Brothers Judd Blog

THE SECOND RULE OF TEXTUAL CONSTRUCTION…:

The Supreme Court’s January 6 Decision Was a Win for Progressive Protesters, Too (Jeremy Schulman, 6/30/24, MoJo)

In an amicus brief filed before the case was argued, a group of right-wing lawmakers made the rather ominous point that progressive protesters disrupt government events frequently. The Biden administration, they noted, hadn’t used the obstruction law to prosecute anti-Israel protesters who “occupied Capitol buildings to advocate for Congress to back a ceasefire in Gaza” or demonstrators who “interrupted Representative Jim Jordan’s House Judiciary
Committee field hearing” in a New York federal building. Nor, the lawmakers noted, had the Trump administration attempted to use this law against “the scores of protestors arrested for interfering” with Brett Kavanaugh’s Supreme Court confirmation hearings in the Senate.

Those protests were in no way comparable to the travesty of January 6. But that isn’t the issue. What that amicus brief makes clear is that if the DOJ’s interpretation of the obstruction law had been upheld, there would have been little stopping a future Trump administration from wielding its 20-year prison terms against political dissidents. Thankfully, the Supreme Court just made that a lot harder.

…words mean things.

maga IS SO fRENCH:

In France’s rebranded far right, flashes of antisemitism and racism persist (Anthony Faiola and Annabelle Timsit, June 28, 2024, Washington Post)

“They have new suits, very nice ties, but it’s still the same ideas in a more proper, more acceptable manner,” Martigny said.

Still at the core of the party’s platform is the notion of “national priority” — that “foreigners should have fewer rights than citizens even when they have equal qualifications,” said Jean-Yves Camus, director of the Observatory of Political Radicalism at the Jean Jaurès Institute. In practice, that means French nationals could have preferential access to public housing and other benefits.

National Rally has sought to woo voters by pledging to reduce fuel taxes and energy bills and protect French farmers. But its populist promises are targeted toward French citizens — in some cases even excluding dual nationals and “French people of foreign origin.”

The party continues to frame immigration as a security threat. Its leaders talk of “drastically reducing legal and illegal immigration and expelling foreign delinquents” as part of an effort to “put France in order.”

Its organizing principle remains Identitarianism: it is racist.

LET’S MAKE A DEAL:

PODCAST:

Pluralist Points: Democracy as a Civic Bargain: Josiah Ober talks with Ben Klutsey about how democracy arose in history and how we can help it endure today (BEN KLUTSEY, JUN 28, 2024, Discourse)

OBER: Our basic idea in the book, or the idea we start with, anyway, is that democracy should be defined as “no boss”—or at least no boss other than one another. The impulse toward democracy is the resistance to having some external power (a king, an oligarchy) tell you what to do. We then suggest that the real only alternative to being told what to do by some ultimate boss is to figure out how to organize the political sphere, organize what we are going to do together ourselves.

That really is the beginning of democracy: is a bunch of people somewhere saying, “We’ve had enough of being bossed around, and we won’t have it anymore.” This can be an evolutionary process in which people become increasingly fed up and do things that slowly move the boss into a more and more minor position. That’s sort of the theory or at least one way of explaining what happens in the United Kingdom. Or you can have a revolution that just kicks the tyrant out, and then you’ve got to figure out what to do in the aftermath. That’s what happens, for example, at Athens or at Rome.

You can have—as the case in the United States, you become fed up with an external boss that you feel is not doing what the boss was supposed to do in terms of providing you with basic liberties. Then you say, “We’re done. We’re not going to be ruled by the king any longer. We’re going to run things ourselves.”

I think it’s always this conception that we don’t want somebody telling us what to do who isn’t us.

KLUTSEY: Right. Now, when you look around and you observe the situation with democracies across the board, what problem are you seeing? What issues are you seeing?

Obviously, there’s quite a bit written about in terms of—the democratic backsliding is what oftentimes people refer to. What are some of the core problems that led you to say, “Hey, we need to write something to get people to understand what this democratic project is all about”?

OBER: Yes. Our core idea in the book is that democracy really is a bargain. It’s got to be a bargain that is made within a pluralistic society. We assume that the people who decide “we don’t want a boss” are not just a homogenous mass of people who agree on everything else. Yes, they agree we don’t want a boss, but they don’t necessarily agree on what the marginal tax rate should be once we have to raise some funds to deal with, for example, foreign policy, national security and so on.

We say that it is imperative to recognize that not having a boss means that you have to learn to negotiate with your fellow citizens over matters on which you disagree. We can try to limit the degree of disagreement. We can try to make arguments to each other and say, “It would be better to have the marginal tax rate as this. Don’t you see how right I am?” But at a certain point, you’re going to say, “No, actually, I don’t agree.” Then we’re going to have to have some method to say, “All right, we’re going to come to the best deal we can.”

The whole purpose of basically making these deals is to be able to go on together without a boss, running our own affairs as best we can. We want to say that as soon as the idea of negotiating with, bargaining with, coming to the best agreement you can find with your fellow citizens is rejected—when that’s rejected and we say, “I don’t want to make a negotiation with them. I want to force them to do things my way. I reject the idea that those people really are even my fellow citizens, if they don’t believe what I believe.”

That kind of strong polarization, value polarization, is what we really see as a big threat to democracy, because it makes people convinced that democracy is about getting pure justice or getting exactly what you think is the right way, as opposed to recognize that democracy is always an imperfect bargain, imperfect from the point of view of anybody’s—any individual or any individual group’s—idea of what would be absolutely best.

No one’s going to get what they think is best, because we’re in a pluralistic society in which people’s interests are not identical. So that’s our key thing, is to try to say that democracy really is about compromise. It has to be. Because it’s about compromise, it will always be—the solutions will always be imperfect from everybody’s point of view. That’s just intrinsic to the system. As soon as you start demanding perfection, you’re basically rejecting the very idea of democracy.

THE rEPUBLIC IS, IN FACT, OLD:

The Administrative State Is Put Back in Its Constitutional Place (THE EDITORS, June 28, 2024, National Review)

Scarcely anything was more central to the people who framed our Constitution than the separation of powers. John Adams, in the Massachusetts Constitution of 1780, wrote that it was designed “to the end it may be a government of laws, and not of men.” It was a topic upon which the men who gathered at Philadelphia in 1787 were effectively unanimous, having already incorporated it in the constitutions of their several states. Even more so than federalism, individual rights, or enumerated and limited powers, it was the separation of lawmaking, law-enforcing, and law-interpreting powers that they saw as the safeguard against the erosion of all the other elements of the constitutional system. And at the tip of the spear of the law, they placed the jury system, giving a share of the judicial power to ordinary citizens.

This system has always had its critics. The framers of the Confederate constitution of 1861 watered it down in their own version. Woodrow Wilson and other Prussian-inspired intellectuals thought it was old-fashioned, inefficient, and an obstacle to rule by modern experts. Wilson’s heirs to this day defend the bureaucratic administrative state, which interprets its own laws, runs its own courts, and is insulated from removal by the executive.

JOE NEEDN’T EVEN WITHDRAW…:

More on the legal (and practical) issues around a presidential candidate’s withdrawal (DEREK MULLER, 6/28/24, Election Law Blog)

First, Rick is right that the DNC rules for “pledged” candidates really just a pledge and not binding. Per IX.E.3.d, “All delegates to the National Convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them.” Likewise, IX.C.7.e, “Eligible delegates may vote for the candidate of their choice whether or not the name of such candidate was placed in nomination.”

…just allow a conscience vote.

LIBERALIZING IS COMPLEX:

Speculation Is Rife About the Future of Kuwait’s Parliament (Omar Alabdali & Luai Allarkia, June 27, 2024, New/Lines)

Kuwait has long been an object of perplexed interest for Arab political observers. The country’s political system, essentially a constitutional monarchy with a combative parliament, is rare in a region filled with autocrats, police states masquerading as secular republics, and other types of dictatorships.

Its intricate parliamentary politicking is unusual, as is the sight of assembly members aggressively questioning members of the royal family in a Gulf sheikhdom where reverence for emirs and princes is an obligatory part of the political etiquette. The complexities of the emirate’s political shenanigans and the rise and fall of governments and elected assemblies can often seem Byzantine and incomprehensible to political observers in the region.

But Kuwait’s experiment with a form of democracy, however flawed, is worth chronicling. The evolution of its political system, spurred along by the traumatic invasion of Saddam Hussein’s Iraq, is unique in the region. But it is also worth examining as a cautionary tale that highlights the limits of political maneuvering in a region where a retreat to one-man rule in the name of stability is easy, and where proponents of democracy must fight time and again to preserve their right to challenge those in power.

WHY COLONIZATION IS ILLEGITIMATE:

Zionism of the Founding Fathers: Israel’s creation matches the principles of statesmen who established our republic. (Joseph Prud’homme, June 27, 2024, Modern Age)

[A] significant number of founders held that religion should be integrated into the fabric of law and society, specifically at a regional or local level. They held that the people are entitled to create a religious state, with “religion” understood either in a general sense or as one specific denomination—as long as the substance of that religion was conducive to recognizing and protecting the rights of all, with the state ensuring everyone’s freedom of religious belief and practice.

Such a state must be a politically representative one and exercise authority only over a geographically compact community. These conditions, they believed, would produce a government more responsive to the concerns of all the citizenry.

Christianity, of course, was seen as especially conducive to the protection of individual rights, including the right of religious liberty. Thus Christianity was something the state could protect and promote by law without compelling individuals in ways that would violate individual conscience.

The pamphlet Worcestriensis, for example—which was written anonymously in 1776 in Massachusetts and remained influential in New England for decades—supports at once the establishment of a specific faith and the support by law of religious liberty. Even in the presence of extensive denominational diversity, this work suggests, establishment works best in compact areas due to the ease with which citizens can petition government should abuses occur, as well as the reality that living amidst difference tends to form habits that bolster support for the legal protections of religious liberty for all within the community. And indeed, in most New England states the religious establishment was at the town level.

The Constitution expressly sought to avoid any measure that could undermine state-level solicitude toward religion. All ratifiers of the Constitution knew that six states in 1789 had official religious establishments that accorded Christianity, or even a particular denomination, privileged status, often in the form of direct financial support to that faith and no other.

As President Thomas Jefferson—himself in many ways a strict separationist—stated in his second inaugural address, “religious exercises are under the direction and discipline of state or church” (emphasis added). To be sure, Jefferson would have wanted New England states to shed their religious establishments on their own. But many founders saw a state-level affiliation of faith and government as a form of morally acceptable statecraft or as a genuine and positive benefit.

Israel’s founding embodied these points central to many in the founding generation and therefore would likely have won their support.

Of course, this argument favors Palestinian statehood for all the same reasons.

ALWAYS AND EVER FREEDOM VS SECURITY:

Order and the American Culture of Liberty (JOHN C. PINHEIRO, JUNE 27, 2024, Religion & Liberty)

There is an insightful exchange in the 2003 film Master and Commander: The Far Side of the World between Capt. Jack Aubrey (Russell Crowe) and his friend Dr. Stephen Maturin (Paul Bettany). Aubrey is all about discipline and order, while the doctor’s inclination is toward mercy and liberty. In a heated debate over the proper balance between liberty and order aboard a wartime naval ship, Captain Aubrey finally yells in exasperation: “Men must be governed! Often not wisely, I will grant you, but governed nonetheless.” The doctor dismissively responds that this is “the excuse of every tyrant in history, from Nero to Bonaparte.”

Royal Navy frigates no doubt require a greater degree of order and illiberality than diverse, commercial republics. But the debate between these fictional characters touches on a point of real dispute, particularly right now on the American right: What is the proper balance between liberty and order most consistent with human dignity and the pursuit of the common good?

During my two decades as a history professor, I found that the most effective way to help students manage the complexity of the grand sweep of American history was to cast it as what Russell Kirk calls, in The Roots of American Order, “that healthful tension between order and freedom.” This tension over how to balance individual freedom with the common good has proved an enduring feature of the American project. This American order requires a subsidiary role for a limited central government and is predicated on a vibrant civil society where the primacy of a culture of liberty demands that prudence be applied to human affairs.

To talk about liberty does not negate the need for order nor does it imply that one is unconcerned about it. Order is the precondition for liberty, but liberty is the aim.

Consider a different frame: the eternal political conflict is between the contradictory impulses for freedom and for security. Republican liberty seeks to resolve it by requiring that orderly limits be adopted in participatory fashion and apply universally.

LIFE IS COMEDY:

Can jokes in terrible taste ever be funny?: Wisecracks is clearly the work of an academic philosopher adept at teasing out fine distinctions between “offenses” and “harms” (Matthew Reisz, 6/28/24, The Critic)

Whilst mockery can be culpably cruel and often deserves to be condemned, Shoemaker notes, it can also “serve to bond those who engage in it”, work as “a kind of initiation rite” and act as “a genuine expression of affection amongst people who otherwise have trouble expressing affection”. This leads him to some uncomfortable questions about whether declaring a group such as the disabled “beyond mockery” can’t itself act as a form of exclusion. […]

It is crucial to his case that Shoemaker himself should practise what he preaches. When he was “diagnosed with aggressive prostate cancer”, he recalls, he found he could cope with “a wee bit of sympathetic concern”, but what he really wanted were “emotionally detached wisecracks” from close friends on the lines of “C’mon out for a drink, you’re not dead yet.”

When he chose to treat his suffering as a joke, the last thing he needed were “empathetic” friends saying “Oh, you poor thing, that’s horrible! How can you laugh at that?” Genuine “emotional empathy in such circumstances requires, ironically, that I emotionally detach from your pain or trauma along with you”.

Indeed, although we rightly condemn people who lack all empathy for the suffering of others, Shoemaker is convinced that there is “significant underappreciated value in our sometimes empathising less with, and being more amused by, pain, suffering and misfortune. It is a powerfully effective way to cope with life’s curveballs, and it’s often the most appropriate way of responding to life’s ultimate absurdity.”

Mocking everyone and everything is liberalism.

DISCOURAGING TURNOUT SERVES THE HARDLINERS:

Reformist, ultraconservative qualify for Iran runoff election (Ramin KHANIZADEH and Payam DOOST MOHAMADI, June 29, 2024, AFP)

Pezeshkian got more than 10,400,000 votes and Jalili, a former nuclear negotiator, has more than 9,400,000, said Mohsen Eslami, spokesman of Iran’s election authority. […]

Out of around 61 million eligible voters, some 24,500,000 voters headed to the polls, he added, with a turnout of around 40 percent — the lowest yet in the history of the Islamic republic.