A Constitutional Crisis Is Near

Constitutional crisis: constitutional crises arise mainly when: (1) politicians and/or military officials announce they will not obey the constitution, for example by defying a court order, or (2) when many people refuse to obey the constitution, and there can are street riots or the military mobilizes, or, states or regions try to secede from the nation, which involves situations where publicly articulated disagreements about the constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests and brute force is used or threatened.

Constitutional rot: constitutional rot occurs when norms that held power in check fall, partisans play constitutional hardball, e.g., the Senate refusing to consider a valid Supreme Court nomination, fair political competition comes under attack and state power becomes less accountable and responsive to the public.

A few days ago a B&B discussion focused on the difference between a constitutional crisis and constitutional rot. It is clear that America has been in constitutional rot at least since the mid-1990s. As of the close of business yesterday, American politics appears to have crossed the line from constitutional rot to a true constitutional crisis.

A few weeks ago, the federal judge handling the Michael Flynn case, Emmet Sullivan, ordered public release of some withheld materials in the Flynn prosecution. That included the transcript of a phone call by Trump lawyer John Dowd to one of Flynn's attorneys. That call showed witness tampering by Dowd, a felony, in an attempt to keep Flynn from cooperating with witnesses. That transcript was released yesterday as ordered.

However, the Washington Post and other sources report that the Justice Department did not publicly file the transcripts of Flynn’s calls with Russian officials, including then-Russian ambassador Sergey Kislyak. The DoJ also refused to make public redacted portions of the Mueller report that pertains to Flynn. It is reasonable to believe that those transcripts and portions of the Mueller report contain evidence of Flynn illegally conspiring with Russia to advance Russian policy goals, lying under oath or committing other felonies.

The WaPo writes: "Prosecutors provided one item that Sullivan ordered be released: a transcript of a voice mail left by an attorney for Trump, much of which had already appeared in Mueller’s report. It is unclear how the judge will react to the government’s noncompliance with other elements of his order. Late last year, Sullivan postponed Flynn’s sentencing after angrily lambasting the former national security adviser for his actions, saying, 'Arguably, you sold your country out.'"

Refusal to release those materials is an obvious refusal to obey a valid court order. That constitutes a constitutional crisis or something very close to it. How Judge Sullivan reacts to this will probably be known soon and that could dictate what the constitutional situation actually is. The judge could hold prosecutors and maybe also Attorney General William Barr in contempt and have them jailed until they comply.

Suppressed evidence that is coming to light continues to show claims of innocence and exoneration are lies by Trump, Barr and other people with knowledge of the facts who make the same false claims. Trump and everyone involved is lying. One can only hope that Sullivan orders Barr and the involved prosecutors to go to jail. They deserve no less.

Looking back, this day had to come. Trump's contempt for the rule of law and for norms that make our democracy work has been clear from before the 2016 elections. Trump is truly making his run at building some sort of a kleptocratic tyranny-Christian theocracy and suppressing democracy, the rule of law and civil liberties. People who support and enable this evil can not in good faith deny this is happening or that it is evil. There is no excuse to support Trump except if one wants to eliminate liberal democracy and install a corrupt, anti-democratic tyrant.

Orig B&B: 6/1/19

An Explanation: Constitutional Crisis vs. Constitutional Rot

Uncle Fester: Dementia, what a beautiful name. 
 Dementia: It means "insanity." 
 Uncle Fester: My name is Fester. It means "to rot."

Constitutional scholar Jack Balkin (Professor, Yale Law School) wrote a short chapter for the 2018 book Constitutional Democracy in Crisis?, edited by Mark A, Graber et al. Balkin's chapter 2, Constitutional Crisis and Constitutional Rot, explains the difference between the two concepts. The topic is timely because many people are concerned that the US is in or near a constitutional crisis in view of President Trump's divisive rhetoric and actions. Constitutional rot is a concept that most people are not aware of, while constitutional crisis is mostly misunderstood. Knowing the difference helps put America's political situation in much better context.

Constitutional crisis defined: Balkin and another scholar Sanford Levinson, have described what a constitutional crisis (CC) is and is not in a constitutional democracy. That is summarized in Balkin's chapter 2. There are three different kinds of CC. The Type One CC occurs when politicians and/or military officials announce they will not obey the constitution any more. That can happen when politicians and/or military officials refuse to obey a court order. Once refusal to adhere to constitutional rules has occurred, the constitution has failed.

The Type Two CC occurs when the constitution prevents political actors from trying to prevent an impending disaster. This is rare because the courts tend to find ways to allow political actors to avoid disasters. The Type Three CC occurs when many people refuse to obey the constitution. In these scenarios, there can be street riots, or, states or regions try to secede from the nation. This involves "situations where publicly articulated disagreements about the constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests: people take to the streets, armies mobilize, and brute force is used or threatened in order to prevail."

Balkin goes on to argue that most time when the term CC is used, it is hyperbole. Constitutions rarely break down.

Constitutional rot (CR): By contrast with a CC, CR arises when norms that held power in check fall, partisans play constitutional hardball and fair political competition comes under attack. We are seeing this now. For example, it was constitutional hardball by the Mitch McConnell to ignore President Obama's Supreme Court nomination of Merrick Garland. In CR, politicians favor short-term political gains over long-term damage to the constitutional system. As CR progresses, the political system becomes less democratic. State power becomes less accountable and less responsive to the public, while politicians become more beholden to backers who keep them in power. In essence, the country drifts into oligarchy.

While that is happening, the public loses trust in government and the political system because they have been abandoned: "When constitutional rot becomes advanced, and the public's trust in government is thoroughly undermined, people turn to demagogues who flatter the public and who stoke division, anger and resentment. Demagogues promise they will restore lost glories and make everything right again. They divert the public's attention to enemies and scapegoats within and without the republic. They divide the public in order to conquer it. They play on people's fears of loss of status. They use divisive rhetoric to distract attention, maintain a loyal set of followers, and keep themselves in power. There are always potential demagogues in a republic, but healthy republics restrain their emergence and ascension. When demagogues manage to take power and lead the nation, however, CR has become serious indeed."

Does any of that sound familiar?

The four horsemen of CR: Belkin describes the four horsemen of CR as (1) loss of trust in government and fellow citizens, (2) polarization that leads to people seeing fellow citizens as enemies of the state, (3) increasing economic inequality which foments anger, resentment and a search for scapegoats, and (4) policy disasters such as the Iraq war and the 2008 financial crisis, which undermine public trust in political leadership and constitutional governance. He argues that each one of these tends to feed into the one or more of the other factors. For example, polarization deflects public attention to symbolic and zero-sum conflicts, which allows wealthy interests to entrench their power and foster oligarchy. In turn, that tends to undermine public faith in a government that is drifting away from them and their interests. Rot begets more rot.

Belkin sees hardball politics and attendant destruction of norms of fair politics as leading to "a gradual descent into authoritarian or autocratic politics."

Regarding our current situation, Belkin sees it like this: "The United States is not currently in a period of constitutional crisis. But for some time--at least since the 1990s--it has been in a period of increasing constitutional rot. The election of a demagogue such as Trump is further evidence that our institutions have decayed, and judging by his presidential campaign and his first year in office, Trump promises to accelerate the corruption."

Sounds definitely like we're in for more CR and a descent into authoritarian, autocratic politics. How gradual the process may be is a matter open for debate.

The US Constitution: A Source of Urban-Rural Polarization

Analysis by the New York Times indicates that the US Constitution itself is a significant source of urban-rural polarization. The NYT writes:

But urban-rural polarization has become particularly acute in America: particularly entrenched, particularly hostile, particularly lopsided in its consequences. Urban voters, and the party that has come to represent them, now routinely lose elections and power even when they win more votes.

Democrats have blamed the Senate, the Electoral College and gerrymandering for their disadvantage. But the problem runs deeper, according to Jonathan Rodden, a Stanford political scientist: The American form of government is uniquely structured to exacerbate the urban-rural divide — and to translate it into enduring bias against the Democratic voters, clustered at the left of the accompanying chart.

Yes, the Senate gives rural areas (and small states) disproportionate strength. “That’s an obvious problem for Democrats,” Mr. Rodden said. “This other problem is a lot less obvious.”

In the United States, where a party’s voters live matters immensely. That’s because most representatives are elected from single-member districts where the candidate with the most votes wins, as opposed to a system of proportional representation, as some democracies have.

Democrats tend to be concentrated in cities and Republicans to be more spread out across suburbs and rural areas. The distribution of all of the precincts in the 2016 election shows that while many tilt heavily Democratic, fewer lean as far in the other direction.

As a result, Democrats have overwhelming power to elect representatives in a relatively small number of districts — whether for state house seats, the State Senate or Congress — while Republicans have at least enough power to elect representatives in a larger number of districts.

Republicans, in short, are more efficiently distributed in a system that rewards spreading voters across space.

The articles goes on to point out that European elections often allow for proportional representation and the urban-rural divide is softened by making geography less important than it is in the US. Underrepresentation of urban voters is a feature of any democracy that draws winner-take-all districts where the urban voters are concentrated in cities and at odds with rural voters. That is what happened in 2016 when Hillary Clinton won only three of eight congressional districts in Minnesota despite winning the whole state.

US rural areas will oppose constitutional and other changes to reduce the power imbalance. It looks as if American politics will stay unequally tipped in favor of conservative rural areas for quite some time. This is of concern for the US Senate. It is starting to seem unlikely that democrats will be able to retake the Senate in 2020. Given the way the polarization has destroyed normal functioning, it is reasonable to believe that any democratic president will have some or all nominations that require Senate consent blocked for all four years.

Flaws in the Constitution are becoming clear. Those flaws are leading the US from a liberal democracy to an anti-democratic, authoritarian system dominated by a minority conservative ideology. The rejection by President Trump of congressional authority to investigate him and his associates is undeniable evidence of America's slide toward a corrupt authoritarian system. Unless democrats step up their messaging and outreach, we just might be witnessing the beginning of the end for American liberal democracy, civil liberties and the rule of law.

Truth Decay

Over the last couple of years, the RAND Corporation has been doing a deep dive into the political-social phenomenon they call truth decay. The study is part of an effort to "restore the role of facts and analysis in public life."

That sounds much like the anti-biasing anti-ideology, pragmatic rationalism, ideology that is advocated here at B&B. Two of the four core moral values that pragmatic rationalism is built on are (i) fidelity to trying to see objective facts and truths, to the extent they can be objectively based, with less bias and distortion, and (ii) fidelity to trying to apply less biased conscious reason (roughly, logic) to the facts one thinks one sees.

RAND's 326 page 2018 book, Truth Decay, can be downloaded for free here: https://www.rand.org/pubs/research_reports/RR2314.html [1]

In a summary post, RAND comments:

There are four trends that characterize Truth Decay:
1. increasing disagreement about facts and analytical interpretations of facts and data
2. a blurring of the line between opinion and fact
3. the increasing relative volume and resulting influence of opinion and personal experience over fact
4. declining trust in formerly respected sources of facts.

Most of these trends are not unprecedented in American history. But today's level of disagreement over objective facts is a new phenomenon.

RAND's findings so far point to the main drivers of truth decay as being (i) cognitive biases, (ii) the rise of social media and other changes to the information environment, (iii) demands on the educational system that limit its ability to keep up with changes in the information ecosystem, and (iv) political and social polarization. Political and social polarization can reasonably be seen as political and social tribalism that tends to be significantly fact- and logic-destroying or distorting for most people (~95% ?) most of the time.

A prior B&B discussion about a survey of experts of President Trump noted that he was ranked as the most polarizing President in US history, significantly out ranking Abe Lincoln, who came in a fairly distant second. Both RAND's sources of truth decay and its drivers seem be generally in accord with the political reality of at least the last 15 years or so, maybe the last 30 years or so.

An existential threat?: Over at his blog, Neurologica, Steven Novella posited RAND's truth decay observations as possibly constituting an existential threat, presumably at least to modern civilization, and maybe to the human species itself. Novella writes:

What is the greatest threat facing human civilization? This question is obviously meant to be provocative, and is probably inherently unanswerable. But I think there is a reasonable argument to be made that perhaps the greatest threat is the deterioration of fact-based political and social discussion. The argument is that this is a meta-problem that keeps us from effectively addressing all other problems.

But of course we don’t want to assume anything, which would ironically be part of the very problem itself. We first need to ask – are these trends actually happening or are they just illusion and confirmation bias? Also, can we put these trends into historical context? RAND recently conducted a study looking at item #3 – the relative volume of opinion vs fact-based reporting in the media over the last 28 years.

They identified several trends, which may contribute to Truth Decay. The first is that prior to 2000 broadcast news tended to be more academic and fact-based. After 2000 the news became more narrative based – presented more as simplistic stories, with less complexity and nuance.

Over this same time there was a shift in viewership from broadcast to cable networks. The cable networks contained much more opinion-based reporting, and far less fact-based reporting. They were more likely to have people discussing the news rather than giving a prepared factual report of the news. So essentially we went from watching Walter Cronkite to The View.

In print they saw a similar pattern. Print newspapers have changed the least, but also have shifted toward a more narrative style (just not as much). Meanwhile there was a shift to digital print news, which is more personal and anecdote-based.

All of these trends verify the concern that the overall volume of information being consumed by Americans has shifted from fact-based reporting to personal stories, narratives, discussions and opinions. We are no longer content to have a talking head give us a prepared digested form of “Just the facts, Ma’am” (which is, ironically, itself a bit of false reporting). We want to be entertained with a story, we want our emotional buttons pressed.

The short chain of moral logic: Cognitive and social science both strongly argue that the human mind is inherently susceptible to truth decay or dark free speech such as lies, deceit, and unwarranted emotional manipulation, especially fomented negative emotions such as fear, anger, hate, distrust, intolerance and bigotry or racism, all of which are usually intentionally associated with a person's tribal identity. Use of truth decay to deceive and manipulate the public is common among people with low or essentially no decent moral values because it works. The purveyors of truth decay either don't care about the morality if it, or they believe the usually immoral proposition that the ends justify the means and is thus moral, at least when they do it (but it's not when the other side does it).

The limited grasp of history I have says that social and international conflicts are usually (≥ ~95% of the time?) seeded by shrewd purveyors of truth decay to whip an up antagonistic us vs. them social mentality. That appears to be so common that one can argues there is a chain of logic with two necessary links in it. The first link is heavy seeding of the social milieu with vast quantities of truth decay or dark free speech. That seeding of the public with lies, deceit and irrational emotion is the necessary prelude to unnecessary violent conflict, at least by aggressors.

If that logic is sound, then from a moral point of view, one can argue that use of truth decay to deceive, mislead and foment the negative emotions needed for social acceptance of violence is the moral equivalent of the actual violence itself. One could even see truth decay as a form of violence because it relies on coerces minds into false and/or irrational beliefs.

When viewed in that way, fidelity to objective facts and truths, to the extent they can be ascertained (and they often cannot be fully ascertained, leaving some degree of ambiguity), can bee seen as one of the highest, most important moral values a human can hold. The same applies to the moral value of trying to be less biased in one's conscious reasoning about the facts and truths one thinks one sees.

So, the question is this: Is using truth decay or dark free speech to deceive and emotionally poison minds as immoral as actual unwarranted violence?

Footnote:
1. The first paragraph and a half of the book says this: "Much has been written about the growing disregard for facts, data, and analysis in political and civil discourse in the United States. Increasingly, it seems that important policy debates, both within the federal government and across the electorate, are as likely to hinge on opinion or anecdote as they are on objective facts or rigorous analysis. However, policy decisions made primarily on the basis of opinion or anecdote can have deleterious effects on American democracy and might impose significant costs on the public.

The current discourse about the diminishing role of, trust in, and respect for facts, data, and analysis is often hamstrung by the use of conflicting language and unclear or undefined terms. Without a common language with which to discuss the problem—which we are calling Truth Decay—the search for solutions becomes more difficult. This report seeks to address this gap by offering a clear definition of Truth Decay and an examination of its drivers and consequences—all with the aim of creating a foundation for more-meaningful discussion of the challenges to U.S. political and civil discourse."

Some Observations On propaganda

These quotes are from Hannah Arendt's 1951 book, The Origins of Totalitarianism. Her observations came from her research into the nature and origins of murderous 20th century totalitarianism in its savage 19th century anti-Semitic and imperialist roots. These sentiments remain generally relevant to American politics today.

“In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and that nothing was true. ... Mass propaganda discovered that its audience was ready at all times to believe the worst, no matter how absurd, and did not particularly object to being deceived because it held every statement to be a lie anyhow. The totalitarian mass leaders based their propaganda on the correct psychological assumption that, under such conditions, one could make people believe the most fantastic statements one day, and trust that if the next day they were given irrefutable proof of their falsehood, they would take refuge in cynicism; instead of deserting the leaders who had lied to them, they would protest that they had known all along that the statement was a lie and would admire the leaders for their superior tactical cleverness.”

“The ideal subject of totalitarian rule is not the convinced Nazi or the convinced Communist, but people for whom the distinction between fact and fiction (i.e., the reality of experience) and the distinction between true and false (i.e., the standards of thought) no longer exist.”

“Before mass leaders seize the power to fit reality to their lies, their propaganda is marked by its extreme contempt for facts as such, for in their opinion fact depends entirely on the power of man who can fabricate it.”

“Caution in handling generally accepted opinions that claim to explain whole trends of history is especially important for the historian of modern times, because the last century has produced an abundance of ideologies that pretend to be keys to history but are actually nothing but desperate efforts to escape responsibility.”

“One of the greatest advantages of the totalitarian elites of the twenties and thirties was to turn any statement of fact into a question of motive.”

“True goal of totalitarian propaganda is not persuasion, but organization of the polity. ... What convinces masses are not facts, and not even invented facts, but only the consistency of the system of which they are presumably part.”

The Power of Irrational Emotion to Make People Irrational

An article in the Independent says this about the power of hate and bigotry to lead people into irrational beliefs.

Seventy-two per cent of Republicans oppose Western world's standard numeric system, according to research designed to 'tease out prejudice among those who didn't understand the question'.

Fifty-six per cent of people say the numerals should not part of the curriculum for US pupils, according to research designed to explore the bias and prejudice of poll respondents.

The digits 0, 1, 2, 3, 4, 5, 6, 7, 8 and 9 are referred to as Arabic numerals.

The system was first developed by Indian mathematicians before spreading through the Arab world to Europe and becoming popularised around the globe.

A survey by Civic Science, an American market research company, asked 3,624 respondents: “Should schools in America teach Arabic numerals as part of their curriculum?” The poll did not explain what the term “Arabic numerals” meant.

Some 2,020 people answered “no”. Twenty-nine per cent of respondents said the numerals should be taught in US schools, and 15 per cent had no opinion.

John Dick, chief executive of Civic Science, said the results were “the saddest and funniest testament to American bigotry we’ve ever seen in our data”.

That shows the power of irrational bigotry and hate to shut down logical thinking. This is why ideologues, demagogues and tyrants routinely resort to dark free speech (lies, deceit, unwarranted opacity to hide truths, unwarranted emotional manipulation to foment negative emotions, especially fear, anger, hate, intolerance, bigotry, racism, distrust, etc.). By fomenting an irrational, emotion-dominated mindset, ideologues, demagogues and tyrants can better create false realities as they make their run for ideological dominance, power and wealth.

Does that mean such people are stupid? No. It does mean they have been deceived and used in service to the agenda of others who don't care about adverse consequences to the deceived and used people. That is what divisive dark free speech-driven politics is doing to American society today. We all know who is doing this to us.

Do we need to rename Arabic numerals as American numerals?