I happen to have Alexander Hamilton right here with me...

Drawing by David Levine, New York Review of Books, 1964.

 

It's a little amusing that Roberts is citing Breyer there, in Clinton v. Jones, that's the Paula Jones case, where Breyer is arguing, in a unanimous decision (Democrat Stevens wrote the opinion), that Clinton was not immune (from civil lawsuits based on private conduct), in spite of the fact that Clinton was indeed the president at the time and the case was certainly "distracting his time and energy", the thing the Framers are said to have been so particularly tender about, and in spite of the fact that this was only the third time in American history that such a suit had been filed against a sitting president. Clinton had failed to prove, Breyer thought, that the US government needed for Clinton to have the immunity:

As Madison pointed out in The Federalist No. 51, "[t]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack." Id., at 321-322 (emphasis added). I agree with the majority's determination that a constitutional defense must await a more specific showing of need; I do not agree with what I believe to be an understatement of the "danger." 

It seems to me that with Trump v. United States the Court has turned this upside down, shifting the burden of proof from the offender to the offended. Henceforth (I once knew a cat called Henceforth, and a pretty good cat too), it will just be assumed that the president shouldn't be asked to answer any questions, even after they've left office, nor should his White House employees, even when they're glorified nursemaids for the cranky old psychopath, like poor Hope Hicks helping him ride his way through the scandal of the Access Hollywood video. She was part of the apparatus enabling Trump's "energetic, vigorous, decisive and speedy execution of the laws" when he was paying his hush money debt to Michael Cohen with $420,000 in checks disguised as legal fees so nobody would know about it, so it looks like her testimony in the New York case should not have been given, and his conviction now seems likely to turn into a mistrial, even though you'd be hard put to name any occasions when he executed any laws at all beyond his photo op bill-signing moments with the presidential Sharpie.

It would be fun to put that on trial, wouldn't it?  "Do you recall faithfully executing any laws in 2017, Mr. Trump? Can you list some of those for the jury?" But of course it's unimaginable.

It's also difficult to imagine a Supreme Court majority now citing Federalist 51, with its focus on checks and balances among the three branches, and Madison wistfully letting on how much he wished he could have had the president and Supreme Court justices directly elected:

Fifth of July: Antidisestablishmentarians

State of the Stupid, 2023: 

You can build this strawman out of any old resentments and prejudices you have lying around the house or in the garage, without an expensive and time-consuming trip to the Hobby Lobby. 

The genius of Rubio's tweet is in his focusing his hostility on those who see the US as "built on stolen land" as if it wasn't obviously true that Europeans and their descendants had appropriated virtually every bit of North America from its indigenous inhabitants between landfall in Mexico in 1519 and the closing of the frontier in 1890. A gasbag like Ted Cruz would have insisted on adding something about African chattel slavery beginning 1619 to the sentence, but there's not an ounce of fat on Marco's argument: he heads straight for the single most indefensible lie you can tell about the history of the continent and tells you you're "nuts" if you try to argue with it.

As well as possibly "influential" (unlike, say, Senator Rubio), rich (in contrast to Senator Rick Scott), famous (as opposed to infamous like Senator Lindsey Graham), or holding a "fancy degree" (instead of a no-frills plain one like Josh Hawley's Yale J.D., 2006). 

State of Society

The other day in comments I was denouncing George Mason and the Virginia Constitutional Convention in 1776 for the casuistry with which they declared that all men are equally free and endowed with rights except for those who happened to be enslaved: 

George Mason's Declaration of Rights of the State of Virginia, drafted May 1776, where the original smushing took place a few weeks before Jefferson adopted it, began by declaring "That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." 

That "enter into a state of society" clause was designed as an exemption for Virginians of African descent, who were deemed not "in a state of society". That was a diabolical piece of trickery (inherent for me but not for you, for reasons that are not intrinsic but historical), far worse than but very similar to the right to bear arms in the 1689 Bill, which was only for Protestants and not the Catholic allies of the ex-king.

Valued commenter Jeff Ryan took issue with that; surely I was overinterpreting what they meant by "state of society", and when I explained I'd gotten the interpretation from Wikipedia he wasn't too impressed with that either.

But the record of the deliberations makes it absolutely clear, as we learn from Self-evident Truths: Contesting Equal Rights from the Revolution to the Civil War, by Richard D. Brown, 2017. Some delegates to the convention, led by Robert Nicholas, complained that the original language of Mason's proposed document, claiming natural freedom for all men without exception, was too radical for a society based on slavery: it could prompt the slaves to revolt, and delegate Edmund Pendleton came up with the hedge: 

For the Record: One More Time for the Second Amendment

This is a theme I keep recycling a little, but I felt this version came out extra-pithy, and also it's got a Boebert malapropism in it.

No, they were being pressured by slaveholders who threatened to tank the whole project of the Constitution if Madison didn't give in on this one stupid gun thing. Madison thought the need for a strong central government was so great he gave in to the blackmail.

— Woke Mob For Taxing Billionaires (@Yastreblyansky) June 15, 2022

Not that the founders, speaking firmly, weren't some of them slaveholders too, as they certainly were, but it's still important that Virginians Washington, Jefferson, and Madison all agreed that slavery was a horrible crime. They were kind of like mythical Franklin Roosevelt saying, "Now make me do it," but unfortunately nobody did. Whereas those other Virginians Patrick Henry and George Mason were really explicitly freaked out by the possibility that Massachusetts and Pennsylvania, among others, might just up and ban slavery outright (as indeed they did, not that long afterwards) and before you knew it start helping their African property to escape from servitude

They were determined to make sure the new government would be strong enough to be able to prevent rebellions like that from getting anywhere.

Exactly the opposite of what loonies like Boebert claim the 2nd Amendement is supposed to do.

— Woke Mob For Taxing Billionaires (@Yastreblyansky) June 15, 2022

"Expedition" must have been the word she was hunting for.

Imaginary Madison: "Let's make sure state militias are well armed so they have a fair chance to overthrow me when I'm president."

Real Madison: "OK you can have your slave patrols but only if we get to use them to put down a whiskey tax revolt."

— Woke Mob For Taxing Billionaires (@Yastreblyansky) June 15, 2022

For the Record: Gaetz's Rebellion

 

Scuffle outside the Springfield, Massachusetts courthouse, 1786; 19th-century wood engraving, Granger Academic.

From here https://t.co/dccKX08vue

— Freewheeling Passion (@Yastreblyansky) May 28, 2021

https://t.co/qc2kxI5gC2 pic.twitter.com/s7qO4tfQRr

— Freewheeling Passion (@Yastreblyansky) May 28, 2021

System of Imbecility

Alexander Hamilton on the filibuster: “[I]ts real operation is to destroy the energy of the government and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.”

— Laurence Tribe (@tribelaw) March 21, 2021

That's perfect, I thought, but of course the filibuster hadn't been invented yet—what was Hamilton actually talking about? So I asked Dr. Google, and what I got was the single most useful comment on the Federalist Papers I've ever read, from The New Yorker's Hendrik Hertzberg, July 2013:

The Federalist Papers—so often quoted to rationalize governmental stasis and congressional gridlock—are almost always treated as secular scripture. They’re not. They’re newspaper op-ed pieces, written in haste to sell a particular set of compromises, some of which their authors had adamantly opposed and accepted only with the greatest reluctance.

Lectiones: Democratic Mojo

 

Filibuster

Speaking of abolishing ICE without abolishing ICE, Ian Milhiser at Vox offers a repertory of techniques for abolishing the filibuster without abolishing the filibuster, by scraping away at it bit by bit until it's small enough to, you know, drown in the bathtub:

• Make fewer bills subject to the filibuster: The Senate can create carveouts and exempt certain matters from the filibuster altogether, as it does with bills subject to the reconciliation process.
• Reduce the power of individual rogue senators: The Senate could make it harder to initiate a filibuster. Right now, unanimous consent is required to hold a vote without invoking the time-consuming cloture process. But the rules could be changed to allow an immediate vote unless a larger bloc of senators — perhaps two or five or 10 — objected to such a vote, instead of just one.
• Make it easier to break a filibuster: The Senate could reduce the number of votes necessary to invoke cloture. This could be done as an across-the-board reform, like the 1975 change to the filibuster rule that reduced the cloture threshold from 67 to 60. Or it could be done by creating a carveout for certain matters, such as the 2013 and 2017 reforms that allowed presidential nominees to be confirmed by a simple majority vote.
• Reduce or eliminate the time it takes to invoke cloture: The Senate could reduce the amount of time necessary to invoke cloture and conduct a final vote. This could be done by allowing a swifter vote on a cloture petition, by reducing or eliminating the time devoted to post-closure debate, or both.

The Senate changes the rules all the time, by simple majority vote—that's how they made it possible for Obama to nominate a bunch of judges and about 170 executive-branch officers—and it would be so much easier to carry on with it that way, giving Joe Manchin and Kyrsten Sinema cover to vote for it (in 2011, Manchin voted for a great reform idea, that of forcing anybody who wanted to stop the cloture vote to give a good old-fashioned Mr. Smith Goes to Washington talking filibuster, but it didn't get past McConnell) without breaking their promises.

Post-Capitalist Politics

Alexander Hamilton, neoliberal and multicultural. Well, he's multicultural now, and you have to be a pretty mean old fart to complain about it. Image via The Source. I just ran into a very good essay (in the sense that it agrees with me a lot) on Hamilton and the subject matter discussed here, by Matthew Yglesias, from April.

That proposal from Brooks yesterday for a post-Trumpian politics of the open vs. the closed, if that's what it was, echoed something earlier in the week by James Traub in Foreign Policy with reference to that UK referendum ("It's Time for the Elites to Rise Up Against the Ignorant Masses"), and may even have been inspired by it, except that Brooks wouldn't have understood very clearly what it was:

Perhaps politics will realign itself around the axis of globalization, with the fist-shakers on one side and the pragmatists on the other. The nationalists would win the loyalty of working-class and middle-class whites who see themselves as the defenders of sovereignty. The reformed center would include the beneficiaries of globalization and the poor and non-white and marginal citizens who recognize that the celebration of national identity excludes them.

Corey Robin, making some well-deserved fun of this kind of panditry, fell into doing some of it himself, offering his own analysis of a Clintonian political realignment that would work by simply eliminating the (less multicultural part of the) left, and his own proposal for a mirror-image realignment that would kind of move the multiculturals around and eliminate the right: