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Monday, October 19, 2020


As a longtime poultry fancier, I thought I would try my hand at counting some chickens before they are hatched. As I see it, there are three likely alternative outcomes to the election that is now only two weeks away: first, that the Democrats elect Biden but the Republicans hold the Senate; second, that the Democrats elect Biden and just manage barely to take the Senate with 50 or 51 senators; and third, that the Democrats elect Biden and emerge from the election with 52 senators or more.


The first alternative is so horrible that I shall not comment on it here unless and until it happens. The second alternative poses a serious problem because senators Joe Manchin and Diane Feinstein have said they will not vote to eliminate the filibuster. I can imagine some political horsetrading that would get them to come around but I don’t honestly know how likely that would be. The third alternative opens up great possibilities and also poses interesting problems. Let me talk about that one (when you are counting chickens before they hatch, you get to choose the most promising eggs.)


If the Democrats hold the House, take the Senate with 52 votes or more, and win the presidency what is likely to happen? When Biden takes office on January 20, he will face a double crisis that demands immediate action, namely the medical crisis and the economic crisis. Although his natural instinct, honed by a lifetime in politics, will be to reach across the aisle to his friends on the Republican side and work to form a bipartisan consensus, a process that would take 6 to 9 months and end in failure, he is not going to be able to take that route because the crises will be both immediate and overwhelming. Since he will get no cooperation from the Republicans, certainly not in the first month or two of his presidency, he will be compelled to push for an end to the filibuster and then for rapid passage of a series of measures designed to save the country. This will include some major revision of the Affordable Care Act well before the Supreme Court hands down the decision on its constitutionality and also an immediate multitrillion dollar stimulus package of the sort that the Congress has already passed once before.


On the basis of Biden’s rhetoric, which I tend to believe, he will also seek to pass major economic legislation including an infrastructure bill, and here the normal political negotiation and give-and-take will occur.


After the first several months of heady bill passing, with Democratic Party self-congratulation and mutual back slapping all around, the currently papered over deep splits between the progressive and centrist wings of the party will quite naturally reemerge and then the real long-term work of those of us on the left will begin. How that turns out in the end will depend not on the character of Joe Biden but on the energy we can generate, the organization we can maintain, and the number of votes we can draw in the midterm elections of 2022.


Meanwhile, something weird is going to be happening to the Republican Party and I really have difficulty figuring out even in a speculative mode what that is going to be. A great deal depends on whether Trump fades from view and ceases almost immediately to be an important factor in American politics, which I think is genuinely possible, or whether on the other hand he remains a force commanding as much as 20% of the voting public. I am absolutely convinced that when he loses (God, I hope I am not jinxing things by saying "when" rather than "if") he will turn his fury on those whom he thinks betrayed him, and that means not the Democrats – whom he views as enemies – but his fellow Republicans. Ben Sasse and Ted Cruz have already started positioning themselves for the 2024 presidential race but unless the Republican Party can keep together the 45% of the voting public that supports them, neither of them nor any other Republican candidate will have the slightest chance of winning a national election. I cannot at this point imagine a realignment of the parties that would make a place for the Trumpy 20%.


Well, I have broken enough eggs to make an omelette so perhaps it is time to stop.




David Palmeter said...

The fate of the Republican Party if Trump loses is hard to predict. I tend to think he'll hang around--unless, as the NY Times stories suggest, he goes broke before long. Much will depend on what Fox and the rest of the right wing media do. If they drop Trump in favor a new hero, I suspect much of Trump's 40% will follow.

I wish I knew more about the break up of the Whigs in the mid-19th century. In spite of the fact that many of the Whigs became Democrats, it didn't do the Democrats much good. They elected Buchanan in 1856, the first time the Republicans ran a candidate, and he (Fremont) almost won. And then Lincoln won in 1860. Does anyone know if there are useful parallels or significant differences between then an the hoped-for now?

MS said...


Here’s one analysis:

PhilosophicalWaiter said...

It would be wonderful indeed if we can get through this election and the installation of a new and genuinely democratic government without violent or other extra-legal disruption. The worst case scenario, of course, is not that Biden loses, but technically wins and the Trump and the republican party retain power through violent and/or corrupt means.

Since a significant plurality of republicans apparently believe that they cannot lose the election except by corrupt means, then even a resounding democratic win likely leave the new administration in a shaky position. Since democracy depends upon the consent of the governed, a large, violent, and well-armed opposition is something that cannot be ignored.

Because of this, it's not at all clear that the future path of the republican party will be conventionally political. What will the deposed leader do? Legally (except perhaps for the pandemic), he could continue to go around the country, holding rallies against the new administration and insisting that all the legal cases against him are part of a coup--perhaps this is the only practical legal strategy available to him once he loses the protection of the presidency.

It's not at all clear that the republicans can shake Trump. This is, at once, bad for the republicans and bad for our democracy. If Trump does not exit the national stage, then the republicans will have a horrible fight between those who insist that the current administration is illegitimate and those who wish to move on to the next election. And, let it not be so, but Trump could run again.

Perhaps the greatest hope lies in our collective will to have peace and be done with the craziness of the past four years. Maybe a collective majority will embrace a return to something less abnormal. Or, which I suspect is more likely, the next 2 to 4 years will be but a time to catch our breath before the really intense fight for democracy begins.

Anonymous said...

You write like America still holds free elections. Lets face it...Trump isn't going to "lose". Is Putin going to "lose" his election? Here in America we all know Putin isn't going to lose. Perhaps in Russia they conjecture what would happen if he does. We are reaping what hanging chads have sown. Next comes Cruz eight years. I'd be the first to celebrate if Biden ever got in, but I don't see it happening.

MS said...

My recollection of the fillibuster is Strom Thurmond and his fellow Dixiecrats using it to impede passage of the Civil Rights bills. When was it last used by a liberal Democratic to prevent passage of legislation by the Republicans, and why is Senator Feinstein fond of it?

David said...

This is from, appropriately enough, the "Business Insider":

"Sen. Dianne Feinstein also cannot be counted on by those wishing to get rid of the rule. The California Democrat who ranks as the fifth longest-serving senator in a chamber that prides itself on precedent told Insider the filibuster gives all of the country's voters an important say in whether any legislation is passed.

"'I think it's a part of Senate tradition, which creates a sobering effect on the body, which is healthy,' Feinstein said in an interview."

marcel proust said...

@David Palemter (first comment above): They elected Buchanan in 1856, the first time the Republicans ran a candidate, and he (Fremont) almost won. And then Lincoln won in 1860.

Re Fremont: Buchanan won a plurality of the popular vote and a majority of the electoral vote, taking all but one slave state and five free states. His popular vote margin of 12.2% was the greatest margin between 1836 and 1904. However, the election was far closer than it appeared: if Fillmore had won any two of Kentucky, Tennessee, and Louisiana (or all three) and Frémont had won Illinois—a total shift of fewer than 25,000 votes—a contingent election would have been required in the House of Representatives, controlled by a new coalition of inchoate parties united in opposing the Democrats.

Frémont won a majority of electoral votes from free states and finished second in the nationwide popular vote, while Fillmore took 21.5% of the popular vote and carried Maryland.

Re Lincoln: Despite minimal support in the South (Lincoln's name was not on the ballot in 10 Southern states[2]), he won a plurality of the popular vote (40%) and a majority of the electoral vote. However, the divisions of the Republicans' opponents were not in themselves decisive in ensuring the Republican capture of the White House, as Lincoln received absolute majorities in states that combined for a majority of the electoral votes. Lincoln's main opponent in the North was Douglas, who finished second in several states but won only the slave state of Missouri and three electors from the free state of New Jersey. Bell won three Southern states, and Breckinridge swept the remainder of the South. The election of Lincoln led to the secession of seven states in the South before the inauguration and four more when the Civil War began with the Battle of Fort Sumter. The election was the first of six consecutive victories for the Republican Party.

Both of these elections had serious 3rd (and even 4th) party candidates. Perhaps the lesson to be drawn from the collapse of the Whigs, then, is that if there is a major crackup of the Republican party, there will be a serious 3rd party candidate in the next election or 2, after which the new party will dominate national politics for the following couple of generations. Note that in the 19th C, both the Whigs and the Republican party were the party of business and commerce. In the 21st C, i.e., today, that is more true of the GOP than the Dems:* this suggests that the party of business and commerce will reconstitute itself post-Trump, and manage our affairs through most of the rest of the 21st C.

*Let's not argue about details and "degrees of": there is a reason that support either party gets from anti-capitalists, social democrats and those who favor economic redistribution goes almost entirely to the Democratic party.

marcel proust said...

Missing link in my comment. It should have been,

RE Lincoln:

Anonymous said...

The Q/A continued with our supporters. Eventually, Chad asked about the Supreme Court and the claim that Democrats want to “Pack the Court.”

I responded, “Sure, let’s talk about packing the court. Let’s talk about how Republicans have won the popular vote only 1 of last 7 Presidential elections but have nominated 14 of last 19 SCOTUS picks. Let’s talk about how Mitch McConnell denied President Obama’s appointments of 110 Federal judges, and a SCOTUS appointment. Those 110 appointments were then appointed by President Trump with conservative judges, and the SCOTUS pick denied to Obama was given to Trump. And now, going back on their own rule to not appoint SCOTUS justices in an election year, the GOP wants to appoint a justice in an election year. You can’t accuse Democrats of a hypothetical event that never happened while ignoring the actual court packing done by Republicans.”

Chad the Trump supporter was silent and finally responded, “Yeah I agree that’s hypocritical.”

R McD said...

Philosophical Walter at 10:44 AM:

You say "It would be wonderful indeed if we can get through this election and the installation of a new and genuinely democratic government . . ."

Shouldn't you have said,

It would be wonderful indeed if we can get through this election and the installation of a new and SOMEWHAT MORE democratic government . . ." ?

PhilosophicalWaiter said...

In response to R McD:

Your point is well taken, since even if American democracy lived up to its ideals and ensured that all adults had the equal right to vote and congressional districts were drawn to maximize fairness instead of maximizing the representation of the political party in power, we would still be an imperfect democracy. And of course, we are far from even that hopeful ideal.

That said, I do think our choice in this election is between a(n imperfect) democracy and a democracy in name only.

Howie said...

What is the collective wisdom on this article the Times featured?

On purely epistemological grounds I feel skepticism, but based on the 2016 election and that this is the worst of all worlds, I feel dread

todd said...

Howie, the article doesn't mention that the number of new voters registering as Independent outstrips that of both Republicans and Democrats*—and Independents are overwhelmingly breaking for Biden. These are probably young people disillusioned enough with the parties or the two-party system not to sign on officially.


Howie said...

Thank you Todd, that makes sense

R McD said...

Agreed, Walter. I always think kindly of Rudolf Bahro's invention of the term "actually existing socialism" to signify that what he was experiencing in Poland back in the 1970s wasn't really socialism. Now that someone has fled from today's authoritarian Poland to seek political asylum in Norway, I imagine he--R. B.--would want to apply the term "actually existing democracy" to Poland--and to most other places which claim to base their current legitimacy on their democratic credentials, the USA included.

PhilosophicalWaiter said...

For the sake of ease of reference, providing the links above as links

Behind in Polls, Republicans See a Silver Lining in Voter Registrations

For the first time, there are fewer registered Republicans than independents

Having read Nate Silver's book (The Signal and the Noise) and having observed them honing their analysis and methods since at least 2008, I defer most of my election judgements to these guys: 538 website

538 Polling Averages

538 Presidential Election Forecast

MS said...

Just a little push back on the idea that because such strategies like gerrymandering give disproportionate influence to certain political parties over others, I do not agree that that entails an imperfect democracy. Aside from the fact that our country is designed as a representative democracy, mt a pure democracy which would require that every citizen have a direct vote in the legislature, there is no provision in the Constitution for political parties. They have evolved as a natural outgrowth of political allegiances. To the extent that voter suppression is inhibited, allowing every individual of voting age who wants to vote is allowed to vote, then the fact that gerrymandering favors one party over another does not mean that democracy is being diminished. Republicans have as much right to vote as Democrats, or Independents, etc. And as long as one Republican gets one vote, one Democrat gets one vote, and one Independent gets one vote, etc., etc., representative democracy is preserved. That is why the Supreme Court has repeatedly declined to get involved in the gerrymandering dispute. The solution to gerrymandering lies at the state level, convincing more people in the individual states to vote more individuals belonging to the party which does not control the state legislature to vote for candidates from the other party. But the fact that more people within a state favor one party over another, does not mean that democracy has been diminished. It actually means that representative democracy – which, after all in a nation of over 328 million people is the only feasible form of democracy – is being fully implemented. (Again, subject to the caveat that voter suppression strategies have been nullified.)

MS said...

A Post-Script.

What I wrote above emphasizes the importance of voting, not just in federal elections, but in every election – in the state house and senate elections; in the school board elections, ... You can’t expect all our problems to be solved at the federal level. If you don’t like gerrymandering, or what your police department is doing, or ..., then make sure to vote in every election at the state and municipal levels, not just at the federal level.

aall said...

"And as long as one Republican gets one vote, one Democrat gets one vote, and one Independent gets one vote, etc., etc., representative democracy is preserved. That is why the Supreme Court has repeatedly declined to get involved ."

Which would be the case if we voted party lists instead of districts and had something like ranked choice instead of FPP. When a state legislature has been so structured that a party getting less then a majority vote winds up with a super-majority, terming it as any sort of a democracy is pointless. A Republican Supreme Court made a decision that benefits Republicans, that's all.

Parties didn't "evolve" in a meaningful sense. The Founders made a major error by not understanding that parties were inevitable. There were two parties by the end of Washington's terms.

R McD said...

Pushing back a little on MS's comments at 5:41 PM: The arguments respecting democracy are many and long. But I would say that neither being able to vote nor the absence of gerrymandering are, to my mind, sufficient.

On gerrymandering, by the way, Sam Wang of Princeton has been pursuing this topic at his site--see, e.g., --for some time.

MS said...


Sorry, but I don’t understand what you are talking about. Perhaps I am a bit obtuse, but your reference to “super majorities” as far as I can tell has absolutely nothing to do with how Congressional districts are drawn by the states which, by virtue of their population, have more than one Congress person. Different states draw Congressional districts differently (see, but however it is done, it involves a majority vote in whichever legislative body that state assigns the job to. That means that whichever party holds the majority in that legislative body has the opportunity to call the shots and draw the Congressional districts within that state to favor their party. And if you do not like how that party is drawing those district lines, the only way to undo it is to elect a majority from another party. And how can a party which garners “less than a majority vote” wind up “with a super-majority”???

And what do you mean when you say “parties didn’t evolve in a ‘meaningful’ way”? What is a “meaningful way”? They evolved the way parties evolve in every country that has elections, whether they are a constitutional monarchy, a parliamentary government, or a representative democracy. And how did the Founding Fathers make a “major error by not understanding that parties are inevitable”? What would you have preferred they had done, outlawed political parties in the Constitution? Why would they do that?

MS said...

R McD,

What more could you possible want to insure a democracy (other than the infeasible option of having all voters vote on all legislation) than insuring that everyone who want s to vote can do so, and that gerrymandering is precluded, in order to have a legitimate democracy? Surely, you are not suggesting that some entity like Rosseau’s General Will which is supposed to insure that the individual wills of the populace make correct decisions is what is called for in order to have a perfect democracy. That, by the way, was supposed to be the purpose of the electoral college, and we have seen how that worked out. So my question is, what more would you want?

R McD said...

MS: I'd want the notion of equality to permeate society so that everyone was valued at home, at work, in society at large in non-hierarchical ways. I'd want the spirit of democracy to be hegemonic within society. You seem to think a democratic society is just a matter of a few procedures. I want the procedures and more.

MS said...

R McD,

Just as I thought. You do not really want a democracy, you want only a democracy which embodies the views that you believe are best for society. And that is not democracy, it is authoritarianism – a democracy which realizes the objectives and values of a select elite. In a true representative democracy, the views of all of the society’s peoples are represented, including that of the bigots, the Trump supporters who you (and I, by the way) believe are too stupid to know what is best for themselves. You want a democracy in which only the progressive, rational people have a voice. But that is not democracy, it is authoritarianism concealed in democratic garb. You want the democracy which embodies the concept of Rousseau’s General Will, the General Will which is supposed to guarantee that the decisions of the people are as flaw free as possible. But the essence of a true democracy is the freedom to make mistakes – to fail to pass legislation which will avoid the catastrophes of climate change, or, alternatively, to continue to pass legislation which perpetuates the use of fossil fuels and therefore aggravates climate change. In short, a pure representative democracy in which the voice of all of its eligible voters is expressed through the voting actions of their elected representatives, entails the right to take actions which are self-destructive. And if one condemns such decisions because they are self-destructive, and maintains that the government which allows such policies to occur is not a true democracy because of its failures, then one does not really support a representative democracy, but rather authoratarianism – a government which makes decisions for the masses that are exclusively in their best interests.

Justice Oliver Wendell Holmes once said, regarding what his job was as a Supreme Court Justice: “If my fellow citizens want to go to Hell I will help them. It’s my job.” That it, as Judge Amy Comey Barrett testified last week, the function of a Supreme Court Justice is not to make policy, but to interpret the policy enacted by the people’s representatives through the legislation they enact. And if the legislation means the people are going to hell, then so be it. I could not remember the context in which Justice Holmes said/wrote this, so I Googled it. It turns out Justice Holmes did not write this opinion in one of his decisions; he wrote it in a letter to Harold Laski. And when I read this, I thought, “Who the heck is Harold Laski?” Well, I assume Prof. Wolff and many of the readers of this blog know who Harold Laski was. I learned that Harold Laski was one of the most prominent British proponents of Marxism, who “believed in the evolution of co-operative states that were internationally bound and stressed social welfare.” He also believed, “since the capitalist class would not acquiesce in its own liquidation, the co-operative commonwealth was not likely to be attained without violence.” In his correspondence with Prof. Laski, Justice Holmes was presumably expressing his disagreement with the professor’s view of the role of government. Now, one would think that given their antithetical views, Holmes’ viewpoint was expressed to Prof. Laski in that one single letter. But as it turns out, they had a long-running correspondence, so long that it encompasses two volumes, which are sold on Amazon (currently out of stock, for those who feel an immediate need to read them). So the Justice who wrote that the Constitution does not enact the social statics of Herbert Spencer had a long-running written engagement with one of Britain’s most influential Marxists. And in that correspondence, Justice Holmes represented the philosophy of democracy, which does not purport to know what is best for the voters, and lets the voters make their own mistakes.

aall said...

" And how can a party which garners “less than a majority vote” wind up “with a super-majority”???"

Easy to get a majority or even a super-majority if there are districts, first past the post voting, and a belief that minority rule is OK. In the 2018 election in Wisconsin for example the popular vote broke 53% - 46% for the Democrats while the Republicans won 63% of the House seats (see also Penn and NC). In the last election in the UK the Tories got 44% of the vote and won 56% of the seats.

Gerrymandering has always been with us but modern tech allows one to get really granular. All it takes is the will. There are only so many persuadable voters.

In general the Founders abhorred parties and tried to wish them away. The issue isn't outlawing them but not creating a system with so many veto points that failure becomes inevitable. No system is perfect but a presidential system with a Senate and the Electoral College wasn't the best idea. The project crashed and burned in 1860 and is failing now thanks to the Leninist nature of Movement Conservatism.

If by "evole" you merely mean change, OK, as we are on our sixth party system. I took it to mean they came about slowly when they were there from the beginning.

MS said...


I still do not agree with what you have written. First, you are misusing the concept of “super-majority.” which refers to the percentage vote greater than a majority which is required to pass certain legislation, or to pass a referendum, or to amend a state constitution. The phenomenon which you identify regarding what happened in Wisconsin, Pennsylvania and North Carolina in 2019 has nothing to do with super-majorities. It has to do with what party controlled the respective state legislatures the last time the state’s Congressional district lines were drawn, which occurs every ten years when the census is taken. So, 8 years ago, in Wisconsin, Pennsylvania and North Carolina, their state legislatures were controlled by the Republican party, and they drew the gerrymandered Congressional district lines to favor the Republicans, so that in 2018, even though the Democrats cast a larger percentage of the votes in the Congressional elections, the elections were governed by the gerrymandered district lines which the Republicans had drawn 8 years earlier. If you want to undo this kind of gerrymandering, then, after the next census results come out, you have to get politically involved in your state and convince enough Democrats or Independents (I presume you are a Democrat, or Independent) to vote in the state election so that their party controls the state legislature, not the Republicans, and then they can re-draw the Congressional district to more fairly represent the distribution of Democratic/Independent voters in their state.

And the Senate was a bad idea and is responsible for the Civil War? The Senate guaranteed that every state, regardless its population, would have equal representation in one of the two houses of Congress. Did this arguably contribute to the continuation of slavery in and the failure of the Missouri Compromise? But it also had advantages in other respects, which guaranteed that a state like Maine or Vermont would have equal say with a more populous state, like Alabama or Georgia. What would you have recommended that would have been more fair. No senate, so that the more populous states controlled all of the legislation enacted by Congress? And how would you have persuaded the Southern states to join such a union? Do you believe the world would have been a better place if two nations were formed, one comprised of all of the Northern states, another of the Southern states? And how would that have brought an end to slavery without a war?

MS said...


What you said about the Founding Fathers disliking political parties is not entirely accurate. They were concerned that different political factions would be disruptive to the government, but regarded them as inevitable. In fact, the first two parties were formed by Hamilton, on the one hand, and Jefferson and Madison on the other. See

MS said...

After getting some sleep after writing my last comments above regarding democracy, waking this morning I seemed to recollect that Prof. Wolff had in fact addressed some of the issues which I suprficailly touched on above in his lengthy essay “In Defense of Anarchism.” So I dug out my old copy of that essay just to see if I had written anything which may draw a repudiation from Prof. Wolff. In the first section of the essay, Prof. Wolff contends that a moral agent has an obligation to assert his/her autonomy, which in turn is in conflict with the concept of government, which demands obedience to laws which may conflict with an individual’s autonomy. So, what is to be done? In the next section he argues that the only feasible solution – the solution which maximizes the individual’s right to assert his/her autonomy and provides for some form of government is democracy, in which every moral agent is treated equally and gets a single vote. Prof. Wolff does disagree with me and indicates that given the technology of 1970 – which has vastly improved since then – it would be in fact feasible to have every eligible voter vote directly on proposed legislation. This would be very expensive to accomplish, but not infeasible. However, the only way to preserve the autonomy of each of the voters would be to require unanimity in all votes, the possibility of which Prof. Wolff acknowledges in highly unlikely. He writes, p. 14: “The devices of majoritarianism and representation are introduced in order to overcome obstacles which stand in the way of unanimity and direct democracy. Unanimity is clearly thought to be the method of making decisions which is most obviously legitimate; other forms are presented as compromises with this ideal, and the arguments in favor of them seek to show that the authority of a unanimous democracy is not fatally weakiened by the necessity of using representation or majority rule.”

Prof. Wolff proceeds to discuss how even a majoritarian democracy will necessarily violate the autonomy of its constituents, since majoritarian rule requires that the moral agent obey laws with which s/he does not agree, and therefore forces the moral agent to sacrifice his/her autonomy. (This is my rather shabby summary of what he writes about at some length. If you wish to read the analysis in his own words, you can purchase it at Amazon, providing Prof. Wolff with additional royalties which he can contribute to Kamala Harris’s presidential campaign.) He writes (p. 28): “We appear to be left with no plausible reason for believing that a direct democracy governed by majority rule preserves the moral autonomy of the individual while conferring legitimate authority on the sovereign. The problem remains, that those who submit to laws against which they have voted are no longer autonomous, even though they may have submitted voluntarily.”

He concludes on p. 28 that: “Modern interest group-group democracy is, under some circumstances, an effective means of reducing frustrations, or at least of reducing the connection between frustration and political disaffection. But many other forms of political organization might accomplish this result, such as benevolent autocracy .or charismatic dictatorship. [I underscore “might.” If democracy is to make good its title as the only morally legitimate form of politics, then it must solve the problem of the heteronomous minority.”


MS said...

So what are we left with? History appears to teach that flirting with benevolent autocracy or charismatic dictatorship is not likely to have a favorable outcome for the heteronomous minorities. I submit that we are left with the practical necessity of making a deal with the devil and support majoritarian democracy. Under our Constitution, the rights of the heteronomous minorities are supposed to be protected by the provisions in the 5th and 14th Amendments for procedural and substantive due process, which are to be enforced by the Supreme Court, so that those citizens who wish to dye their hair green cannot be told by their state government that they are prohibited from doing so; and those individuals of the same gender who wish to take the vows of matrimony can likewise not be prohibited from doing so. As for the rest, Trump and his supporters are entitled to vote on an equal basis as everyone else, and those of us who despise their views have no right to claim that their right to vote demonstrates that we do not live in a legitimate majoritarian democracy. It is the obligation of the rest of us to counter their votes with our own votes, and make an earnest effort to educate and persuade to vote with us and not with the Trump supporters, or the racists, or the white supremacists. It is our obligation to vote every two years in the state elections to elect state legislators who will reflect our views when they draw the Congressional district lines. And none of this guarantees that the voters will not make mistakes and fail to elect legislators to refuse to recognize that global warming is a threat to all our lives.

MS said...

A lot of syntactical errors in that last paragraph, particularly, “and fail to elect legislators who refuse to recognize that global warming is a threat to all of our lives.”

Anonymous said...

MS - why don't you just start your own blog?

LFC said...

Jumping in w.o reading every word of MS's comments summarizing In Defense of Anarchy etc., it seems to me there are degrees of democracy, just as there are degrees of dictatorship, autocracy, etc.

One cd posit, in other words, a continuum with an approximately ideal democracy at one end and a completely totalitarian system at the other. While the U.S. is somewhere on the democratic part of the continuum, it wd be closer to the ideal if: (1) the wealthy did not have disproportionate impact on legislative outcomes (which pol sci research has shown is the case in the U.S.), (2) the influence of money in elections were reduced, (3) voting and registration to vote were easier than they are in some jurisdictions, (4) voter ID laws aimed at discouraging voting (though allegedly aimed at fraud) were not on the books, (5) there was in general more "equal opportunity for political influence" (this phrase is from Knight and Johnson, The Priority of Democracy) in turn leading to wider and more dispersed participation in discussions of policy, (6) lobbyists of all sorts, esp for powerful interests, had less influence, and (7) [agreeing w/ aall on this] the Electoral College did not exist.

I tend to think direct democracy where people vote (say electronically) on major pieces of legislation is not esp. desirable since most people don't have the time or in some cases the capacity to dive into the details of legislation and steep themselves in the details in the way that, at least ideally, the elected legislators (or their staffs) shd do. But a system in which broad popular (i.e. majority) preferences on issues were translated more directly into legislative outcomes wd be desirable and more genuinely democratic. Minority rights shd be protected, but the U.S. system, animated as it partly is by the Founders' fears of a "tyranny of the majority," has become a quasi-oligarchical, gridlocked mess marked by debased forms of political rhetoric and discourse and in which the will of the majority (e.g., on something as relatively straightforward of making guns less readily available and reducing gun violence) has become increasingly frustrated.

Finally, in this conversation I do not think "liberals" (in the contemp. U.S. sense) nec. have a monopoly of wisdom on everything. In particular I think a case can be made that Congress has ceded too much authority to admin agencies and the courts and that it shd retake somewhat more control over how legislation is actually implemented.

LFC said...


R McD can defend himself, but I think you (MS) have misread him. He's not calling for authoritarianism, he's saying that democracy has to extend beyond procedures and be supported by a truly democratic ethos. Entirely unobjectionable point, in my view.

And I think you shd think twice and thrice before corralling Holmes into the argument, since while there is some dispute about his views, many of his political views were not admirable in the least: he was an elitist for one thing. Sure there are some soaring passages in his dissents that are justly celebrated, but he also was entirely fine, e.g., w not tampering w Alabama's (or some southern state's, I forget which) de jure disenfranchisement of African Americans, saying it was none of the Sup Ct's business (in a case from around 1905 or thereabouts, one of the earlier challenges to what became the full-blown apparatus of Jim Crow laws on segregation and disenfranchisement). Not to mention his notorious opinion in Buck v. Bell (re sterilization of the mentally "defective").

R McD said...


Well, I must confess to being rather disappointed, MS. I expected better from a legal scholar. I’m not appealing to any original intent. But you do have me and my few words before you, yet lay on me a whole bunch of stuff which is very far from what I think and what I wrote.

Just where, for example, did you find in what I actually said, any notion that I “want only a democracy which embodies the views that [I] believe are best for society”?

And just where did I even begin to suggest that I believe that “Trump supporters are . . . too stupid to know what is best for themselves”? That happens to be something I’ve been consistently rejecting since November 2016, and even earlier. (I note, however, that that is something you say you believe.)

To be explicit I DO NOT “want a democracy in which only the progressive, rational people have a voice.” That to me would be no democracy at all—but then that’s maybe because I read all those critiques of “elitist democracy” way back in the Sixties and Seventies. Besides, I’m not that impressed by those who claim to be rational—it didn’t take Freud, though he’s a help, to reveal that there lurks in each and all of us passions and inclinations we’re little aware of. Rational is not, in other words, a label I’d casually apply to anyone; rationality is something we all must at every moment struggle to achieve—and we often fail in that.

Anyway, I think you owe me an apology for putting words in my mouth, since they are not the sorts of words I have ever or would ever utter.

(Part Two follows)

R McD said...

But let me expand upon/explain what I did say. When I wrote of democracy as being a society permeated with certain attitudes governing th relations among people and the decisions they made, what I had in mind was a couple of things. First, I was thinking of Josiah Ober’s accounts, in several lengthy books, of the attitudes predominant within ancient Athens during the few centuries when it was a democracy ( a democracy with flaws which have been frequently pointed out, so no need to go on about that). My first sentence of what I wrote at 2:04 AM is, I hope, a fair summation of the points he presents. And second, I had in mind what de Tocqueville said about the prevalent attitudes he at least imagined he was encountering when he visited the United States in the 1840s. Again, I think my first sentence is a fair summary of that.

But if de Tocqueville was accurately perceiving the dominant American attiudes in that time, one has to ask what has become of them. I wouldn’t claim to be as perspicacious as de T, but one of the things which took me aback when I arrived in the United States almost 60 years ago wasto see that there was so much authoritarianism around—so much bullying of those regarded as social and instutional inferiors, so much subservience to bullies lodged higher up the ladder. The Trump phenomenon doesn’t, therefore, surprise me.

And here I’d suggest that the very Institutions you seem to worship have had something to do with the slide away from that earlier more democratic moment in American history. For the United States was Constituted to limit democracy and the Institutions designed to do that—indirect election, the non-democratic distribution of power on a state basis as the foundations of the Senate and the Presidency, the lodging of so much power in a non-democratically organised Supreme Court and in a President (one of Trump’s unintended virtues is to reveal just how much unconstrained, undemocratic authority is lodged that office)— have done just the job they were intended to do by Founders who were for the most part hostile to democracy. Again, I’m not being at all original here, as you may recognise. I’ll content myself with a reference to Robert Dahl’s “How Democratic Is the American Constitution” and gesture vaguely towards so many of the critical studies and arguments of Sheldon Wolin including his critiques of “constitutionalism.”

But PLEASE NOTE, not a word from me about Rousseau or his General Will. But I think I get it. As a self-confessed proponent of “elitist democracy” you seem to have fallen into the opinion that the only alternative to that is that Cold War invention, “totalitarian democracy.” That, I understand, is the falsifying lens through which you read—for I would not say engage with—my few words.

I’ll otherwise ignore your observations on Holmes-Laski since what you say seems to be no more than an attempt to set up another straw man.

MS said...


The point I was attempting to make with regard to my response to McD’s comment is that the solution to the ills s/he was referring to, which I regarded were being seen as deficiencies in the form of democracy which has been implemented in the United States, were due to the failure of its citizens to participate in the democracy by voting. At the core of the concept of democracy is the right to vote, period. It guarantees no outcome by exercising that right, and only by exercising that right can what some regard as the deficiencies of democracy be remedied. And I expressly qualified my comment by stating that it is predicated on all efforts to suppress the right to vote being nullified, e.g., literacy tests, poll taxes, photo ID requirements, etc. If all such voter suppression strategies were removed, then the ills of democracy would not be attributable to the democracy itself, but from the failure of citizens to exercise their franchise. And this is true of each of the improvements which you list as shortcomings in our democracy: items (3) and (4) would be eliminated by my qualification. All of the remainder of your suggested improvements would be corrected by simply having more people who shared your concerns voting to correct them. So, (1) and (2) can be corrected by voting for legislators who support placing limits on the amount of money which individuals, corporations and unions can spend on elections. Such legislation would have existed had Citizens United not been decided as it was by the 5-4 Republican Supreme Court majority which overturned the legislation. But had more people voted for Hillary Clinton rather than not voting because they were unable to, or unwilling to, see that she was far and away the better candidate to advance their interests over her mentally deficient opponent, Citizens United would have been overturned by now. That, again, is not the fault of an imperfect democracy; it is the fault of people unwilling to participate in the democracy. The same is true of points (5) and (6), which also can be corrected by legislators elected by those who want these deficiencies corrected, and they won’t be corrected if people don’t vote because their perfect candidate has not gotten the nomination. Regarding the electoral college, that also can be corrected using the method for amending the Constitution contained therein. The fact that amending the Constitution is difficult is not a criticism of our democracy – I don’t want it to be easy to amend the 1st Amendment either.


Anonymous said...

Regarding J. Holmes, the voting rights case you are referring to is Giles v. Harris (1903), in which several African-American citizens of Alabama were denied the right to vote by the State’s enforcement of what Holmes acknowledged was a clearly unconstitutional voting regime. The African-American plaintiffs wanted the Supreme Court to require that their names be added to the voter rolls. Holmes wrote: “If we ... accept the conclusion which it is the chief purpose of the bill to maintain, how can we make the court a party to the unlawful scheme by accepting it and adding another voter to its fraudulent lists?” Rather than asking the Court to overturn the legislation as unconstitutional, the plaintiffs were asking the Court to implement the statute despite its unconstitutionality, something Holmes and his five other concurring Justices refused to do, they refused to endorse an unconstitutional law by implementing it. Now, you may think this just amounted to a bunch of legalistic mumbo-jumbo by a racist justice, by I am confident based on what I have read about Homes – who fought for the union in the Civil War and regarded slavery as an abomination – I am convinced Holmes was not a racist. none of this has anything to do with why I referred to J. Holmes to begin with, which was to highlight his view that the Constitution did not enshrine any single particular economic system or philosophy, but that how the Constitution was implemented was up to the voters in deciding what legislators to send to Washington, and if by how they voted they wanted the passage of legislation which actually was not in their best interests, it was not his job as a Supreme Court Justice to tell them they were wrong – and this, again, is not the fault of our democracy, it is the fault of the voters. And if you really believe in democracy, then you must believe that the racist and the anti-racist, the liberal and the conservative, the rich and the poor, and the math genius and the illiterate redneck have the same right to vote, and the only tools we have to avoid those outcomes of democracy which we may deplore must be through education and persuasion.

MS said...

R McD,

In response to your assertion that the American democracy is imperfect, I asked, other than insuring that everyone who is eligible to vote (with the caveat that all voter suppression schemes would be invalidated), what more would you want to improve our democracy, which, by definition, only ensures a government governed by the populace via the right to vote. You responded: “I'd want the spirit of democracy to be hegemonic within society. You seem to think a democratic society is just a matter of a few procedures. I want the procedures and more.”

What more, beyond the government insuring the right to vote were you advocating? The fact that you did not appear to think that the right to vote was sufficient to insure a legitimate democracy, and that you want “the spirit of democracy to be hegemonic” suggested to me that you wanted the voters to advance certain values, values that you preferred, a view that I deem to be anti-democratic and elitist.

And your exposition on De Tocqueville and the “dominant American attitudes” he perceived while visiting the newly formed nation, do nothing to persuade me that you do not in fact think that a democracy which does not reflect particular values that you would prefer is not truly a democracy. You offer as an example of the deficiency in the American democracy the existence of “the non-democratic distribution of power on a state by state basis as the foundations of the Senate.” But as I pointed out in my response to aall’s criticism, the Senate guarantees that every state has equal representation in Congress in order to allay the concerns of the rural states that they would be outvoted by the more democratically constituted House of Representatives. It was a practical solution to an unavoidable political problem, if a single nation was to be forged from the 13 independent colonies. It did not diminish the democratic character of the nation, because that character was preserved in the election of the members of the House based on state population. And the fact that political parties have used gerrymandering to make the House less democratic is a problem that can be addressed by voting for state legislatures that better reflect the party make-up of that state when Congressional districts are drawn. Again, making voting, which, after all, is the foundation of the concept of democracy, the remedy for a perceive inequity.

Criticisms of the methods the Founding Fathers used in order to forge a single nation ignore the principle practical problem they were confronting – the fact that five of the original thirteen colonies had institutionalized slavery as part of the way of life for over a century. Those five states were not going to join any nation which did not recognize their right to retain that abomination. Would it have been better in order to insure that the Northern states had a more perfect democracy that they have told the five slave states to go ahead and form their own nation? How would that have accelerated the elimination of that abomination?

Aside from instituting direct, universal voting by all eligible citizens, you have not offered any solution to the deficiencies which you maintain exist in the representative democracy we currently have, which is why I infer that your criticism in not with democracy, per se, but with its failure to reflect the values you would prefer.

MS said...

Correction: "principal practical problem"

R McD said...

MS: None so blind as those who will not see. Further, it is an odd notion of criticism which demands that those who criticise--point out deficiencies--are under any obligation to proffer remedies.

As to, for one, your notion that the imposition of a non-democratic state based Senate was counteracted by a person-based House thereby made the whole thing democratic, that is nonsense on stilts, especially when you simply ignore the other deliberately , dare I say anti-democratic institutions.

But you can go on "inferring" to your own convenience whatever you want to infer. I will simply end by asserting that your inferences regarding my political positions are very wide of the mark. It is a bit insulting to be told what I think by someone who insists on reading between the lines while dismissing what I actually say. Enough!

R McD said...

But I can't resist adding this:

Is it too much to ask that the focus be on the message, not the messenger (i.e., I mean Jacobin, which I imagine prompts a knee-jerk response in some; as to the actual author of these criticisms, "Jacob Hamburger is a writer and an editor of Tocqueville 21, a Franco-American blog about contemporary democracy. He is also currently pursuing a JD at the University of Chicago Law School, and plans to practice criminal and immigration defense.")?

LFC said...

Since my time is limited, I'll confine myself to a couple of brief points. I will skip the Holmes thing since I don't have time to engage on that right now.

Voting takes place in a
context, one that includes public and private arguments that in turn are shaped by the surrounding culture and society and political economy. So in judging the quality of a democracy, one has to look at all of that. I'm not a huge fan of Tocqueville, but to the extent he had any pertinent insights, they came from his admittedly impressionistic attention to the cultural and social circumstances that framed the way "democracy in America" operated.

I fully understand that many Americans do not share my values or my political views. I don't want to turn all of them into clones of myself. I do think that elections will function best as barometers and expressions of democracy when the voters are able to reach their decisions as a result of conversations with a range of people who are differently situated and when those conversations can occur in a setting that is not overrun by the blaring 24 hour news cycle and its constant demands for allegedly new developments. Moreover, the fact that some voters have much more time in which to focus on issues and form their judgments than others do is a result not only of differences in individual temperament but also of economic and other inequalities that condition the exercise of the franchise. Ok, as R McD said, enough.

MS said...


And as purported rebuttal to my comments, you offer a piece of scholastic rubbish by a current law student at a to be sure reputable law school, but who has never tried a case in court, has never argued an appeal, has never had to write or file a motion or a brief to support it, who makes such idiotic remarks, using Senator Feinstein ineffectual questioning of Judge Barrett as an example (which I lambasted her for in a previous comment to a prior posting), “[W]e cannot rely on Democratic leaders to confront the power of the Supreme Court without popular pressure pressure,” ignoring the scathingly critical questioning which was conducted by Senators Klobochar, Whitehous, Coons, Blumenthal and Harris. And then he offers, with his outstanding experience practicing law, this brilliant advice: “There are a variety of strategies to challenge this state of affairs, form packing the court to stripping the nine justices of their power to review statutes to simply ignoring the Supreme Court if it makes an egregiously bad decision.” !!! Really, we are going to have Congress, or people marching in the streets, overturn Marbury v. Madison. And it that doesn’t work, we should just ignore the “egregiously bad decision,” just like the pro-life advocates would have us do regarding Roe v. Wade. And this guy is your idea of a deep legal thinker?

And yes, as a matter of fact, I do expect someone who takes pot shots at a particular state of affairs to offer some possible solutions to the deficiencies she maintains exist, rather than proffering vague and general remedies like “ I’d like the spirit of democracy to be hegemonic within society.”

MS said...


Nothing that you have written about the culture in which voters obtain their information indicates a problem with our representative form of democracy, rather than with the failure of the voters to educate themselves and be sure to vote. It may be challenging if you work two jobs and are raising one or more children to find the time to obtain that information, but how is that a deficiency in our democracy, if they have the right to vote?

And yes, enough.

aaall said...

" In fact, the first two parties...:

Which happened after ratification because parties seem to be what happens. H & J merely recognized and adapted to the realities of folks organizing a polity. My point is that it would have been better to have not been in denial when they were writing the Constitution and ditched the presidential system for a parliamentary one.

A "super majority" can indicate a specific number or it can indicate substantially more then 50 + 1. As 60 is a formal SM in some cases, I consider it apt to refer to some of these results from gerrymandering as a SM and in any case my point holds as we have a minority of voters electing a majority of a legislature.

" If you want to undo this kind of gerrymandering, then, after the next census results come out, you have to get politically involved in your state and convince enough..."

The whole point of modern gerrymandering tech is to render your remedy really difficult trending to impossible as long as the previous gerrymandered formula works. True, demographics can defeat this in the long run but (and as the past four years demonstrates) there is not as much ruin in a nation as previously thought. The only sure cure for gerrymandering is to remove the possibility of legislators choosing their voters.

"And the Senate was a bad idea and is responsible for the Civil War?"

Yes to the first and, as the CW was about slavery, no to the second. However that was then and we now understand that there are drawbacks to presidential systems and too many veto points. Add to that that one of our two parties seems to be terminally infected with a pernicious ideology dedicated to undoing Reconstruction and we might well be in the 1850s again.

There is way too much acceptance of the Constitution as sacred. It doesn't hurt to point out it's a failing project and we need to fix it. Short term we can jerry-rig the Senate with DC and PR and we can overhaul the Article III courts with legislation but as necessary as the compromises may have been in 1787, the result are once again hitting its sell-by date. (Of course, Maine and Vermont weren't part of the original deal.)

MS said...

Gee aaall, if only the Founding Fathers had only had your prescience to realize what a failure a presidential form of government with a senate would be, and had instead opted for a parliamentary form of government. So may of our current political problems, with all of its unnecessary "veto points," could have been avoided.

aaall said...

MS, Now you're reduced to snark. Perhaps you should read Madison's notes and other contemporary sources. A group of very intelligent folks got together and did as well as could be expected given the circumstances. I doubt any of us, with the knowledge then available, could spend a summer in Philadelphia without AC and do as well. They made mistakes, some serious, as we humans are wont to do. There is nothing wrong and much right with occasionally marking most everything to market.

Asserting a bunch of conveniently negative counterfactuals regarding a past occurrence as a defense of then and now is way too special. We have absolutely no idea what now would be like had Union not happened.

What we do know is that the Constitution was formed as an arguably necessary kludge. That Constitution failed in 1860.

The Electoral College was a last minute compromise that failed practically out of the box (12th Amendment).

Had the Founders known that the Senate would be controlled by as few as 18% of the population, they likely would have reconsidered. In the event we can reconsider.

Having state legislatures select Senators might have seemed a good idea at the time. Experience and the Gilded Age demonstrated otherwise (see "Treason of the Senate," etc.)

They had no way of knowing that presidential systems are inherently prone to instability. We do. Federal systems have advantages and disadvantages. I live in California (yea federalism) but then we have other states. Maybe we can improve things?

They reasonably thought that Enlightenment gentlemen + multiple veto points would produce good things. We have to deal with an ideologically driven political party that has weaponized those veto points.

Other democratic nations have elections and change administrations in a couple of weeks. Do you believe that the current speculation on how much damage the current president and Senate can do should they lose in the two + months they will still hold power after the election is a sign of a healthy system?

Republicans were able to engineer a judicial coup with a 5 - 4 SC in 2000. In 2020 we will have a 6 - 3 Court. That's the sign of a sound system?

MS said...


I keep wondering why I keep responding to your nonsense, since it is obviously a waste of time.

You write: “Asserting a bunch of conveniently negative counterfactuals regarding a past occurrence as a defense of then and now is way too special. We have absolutely no idea what now would be like had Union not happened.” And then what do you do – you argue that things would have been much better had the “Union not happened” and had drafters of the Constitution done something entirely different – created a parliamentary rather than a presidential system; not created the Senate, and on and on – contradicting the very premise of your argument.

And we may not know exactly what would have happened had the Union not been formed, but judging from what did happen, a war between the slave holding states and the non-slave holding states would have erupted at some point, with the Northern states where manufacturing was concentrated defeating the agricultural Southern states; or, alternatively, slavery would have continued into the 19th century. So how, then, was the Union a failure?

I do not know what your background is in, but it is obviously not in law or in constitutional law. I suspect you are a political science or history teacher or professor, but frankly, you do not know what you are talking about. You state that the system the Constitution created is “hitting its sell-by date” as if a total overhaul is called for, a overhaul which you apparently believe is feasible. Even if you were correct in claiming that the system has been a near total failure – and you are not – your proposal for an overhaul is not going to happen, period. We are more likely to settle a colony on Mars than accomplishing the overhaul in the image you would prefer will happen. Not in your lifetime, not in your children’s (if you have any) and not in your great-great-great grandchildrens’ lifetimes.

And what is the source of your disgruntlement – the fact that the Republican party has deteriorated, as you put it “to be terminally infected with a pernicious ideology dedicated to undoing Reconstruction and we might well be in the 1850s again.” Really. As much as I despise the Repbulican Party, and particularly what Il Duce has done to it, your assertion that they want to undo Reconstruction – as if they could with Title VII, and 42 U.S.C. §§1981, 1982, 1983, and 1985 in place. Look them up. And the rise of a Republican party run by an amoral, narcissistic maniac is the result of the way the Founding Fathers formulated the Constitution?

Regarding your last point, that the Supreme Court is going to be 6-3 run by the conservatives, let me ask you, did you vote in 2016, or were you one of those Sanders supporters who, crying in his beer, refused to vote for Hillary Clinton because she has stolen the nomination from Sanders? As I have pointed out in prior comments to prior posts, had Hillary Clinton won the election, the Supreme Court would now be 6-3 in favor of liberal justices. And the reason she lost – as imperfect and off-putting as she was – was because the majority of the Sanders supporters decided not to vote at all (which can be readily demonstrated by looking at the percentage of voters who voted for Sanders in the 2016 Democratic primaries in Wisconsin, Michigan and Pennsylvania who then decided not to vote at all. So the fact that the S. Ct. is now going to be 6-3 conservative has nothing to do with the structure of the Constitution. It has to do with a bunch of selfish, egocentric liberal Democrats who were too stupid to see the difference between Hillary Clinton and Il Duce.

I am going to end this comment with an ad hominem comment. You and your ideas are bonkers, and if you are indeed a professor of political science at some college or university, I wonder who was crazy enough to hire you.

I will not be responding to any more of your ludicrous ideas.

LFC said...

I'm not going to express a view on the substance right now, but I don't think the ad hominems are warranted. Would be better to keep as civil a tone as possible, imo.

MS said...


You and I have had respectful exchanges, even when we have disagreed. And you are not the only person who has chided me on occasions when I have used acerbic language to criticize a commenter’s opinion. I would differentiate, however, between a purely ad hominem attack which is made only to belittle a person without addressing the merits of their arguments, simply because of an inability to address those arguments intelligently.. However (and we will disagree about this, but I wish to make a point), when an ad honimem comment is being made in reference to the vacuousness of a person’s analysis, I do not believe such an ad honimem attack is inappropriate. It is intended to underscore the vapidity of the analysis. In this case, aaall is criticizing the framework of the government formed by the Constitution, and attributing to what he regards as the foreseeable deficiencies in that framework such things as that the Republican party has become an ideology of racism, that the Supreme Court is now controlled by 6-3 by conservatives, circumstances which have absolutely nothing to do with the framework of the Constitution. and s/he is claiming that because of these circumstances, it is about time that we totally revamp the Constitution. I agree that an ad honimem attack merely for the sake of insulting your opponent and not addressing their argument is uncalled for. However, I do not agree that an ad honimem attack anchored to an analysis that points out the ludicrousness of the opponent’s position is not uncalled for, it is in fact justified. Now, you and I will not agree on this, but that is my position. (And, by the way, would you refrain from using an ad honimem attack in relation to our current President , when he spouts his nonsense, just for the sake of civility?)

MS said...


Out of curiosity, I checked on the definition of ad honimem and this”

Ad Hominem Fallacy
Ad hominem means “against the man,” and this type of fallacy is sometimes called name calling or the personal attack fallacy. This type of fallacy occurs when someone attacks the person instead of attacking his or her argument.

Thus it is a form of fallacy, because it substitutes a personal attack for a reasoned attack. And I agree with that. However, it does not mean that when a personal attack is in conjunction with a reasoned attack that it is an example of the ad honimem fallacy. I have never engaged in a personal attack without offering a rational analysis of the writer’s opinion first. So, strictly speaking, I do not believe I am engaging in ad hominemism per se.

Danny said...

'Ben Sasse and Ted Cruz have already started positioning themselves for the 2024 presidential race'

You didn't simply forget Mike Pence? I think also that how this works is if Trump loses, he can run again. I don't take Ted Cruz seriously in this context, as I don't take Michelle Obama seriously in this context. Ben Sasse? Criticized President Donald Trump earlier this week during a phone call with constituents, saying 'he mocks evangelicals' and has 'flirted with White supremacists', number of unflattering things about the President, "kisses dictators' butts," and okay, what even are his odds of remaining in politics?

aaall said...

Golly MS, sorry to so upset you but as you insist on not reading and understanding before you write best indeed to break it off with a few observations:

1. I believe that anything in the USC that was the result of legislation can be changed by legislation or adjudication so I'm not sure why you referenced laws that I can remember when they were passed. We had civil rights laws until we had the Civil Rights Cases. We had an enforceable voting rights law until we had Shelby County, which decision BTW was a step back to Jim Crow. Modern American Conservatism was founded as a project to undo the New Deal. It added some civil rights laws and Environmental legislation to the list because why not?

2. Indeed Trump, like Bush 43, is president because of the way the Constitution deals with how we elect presidents as both Clinton and Gore would have won an election in which the candidate getting the most votes became president. Not sure you thought that one through.

3. The modern conservative movement (of which the Republican Party is its political organ) absent the Senate and the Electoral College would have a much reduced power base. Both are the American version of rotten boroughs.

4. Much of what used to be considered part of our constitution order seems to consist of mere norms that are easily transgressed. You seem to have a Schoolhouse Rock theory of politics.

5. Your observations on the Supreme Court are simply bizarre and indicative that you don't follow our politics all that much. Based on how McConnell runs the Senate (and on actual statements), had Clinton won we would have had an eight seat Court until Ginsburg's death at which point we would now have a seven seat court. My spidy sense tells me that Kennedy wouldn't have retired under a Democratic president (and are you aware that Kennedy's son was Trump's banker at Deutsche Bank - maybe a coincidence, who knows - just asking questions?). Conservatives would have pointed out on the Sunday shows that the SC had six at the Founding and seven before 1863 and what McConnell was doing was just fine and constitutional and just politics and they would have gotten away with it.

6. One can counterfactual all day long. One wonders to whom Napoleon would have sold all that land. Under the extreme circumstances of secession and war the Confederacy was a states rights nightmare. I doubt any one fractious slave state could have handled the deal Anyway, that was then and irrelevant. We had slavery until we didn't and state legislatures appointed Senators until they didn't. The way to guarantee our death spiral continues is to assume things can't change. Hey, I can remember when the United states was respected if not always admired by the rest of the world.

7. How I voted is irrelevant as I live in a solid blue state but I am a Democrat. Besides Nader is a loony narcissist and I find that photo of Stein (who is simply an idiot) sitting at that table in Moscow with Flynn and Putin too Animal Farm - like.

MS said...


No ad honimem responses here. I wish you luck on revising the Constitution by getting rid of the Senate, placing term limits on Supreme Court justices, converting our government from a presidential form to a parliamentary form, and doing all this just through the simple mechanism of passing legislation.

Just one more point. You assume that had Clinton been elected, the people who came out to vote for her would not have flipped the Senate from a Republican majority to a Democratic majority. But even if they didn’t, do you think McConnell could have kept Scalia’s seat open during the entire four years of Clinton’s presidency, without himself not losing his Senate seat when he came up for re-election during those 4 years, or just would have had to succumb to public pressure? Keeping Scalia’s seat open for 4 years.! That would have been quite a feat. Just saying.

Sayonara, and good luck with your brilliant ideas for reforming our government.

MS said...

I have been prompted by several of the comments in this train to revisit my copy of “The Quartet,” by historian Joseph Ellis (retired, Mt. Holyoke College). He states in this work, which expounds on the transition in ideology between the time of the Continental Congress and the Constitutional Convention, that it is a serious mistake to evaluate the thinking of the Founding Fathers by applying contemporary values. He writes (pp. xviii-xix):

“The term democracy remained an epithet until the third decade of the nineteenth century. It meant mob rule, the manipulation of majority opinion by demagogues, and shortsighted political initiatives on behalf of the putative ‘people’ that ran counter to the long-term interests of the ‘public.’ ...

“... The operative word for the revolutionary generation was republic rather than democracy. And therefore we should expect to see them searching for a way to harness the primal energies of popular opinion within a multi-tiered political architecture that filtered the swoonish swings “of the people” through layers of deliberation controlled by what Jefferson called “the natural aristocracy.” That filtration process was what the Constitution was all about, which does not make that seminal document antidemocraiic so much as predemocratic.

. . .
“There is little doubt that the lost world of the founding was a more explicitly racist world than our own. the founders were truly remarkable for their ability to imagine a nation-size republic and a political framework that insisted on the separation of church and state, both of which were unprecedented social experiments that succeeded. But neither they nor the vast majority of white Americans were capable of imagining a biracial society. (Neither for that matter, was such a staunch opponent of slavery as Harriet Beecher Stowe, who provided an appendix at the end of Uncle Tom’s Cabin that described her plan for deporting al the freed slaves back to Africa.) We need to remind ourselves that racial integration in United States was a mid-twentieth-century idea tha few of any of the founders could have comprehended. Imposing our racial agenda on them is politically correct but historically irresponsible.”

Likewise, several of the criticisms I have seen expressed in the comments to this post are historically irresponsible and take the founders to task for not appreciating what seems so obvious to our contemporary sensibilities. Even as great a thinker as Edmund Burke was appalled at the atrocities the rest of Europe witnessed in the Reign of Terror that followed the French Revolution, and gave him and others pause about the merits of democracy. The fact that the Constitution embodies many of the conservative values which governed the founders’ thinking is not a sound basis, in my opinion, for a total overhaul. In any event, such an overhaul is not feasible. So we will have to make do as best we can through its framework, and progress within that framework is still possible.

aaall said...

"...and doing all this just through the simple mechanism of passing legislation."

MS, I know I never claimed that because I am well aware that the things you describe are amendment (and even convention) territory. It is however useful to counter from time to time the ridiculous homage paid to a good but imperfect project. You might however note how the tone of the conversation around judicial reform seems to be slowly changing.

Anyway we can chip around the Senate problem by granting statehood to DC and Puerto Rico (should they want it).

You might want to check out some of Sandy Levinson's (UT Austin Law) work on this topic.

Mitch absolutely would have had no problem shattering another norm if it furthered his life's goal of transforming the judiciary into a Neo-Confederate/Gilded Age institution. Given MSM conventions and the presence of Fox we would have had both sides, etc. I have to point out that in 2016 Clinton won the popular vote and the Republicans held the Senate. Had Clinton won 80,000 more votes in the right places the Republicans would still have held the Senate. Mitch is 78 and was last up for election in 2014. He was handed an opportunity to rock the world - of course, he would have chanced it (and gotten away with it). You are probably too young to understand that once one hits their seventies, the clock really speeds up and one understands that there is a non-trivial chance of this being the year one tips over.

MS said...


“I believe that anything in the USC that was the result of legislation can be changed by legislation or adjudication so I'm not sure why you referenced laws that I can remember when they were passed.”

Nothing in the USC can be changed by legislation, hence my inference that you did not know what you are talking about. In addition, adjudication does not change the USC either, it merely interprets it, and whatever interpretation the Supreme Court decides on does not change it, because it was always there.

And other than Title VII, I sincerely doubt that you can remember when the other statutes I referenced (42 U.S.C. §§1980, 1981, 1982, 1983 and 1985) were enacted, because they are all codifications of the Civil Rights Laws that were passed shortly after the Civil War and were intended to implement the 13th and 14th Amendments.

Regarding the Senate, I am not going to go through the time intensive project of checking each of the states which Hillary Clinton lost to Il Duce to check which senators were up for re-election and what their margins of victory were. That said, the notion that McConnell, granting his amazing feats of deviousness, could have kept Scalia’s seat open for four years, even with the assist of Fox news, is preposterous. And as for the suggestion that my errors of analysis, as you see them, are attributable to my youth and immaturity, I am 72 years old and have witnessed as much of life, and perhaps more, as you have.

R McD said...

Dear aall,

You have my sympathy. But I'd give up were I you, as I have given up for myself. Trying to have a discussion with a legalistic, narrow minded opponent who is convinced--a la trump--of his own ultra-superior wisdom will never make for a good discussion from which we might all learn something.

Best wishes, r

MS said...


You and aaall make good bedfellows (no sexual innuendo intended). I recognize sophistry and ignorance when I hear or read it, and you both display these unappealing characteristics in spades. Suggesting that I have some affinity for Il Duce is nonsense, as anyone who has read my comments on this blog would know. Calling someone “narrow minded” (an ad hominem comment, dare I say) just because you are unable to offer a knowledgeable or rational rebuttal of his arguments and claiming victory by asserting that all is futile is not a sign of a sophisticated thinker. And I do not claim to have an ultra-superior wisdom, but I do claim superior knowledge about American law and history, which both you and aaall lack.

aaall said...

MS, as I have a few years on you, I stand by the observation. As for the USC we may be talking past each other as lawyers love to get technical and we other folk are concerned mainly with effects. The SC decision in the Civil Rights Cases in the mid 1880s rendered the original additions to the USC that you are thinking of somewhat useless. I was thinking of the SC decisions from the 1950s on and the Civil Rights laws of the 1960s that actually got serious about Civil Rights. An African American born in 1880 and who died in 1960 didn't really benefit all that much from those original additions to the USC.

Likewise,Roberts' Shelby County Decision effectively gutted the 1965 Voting Rights Act. There are still some nice words on those pages in the USC but that's all they are.

I'm not sure what you mean by "repealed" but the USC I regularly reference has items like this one: "18 USC Ch. 311: REPEALED"

"A prior chapter 311, consisting of sections 4201–4210, act June 25, 1948, ch. 645, 62 Stat. 854, 855, as amended, was repealed by section 2 of Pub. L. 94–233 as part of the general revision of this chapter by Pub. L. 94–233."

Over the years I've found quite a few such references. Public Laws are regularly added to the USC. If laws can be added and amended by one Congress why can't they be repealed by another?

Also consider this: Words like "repeal" can also have meaningful but technically inaccurate uses. For example, 26 USC 5845 (IRS), lays out certain definitions as to what constitutes a registrable firearm. Among them are distinctions as to barrel length - 16/18," clearly a serious effort to make meaningful distinctions. Now a Congress could choose 120/122" and in effect make registration universal or 0.5"/0.7" and in effect repeal the law.

Not sure why 2016 is an issue. Nothing needs to be checked as it's a matter of record that Clinton won the popular national vote and enough individual states sent Republicans to the Senate to constitute a majority. The differences in the presidential vote in dispositive states were in fractions of a percent or so.

Your views on Mitch and the Supremes are puzzling for someone younger then myself but still old enough to remember the Before Times. The past few years have clearly demonstrated that much of what we depended upon civilly rested merely on norms. We learned that by seeing those norms easily trashed. Based on recent experience I believe Mitch & Co. could easily pull it off. Your mileage varies.

It is hard to over-estimate the effect the development of the Right Wing Media ecosystem has had on our governance. Revolutionary movements (see Buckley's Mission Statement for NR) have long understood the importance of propaganda and communication (see "What is to be Done"). Revolutions need cadres and folks like Limbaugh, Ailes, Murdock, Breitbart, etc. are cadres in the propaganda organs of the conservative movement.

We are here because folks didn't take the revolutionary implications of Movement Conservatism seriously. I'm not sure what you base your faith in Mitch not being able to up the ante on screwing with the Federal Judiciary but that's not the way to bet.

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