Wednesday, June 23

We Didn’t


This "Skeptic's Collection" column was originally published on 9 June 2016.  I am re-publishing it here because tomorrow is Inauguration Day for Donald J. Trump, a day that I believe Americans will remember as equivalent to the day, 30 January 1933, President Paul von Hindenburg named Adolf Hitler Reichskanzler ("Reich Chancellor") of Germany, and with  consequences that will eventually prove as dire for the United States as the previous designation was for the Weimar Republic. This "Skeptic's" column will not change any minds. Probably almost no one will read it. But for those of you who do happen to read it, especially those of you latter-day Esaus who sold the birthright of this Nation as a constitutional republic for the miserable bowl of soup of some imagined economic benefit -- for you -- I want this column to haunt you.

"For at any price, we must keep those who have too clear a conscience from living and dying in peace." -- E. M. Cioran, "Thinking Against Oneself" in The Temptation to Exist.

Sometimes I am almost tempted to believe in the God of Thomas Hardy, Who – to be sure – patterns history toward some Purpose or End … but where that Purpose or End is perversely malicious toward human beings. Such is the case with last week’s column on my dad and his experiences during World War II as a member of the 174th Field Artillery Battalion. For the keyboard of my computer was still warm from my putting the finishing touches on that post when Indiana held its primary and Donald Trump’s victory, followed in the next two days by Sen. Cruz and former governor John Kasich ending their campaigns, rendered the Republican National Convention a mere formality. Donald Trump will be the nominee. The bitterly Hardy-esque twist on this development is that only a few days after finishing my “Skeptics” column on my dad’s part in defeating fascism in Europe, the Nation apparently decided that … gee! … fascism, even in the miniscule dose embodied by Donald Trump, may not be so bad, after all – at any rate, benign enough that a major political party – the party of Lincoln … and the party of Dwight Eisenhower who led “the Great Crusade” against European fascism – is worth considering for the highest executive office. Herewith my “uncouth yawp” against such a prospect. My purpose is not to change anyone’s mind: people support Trump for the same reasons they believe MMR immunizations cause autism and that Elvis is alive and well … someplace, i.e., for reasons impervious to rationality. But at the very least, even though I expect no one to listen, saying the following will clear my conscience.


Whether Donald J. Trump is “really” a liberal or “really” a conservative is a topic not worth discussing. A far more fundamental issue is whether Donald Trump is a politician within the broad mainstream of the American constitutional tradition. The previous two words are critically important, not only politically, but also – and in the case of this column, even primarily – personal. Intimately personal. My renunciation of Christianity between, more or less, 2001 and 2008 left me in a kind of moral and existential vacuum. This period of time, however, coincided with the kindling – “explosion” might be a better word – of my serious and passionate interest in the US Constitution, its history, its associated streams of case law, and the various theories about how to interpret it. But this was least of all an intellectual and academic adventure. It was primarily spiritual … and even religious. What replaced, and is still replacing, Christianity is that entire sweep of principle and practice expressed in the European Enlightenment, especially the British and Scottish Enlightenments, and that eventually received written expression in the American Constitution. This entire environment is fundamentally alien to Donald Trump, and his hostility to that environment is not just a violation of the principles upon which the Nation was founded, but I also consider it as an intimately personal threat to me – for the same reason that a devout Muslim feels personally offended by the burning of the Qur’an or comparisons of the Prophet to a pig. You have a perfect First Amendment right to do both – which begs the question of whether you should. Likewise, you also have a perfect right to vote for Donald Trump. But then, the Emperor Caligula had a no-less-legitimate right to (allegedly) appoint his horse co-consul of the Roman Empire. And I have a perfect right to tell you that Caligula had better reason to do the latter than you have to do the former.

o Donald Trump takes a dim view of the First Amendment – or at least of the “abridgement” clause

Trump is on record as saying that, as President, he would advocate for the narrowing of the scope of permissible speech by making libel laws more easily available to litigate cases in which someone has made adverse remarks, either verbally or in print, against individuals or corporations. I say this constitutes a “narrowing of permissible speech” because, while outright slander and deliberate misrepresentation are not within the ambit of protected speech, the landmark case of NY Times v. Sullivan raised the bar of proof, so that, broadly speaking, actual malice must be demonstrated before First Amendment protections can be removed from any expressive act. It is not clear – at least to me – that, when he made these statements, Trump had considered the “absent malice” rule of Sullivan or the reflexive suspicion of even a whiff of “prior restraint” that underlay, e.g., NY Times v. United States (the “Pentagon Papers” case), but also a long string of case law extending back multiple decades. (Most likely, such considerations were as alien to Trump as the meaning of the term “triad” demonstrably was when some journalist asked him a question about America’s “architecture” of strategic nuclear deterrence.) Basically, Trump is an advocate of turning back the clock to the late 1780s when there were laws on the books against “seditious libel,” i.e., being publicly critical of the government in any way whatsoever, which was the legal basis for the infamous Sedition Act of 1798. Getting from that narrow definition of “freedom of the press” to today’s libertarian understanding required a long history of litigation, constitutional interpretation – and, at times, actual jury nullification when instances of “seditious libel” were litigated, e.g., the case of John Peter Zenger … which was tried a half-century-plus before there even was a First Amendment. Trump’s ignorant back-to-the-future stance toward the “abridgement” clause is, in and of itself, sufficient to render him unfit for the Presidency.

o Donald Trump takes an equally dim view of the Fifth and Fourteenth Amendments, in particular, the clauses in boldface:

5thAmendment:No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment orindictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actualservice in time of War or public danger; nor shall any person be subject for the same offence to be twice put injeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law;; nor shall private property be taken for public use, without just compensation.

14th Amendment: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

14th Amendment -- Page 2
14th Amendment -- Page 1

Both the above Amendments stand squarely athwart Trump’s advocacy of the coercive deportation of – to use his number – 11 million undocumented immigrants. Note two aspects of the way the 5th and 14th Amendments “interlock”. Both the 5th Amendment and the boldfaced clause of the 14th refer to, not “citizens,” but “persons”. This is critically important. There are certain “privileges or immunities” – i.e., constitutional rights – that pertain only to American citizens.  But they are still persons.  So the fact that the 11 million people to be deported are not American citizens is irrelevant. Though not citizens, they are “persons,” which is all that is required for the 5th and 14th Amendments to be applicable. Many Trump supporters, and probably Trump himself, imagine the Federal and / or State governments summarily rounding up 11 million undocumented immigrants, a Herculean labor in itself, perhaps giving each of them a sack lunch, herding them onto a fleet of buses, pointing the buses south, and ordering the bus drivers to put the pedal to the metal. Problem is, the buses would all hit a giant Jersey barrier: the “due process” requirement of the 5th and 14th Amendments, pertaining to deprivation of “liberty,” by herding them onto buses at gun or night-stick point. Furthermore, and secondly, the 5th and 14th Amendments cover all levels of the federalist system – Federal and State. The Federal government cannot summarily, at its level, simply deport 11 million people without due process, because the 5th Amendment applies at the Federal level. But neither can the Federal government use the States as agents for the deportation, because Section 1 of the 14th Amendment explicitly forbids the States to deprive “persons” of “liberty”. The 5th and 14th Amendments jointly speak with a voice of thunder: “You may not simply and summarily deport people – even non-citizens – without due process … so what part of ‘Hell no’ is unclear?” Donald Trump is “facially” unfit for the Presidency if he does not understand this – and even less fit if, understanding it, he does not care.

o Donald Trump does not inhabit anything even remotely resembling the moral Universe of the European Enlightenment, i.e., the moral Universe that eventually gave us the US Constitution and Bill of Rights.

"Signing of the Declaration of Independence," John Trumbull
"School of Athens," Raphael

In pre-Enlightenment Europe, God, and the particular political and social structure God was believed to have “architected” into the Universe, was at the center of all ethical discourse. Human beings were strictly and uncompromisingly subordinate to that Divinely ordained social and political Order. Deviating from – or even questioning – that Order was often worth your life. Thanks to the European Enlightenment that begin in the middle 1600s, the various parties agreed to disagree, opening the way for “human-centric” answers to the best way to order and to “architect” human social, political, and economic structures, with the welfare of human beings, not God’s (alleged) will, being the preeminent criterion of legitimacy. One of the most important consequences of the italicized principle is all human beings have rights that must, without compromise, be respected. To be sure, with both the Christian and Enlightenment schemas, there is an overriding “final cause,” telos, purpose: God’s will, in the case of the Christian schema; the preservation of human rights, and respect for these rights, in its Enlightenment counterpart.

Donald J. Trump is foreign to both.

In the alternate Universe inhabited by Trump, whether or not any final causes – any purposes / teloi – exist is eminently debatable. But to the extent that such may exist, those final causes are neither Christian nor Enlightenment. Not God’s will. Not the “human-centric” values of the European Enlightenment. In fact, I would argue that Donald Trump’s principles are, in a certain sense, founded on the “Principle of no principles”. Look at it another way: Donald Trump is a denizen of the “state of nature” 17th-century political theorists wrote of and believed in literally, a mode of existence in which the only rules are the rules one is strong enough to live by – and to force others to live by – with no superordinate or supervening “Ur-principle” that mandates obedience. Donald Trump is sheerly amoral  Darwinian competition in a robe of flesh. Having repudiated both Faith and Reason, Donald Trump is a virtual causa sui:  the perfect, arguably the first, quintessentially postmodernist political candidate -- as far removed from Voltaire as he is from Jesus. If we could look into Donald Trump's soul, I strongly suspect we would say what Gertrude Stein said about Oakland, CA:  "There's no 'there' there". As conservative as Ted Cruz is, and as vehemently as I disagree with him on just about everything, he is part of the great Enlightenment-fed Stream of the American constitutional tradition – too much Jesus, and too little Jefferson, but still a part of that Stream.

Donald Trump is not.

So, speaking of irony … Dad and millions of Allied soldiers he fought with, some of whom he watched die, set out to repudiate European fascism at a cost we are still paying for, installment by bloody installment. But in the end, they were able to complete Dad’s Battalion motto – “We Can And We Will” – by the title of the Battalion’s history: We Did.

It is shameful that so many Americans, whose liberty was bought at that exorbitant price, could not bring themselves to repudiate domestic fascism in peacetime. Perhaps a corresponding history of the Republican Party should bear a corresponding title:   We Didn’t.

James R. Cowles

Image credits:

Donald J. Trump: Gage Skidmore ... Creative Commons Attribution-Share Alike 3.0
"Guernica" painting: Pablo Picasso, 1937
Bill of Rights ... National Archives ... public domain
14th Amendment ... National Archives ... public domain
Signing of the Decaration of Independence ... John Trumbull ... public domain
"School of Athens" ... Raphael Sanzio of Urbino ... public domain



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