A Constitutional Moment
*Our supplement to this week’s podcast, A Constitutional Chaser, is an essay from the co-host, Constitutional Attorney Tom Eastmond. It explores his thoughts on our current constitutional moment in American history.
By Tom Eastmond
It’s time to put away the harsh rhetoric. To lower the temperature. To see each other again. To listen to each other again. To make progress, we must stop treating our opponents as our enemy. We are not enemies. We are Americans. — Joe Biden
Lovely rhetoric. Rhetoric isn’t nothing. If “America is an idea,” not a tribe of “blood and soil” — if we are, as St. Augustine defined a nation, a community “united by the common objects of our love” — then one essential qualification of an American president must be the ability to articulate what those objects are.
And yet: “Watch his hips, not his feet,” as they say in football. “A man can smile, and smile, and be a villain.” Beautiful words that acts don’t match mock both the beautiful truths whose power the villain steals, and the people expected to go along with the charade.
I devoutly want Americans, even when we disagree profoundly, to remember “the mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone,” and continue as fellow countrymen. We’ve been through a lot together and accomplished so much. Like Washington, I believe our independence, founding and survival were literally providential — more than we had any right to expect.
Over the years I was supposed to have spent growing up, I’ve wasted way too much time playing “world-builder” computer games, from Sid Meier’s original, addicting “Civilization” to “Europa Universalis.”
One of the features of those games, where you rule and develop a civilization, is typically some measure of social cohesion. Ignore enough complaints from your sim-citizens for too long, and bad things happen. Your tax collections fall, or your policing costs rise. Even if the citizens don’t rebel outright, you lose the willing cooperation of people who feel that their government is truly theirs, leaving you with only what compliance you can extract by force.
In a computer game, it doesn’t matter whether you think your sim-citizens’ grievances are morally right or wrong. Let the “cohesion” bar get too red, and you’ve got trouble. You can either assign more resources to suppress unrest, or you can throw the restive sims a bone and remove some of their grievances. At the very least, you avoid antagonizing them even more.
I’ve watched commentators, in the aftermath of the 2020 election, express outrage that 70 million Americans could have been so shockingly evil as to vote for Donald Trump and ask “what can be done” about them. They talk of “Enemies Lists,” blackballing Trump’s supporters from future employment and “polite” society. (One gets the sense that for some people, the only thing wrong with “McCarthyism” was being aimed at the wrong side.)
You can lower the temperature and call for unity — or you can talk vengeance. Pick one.
Understand, if you try the former, you are already facing an uphill climb. Your opponents will not forget how some of the people demanding “unity” spent the last four years doing the exact opposite of what they ask now. Having persuaded themselves that Donald Trump presented an unprecedented, extraordinary threat to democracy itself, they acted accordingly. While throwing themselves into massive resistance of his presidency, their hatred of the man inevitably bled over onto his deplorable “scum of the earth” supporters — the people they are now piously urging to “lower the temperature” and join hands in friendship, unity and concord.
I agree: “We must not be enemies.” The costs of that would be horrific. But understand: This is a big ask. They are asking their opponents to be better than they were — while still reserving the right to call them trash.
Well, maybe they really are awful. Maybe they’re not just mainlining moral superiority –addicting, isn’t it? — like it’s Gazzari’s on Sunset circa 1982. Either way, though, if they really believe their own rhetoric — if they truly seek unity, not submission — words alone aren’t going to do it. Especially if other words, and other acts, send other signals.
And that brings us to the deplorables’ “dangerous” talk about stolen elections, and how to respond to it.
If someone is honest about wanting to “see each other again…listen to each other again,” he needs to step back, take a deep breath, and put himself in the other side’s shoes.
They watched you reject the “stolen” hung-chad election of 2000, pronouncing George W. Bush “selected, not elected.”
In 2004, they saw conspiracy theories about Diebold voting machines being hacked by nefarious Republican operatives turned into Emmy-nominated documentaries. Policy wonks with decent memories remembered that Democratic members of Congress, for the first time since the contested Hayes-Tilden election of 1876, formally objected to certification of Ohio’s decisive electoral votes against John Kerry. They heard Senator Kerry declare that “the widespread irregularities make it impossible to know for certain that the outcome reflected the will of the voters.”
They saw 2/3 of Democrats (according to a poll by The Economist magazine) say they believed Russia didn’t just spread disinformation during the 2016 election, but actually tampered with the vote count — something for which there was never any evidence. They saw the Speaker of the House herself declare that the 2016 election had been “hijacked.” They heard former President Jimmy Carter call Donald Trump’s presidency “illegitimate.” They saw calls for the Electoral College to ignore the voters’ will and install Hillary Clinton instead.
That is to say: The last time a Democratic presidential campaign unambiguously accepted the voters’ verdict as legitimate, Michael Dukakis was riding around in a tank with a funny helmet on, Guns & Roses was fresh, and your humble correspondent was wearing ridiculous orange, fluorescent volleyball shorts.
They watched Stacey Abrams reject her defeat for Georgia’s governorship as “rigged,” to thunderous Democratic applause. They’ve watched belief in “voter suppression” harden into a progressive article of faith — despite hearing after Congressional hearing where nobody can ever seem to find a witness whose vote was actually suppressed.
They heard conspiracy theories about postal service being intentionally slowed to prevent a “blue wave” of mail votes, with Joe Biden himself warning that President Trump might use the Covid-19 epidemic to cancel the election altogether. They heard Hillary Clinton declare that Joe Biden “should not concede under any circumstances.” They saw big-league pundits and former senior officials gaming out post-election scenarios where the secession of liberal states, in the event of a Trump victory, was on the table. They watched downtowns board fearfully up against the expected reaction to a Trump election victory.
And now, they’re hearing you accuse them of “undermining faith in democracy” because they see things about the 2020 election — statistical improbabilities, “computer glitches,” unusually high turnouts in key precincts, sudden surges of Biden votes — they think look fishy.
Let truth and falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?
Now, there may be innocent explanations for each mackerel-scented quirk. Some rumors have already been refuted, and some apparent oddities have been accounted for.
But I can’t help but see parallels between the response to suspicions of election fraud, and how religious institutions sometimes react when skepticism cuts too close to sacred bones.
I was raised, and remain, Mormon — a member of the Church of Jesus Christ of Latter-day Saints. My church’s claim to be the original New Testament church, restored by miraculous means during America’s nineteenth-century Second Great Awakening, may seem fantastical to outsiders. Indeed, the church’s founder, Joseph Smith, remarked that if his prophetic vision hadn’t happened to him, he wouldn’t have believed it himself. In recent years, with the Internet bringing encyclopedic information about everything to everyone’s hip pocket, believers had to grapple with tough challenges to the church’s historical foundations.
At times, there has been pressure to simply avoid these questions: “Do not spread disease germs,” as one concerned churchman once cautioned. “Some things are true that are not very useful.”
This is by no means just a “Mormon thing,” or even a religious one. Every ideology has its sacred cows. I remember how, after I’d asked a question about a controversial subject to a visiting lecturer at USC Law School, one of my professors told me that some of his colleagues believed that certain subjects were better left unstudied.
We must reject that approach. Obscurantism never works. For every person from whom you successfully hide unhelpful facts, two people conclude what you’re hiding must be serious. And even if it did work, it would not be worth the price. The foundation for any worthwhile morality must be truth. “If we have the truth,” the namesake of Brigham Young University’s law school declared, “it cannot be harmed by examination. If we have not truth, it ought to be harmed.” Or John Milton: “Let [Truth] and falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”
Who indeed? And that make me wonder. If claims of election fraud really are false, laughable, totally lacking in evidence — why these extraordinary efforts to suppress them? If lawsuits alleging election irregularities and fraud are doomed to fail — what need is there to harass the lawyers who file them, pressure their clients to fire them, and even try to get them disbarred? Especially when those ruthless tactics create such dissonance with the calls for “unity”?
People claim to revere the institutions of American law and democracy and profess rage that “faith” in them is being questioned. And yet they seem to have little faith in those institutions themselves. If the judicial system isn’t capable of seeing off meritless claims without them “steadying the ark” with blacklists, doxxing, harassment, and other vigilante tactics, after all, how reliable can it be?
Do they really fear that the same institutions they demand “faith” in aren’t capable of finding and adjudicating the truth?
Or is the fear that maybe they can?
The chorus of “there is no evidence of widespread voter fraud” would be more accurately phrased as “there is little or no direct evidence.” The concept of “evidence,” in the law, is a broad one. A typical legal definition of “relevant evidence” covers information with “any tendency in reason to prove or disprove any disputed fact.” Evidence can be either direct or indirect, with the latter sometimes referred to as “circumstantial evidence.”
All of the things that President Trump’s supporters find suspicious about the 2020 election may have innocent explanations. It would be an extraordinary coincidence, after all, if there were never any extraordinary coincidences. By themselves, odd coincidences might not be enough to rise to the elevated “clear and convincing” standard that governs election contests. But they are sufficient indirect evidence that to declare “there is no evidence” is not accurate.
Several years ago, I helped litigate a public corruption case where a Southern California city had unlawfully diverted tens of millions of dollars of developer fees to its own use. The city’s senior management (the city manager, police chief, several department heads) all wound up pleading guilty to felonies. It took more than two years, dozens of depositions, thousands upon thousands of pages of grueling document review, and a top-notch forensic accounting firm. Robert Mueller spent over $40 million and two years investigating “Russian collusion” in the 2016 election. Cheaters don’t do their deceit in daylight. It takes time to get to the bottom of these things.
That said: Effective lawyers, as a rule, don’t allege more than they can prove. Just as suppressing talk about election fraud only guarantees more suspicion, wild claims about stolen “landslides,” running beyond what even the most favorable interpretation of your facts can show tend to discredit your whole cause. “The wise man…proportions his beliefs to the evidence.” People who boast about “releasing the Kraken” better be able to deliver more than an appetizer plate of calamari rings.
And even if they can — the unpleasant truth is that the slow-grinding wheels of the legal system don’t mesh well with the Constitution’s fixed, weeks-long presidential succession schedule. If there really was decisive cheating — that seems unlikely to be decisively proven and legally adjudicated before the Electoral College convenes to make the result official.
When Al Gore challenged the Florida election, I believed he was setting a dangerous precedent. Regardless of whether a challenge to the legitimacy of an election may ultimately prove well-founded, the challenge itself does damage. President Trump’s challenge — yet another escalation in a long tit-for-tat — is no exception. If there really was decisive election fraud, that would be a catastrophic attack on our republican institutions — one which, if proven, cannot be ignored, left uncorrected, or allowed to happen again. And yet it will almost certainly not be proven before a new Presidency, according to the Constitution, is scheduled to begin. The ordinary legal machinery for uncovering fraud is just not well suited to settle the question in time. And left unsettled, divisions and anger will fester.
Let’s get back to those sim-citizens in the computer game with the “cohesion” bar flashing red.
Whether or not we think widespread election fraud is a serious possibility, if we’re serious about national unity, the worst possible thing would be to make things worse. President Trump’s opponents may think their own past claims about “stolen” “hijacked” elections were perfectly reasonable, whereas their opponents’ are dangerous paranoid conspiracy theories. But the other side isn’t likely to be impressed by self-justifying split hairs. If what’s fine for the blue goose isn’t good for the red gander, the gander’s going to squawk.
The perception that leftists can question the fairness of an election, while that is forbidden to their opponents, must be seen in the broader context of what’s been called the Woke Supremacy — the increased willingness of progressives, in recent years, to use their cultural power to suppress competing ideas. Having obtained “fire superiority,” to borrow a military metaphor, over key cultural centers of gravity, today’s postliberal progressives have taken Thucydides’ ruthless Athenians at Melos as their model: “The strong do what they can and the weak suffer what they must.”
The attitude is “We don’t care about your nonsense. We don’t have to care. We have vast majorities of the civil service, the press, academia, and mass entertainment on our side.”
With apologies to Hilaire Belloc: “Whatever happens, we have got / The Cultural Heights, and they have not.”
Trepidation that we are slouching toward a Chinese-style “social credit” system, where dissenters are socially excommunicated and locked out of the mainstream economy, may be overblown… but surely less so than a decade ago. That is the dry tinder into which progressives, with their talk of blacklists and “truth and reconciliation commissions,” are tossing a highway flare.
People who lack the institutional and cultural tools their opponents use against them may accept that asymmetry of power — or they may not. History is full of terrible miscalculations where people failed to consider whether or how their targets might hit back. As Britain’s World War II Air Marshal Sir Arthur “Boom Boom Bounce-the-Rubble” Harris once tartly put it, “The Nazis entered this war under the rather childish delusion that they were going to bomb everyone else, and nobody was going to bomb them.”
War is simply a continuation of political intercourse, with the addition of other means.
Betting that your enemies will fight on ground of your choosing is always unwise.
A friend recently remarked that when American soldiers patrolled occupied Baghdad, in the aftermath of the Second Iraq War, they could always tell when they were passing from a Sunni neighborhood to a Shi’ite one: The poverty level visibly increased. There was no mistaking which faction the regime favored, and whom the regime despised.
America is not supposed to be like that. We are supposed to prosper based on our talents, our drive and our efforts, not who we are or whether we toe the party line. We have often fallen short of that ideal — but we have rarely outright denied it is the ideal we should strive for. Nor have we usually taken being treated contrary to it lying down.
The German military theorist Carl von Clausewitz famously maintained “war is simply a continuation of political intercourse, with the addition of other means.” For most of human history, the reverse has been equally true: Politics is simply the continuation of war, with its most explosive means only temporarily suspended. “Punish your enemies; reward your friends.” What most Americans take for granted — a society where people with even the fiercest disagreements coexist peacefully under the equal rule of law — is not at all the human norm.
In 2017, the rationalist writer Scott Alexander wrote an essay in his “Slate Star Codex” blog entitled “Against Murderism.” In it, he described liberal democracy as a miraculous piece of “alien machinery”:
Liberalism is a technology for preventing civil war. It was forged in the fires of Hell — the horrors of the endless seventeenth century religious wars. For a hundred years, Europe tore itself apart in some of the most brutal ways imaginable — until finally, from the burning wreckage, we drew forth this amazing piece of alien machinery. A machine that, when tuned just right, let people live together peacefully…
It is indeed an amazing piece of machinery our founders built us, and their children and our grandparents and parents fine-tuned.
In the 1990 film “The Hunt for Red October,” a Soviet KGB officer is in the defecting Russian submarine’s cavernous missile room, trying to ignite a rocket to incinerate the ship. The magnificent, late Sean Connery’s character warns Alec Baldwin’s Jack Ryan to “be careful what you shoot at. Some things in here don’t react well to bullets.”
Peering around a missile tube, Ryan is met with a wild hail of gunshots. Ducking, he mutters “I have to be careful what I shoot at?”
Yes. We do. Even if others don’t. Unlike the far Left, we don’t call America irredeemable and systemically rotten from her very beginning. We don’t want to incinerate the ship so a newer, woker one can be launched in its place. We want to keep scraping barnacles and installing upgrades. Because the hull and the engines are fundamentally good.
Still: Asymmetry is unsustainable. When one side’s claims about the illegitimacy of elections they lose are privileged as reasonable and just, but those claims when things go the other way are paranoid conspiracy theories that must be suppressed by any means necessary — sooner or later, something will give.
Whether or not you agree with them, tens of millions of Americans are just as skeptical about the validity of this year’s election as tens of millions of Americans of other stripes were about the last one. That skepticism is itself a problem. Yes, there are some conspiracy-minded types who literally no quantum of evidence can convince. This is a country, after all, where astonishing numbers of us believe aliens built the Pyramids, that President Kennedy’s assassin was not just a deranged communist fanboy, or that AIDS was a genocidal government plot. But enough of us are honest and rational to matter. A full, open, honest investigation of this election — a full Mueller-style “colonoscopy” at least as aggressive as the “Russian collusion” hunt — is the absolute bare minimum necessary.
Trust the process you insist others trust. Election litigation is not sedition, and concern — well-founded or not — about a possible return of old-school Tammany Hall election shenanigans is not heresy deserving the Inquisition and the stake. If the 2020 really is no more seriously compromised than usual, that truth will come out. To borrow from a wise teacher, “Refrain from these men, and leave them alone: for if this counsel, or this work be of men, it will come to naught.” Enemies lists and extrajudicial vigilantes add nothing useful and escalate the erosion of “norms” beyond what their targets are targeted for.
Politics cannot be allowed to revert to its natural state — to a continuation of war by other means. Our Constitution was built for this moment and has carried us through darker ones. If there was no significant election fraud, our institutions cannot be harmed by investigation. Truth and the Constitution will prevail, if we let them and restrain the impulse to make things worse.
In the Hold My Drink Podcast — navigating the news with a chaser of civility — Episode 11, A Constitutional Chaser — Tom Eastmond, a Constitutional Attorney currently litigating a major First Amendment case, gives us some insight into the Constitution. He explains the controversial doctrine of qualified immunity and how it can give a “free pass” to officials to violate the Constitution, proposes solutions to the social media and free speech dilemma, shares his thoughts on the Trump legacy, and offers a definition of authoritarianism. Whew… what a conversation. All discussed with a chaser of civility, of course, and a root beer.
Hold My Drink welcomes all people with all kinds of beverages to join us as we discuss what it takes to imagine a new American identity, together.
Tom’s Readings & Resources:
Against Murderism, Scott Alexander
The Cantillon Effect: Why Wall Street Gets a Bailout and You Don’t, Matt Stoller
Stop Being Shocked, Tablet Magazine, Bari Weiss
Stories and Data: Reflections on race, riots, and police, City Journal, Coleman Hughes
Jen’s Readings & Resources:
The Made-up Conspiracy, Persuasion, Jonathan Rauch
Live not by Lies, Orthodoxy Today, Alexander Solzhenitsyn
The Woke Make Biden’s “Moderation” Irrelevant, New Discourses, James Lindsay
An Immigrant’s American Dream, Spiked, Jason D. Hill
Tom Eastmond is a Commercial and Constitutional Attorney in Orange County, California. He is currently litigating a major First Amendment case before the Ninth Circuit Court of Appeals.
He is also a co-founder of Dreamstar Lines, a venture to re-imagine overnight “Pullman-style” passenger train travel between major cities. He and his wife Danielle have raised or are raising seven children.
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