No Foul, No Harm

 

Vintage Space Jam T-shirt via.

I've been thinking about sports lately, partly no doubt because it's that one time in a quadrennium when I start following a sport myself with some assiduity (maybe should be twice in a quadrennium now that I've found out about the women's game), and wanting to say something about how Republican politics relates to sports, but it wasn't coming together until this remarkable series on Mark Meadows texts from the effort to overturn the 2020 election began coming out at Talking Points Memo, and then something Hilzoy said (Hilzoy is the philosopher Hilary Bok, one of the great bloggers until she quit blogging in 2009, and still a really valuable presence on Twitter) crystallized it for me:

... and the point is not to reflect people's actual will but to see whether, if you torture the rules badly enough, you can see, or pretend to see, a way that YOU can win.

— hilzoy (@hilzoy) December 14, 2022

Exactly. That's the whole point of the "not a democracy, a constitutional republic" argument. Elections are really a sport--their politicians don't aim to represent anybody but to be the best at winning. (Not *merely* a sport, obvs, because if you win you get to rule...)

— Yas is at post.news/yastreblyansky but still here (@Yastreblyansky) December 14, 2022

That's like the esoteric theory of elections, hiding behind the common or garden exoteric theory that you win because more people liked you than liked the other person. It's dead serious, like a war—indeed, it is a kind of war (as I always say, Clausewitz just got it backwards: politics is war continued by other means, not the other way around)—but it's patterned as a game, as a matching of skills against the rulebook, the republic's constitution and its appendages, part of the skill being the player's ability to manipulate the rulebook, to think of tricks its authors didn't imagine, like giving yourself a momentary advantage by drawing a foul ("They spied on my campaign!"). And that's why they're increasingly so genuinely shocked when they fail to win, when democracy happens instead.

And then Hilzoy also points out something very peculiar about the setup: that there's no real reason (such as the ideas of equity that underlie the democratic theory) for the rules that were chosen for us when the league began, other than a set of familiar metaphors (the Senate is the saucer into which you pour your legislation so it doesn't burn your mouth, etc.), which means there's no source of legitimacy:

And it's obviously a terrible way to decide elections, not only because it's not connected to any actual source of legitimacy, but because both sides can play that game if they have to, and this process includes no way to decide which tortured theory prevails.

— hilzoy (@hilzoy) December 14, 2022

All the referees can do is peer at the rules with the Scalian hermeneutic, trying to guess what they say, not permitted to ask what they mean. You think some interpretations are so outlandish that the Supreme Court won't allow itself to be tricked into considering them, as happened with the "independent state legislature" doctrine in John Eastman's version after the 2020 election, but you can't have any confidence that they'll handle it the same way next time.

So that's the spectacle we're seeing in the Meadows texts, of all the Trumpers trying to make the rulebook support them. They can't even remember the exoteric theory that the majority is supposed to win, at this point. The Republicans are supposed to win, because they have the smartest team (even if that's not true either).

But the thing that started me off was last week, and the "investigation" of the "Twitter Files" on how Twitter's monitors responded to Trump around the time of the January insurraction, and something Bari Weiss said:

It's all a game, so you can't bust him merely for trying to overthrow Congress and get himself installed as dictator unless the ref says he did it the wrong way. No foul, no harm. https://t.co/eXzr0OMKoo

— Yas is at post.news/yastreblyansky but still here (@Yastreblyansky) December 12, 2022

Weiss and her partners are mad at the monitors for their inability to work with the rule book (which Jack Dorsey had apparently just revised, instituting a "five-strike" rule that would enable them to ban Trump permanently from the platform) because they have no idea that anything bad happened. Nothing bad could have happened, since Trump couldn't be caught breaking the rules (according to the limited number of messages Musk and Weiss have allowed us to look at, anyhow—so far we haven't been shown a single discussion of Trump's tweets of January 5 and 6, and the context we're provided is incredibly weak).

And it strikes me that Trump, for one, has lived his entire criminal life that way—using not getting indicted as a surrogate for not being a criminal. These people are all—Mark Meadows and his congresscritters, Elon Musk and his hack investigators, Trump himself—taking the normal sportsmanly adage that if you didn't get hurt or have your chance spoiled, then the referee should let it go, no harm, no foul, and inverting it.