charge might cause him to be expelled from the country where he had lived since he was four. Thanks to the local media and activists, who celebrated Josue as a promising art student and a “good” immigrant, he was released by ICE after two days in detention. But while Romero remains in the United States for now, he is the exception. Hundreds of thousands of other immigrants with criminal arrests have not been spared from deportation.

For strategic reasons immigration advocacy has coalesced around Dreamers and families of “law-abiding” immigrants, while keeping in the shadows those who are deported on criminal grounds. The consequences of this tactic to emphasize immigrant respectability have been catastrophic for those who have been deported under the guise of criminality, perpetuating a silence that provides cover for a massive deportation regime that must be questioned and dismantled…

So-called criminal deportations bring into clear focus our nation’s “crimmigration” system, where immigration policy, criminal law, and their corresponding enforcement apparatuses are tightly intertwined. Though targeted as criminals, often at the hands of the police, deportees are not granted the same due process rights in the immigration system that are guaranteed in the criminal justice system. Many are detained for months or years without bond, and few have the chance to see a lawyer or have their day in court before ICE permanently expels them from their adopted homeland. Though technically an administrative measure rather than a criminal sentence, deportation is an extreme form of punishment that rips people from their families and communities.  Moreover, because the vast majority of deportees are immigrants from Latin America and the Caribbean, deportation operates through racially disparate sentencing that reserves the harshest penalties for people of color.

This has been the cornerstone of our nation’s immigration system for the past three decades, and it has met with little public outcry. Believing that immigrants who break the law deserve to be deported, most Americans are blind to the separate and unequal justice system that governs immigration detention and deportation. The full dangers of this silence—of acquiescing to an ever-expanding notion of the criminal who needs deporting by any means necessary—are now coming into view.


Posted on 26 March 2017 | 9:00 am

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