Friday, November 25, 2016

17 days later: Some reasons for hope and concern

The day after the recent presidential election, I wrote about what the outcome felt like to me and others who are close to me. Now another week and a half (almost) have passed, and I thought I would share my current thoughts.

Shortly after the election Josh Sabey, a young (and exceptionally thoughtful) relative of mine, wrote about "The Dangers of Worst-Case Scenario Thinking about Trump." He argues that "our predisposition towards worst-case scenario thinking [may get] in the way of a more positive and optimistic reality." And he points to Oskar Schindler as "a womanizer and egoist" who nevertheless ended up performing heroic acts, thus showing that "Morally suspect people have done great things before when they have obtained, by whatever coincidence ordains it, remarkable circumstances and great power."

I responded to Josh's post as follows:
Thank you. This is wise and well expressed. I'm grateful for your generous and hopeful attitude. My greatest hope for every human being, including myself, is that we can change--and I believe we can. But of course when choosing a president, we need to take into account a candidate’s current character as well as his or her potential for change. And we should hope that the gap between the two is not too wide. 
I am concerned about a Trump presidency in part because of his character, but also because he is exceptionally underqualified, ill informed, and troubling in his approach to many issues. (And his style continues to be divisive.) But I have never felt he is as dangerous as the great dictators of the twentieth century, or even the second-rate ones of the past and present whose temperament and style resemble his. For one thing, though his instincts are authoritarian, I don't believe he has any malicious designs aiming at dictatorial rule.
In addition, we have a wonderful system of government (along with a diverse culture) that offers many protections. Though having all branches of the national government in the hands of one party presents some concerns, the fact is that many Republican leaders are much more sensible than Trump. The Senate is evenly enough divided that, especially with a sizable group of Republican Senators who are moderate on some issues (for instance, immigration), it’s unlikely any initiatives that are terribly destructive will make it through the process. 
Nevertheless, given some of what has happened since the election, I believe we have reasons for both hope and concern. Since the election took place less than three weeks ago, it’s too early to tell what a Trump presidency will be like. But I believe we've already seen both some positive and some negative signs.

Here, according to my way of thinking, are some of those positives and negatives:

Positive: Trump has somewhat moderated his tone and is no longer using some of the most incendiary language used during the campaign (for instance, about jailing his opponent).

Negative: He continues to get into undignified twitter battles, often on subjects he would do much better to ignore.

Positive: I’m pleased with some of the people he’s invited or considered inviting into his administration: for instance, Nikki Haley and (possibly) Mitt Romney. 

Negative: Romney’s chances aren’t looking good at the moment. Trump’s campaign manager tweeted about the strong negative reaction (i.e., intense anger) from “Trump’s base” about Romney. I'm concerned that Trump's base--despite the fact that they are a small portion of the entire voting population--will keep Trump from moving in as moderate and inclusive direction as he might, and as he should, given the closeness of the election and the fact that he actually lost the popular vote. Furthermore, the idea of someone like Rudy Giuliani as Secretary of State--or in fact as anything of importance in the administration--depresses me.

Another negative: On a related note, some of Trump’s choices are, in my opinion, particularly appalling: Steve Bannon (chosen as “chief strategist”: a promoter of extreme and tabloid style material who has a harsh, insulting, incendiary style, who has gone after Muslims and Mormons, among others, and who says he believes “darkness is good” because it’s powerful) and Michael Flynn (chosen as national security adviser: known for his anti-Islamic rhetoric and his promotion of conspiracy theories, including some that have been proven false).

Steve Bannon (left); Nikki Haley (right)

Positive: Despite the fact that Trump himself doesn’t have much of a constitutional philosophy or much serious knowledge about the Constitution, some of his potential Supreme Court picks could be reasonably good. (For instance, I’m intrigued by the possibility of Bill Pryor.) There are some issues on which someone like Pryor might helpfully promote what I think are important constitutional protections and principles. 

Bill Pryor (see; known to have quoted "Love Shack" in an opinion)

Negative: On the other hand, I am not a strict “originalist” in constitutional interpretation (I don’t think it’s entirely practical or reasonable, for reasons I could detail--see note 1 below), and so I think it would be a mistake to shift the Supreme Court heavily in an “originalist” or severely conservative direction. I think there’s much to be said for having highly qualified middle-of-the-road justices (such as Merrick Garland). And there are some issues on which a heavily conservative Supreme Court would make decisions I think are mistaken (e.g., on gun control, immigration, voting rights, campaign financing, the rights of the accused, protections for non-Christian religions, etc.).

(By the way, though Trump might be persuaded to appoint "originalist" judges, there are reasons for concern even from an "originalist" point of view. For a critical commentary on Trump's constitutional views by "originalists," see )

Positive (sort of): Trump has already moderated his positions on some issues, for instance, immigration (but not enough, in my opinion), Obamacare, and same-sex marriage (he says he has no problem with it). I suspect he’s a pragmatist (which is a good thing) and will moderate his views when he sees that some of his positions and promises are simply unworkable. But I see his changing of positions as problematic too (for instance, on same-sex marriage) because it suggests that on many issues, including moral ones, his lack of a solid, principled stance reflects a lack of clear, deeply held moral views.

Positive (more so): Despite promising horrific responses to terrorists and their families, including torture, Trump has said he’s been “surprised” to learn (from General Mattis, a possible Defense Secretary) that torture is not really effective. This suggests to me that, if Trump gets some reasonable people in the right positions, he could be open to persuasion and learning.

Another positive: Despite having said things during the campaign that were frightening or deeply concerning to our allies and others around the world, Trump and his associates have made some positive efforts to reassure other nations, for instance, indicating that we won't abandon NATO.

Negative: On the other hand, Trump has already made the first of what may be many foreign relations gaffes, suggesting that Nigel Farange should be appointed British ambassador to the US. (For one thing, there is already an ambassador; for another, a US President does not recommend the person another nation should send as an ambassador; and for yet another, Farange is a right-wing, anti-immigration politician whose status and views should not be elevated). On a similar, troubling note, Trump has courted or been courted by several right-wing, anti-immigration European politicians, such as Marion LePen, whose hostility to immigrants, refugees, and (in some cases) non-Caucasians in general represent a dangerous trend toward exclusion and nationalist divisiveness.

Potential positive: Because both houses of Congress are controlled by Republicans, Trump may be able to accomplish some things with much more cooperation from Congress than President Obama has had, including some good and necessary things, such as infrastructure improvement and (I hope) sentencing and prison reform.

Potential negative: On the other hand, he may also be able to do some things that I think are unfortunate, even possibly disastrous: for instance, tax cuts that could sharply deepen the national debt or require cutting important programs, and financial deregulation that could set the stage for another economic collapse like that of 2008. (See,)

Negative: Trump’s election has unleashed some negatives--anti-Muslim rhetoric and even violence, white nationalists expressing themselves in exuberant and mock neo-Nazi style, harassment of Hispanic kids and others in elementary schools (the morning after the election, some kids in Utah were told by their schoolmates, “Now you have to go back to Mexico”), and of course public expressions of anger by some who oppose Trump. Trump can’t be personally blamed for all of this. But his rhetoric and some of his ideas helped set the stage for it.

Positive: Trump has condemned or disavowed some of the worst of these negatives and has called for unity. It remains to be seen how effectively he’ll be able to calm fears and communicate a sense of inclusiveness.

Where do we go from here?

Whatever a Trump presidency ends up looking like, there’s one negative that is already in place and that I believe we need to work very hard to reverse. Trump apparently proved that horribly negative campaigning--far more negative than anything we’ve seen since the 1800s--can be successful: campaigning that includes crazy accusations (like those against Ted Cruz’s father); constant and often deeply demeaning insults (Trump against everybody else); mockery or verbal attacks against women, ethnic and religious minorities, and other vulnerable groups; encouragement of violence (for instance, urging people to beat up protesters at his rallies); threats of retaliation against judges and opponents; accusations that the whole system is rigged, etc. We’ve got to do whatever we can to make sure this does not become the “new normal.” 

Besides degrading the quality of our public life, this kind of campaigning is deeply divisive. It pits portions of our nation against other portions. Even if Trump avoids this kind of rhetoric as president, it would clearly not be good for our nation to spend 18 months every four years in this kind of negative, divisive mode (or even more than 18 months if we count the midterm elections). 

Somehow we’ve got to practice and encourage a more positive, thoughtful, inclusive approach. I think we should show that we favor such an approach by both precept and example--calling on all, including Trump, to take such an approach and also taking it ourselves. We need to be vigilant--expressing opposition to actions or proposals that we believe to be wrong--but being open minded and respectful and doing our best to give Trump a chance to be successful. I believe it also means praying that any good he does will be enhanced and any negative he does or proposes will be minimized or thwarted. We also need to work to help turn those prayers into realities.

[For another take on where to go from here, see this, from my brilliant and good-hearted son: ]

Note 1: On "originalism": This is the view that the wording of the US Constitution should be interpreted according to the original intention or understanding of those who wrote it. I am sympathetic with this approach and certainly do not agree with those who believe they can interpret the Constitution to mean whatever they think it ought to mean, based purely on their personal views or what they believe to be prevailing contemporary thought. I believe that great respect and great weight should be given to the wording of the Constitution and that efforts to understand how its words would have been understood when it was first produced and adopted are among the ways of determining what the words "mean." But I see several weaknesses in a strictly "originalist" approach:

(1) It is impossible to determine with certainty the intention of any writer. Though other things the writer has said, along with evidence of standard usage at the time of writing, may be helpful, in general the words a writer has written need to stand on their own. They "mean" whatever they can reasonably be construed to mean--and there are reasons that anything the writer claims to the contrary should be discounted as either disingenuous, self-deceived, or simply mistaken.

(2) Attempts to determine what words "meant" in a particular time and location are also fraught with uncertainty. They are based on the best available evidence (which is always limited) and on personal judgment about the meaning of the evidence, which always to some extent amounts to an educated guess.

(3) Especially in legal and political documents, there is often an attempt at deliberate ambiguity or openness to interpretation. This is sometimes the result of compromise or a desire to give general or abstract express to ideas that can be applied in various circumstances. It is important to remember that the Constitution was a group project, the result of a good deal of discussion and compromise, and that its words may have been interpreted in somewhat different ways by the very people who constructed it. Therefore, it makes sense to look for evidence of general principles in the wording of the Constitution, as well as what we think we can identify as precise denotative meanings.

(4) There is a certain degree of indeterminacy in any use of human language. Words have histories and carry connotations--or perhaps regions of connotation--that will vary in their boundaries or emphasis from one writer or reader to another. In fact, those who use words, even with precision, will not be consciously aware of everything the words carry with them or of all their possibilities of meaning. Furthermore, words always have to be understood in connection and contrast with other words--and those other words also have to be understood in connection and contrast with other words, so that ultimately, if words meaning anything beyond those relations with other words, they have to relate to something that cannot itself be put into words. Another way to put this is that language is always part of a world of human relationships and activities and experiences and has meaning only by being part of that world, which is infinitely, elusively various and subject to constant change. 

(5) Some of the meanings we think we may be able to determine as "original" may be difficult or impossible to apply in current circumstances, or may contradict other well-established constitutional principles or currently acceptable standards of humane behavior. That is one reason that an "originalist" approach must, at the very least, be supplemented by other approaches--for instance, the common law tradition, which looks to custom, precedent, and the history of previous interpretation in determining how to apply laws. The Supreme Court in particular has long given great weight to precedent, and I believe there are many reasons it should.

Besides the fact that the "original" meaning is often hard to determine or already fraught with ambiguity, changing circumstances may make it difficult to apply in any sensible way what the original writers may have intended. For example, according to the Oxford English Dictionary, the word "arms" (even when not used abstractly or figuratively) has never been restricted in its meaning to "firearms"; one of its traditional legal meanings is "Objects of any kind used by one person to assault or attack another." Should the second-amendment "right to bear arms" therefore be taken to prohibit any restrictions of any kind on the possession of any object "used by one person to assault or attack another"? Even if we limit "arms" to mean "firearms," would it be unconstitutional to restrict the possession or use of nuclear-powered rifles (assuming someone could invent such a device)? The further we push the possible meaning of the word "arms," the more we may want to take into account the accompanying phrase, "a well regulated militia," which itself refers to a concept that may have to be adjusted to make sense in today's world.

Another example: The 14th Amendment includes these words: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." What does the "equal protection" clause encompass? Does it encompass only the specific protections of the law that those involved in passing the amendment (or others of their time and location) would have thought of? Or does it encompass any protections of the law that are now available or that might reasonably be interpreted as being referred to by the very broad phrasing "equal protection of the laws"? For instance, is racial profiling prohibited by the equal protection clause? Can any state (or agency of a state) target an individual for questioning based on race or religion? How about electronic surveillance--something that didn't exist in the 1860s? Can such surveillance be based on race or religion and still meet the standard of "equal protection of the laws"? 

Yet another one: Much of the meaning of various provisions in the Constitution depends on the meaning of the words "people," "persons," and "citizens." The Constitution now defines a "citizen" as any person "born or naturalized in the United States, and subject to the jurisdiction thereof." "People," though not defined explicitly in the document itself, certainly refers to the human inhabitants of a state or of the United States. But there has been some difference of view over the years as to who fully counts as a human being, and it might be a serious mistake to try to base those portions of the Constitution using the word "people" as meaning anything other than what we would mean by "human inhabitants" now. "Person" in the Constitution apparently refers to an individual human being--but for purposes of the census required by the Constitution has never been taken to include children before birth. Section 2 of Article 1 indicates that "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons"--these "other Persons" clearly being slaves. This has now been modified by the 14th Amendment to "the whole number of persons of each state, excluding Indians not taxed." I'm not sure how "excluding Indians not taxed" is now understood, but apart from anyone fitting that category, the "whole number" now includes everyone else, free or not. Does that mean it includes felons or former felons who are not allowed (in some states) to vote? Presumably, since (even if they are considered to be experiencing "involuntary servitude"), they are "persons." 

But it's hard to know how to interpret another portion of the 14th Amendment: "But when the right to vote at any election for [various offices listed] is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." If I understand the wording, it would indicate that male felons (and rebels) age 21 and above would still count for purposes of representation in Congress (as determined by census) but that any others restricted from voting for any other reason should not be counted for purposes of representation. Since the right to vote has now been extended by the 19th Amendment to women and by the 26th Amendment to any citizen 18 years old and above, does that mean denying or abridging the right to vote of any woman or any citizen age 18 through 20 (whether for crime or for another reason) would not affect the "number of persons" considered in determining a state's representation in Congress? Or should the 19th and 26th Amendments be taken as implying a change to the meaning of the 14th? And how far can this concept of "implying" be taken.

In any case, there's room for interpretation in considering both the strict meaning of the text and the original intent of the writers (and the original understanding of the readers for whom the words were intended).

One more: The 15th Amendment indicates that "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Since the 13th Amendment indicates that "involuntary servitude" can be imposed "as a punishment for crime whereof the party shall have been duly convicted," does the wording of the 15th Amendment imply that those who have been released from imprisonment for committing a crime must not be denied the right to vote simply because of "previous condition of servitude"? Or does it depend on whether imprisonment (which involves submitting to involuntary conditions) is counted as "servitude"? Or can conviction alone be taken as resulting in restrictions on voting rights that the punishment imposed by the conviction does not? (The 14th Amendment implies that "rebellion" or "crime" could result in voting restrictions. Do restrictions based on committing a crime still exist after the punishment for the crime has come to an end.) What answers would "originalism" or "strict constructionism" suggest? If the questions I've posed have actually been considered by the courts, how have they been answered and on what grounds?