Descartes and Knowing One is Awake

Descartes maintained that our experience never permits us to judge with certainty that we are awake: “[T]here are no certain indications by which we may clearly distinguish wakefulness from sleep.” So I would be unjustified in judging that I am now, in fact, awake with a computer screen in front of me. 

(At the end of the day, of course, Descartes did think I could be so justified, but before that day’s end I would have to traverse through his cogito, taxonomy of mental contents, clear and distinct ideas, ontological argument, and his argument that God is trustworthy. Not being able to negotiate that entire journey, I want to see where we end up on dreams if we decline to go beyond Descartes’s First Meditation.)

Does Precedent Require the House to Pass an Impeachment Inquiry Resolution?

It is a tiresomely repeated talking point that the current impeachment investigation in the House of Representatives is unconstitutional, violative of House rules, and in conflict with “bipartisan precedent.” As the first of these claims have been repeatedly and decisively refuted, I will here only take a little more detailed look than has been common at the precedent claim, which, turns out to be unsupported by history.

The Fatal Flaw in the Impeachment Clauses

I argued in my post on 8/26/19 that there is a fatal flaw in the 25^th Amendment in all those cases in which the president, although in fact no longer up to the responsibilities of the office, is determined to stay in power.  

Unfortunately, contemporary politics has produced a similarly baleful defect in the impeachment process. It is so clear cut it could almost be a theorem of game theory. It’s the Senate.

Can Anyone Still Believe that “Russia, if you’re listening . . .” Was a Joke

Some people in Congress and in the media had the temerity to suggest that it might be an invitation to a hostile foreign power to interfere in the 2016 election to implore, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.”  The president defended himself by explaining that he said it as a joke. “Of course I was being sarcastic.” (Interview on Fox and Friends.); "[I]n jest and sarcastically, as was apparent to any objective observer." (Written answers to Mueller questions.)  At a campaign rally he made fun of the media for not realizing, that it was all a joke.

In a post of June 9 this year, I examined Trump’s defense and the “in jest” defense to solicitation charges more generally. I was skeptical. Subsequent developments, including the recent dramatic developments seem to confirm that skepticism was not amiss.

Socialism Is Democracy Extended.

There has been a centuries-long trend of growth in the share of the population having a serious say in the way things run. Significant exceptions are easy to find and there have been terrible reversals, but still it is a big picture trend. I will call the agents behind reallocation of power from smaller to larger social groups “the left,” conceding that this is an oversimplification as well as anachronism, the “left/right” terminology arising only with the French Estates General.

The Presidential Emolument Clause

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.  Art II, Sec 1, cl 7

Guns don’t kill people, true -- in exactly the same way ricin and hand grenades don’t kill people.

There is a perfectly good sense in which guns don’t kill people, but it is not a sense that has any implications for gun control policy.

The Fatal Flaw in the 25th Amendment

We can anticipate that the amendment will sometimes work just fine. If the president falls into a coma, the vice president and “the principal officers of the executive departments” (presumably the cabinet) will certify this fact to the speaker of the House and the president pro tempore of the Senate (now always the majority leader), and the vice president will take on the presidential duties.

What, however, if the president is conscious and functioning but seriously mentally impaired, an incident of that impairment being an inability to recognize it. The president might then fight a 25^th Amendment certification.

Bad Treatment of Children to Deter Refugees Conflicts with the Constitution’s Corruption of Blood Clause

Causing immigrant children to suffer to deter their parents does not violate the Corruption of Blood Clause, which concerns treason convictions:  “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood . . .” (Art. III, Sec. 3, Cl. 2.).  The clause, however, yet bears on the permissibly of this administration tactic.

Libertarianism, Free States, and Oppressive States

I am not going to here portray the free state utopia of the libertarian imagination, but instead will explore the logic of the libertarianism, by testing its “free state” and “oppressive state” categories in extreme cases selected for the purpose of bringing the logic of the theory to the surface.

Mass Killings and Killings in Chicago

In conservative and right wing comments on internet news reports of mass killings, especially where those killings are racially motivated (a significant fraction of mass killings), there are recurring memes. In addition to the ever popular “guns don’t kill people,” and “it’s a crazy person problem, not a gun problem,” we find versions of “why aren’t the media reporting on the n number of killings in Chicago in the last m days” (for some large number n and small m). 

Why should Chicago’s homicide statistics show up in online discussions of a white nationalist’s premeditated slaughter of Hispanics in El Paso? The explanations I find are either scary, stupid, or both.

How Radical is Rawls’s Fair Equality of Opportunity?

From Justice as Fairness:

“[T]hose who have the same level of talent and ability and the same willingness to use these gifts should have the same prospects of success regardless of their social class of origin.”  (p.  44.)

The Fifth Amendment Does Not Entail the Constitutionality of Capital Punishment

The Fifth Amendment of the US Constitution anticipates the existence of capital punishment. Justice Scalia declared that it follows that capital punishment is constitutional. He was wrong.

McCarthyism Round Two? Graham Calls Progressive Congresswomen “a bunch of communists.”

Joe McCarthy never called a sitting member of Congress a communist. The closest I have been able to find is that he called the special Senate committee that investigated him “'unwitting handmaiden', 'involuntary agent' and 'attorneys in fact' of the Communist Party".  These accusations were considered by the Senate serious enough to form half of the second of two censure counts. The Senate voted to condemn McCarthy by a vote of 67-22. How times have changed.

Impeachment Investigation, Impeachment Vote: A Prosecution Perspective

There are differences between the decisions facing a prosecutor in an ordinary criminal case and the decisions now facing members of the House of Representatives. There are also similarities.

Time, Relativity, and the Mayfly Self

The Physics of Time

 

Even before Einstein, physics was never really supportive of our common-sense ideas about time. Humankind has long believed that the past and the future are very different, the one over, done with, fixed, the other ahead, open, malleable. The past keeps gaining new territory from the future across the boundary of the present. The calendar date of tomorrow becomes that of today, then of yesterday. All this seems to force upon us the conclusion that now is something that moves. 

Science, with physics at its base, has been a great success in explaining the phenomena of our world: thunder, billiards, fire, elevators, airplanes, the ability of fish to swim and viruses to infect. What did Newtonian physics have to tell us about this moving now? Nothing. The equations of physics contain variables for time, t₁, t₂, even t₀, but no “now.” 

With Einstein, physics stopped being unhelpful regarding our shared sense that the now moves, and became hostile, or at least unfriendly.

Yes Collusion! 2:"Russia, if you're listening . . ."

On 8/2/18, I devoted a post to Trump’s famous July 27, 2016, invitation, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.”  I there contended that this did not constitute a violation of any federal solicitation-computer crime statute, but that it arguably constituted criminal solicitation of a foreign (“in kind”) campaign contribution in violation of the election laws. I added, in passing, that it was potentially an impeachable offense. https://lawrencecrocker.blogspot.com/2018/08/was-trumps-russia-if-you-are-listening.html.

I have seen no reason to revise those conclusions substantially. I still think that there is a respectable argument that Trump violated the solicitation provision of the election law, a violation not merely civil, but a criminal. It is simply implausible that he did not think he was asking for something that he expected to be of very substantial value to the campaign – certainly more valuable than many thousands of MAGA hats.  It is also implausible that he had not been told about the prohibition against foreign contributions.

What I want to do here is first to extend the analysis to consider Trump’s defense to accusations against his statement: “Of course I was being sarcastic.” (Interview on Fox and Friends.); "[I]n jest and sarcastically, as was apparent to any objective observer." (Written answers to Mueller questions.)

 

Second, I want to return to the question of Trump’s claims that he has been fully vindicated with respect to all claims of the sort that he or his campaign colluded with the Russians.

Yes Collusion!

Many who are pro-impeachment or tend in that direction concede that Mueller’s Volume I supports Trump’s repeated claim  “No Collusion.” Trump and his friendly media go so far as to say that the Trump Campaign was “exonerated” on collusion.

Not so. There is in the Mueller Report itself evidence, summaries of evidence, and conclusions about evidence that strongly support what we would ordinarily call “collusion” between Trump and the Trump campaign on one side and agents or intermediaries of Russia or Wikileaks on the other. In Mueller’s judgment, this evidence is insufficient to support a prosecution under Justice Department guidelines for conspiracy or any other crime in the collusion neighborhood. However, that is far from a conclusion that there was in fact no collusion.

Is Money Laundering Impeachable?

Birthright citizenship and the 13th Amendment

This is not a typo.  Of course it is the 14^th Amendment that contains the citizenship clause and so is front and center in every speech, press release, sound bite, newspaper editorial, law review article, and tweet about the birthright question. In a not very close second place in the citation of legal sources on the issue is the jus soli (“right of the soil” or “law of the soil”) birthright citizenship of the British common law, its incorporation into the American common law, and its infamous and unprincipled treatment in antebellum courts.

 

Much farther behind are citations to the 13^th Amendment. In fact, a little internet research, admittedly very little, turned up no references to the bearing of the language of the 13^th Amendment on citizenship. Yet that amendment, which preceded the 14^th by only a few months through the early stages of the amendment process, includes the clause “subject to their jurisdiction.” That is, subject to the jurisdiction of “the United States.” The phrase in the 14^th Amendment on which the birthright legal revisionists base their claims is “subject to the jurisdiction thereof [the United States].” It usually makes good sense to suspect that two very similar legislated phrases may well be related in meaning where the time period is the same, the social and political circumstances the same, the drafters the same, and the voters the same. This is surely not less so when the two pieces of legislation were closely related part of a single political program – here, reconstruction.

"high Crimes and Misdemeanors" as a Term of Art

In the interpretation of enacted law terms of art, for example, “third degree of consanguinity,” have a special place.  Just how special is debated: the degree of the specialness, the ways in which are special, and the special methods for unpacking their meaning. 

The term of art status of “high Crimes and Misdemeanors” may become salient.

Libertarian Island III: Coercion and Degrees of Freedom

Where we left off shipwrecked Ann, whom I have called a “left- libertarian,” has not been able to convince shipwrecked right-libertarian Bob that it’s only his wrongheaded ideology that makes him want to paddle away from Isle One, with its easier and more abundant life, towards Isle Two.

Is a Non-Amendable Constitutional Provision Legitimate?