Autocratic legalism: How dictators do the rule of law

Autocratic legalism uses existing legal institutions and procedures to systematically dismantle democratic norms while maintaining the facade of lawfulness. Experts believe that most modern democratic decline now occurs through gradual legal manipulation rather than military coups or sudden authoritarian takeovers. Authoritarian leaders are legally given power but then use it to dismantle democracy. Hitler and Mussolini gained power legally, and then dismantled democracy to install their dictatorships. Like Hitler and Mussolini, Trump uses autocratic legalism to wreck democracy. He differs by coming to power via elections, not appointment to power by incompetent broken governments.

Slate reports that our MAGAfied and weaponized DOJ (Department of Justice) engages in autocratic legalism. When the DOJ got caught blatantly lying to the court, it only acknowledged "errors" after plaintiffs exposed the deception through discovery. The DOJ expressed "regret" for "unintended ambiguity" rather than admitting deliberate misrepresentation. So, not only is MAGA fabricating evidence to deceive federal courts, is says fuck you to the court when it gets caught.

For those interested, the DOJ fabricated evidence that convinced a 9th Circuit Court panel to allow Trump's deployment of the National Guard in Portland. In sworn testimony, DOJ attorney Robert Cantu falsely claimed that 115 Federal Protective Service (FPS) officers—nearly 25% of the agency's total workforce—had been deployed to Portland to protect an ICE facility during protests.

Unintended ambiguity my ass. What a cynical liar. 

NYT editors' democracy update

The NYT editorial board published (not paywalled) a nice summary of 12 authoritarian measures that mark the decline of democracies. Trump and MAGA elites have engaged in all 12 to variable degrees. It's a long article, but interesting to scan through. Each of the 12 dictator tactics has a democracy-O-meter assessment of how bad that anti-democracy tactic is. Nos. 6, 7, 8, 11 and 12 are shown below just for the halibut. As one would expect, it's all pretty scary stuff. But it's accurate.  

My opinion: Slide the red dot to ~60%

of the way toward autocracy

Regarding ambiguity in the US Constitution

Both authoritarian MAGA elites and most pro-democracy, pro-rule of law conservatives (elite or not) say something about like this about the US Constitution:

The constitution means what it says.

The Constitution contains a number of intentional strategic ambiguities that were needed to get the thing drafted, agreed on and then ratified. That is historical fact, not opinion. Because of those ambiguities and some other human factors such as greed, ideological zealotry, innate cognitive biology, self-identity, etc., there is no authoritative way to know or determine what the constitution says. That is biological/social fact, not opinion.

Ben Franklin saw the issue clearly.

“I confess that I do not entirely approve this Constitution at present, but Sir, I am not sure I shall never approve it. . . . In these sentiments, Sir, I agree to this Constitution, with all its Faults, if they are such; because I think a General Government is necessary for us. . . . . I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. . . . . It therefore astonishes me, Sir, to find this System approaching so near to Perfection as it does; and I think it will astonish our Enemies, who are waiting with confidence to hear how our Councils are Confounded, like those of the Builders of Babel, and that our States are on the Point of Separation, only to meet, hereafter, for the purposes of cutting one another's throats. Thus I consent, Sir, to this Constitution because I expect no better, and I am not sure that it is not the best. . . . . On the whole, Sir, I cannot help expressing a Wish, that every Member of the Convention, who may still have Objections to it, would with me on this Occasion doubt a little of his own Infallibility, and to make manifest our Unanimity, put his Name to this instrument.” -- Ben F., 1787

Sir, I agree to this Constitution, with all its Faults, if they are such.

In significant part, (1) the disagreements the drafters of the Constitution including its Amendments struggled with were not resolved, and (2) we are today deeply, bitterly divided over modern variants of many of those same disagreements. It is impossible for humans to agree on what the words of the constitution meant. Literally impossible. It cannot be done.

The drafters used "strategic ambiguity" as a means to get the constitution drafted, agreed upon and then ratified. Strategic ambiguity was needed to deal with intractable special interest demands and faction or ideological demands. Regarding contested concepts, when people disagree about whether "liberty" protects economic freedom or reproductive autonomy, they're not merely confused or biased. They're operating from different normative mental frameworks about what human flourishing requires or about what is best for themselves and/or others.​

That is value pluralism, i.e., recognition that fundamental values can genuinely conflict without rational resolution. It's not relativism (all views equally valid) or nihilism (no views defensible), but rather the acknowledgment that moral disagreement can be rationally irresolvable because people start from different, internally coherent moral and social values. Constitutional meaning is contested not just because people are biased, confused or ignorant, but because the constitutional text employs normatively loaded concepts about which reasonable people fundamentally disagree.

That is mostly why it is impossible for people to agree about what some significant parts of the Constitution say.[1] The Constitution is necessarily ambiguous and therefore cannot be authoritatively interpreted. Political factions interpret what it means through the lens of humans being human and ideology being what it is.

What is ideology? A reflection of the mind. Ideology can grip and hold a mind real hard and tight. For example, most hard core Christian nationalist theocrats know that God himself ordained the US to be the lead nation on Earth and to dominate. That is their ideology. For most, their ideology is a big part of their identity. If you criticize or attack their ideology, it is personal. You criticize or attack them personally. Most people really don't like that and won't accept it.

Constitutional ambiguity is a major part of why all hell has broke loose in American politics. Listen to what corrupt, authoritarian MAGA elites tell us and force on us is legal or illegal. Abortion, illegal. Corruption, legal. Lies, better than truth when convenient. Etc. 

Footnote:

1. An example. The Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." 

Those twenty-seven words have generated one of America's most bitter constitutional divisions. The critical question is whether the prefatory militia clause either (i) limits, or (ii) just explains the operative clause. Profoundly different constitutional visions hang on that 4 word clause.​ Conservatives usually read the militia clause as merely an introduction, which is logically disconnected from the definition of the substantive right. 

Liberals argue the militia clause crucially informs the meaning of the operative clause. That tethers gun rights directly to militia participation, what we now call the National Guard. Under this interpretation, the founders intended to ensure that state militias could resist federal tyranny, not to guarantee individual gun ownership divorced from organized militia service.

Which side is right here? That probably depends for most people mostly on their left vs right political ideology.

Is there another way to see it or do the analysis? Hell yes. Ditch left and right ideology. Look at the public interest and public opinion. 

If the US resumes nuclear weapons testing, this would be extremely dangerous for humanity

Now THAT is an understatement!!

US President Donald Trump has instructed the Pentagon to resume nuclear weapons testing immediately, “on an equal basis” with other countries’ testing programs.

If Trump is referring to the resumption of explosive nuclear testing, this would be an extremely unfortunate, regrettable step by the United States.

It would almost inevitably be followed by tit-for-tat reciprocal announcements by other nuclear-armed states, particularly Russia and China, and cement an accelerating arms race that puts us all in great jeopardy.

It would also create profound risks of radioactive fallout globally. Even if such nuclear tests are conducted underground, this poses a risk in terms of the possible release and venting of radioactive materials, as well as the potential leakage into groundwater.

The Comprehensive Nuclear Test Ban Treaty has been signed by 187 states – it’s one of the most widely supported disarmament treaties in the world.

The US signed the treaty decades ago, but has yet to ratify it. Nonetheless, it is actually legally bound not to violate the spirit and purpose of the treaty while it’s a signatory.

Nuclear-armed states have stopped explosively testing at different times. The US stopped in 1992, while France stopped in 1996. China and Russia also aren’t known to have conducted any tests since the 1990s. North Korea is the only state to have openly tested a nuclear weapon this century, most recently in 2017.

All nine nuclear-armed states (the US, China, Russia, France, the United Kingdom, India, Pakistan, North Korea and Israel) are investing unprecedented sums in developing more accurate, stealthier, longer-range, faster, more concealable nuclear weapons.

Russia, in particular, has weapons we haven’t seen before, such as a nuclear-powered, nuclear-armed cruise missile that President Vladimir Putin said on Sunday his country has successfully tested. China, too, is embarking on a rapid build-up of nuclear weapons.

All of this means the Doomsday Clock – one of the most authoritative and best-known assessments of the existential threats facing the world – has moved forward this year further than it has ever done before.

It’s really an extraordinarily dangerous time in history.

https://theconversation.com/if-the-us-resumes-nuclear-weapons-testing-this-would-be-extremely-dangerous-for-humanity-268661

Admittedly, of ALL the things Trump has done or threatened to do, it's THIS that scares the bejesus out of me. We might be able to survive Trumpism, we might have a fight on our hands to secure free elections, and we might end up having to be MORE forceful in our resistance, but playing with nukes is going to make us all.................

DEAD!