The Post-election Interregnum

Once all the frivolous Republican litigation challenging Joe Biden’s victory in the 2020 presidential election is resolved, Donald Trump will no longer have any incentive to please or help anyone but himself. He will use his last opportunity to settle scores, to further enrich himself and his family, and to lash out at God knows who or what out of sheer malevolence. 

Do not expect Trump to help the incoming administration or to retire quietly. He will issue pardons to unworthy supporters, perhaps even to himself. (Pardoning himself for past and future crimes will be a great temptation for the president. Such a move would be challenged, of course, and it has the drawback of suggesting that he might have done something wrong, an admission Trump would be loath to make.) Expect more increasingly outrageous executive orders from the Oval Office. Thanksgiving and Christmas will give the president excuses to take additional vacation days and to use time on the links to temporarily alleviate his frustration and anger. The effect will be fleeting.

Alas, Trump will remain bitter, uncomprehending, and eager to identify people and circumstances to blame for his misfortune. This will be a painful time for the American people and perhaps a dangerous time as well.

But we will somehow muddle through with the hope for better times and a strengthened democracy beginning on January 20. As Biden assembles his cabinet, a return to reasonable governance will seem a genuine possibility. Let us hope that Donald Trump does not find a way to derail that possibility.

A Note on Blog Comments

 I need to apologize to a few people who left comments on this blog but who never saw their comments approved. Somewhere along the line, a change that Google made to Blogger meant that I was no longer being informed of comments requiring moderation. I have now fixed that (I think), so that moderation should no longer take forever.

I will not offer an apology to those who left comments that seemed oblivious to the content of the post on which they were leaving a comment and whose content was intended to promote some commercial Web site. My blog is not a billboard for posting ads.

I also deleted comments in several other categories. If the comment was totally incomprehensible, I deleted it. Readers would be no more enlightened than I by reading such a comment. I also deleted anonymous comments, which I have explicitly disallowed. I was sad about doing this in a few cases where the content was genuinely responsive to what I wrote. If you want to leave a comment but do not want to tell me who you are, make up an alias and use it whenever you leave a comment. That way, people will be able to identify comments from the same person, even if they do not know who the writer is.

Expect comment moderation to be timely in the future.

Is “Apiece” Really Necessary?

 Sixteen years ago, I wrote a post titled “Is ‘Both’ Really Necessary?” It was written in response to this sentence heard on NPR: “Both of the planes disappeared within a few minutes of each other.” I commonly hear “both” used this way, implying that each of two entities possesses a property that necessarily involves both of them. (If the problem with this location is unclear, read my earlier essay.)

Today, I encountered another use of a redundant word in a similar context. On the 11:00 am EDT NPR newscast, Korva Coleman reported:

Game three of the World Series is tonight. The Los Angeles Dodgers and the Tampa Bay Rays are tied in the World Series. They have each won one game apiece.

One might ask if “in the World Series” is really necessary in the second sentence, but this is only a matter of style. Perhaps it is even helpful to the listener who is not paying close attention.

My concern is actually with the word “apiece.” The word, in the sentence in question, is not only unnecessary but is also nonsensical. The sentence is essentially saying

The Los Angeles Dodgers have won one game apiece.

and

The Tampa Bay Rays have won one game apiece.

Neither of these sentences makes sense. Just as the property “disappeared within a few minutes of each other” is a property necessarily involving more than a single entity, “apiece” necessarily involves more than one entity. Either of the following sentences would have been grammatically and logically acceptable alternatives to the original formulation:

They have each won one game.

or

They have won one game apiece.

The first sentence attributes having won one game to each team. The second sentence attributes having won the same number of games to both teams. Unlike the original, both sentences are grammatical and logical.

A Biden Administrative Agenda

Presidential campaigns usually emphasize policy positions intended to appeal to one constituency or another. The 2020 presidential campaign is very different.

Donald Trump hardly talks about policy positions at all. The Republican Party didn’t even bother to produce a 2020 platform. The understanding is that a Trump victory will deliver a continuation of what we have seen for nearly four years. Without concern for re-election, we can reasonably expect that Trump will continue to ignore existing norms.

Joe Biden, on the other hand, has articulated positions on many issues, though he does spend a lot of time decrying the dumpster fire that is the Trump administration. The Biden campaign implies that, whatever its policy positions, a Biden administration will return our national government to “normal.”

I suspect that many voters indeed yearn for “normal,” perhaps even for something a little better than what has passed for normal heretofore. The Biden-Harris campaign should, I think, be forthcoming about what a new Democratic administration would look like. Although a campaign can articulate a long list of policy objectives, achieving those objectives ultimately depends on the coöperation of the Congress. Those policy goals may be met or not or, perhaps achieved imperfectly.

On the other hand, Joe Biden can promise how a Biden White House will operate administratively, and such promises are not dependent on others. I will suggest what such a promise might look like. I think that making it public now would be a positive move by the Democratic campaign. If not used by the campaign, it can be used to guide the new administration as it comes together.

Here, then, are administrative policies I believe the Biden White House should implement. The items on my list are in no special order, and I don’t claim that my list is exhaustive. I invite additional suggestions.

The list:

1. Twitter will be used neither by the president nor the vice president. The White House will only use Twitter to call attention to material and announcements otherwise released in a conventional manner.
2. The president will hold monthly news conferences and will encourage government departments to hold regular news conferences as may be appropriate.
3. Except possibly in extreme circumstances, the president will not lie to the American people. (Exceptions to this policy are most likely in the pursuit of foreign policy objectives. Exceptions should be rare or nonexistent.)
4. The president and vice president will offer to meet regularly with the congressional leadership. (This should result in regular meetings if the Democrats control both houses of Congress.)
5. Anti-nepotism rules will be enforced throughout the government and will be applied to the White House as well.
6. Cabinet secretaries and administrators will be selected for their technical and managerial expertise. They will be expected to resolve any conflicts of interest before assuming their duties.
7. Judicial candidates will be selected for their legal accomplishments and liberal views. None will have any connection to the Federalist Society. Originalist or literalist views will be disqualifying.
8. Ambassadors will be selected for their relevant skills. Contributions to the president’s campaign are not relevant.
9. The president and vice president will each put any assets that could be affected by government actions into a blind trust while in office.
10. The vice president shall work closely with the president and will be responsible for any special tasks determined by the president.
11. No lobbyists will be appointed to administrative positions.
12. Appointees must agree to not lobby the government for a period of two years after they leave government service.
13. It is the intention of the administration to fully fund and staff all governmental organizations consistent with funding from the Congress. In particular, every attempt will be made to fill diplomatic, scientific, and technical positions left vacant at the end of the Trump administration.
14. Relevant governmental units will be instructed to restore information related to climate change that was removed from the Web by the Trump administration.
15. All governmental units will be encouraged to be transparent by publishing as much useful data as possible on their Web sites.
16. All governmental units will be expected to respond in a timely manner to any reasonable Freedom of Information request.
17. An absolute separation will be established between the White House and the Department of Justice. The White House will have no influence over the impartial administration of justice.
18. The administration will obey existing laws limiting the tenure of temporary appointees to positions requiring Senate approval. Temporary appointments should be for as short a period as possible.
19. The president will consider all cases of the Trump administration’s unilateral withdrawal from international organizations and agreements. Most of these withdrawals should be reversed. Included in the cases to be reconsidered are, among others, the following: the World Health Organization, the Paris climate agreement, the U.N.Human Rights Council, the U.N. Educational Scientific and Cultural Organization, the Iran nuclear deal, the Trans-Pacific Partnership, etc,
20. The president will review all executive orders from President Trump and rescind or modify them as seems appropriate for the good of the country.

Updated: 10/27/2020

Originalism

Amy Coney Barrett, in the hearing before the Senate Judiciary Committee today, defined originalism, a system of legal interpretation to which she is committed:

I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. That meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.

She also explained textualism, to which she is also committed:

… textualism, which is the way that I approach statutes and their interpretation. And similarly to what I just said about originalism, for textualism, the judge approaches the text as it was written with the meaning it had at the time; it doesn’t infuse your own meaning into it.

It is helpful that Judge Barrett supplied us with these explanations.

Judge Amy Cony Barrett

The only difference between originalism and textualism, as the judge defines them—I suspect her definitions are generally accepted by those who believe in these approaches to legal interpretation—is the law to which they apply. This is, I think, a distinction without a difference. An originalist/textualist views laws as frozen in time, meaning exactly what they meant when enacted, as indicated by the words of which they are composed. In what follows, I will simply use originalism to refer to this form of legal analysis.

I believe that Judge Barrett’s embrace of originalism is, ipso facto, reason enough to reject her nomination to be an associate justice of the Supreme Court. I say this because I think this approach to law is indefensible and persists only because mainstream thinkers have been reluctant to criticize adherents such as the late Justice Antonin Scalia.

One of the fundamental notions of information theory is that words do not, by themselves, encapsulate meaning. Meaning is conveyed through the interaction of syntax—think grammar—semantics—the referents of individual words or other grammatical units—and pragmatics—roughly speaking, context. As I once wrote: “There is no eternal expression of an eternal truth.” The meaning of the words and, more importantly, the context of a text change over time. That context comprises the entire environment of the text: what the world is like and how it is view by its author. Both the world and the worldview of the Founding Fathers differs substantially from that of 2020 Americans. Hence, I offer my own definition of originalism:

Originalism means governing the country by what we imagine the Constitution used to mean.

Only imperfectly can we conjure the world of the Founding Fathers (or of legislators who followed) to capture the total pragmatics of the Constitution or a statute. Moreover, it isn’t even clear why we should want to do so. The Constitution was not written to be relevant only in 1789 or 1790. It was hoped that it would survive for decades, perhaps centuries, and it is surely true that the lawmakers of 1789 believed that the world of 1879 or 1979 or 2079 would be unchanged from the world they knew. Instead, they had a reasonable expectation that contemporary thought and what we usually call common sense would be applied to their words.

The fundamental question regarding constitutional interpretation is whether the Constitution is a living document. Is the meaning of the Constitution forever fixed or should it be interpreted (or re-interpreted) in the contemporary context? I believe that, since our understanding of the world changes over time—and sometimes changes quite rapidly—it is easier and more sensible to consider the meaning of the Constitution in today’s terms, rather than in the time of its enactment. This means that, rather than constantly revising the Constitution—something that was certainly not anticipated, since it is so hard to do—it is sometimes appropriate for the courts to use the text of the Constitution but not its original meaning to change the law of the land.

For example, the equal protection clause of the Fourteenth Amendment was clearly not intended to protect homosexuals from discriminatory laws. When it was enacted, it was thought to be for the benefit of those formerly held in slavery. Yet the Supreme Court has outlawed statutes against homosexuality and has even sanctioned same-sex marriage. It should not have been necessary to amend the Constitution to make these changes that reflected widespread changes in the American context. A similar argument can be made about invalidating miscegenation laws. None of these decisions could have been made under the jurisprudence of a Justice Any Coney Barrett.

Under a Justice Amy Coney Barrett, our laws will be straight jackets that hinder human progress and—this is my greatest fear—actually undo human progress. The Senate should reject her nomination to the high court.

Inadequacy of Available Reactions to Facebook Posts

Responding to a Facebook post, a person can indicate a “reaction” by clicking on one of a collection of icons tagged LIKE, LOVE, CARE, HAHA, WOW, SAD, and ANGRY. (For clarity, I will refer to these and proposed options in caps.) There are times when selecting one of these options seems both appropriate and adequate. If someone posts a funny joke, for example, I am totally comfortable clicking on HAHA. But I am not always satisfied with having to choose from the available options. Let me explain why.

I should begin by expressing some discomfort with the inhomogeneity of the response list that Facebook offers. I can say that I like a post or love a post, but I cannot say that I angry a post. The lack of parallelism is irritating, but, if one is limited to single words—Facebook could hardly offer essays here—perhaps perfect parallelism has to be sacrificed. Let’s move on to my main concerns.

The proffered options do not capture all possible emotions a post might elicit. Whereas it is too much to ask that every conceivable human emotion be represented by an icon, some obviously useful options are unavailable. For instance, I can dislike a post without its making me angry (or its presence making me angry). Why is there not a DISLIKE option? Why is there not a HATE option, which could be distinguished both from DISLIKE and ANGRY? One could make a case also for INDIFFERENT and UNFUNNY. Possibly even for JOYFUL. There are probably other emotions I haven’t even thought of that might be appropriate in particular circumstances.

At times, no single response, even were the option list expanded, seems adequate. I might want to select both WOW and SAD or LIKE and HAHA. Facebook demands that I only indicate one emotion. Why can’t I select more than one?

There is often ambiguity about what one’s reaction is actually responding to. A person can post a news story, op-ed, or editorial and introduce it with original commentary. I do this all the time and am sometimes perplexed when someone posts a link to external material without comment. Why is this person bringing the material to my attention? Assuming that the poster does offer an introduction, when one selects a response, is it intended as a reaction to the poster’s commentary or to the material being commented upon? This ambiguity can result in people known to share similar views to select LIKE, on one hand, and ANGRY on another. For example, I can post an op-ed with which I strongly disagree and introduce it with an explanation of why I find it so horrible. Does someone in complete agreement with me select LIKE (or even LOVE), or do they select SAD or ANGRY? I suspect that users are inconsistent in what they do. This makes it difficult to discern what others are trying to say.

I suggest that Facebook should allow us to post separate reactions to external material and to the introductory commentary on that material. In the above example, a person should be able to select ANGRY concerning the op-ed and LIKE concerning my own commentary (or some other combination of reactions). This would actually be easier for Facebook to implement than allowing multiple reactions to the same material. In posts involving external material and an introduction to it, Facebook could simply add another thumbs-up icon at the end of the introduction. This would amount to treating the poster’s commentary as a post in its own right, separate from the material that is the subject of that commentary. If a user only selects a response beneath the post, that response can be assumed to be a reaction to the whole package.

I don’t know if Facebook will adopt any of these ideas. The operation of Facebook seems constantly to be changing, often to no particular purpose. Maybe Facebook could give my suggestions a try. I hope, in any case, that, in the future, users will be able to react to posts in more precise and useful ways.