The Founders

What was the position of the nation's founders? We often hear this question in relation to an issue of how to interpret some aspect of the Constitution. Strict constructionists, those who believe that we should adhere to the actual text of the Constitution (and by extension, all laws), often are also originalists, which means that when it comes to interpreting ambiguous passages they look to documentation for what people originally thought the words meant. I understand the appeal of this thinking. We are, or at least we aspire to be, a nation of laws. Even when we try to accomplish horrendous things (e.g. the post Reconstruction disenfranchisement of Black Americans, the current voter suppression laws) we try to do it legally, i.e. by passing laws as the means to attain our nefarious ends. The weak point in any law, good or bad, is that there is absolutely no way for any law to cover all eventualities. For example, several years ago, the Nebraska State legislature passed a law exempting the sale of manufacturing machinery and equipment (MME) to companies engaged in manufacturing, from sales tax. It was left to state regulatory agencies to define manufacturing, "company engaged in manufacturing", and equipment. Would a company claiming this exemption have to be engaged primarily in manufacturing? Would parts of manufacturing equipment be exempt? It goes on and on. Pages of regulations were written, with some challenged in court. This is true for virtually any law that is passed and is exponentially greater on the federal level. For some laws, an enforcement mechanism must be written into the regulations, including penalties. 

What strict constructionalists and originalists do not take into account is how laws are not self-interpreting and that their application and administration is going to change as circumstances change. To cite another example from Nebraska tax law, outside of certain exceptions, the sale of all goods are taxable, while the sale of services is not. These laws were written before anyone had ever heard of computer software. So what is computer software? Is it a good or a service? If it's a "good", is it subject to Nebraska sales tax if it's installed out of state? What about cloud software? Currently there is a spider's web of rules and regulations that determine whether any particular software is taxable or not. How should an originalist view the taxability of software? It can't be determined with any surety, because the founders couldn't have conceived of something like software and therefore would not have had an opinion about it. Of course one can take the position that Modern "X" is just like Founders' "Y" and therefore "X" should be interpreted exactly like "Y", but it would be naught but speculation. 

Adherents to the originalist/strict textual interpretation tend to ascribe an almost godlike status to the founders that you don't often see outside of religion. They attempt to quash all argument by appeal to the wisdom of the founders, as if they weren't flesh and blood humans with human frailties. Let's not forget that aside from arguable mistakes like the Electoral College, they countenanced slavery. Is there anyone with an ounce of ethics who believes slavery is morally acceptable? So the question to ask in scenarios like DC statehood, or eliminating the Electoral College, isn't whether this was something the founders supported, or even envisioned, but whether it is a demonstrably good thing, something that is beneficial to our country. Viewing the Constitution or any of its amendments as a suicide pact that should be adhered to despite any harmful consequences is counterproductive. This is one of the reasons why the type of judges appointed to federal courts is important. Republicans tend to appoint "conservative" judges, defined as textualists, strict constructionalists or originalists, while Democrats lean toward "liberals" who are more apt to interpret the Constitution in a way that takes 200+ years of changes into account. As a practical matter, conservative judges are more likely to prop up the status quo, since the status quo is naturally a result of two centuries of originalism. With the new 6-3 conservative majority on the Supreme Court we're already seeing a continuation of solidifying of power centers. One example is the way the rights of organizations to enforce religious beliefs has been given priority over public health and individual rights. 

The Founders were men (yes, all males, not a woman in the bunch), many of whom owned other human beings and were shaped by the culture of their times. Times have changed. 

Qualified Immunity

My father was a New York City police officer for 21 years. My brother was a New York City police sergeant, ending his 25+ year career as a homicide detective. Guys that I grew up with were police officers as well.  I officiated a wedding a few years ago for a Lincoln police office who had been shot in the line of duty and had to retire because his injury prevented him from doing the job. I respect the officers who do their jobs oftentimes in very difficult circumstances and  put their lives on the line sometimes losing their lives in the process. It's a tough job. I'd like to see every police officer make it safely home to their family at the end of their shift.

Unfortunately that has often become the overriding goal: protecting the safety of the police. Don't misunderstand, the safety of each individual officer is important. Police departments must have policies in place so as not to place officers in unnecessary danger. There are going to be times when the absolute only way for a police officer to protect their life, or the life of innocent bystanders, is to use lethal force, i.e. to kill someone. It's fair to point out that it's easy for me, who has never been in a situation where a decision whether or not to shoot another human being is necessary, to pass judgement. To be clear, I'm not referring to situation where someone is threatening the police or civilians with a gun (or even another weapon), but how many times have we heard about scenarios where a cop shot someone who was reaching for their drivers license, or made a move that the officer thought was aggressive? Times where the subject was unarmed? And the justification was that the officer "feared for their life"? And this action was completely within acceptable department policy? One can only conclude that the preferred tactic is to take preemptive action just in case the person that was stopped for a broken tail light, or an illegal air freshener was going to shoot the cop with that gun he didn't have. It's a weird twist on the plot of Minority Report, but instead of legal action being taken for a crime that the perpetrator was thinking about committing, lethal action is taken based on what the police officer was thinking about might happen. People who have done nothing worse than appearing threatening are shot without a second thought. 

Qualified immunity, the principle where these kind of killings are deemed justified if the officer followed department procedure, or subjectively feared for their life, has to end. We're finally starting to see police who kill people being held to account by the courts, but verdicts still depend upon whether the officer's action conformed to policy or whether the jury believed that there was a genuine fear on the part of the cop. The system needs to change so that the default position isn't to shoot someone "just in case". 

Both Sides

You hear it all the time, some bad behavior is identified and immediately "the other guys do it too" is offered up as a defense. In the world of politics, sometimes that's true, there are some things that both sides are guilty of. Politicians of all stripes seem to see getting re-elected and holding on to power as an end in itself. They all tend to reward their allies, often at the expense of those who do not vote for them. You can find inept politicians, you can find corrupt politicians, you can find just plain stupid politicians on both sides of the aisle. 

But...

In my view the modern Republican Party has gone beyond the pale. It is not arguable that nationwide, and even in many states, aggressive gerrymandering has resulted in Republicans being in a position of power that is not supported by their numbers. In many states the Congressional delegation and the state legislature is controlled by Republicans even when a majority of the votes went to Democrats. The situation is exacerbated by the way Senators are allocated, which in turn determines in part the makeup of the Electoral College. The Senate is split 50-50, even though the Democratic Senators represent 56.3% of the population. Two out of the last six presidential elections were won by a candidate who received fewer votes. Even President Biden's 2020 victory could have gone the other way if a few thousand votes in a handful of key states had gone the other way. 

Republican leadership is not stupid. They understand the population trends and see that the percentage of the electorate who can be counted on to vote for Republicans is steadily decreasing. So what do these non-stupid Republicans do? While they still retain legislative majorities they take action to reduce the influence of the Democratic Party. Since governors are elected by popular vote, gerrymandering does not affect them. In several states that elected Democratic governors in Republican-gerrymandered states, the Republican-majority legislature acted to limit the governor's powers before he took office. Despite there being every indication that the 2020 elections were conducted fairly and without any measurable fraud, dozens of Republican-dominated states changed election laws to make it more difficult for people to vote. In some cases, such as in Georgia, voting access was expanded in rural areas where a majority voted for Republicans while being restricted in urban areas that tended to vote Democratic. Not to mention the various actions by Republicans to overrule or delay petition drives approved by a majority of the people in the case of Medicaid expansion or cannabis legalization. 

Republican politicians in 2021 fall into two broad categories. There are the Machiavellian strategists, represented by Senate Minority Leader Mitch McConnell. McConnell has always played the long game, understanding that elections come and go, but if you can appoint enough federal judges, especially Supreme Court Justices, to the bench, you have built an effective firewall against progressive reforms. And by making effective use of Senate rules a smart leader can push through his own priorities when in the majority and obstruct by filibuster when in the minority. McConnell's strategy became apparent during President Obama's terms as president. His stated goal was to make Obama a one-term president. As we know, that failed, but he was able to put the brakes on virtually everything Obama tried to accomplish. The only reason the PPACA passed was that the Democrats had a 60 seat majority in the Senate. McConnell's main accomplishment was to prevent Obama from appointing federal judges, culminating in his refusal to consider Merrick Garland nomination to the Supreme Court. McConnell feigns a respect for Senate tradition and excoriates the Democrats for even talking about eliminating the filibuster, but he has been very clear that he will use the rules when it suits him, and change them when they don't. 

The second broad category includes the Trumpists like Matt Gaetz, Marjorie Green, Lauren Boebert, Gym Jordon, and Josh Hawley. This wing of the Republican Party makes no pretense of trying to legislate or govern, but are primarily performative. They're more short-term thinkers and have no concept of the long political game. When in the minority they mindlessly obstruct and when in the majority they mindless support whatever the leader wants. They spend more time making outrageous statements on social media, attacking their opponents and pandering to the worst instincts of the Republican base than doing the hard work of legislating. Included within this second group are politicians such as Ted Cruz or our own Pete Ricketts. This crowd may have been serious about their jobs at one time and been mainstream conservative Republicans but were seduced by the unquestioning, unwavering support and adulation that Trump received that they decided that their future as politicians depended on replicating that model. These were elected officials who at one time were concerned about roads, and property taxes and budgets, but now make daily pronouncements about "defending the second amendment", protecting the boarder and "stopping the steal". 

So, yes, you're going to see problems with the Democrats as well as with the Republicans. You're going to be able to point to things that the Democrats do and be horrified. Democrats may be the party that takes your vote for granted, but the Republicans are the party that effective wants to take your vote away. All the while blaming every problem on immigrants and Black Lives Matter (and Antifa, don't forget Antifa). 

Both sides are not the same. 

Cult of Personality

If you've read my social media posts over the last four years you've seen me refer to supporters of Former Guy as a cult. One of my reasons for that is the tendency of Trump supporters to believe anything that he said, even in the face of clear and unambiguous evidence that he was lying. Another reason is the way Losin' Don has been placed on a pedestal with loyalty to him having become the criteria for being a "real American" with no room for criticism. 

I was born during President Eisenhower's second term, and became aware of politics and who the president was during President Nixon's second term. Nixon, Ford, Carter, Reagan Bush, Clinton, Bush, and Obama were presidents who followed Nixon. Every one of them had their supporters and detractors, but not one of them was the focus of a cult of personality as Donnie One-Term has been. Of course during an election campaign partisan supporters could be quite passionate about their candidate, but once the election was over the occupant of the White House was something most Americans tended to not give much thought to. Sure, there were protests against policies, and concern about taxes and the war du jour, but I never got the impression that their supporters viewed Bush or Obama or Clinton as a national savior of some kind. In short, none of us really gave a shit about who the president was between elections. 

The election of Donnie Two-Scoops in 2016 changed the rules of the game. His own rampant narcissism was embraced by his supporters. His insistence on one-way loyalty was cheered by his base. His parade of lies was explained away by his cheerleaders. Cadet Bone Spurs, unlike previous presidents, spent a lot of time publicly attacking his political opponents, painting them as 'enemies of the people', sometimes explicitly as treasonous or as traitors. This inspired many of his opponents to respond in kind, inciting his supports to attack his detractors. Folks, this was not normal. 

Some things will never quite get back to normal, even though the Orange One has been defeated at the ballot box. But one thing that has gone back to normal is that the people who voted for the new president, don't give a shit about him, and don't care if he is mocked by the losing side. We care about his policies, we care about things that will affect us, we care about the issues that have long-term consequences. We don't see him as the American Savior. We don't see him as uniquely qualified, that "he alone can fix it", and we certainly don't see him as ordained by God to lead the nation. He's just the guy who got enough votes to get elected to do a tough job for the next four years. 

Residual Trumpists haven't gotten the message. 

The Trump loyalists spend their time mocking President Biden for irrelevancies, such as his stutter, a slip & fall on Air Force One steps, how his dogs are "un-presidential", continuing their program of "owning the libs" as if "the libs" cared. Biden voters aren't invested in Biden's personality the way Trump voters were tied to Trump's. 

If he loses the next election, we won't be storming the Capitol. 

 

Criticizing the President

It's been enjoyable to see the criticism lately of President Biden by people who voted for him. Criticism of his bombing in Syria, of his lukewarm support of a $15 minimum wage of his border policies, that he is too liberal, that he's not liberal enough. Not because I necessarily agree with the criticism, although I do agree with some of it, but because that what's supposed to happen. 

For the past four years we have been saddled with a President who equated even mild disagreement as disloyalty, or even treason. During President Obama's administration the seeds were sown by the Republicans presenting a united front in opposing everything that Obama did, but the Republicans reached new lows, not by supporting Trump's policies, which could be expected, but by elevating Trump to the status of demi-god. Trump, according to the new Republican orthodoxy, could do no wrong. Conservatism was redefined, not as a set of core principles: small government, low taxes, balanced budgets, reduced regulation, free trade, and a strong military, but an unquestioning fealty to Trump. 

So having a President who can take criticism without having a public meltdown is refreshing. It's also refreshing to hear regular people expecting the president to adhere to a set ideology, rather than warping the ideology to conform to whatever the president is tweeting that day. 

Thinking is Hard

"I'm going to fight for you"

"I'm not one of those cocktail party circuit politicians"

"I'm going to protect your Second Amendment"

"We need someone who represents real [fill in your state]"

"I'll never support socialism" 

What do all of those quotes have in common? They're all quotes from people running for public office. What does any of it mean? Just about nothing. So why do we keep hearing those kind of quotes? Because people don't really want to think, and any specifics about what kind of policies a candidate will support bores most voters. What we end up with is vague platitudes, irrelevant "brave" stances, and elected officials who have no idea how anything works. It's how in Nebraska we end up electing Republicans year after year because most Nebraskans are convinced that the Democrats are socialists and we're against socialism even though we're not sure what specific proposals are socialistic and why they're bad. It's not a whole lot better in "blue" states. And it's not just that voters don't want to think, it's candidates who don't understand how governing works. We get candidates who believe that because they ran a business they can be a successful governor or senator; or because they're a "typical" [fill in your state] then they'd be up for the challenge of legislating. This doesn't mean that someone who was a bartender or an optometrist, or a restaurateur, or even a CEO can't be an effective legislator or governor or president, just that being a CEO or a regular Joe are not qualifications in and of themselves. 

Naïve and inexperienced people getting elected don't end up changing the institution, they end up, due to their inexperience, being led by the old hands who have been there for decades. There is a process to lawmaking. I've said before that I'd support a requirement that elected officials have some experience. Senator shouldn't be an entry-level job (nor should the presidency for that matter). I don't like Senator Deb Fischer, but she at least had some experience in our state legislature before running for Senate (not that she's done anything but toe the party line since her election). Mike Johanns was a county board member, city councilman, Lincoln Mayor, and governor before he was a senator. George W Bush and Bill Clinton were governors before being elected president. You can disagree with their policies, but they knew the process, they understood how things worked. 

But these inexperienced people get elected, and because they were elected by people who didn't think about their choice, they're forced to continue to govern, using the term loosely, by demagoguery, or as I've said before, by urban legend. We get Nebraska legislators posturing about gun rights, even though there are no efforts in the Unicameral to restrict gun ownership. We get members of the House of Representatives and the Senate spending their time propping up insane conspiracy theories instead of attempting to solve our country's many problems. 

Maybe before the next election we ask the candidates to be a bit more specific than "I'll fight for you". 

Fact-Checking

Since the previous president of the United States had an arms-length relationship with the truth, self-described fact-checkers have kept very busy over the last five years. I concede that politicians often play fast and loose with the truth, exaggerating information that is beneficial to them and downplaying what goes against their agenda. Did I say "politicians", I should have said "people". Some things that a politician says are just a matter of opinion. An elected official could be pressing for a course of action where we won't know the results until we actually commit to it. Military involvement overseas is a good example of that. When we send our military into another country we don't really know what will happen. We don't know how the citizens of the other country will react, how neighboring countries will act or even how effective our military strategy will be. For other things, like economics, we have experts who have opinions based on the past, but not all the experts agree and unforeseen consequences often occur. Then there are statements that can easily be checked for veracity. If the president makes a statement about our trade imbalance, there are government statistics that can be referenced to verify the truth of that statement. If someone accuses a candidate of saying something, a video of the event at which it allegedly occurred can probably be found. Statements of fact are rather easily checked. Most of us, however, have days that are taken up by work, home life, family, community, etc and don't have the time or the resources to confirm everything a politician says. So we have people who specialize in fact-checking. 

One of the first dedicated fact-checking sites that I became aware of was Snopes.com. It started out as a site that looked into the so-called urban legends, but eventually started fact-checking other things, including statements by and accusations against, politicians. Other sites, such as Politifact, specialized in politics. Daniel Dale, now with CNN, dedicated the last four years to fact-checking virtually every statement made by the previous president. Unsurprisingly, a president who usurped the phrase "fake news", soon began to undermine his supporters' faith in independent fact-checkers, including them under his "fake news" umbrella. I'll say that it is important to consider the bias of a news organization and of a fact-checker, but just because a fact-checker debunks your pet conspiracy theory doesn't mean that it's unreliable. 

A reliable fact checker doesn't merely deny the in-dispute information, he cites sources, written, as well as audio and video records. These sources can then be verified by anyone who is interested in the truth of the matter. An example is the Electoral College margin of victory by the previous president in 2016. He repeatedly claimed that it was "historic", "a landslide", the "greatest margin of victory" and other superlatives. The New York Times ran a story showing that of 50 elections it was the 45th most decisive, (I may not have the exact numbers) not the "greatest". The New York Times cited their sources, which verified their conclusions. I decided to go one step further and found other sources, all of which confirmed the Times' fact-checking. A simple assertion is not fact-checking. An unsupported statement is not a debunking. Good fact-checkers will provide enough information for you to see how they arrived at their conclusions.