Isaac Laquedem

One of Donald Trump's upcoming trials commemorates Benjamin Harrison's "spectacularly corrupt administration"

Donald Trump will go to trial on March 4, 2024 in federal court in the District of Columbia on the charges related to his attempts to overturn the 2020 election result.  Why March 4?  It's a Monday, and long trials often start on Mondays.  But Judge Tanya Chutkan, who chose the date, may have intended to make a sly historical reference.  Elected presidents are inaugurated on January 20 now, but before 1937 they were inaugurated on March 4.  March 4 is thus the anniversary of the inauguration of all the elected presidents from John Adams to Franklin Roosevelt in his first term (1933).  It was on March 4, 1889 that Benjamin Harrison (5'6", 160 pounds) was inaugurated.  Harrison's "spectacularly corrupt administration" (the words of historian Heather Cox Richardson) produced a collapse of the stock market and the Panic of 1893.

Celebrations of Benjamin Harrison are few and far between.  Judge Chutkan has figured out an appropriate commemoration, and Mr. Trump will get to play the leading part.

Wendell Phillips reminds us that history sometimes rhymes

The recent stalemate among the House republicans over their choice of speaker and the current threats of Speaker McCarthy to refuse to raise the ceiling on the national debt so that the nation can pay its bills brought to mind this delightful observation from a while back:

"A few years ago * * * the Republican party dared to refuse the appropriations for support of government - the most daring act ever ventured in a land that holds Bunker Hill and Brandywine.  They dared to persevere some twenty or thirty days.  It seems a trifle; but it is a very significant straw.  Then for weeks when Banks was elected, and a year ago, again, the whole government was checked till the Republicans put their Speaker in the chair."

Does that bring to mind Newt Gingrich shutting down the government, or Lauren Boebert holding up the organization of the House in January?  The author of the quoted words was Wendell Phillips (1811-1884), the famous orator and abolitionist.  They're from a speech that he gave in Boston on February 17, 1861.  The four omitted words represented by the three asterisks give the joke away: they are "while Pierce was President."

An ode to Alex Jones's recent court losses

It was a solemn rite as e’er
Was seen by mortal man.
The celebrants, the people there,
Were all Republican.

Ed Rollins bent his grizzled head,
And Ari Fleischer too,
And one⁠—’twas Tucker, someone said,
Though no one clearly knew.

I saw the priest, white-robed and tall
Of strictly right-wing views
He was the pious man men call
To cast blessings on Fox News.

Ah, ’twas a high and holy rite
As anyone could swear.
“What does it mean?” I asked a wight
Who knelt apart in prayer.

“A mass for the repose,” he said,
“Of Alex Jones's ⁠—“What,
Is Alex Jones now dead?
’Tis sad, ’tis sad, God wot!”

“A mass”⁠—repeated he, and rose
To go and kneel among
The worshipers⁠—“for the repose
Of Alex Jones's tongue.”

-- Ambrose Bierce, brought up to date

Clarence Thomas points the way to the future - and to the past

I wrote on June 24 about the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, in which a majority of the court overruled Roe v. Wade, and argued that the two important opinions are not the majority opinion and the dissent, but Chief Justice John Roberts's opinion concurring in the decision but not the reasoning, and Justice Clarence Thomas's opinion concurring in both the decision and the reasoning.  I discussed the chief justice's opinion.  Justice Thomas's opinion also merits scrutiny.

Justice Thomas wrote his concurring opinion not so much for the rest of the court - none of the other justices agreed with his views - but as a guide to state legislatures and the Federalist Society on what to challenge next. He focused on the doctrine of substantive due process, and listed several cases that he wants the supreme court to overrule when it gets the chance, among them the Obergefell v. Hodges (2015), protecting same-sex marriage, Griswold v. Connecticut (1965), protecting married persons' access to contraceptives, and Lawrence v. Texas (2003), preventing Texas from criminalizing private sexual acts between consenting adults.  He gives his game away in his two closing sentences: "Substantive due process conflicts with that textual command [the due process clause] and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity."

What he means by substantive due process is this. If you are indicted for murder, the state cannot take away your life or liberty (i.e., execute or imprison you) without affording you the due process of law: the right to a lawyer, the right to cross-examine witnesses, the right to be tried by a jury of unbiased persons, and so on. These are all rights to have a fair process, not rights to have a fair result. The idea of substantive due process is that as a citizen you have a constitutional right to have not just a fair process, but also a fair result.

In other words, if you are actually innocent of the murder, then you have a substantive due process right not to have the state execute you anyway - at least, you used to have that right. The court started 29 years ago to go down the path to which Clarence Thomas now points. In Herrera v. Collins (1993), a case from Texas, a majority of the supreme court held that a state does not violate the federal constitutional right to due process of a United States citizen if the state convicts and executes him for a murder that he did not commit, as long as the state provided the defendant with a fair trial and a proper appeal. 

Justice Thomas has shown the nation the legal future, and it looks a lot like the past.

Theodore Roosevelt had the root causes of today's inflation pegged -- in 1907

Heather Cox Richardson, a professor of American History at Boston College who is now one of the most followed persons on Facebook, today tied together the consolidation of American and international industry into a few large combines that have an outsize effect on prices (i.e., inflation at the consumer level), against which President Biden now fights.  Do corporations charge high prices to cover their high costs?  Professor Richardson points out that in May Shell reported its largest quarterly profits ever, more than $9 billion.  (Pro tip: instead of buying gasoline, buy the stock.)

Where, then, do the causes of inflation come from?  Let's go back to August 20, 1907, and a speech that President Theodore Roosevelt gave in Provincetown, Massachusetts at the dedication of a monument to the Pilgrims.  The speech itself wouldn't be much remembered today (even Isaac isn't old enough to have been there) but for President Roosevelt having unveiled a phrase that echoes to this day: "malefactors of great wealth."  He meant the robber barons of the era and their successors such as John D. Rockefeller and Andrew Carnegie.  He talked about his administration's efforts to break up industrial combines, of the sorts that Professor Richardson wrote about today.  Here's his descriptor, in context: "It may well be that the determination of the Government (in which, gentlemen, it will not waver), to punish certain malefactors of great wealth, has been responsible for something of the trouble; at least to the extent of having caused these men to combine to bring about as much financial stress as possible, in order to discredit the policy of the Government and thereby secure a reversal of that policy, so that they may enjoy unmolested the fruits of their own evil-doing."

A modern politician wouldn't speak in such complex sentences, but would nevertheless recognize the thought: the oligarchs of the United States seek to strain the public's finances as much as possible so that they can discredit the government and line their pockets, untroubled by subpoenas, surveillance, society, and surtax.

Is William Baxter (1929-1998) the culprit behind today's shortage of baby formula? History and economics say "yes"

On May 12 Heather Cox Richardson published this incisive essay, one of her "Letters from an American" series.  She starts her essay with a short discussion of the involvement of members of the Trump administration in the planning of the January 6 attack on the Capitol, and then moves into a report from the House Select Committee on the Coronavirus Crisis.  The committee's name doesn't describe its full ambit, which is to look into anything related to the federal government's response to the pandemic, including waste and fraud.  Professor Richardson then describes Tyson Foods pushing Secretary of Agriculture Sonny Perdue, and through him Vice President Pence and President Trump, to keep meatpacking workers on the job.  As she reports, "Industry leaders wrote a proposed executive order for Trump to issue, declaring a meat shortage and invoking the Defense Production Act to ensure that the plants continued to operate.  Less than a week later, Trump issued a similar executive order." 

Professor Richardson then ties the consolidation of meat production into the hands of a few gigantic businesses to the shortage of infant formula in the United States that resulted when one producer, Abbott, recalled its production from one factory after test samples were found to be contaminated, and describes the situation as the "larger problem of the consolidation of food production."

The "larger problem of the consolidation of food production" that Professor Richardson describes is significant, but it's only one facet of the very large problem of the consolidation of American and transnational industries in general, which started in the early years of the Reagan Administration.  Having successfully broken up American Telephone & Telegraph on antitrust grounds, the Reagan Administration and its chief antitrust enforcer, William Baxter, declared victory and went home, leaving the rest of American industry to merge and consolidate as it wished on the modest condition of paying a small toll to the government pursuant to the Hart-Scott-Rodino Act of 1976, but unfettered by Section 2 of the Sherman Act of 1890.  Benign neglect remained the policy of the enforcers (the "enablers"?) until 1998 when the Clinton Administration sought to fracture Microsoft - a case that the government won at trial and then ignominiously settled in the second year of the Bush (43) administration.

Since then antitrust enforcement in the context of corporate mergers has ceased to play an important part in corporate America.  By 2017 business professors Gustavo Grullon, Yelena Larkin, and Roni Michaely could write that market concentration as measured by the Herfindahl-Hirschman index (the one the Justice Department uses, when it's on the job) "has systematically increased in over 75% of U.S. industries, and the average increase in concentration levels has reached 90%" measured since about 2000. They also found that in real-dollar terms the average and median size of public corporations ("the largest players in the economy," they wrote) had tripled.  As they demurely put it, "Profit margins and shareholders' wealth gains have increased in proportion to the increase in industry concentration... Increased profit margins are mainly driven by wider operating margins rather than higher operational efficiency."

Translation: as the big got bigger, they used their concentrated market power not to be more efficient, nor to innovate, but to charge higher prices and make more money.  Food production is just one of the industries where the increase in concentration has brought new opportunities for the poor to subsidize the rich.

Justice Alito's draft opinion will hand the Ninth Circuit a powerful tool, if it dares to wield it

Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization, recently leaked to Politico, proposes to overrule Roe v. Wade and Planned Parenthood v. Casey altogether.  The opinion contains some gems of legal thought that the good Justice may not have thought completely through before committing his view to paper.  Here's one of them.

On page 5, Justice Alito states flatly: "We hold that Roe and Casey must be overruled."  He then explains why:  "The Constitution makes no reference to abortion [true], and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely - the Due Process Clause of the Fourteenth Amendment.  That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'"  His quotations are from a 1997 case, Washington v. Glucksberg, in which the Supreme Court held that the Fourteenth Amendment does not bar a state from prohibiting physician-assisted suicide.

Let's talk about whether one current constitutional right is "deeply rooted in this Nation's history and tradition."  I have in mind the right of corporations to enjoy the same constitutional rights as people, upheld most notably in 2009 in Citizens United v. Federal Election Commission, the case that gave corporations the constitutional right of free speech, which they could express through unlimited political spending, unfettered by the FEC.  The right of free speech is certainly deeply rooted in our history and tradition, as it predates the adoption of the First Amendment in 1791.  We can trace the right of free speech, or at least the tradition, back to the libel trial of John Peter Zenger in New York in 1734.

But the rights of corporations are not deeply rooted in our history and tradition.  In fact, when the states came together to form the United States, corporations existed only by the grace and favor of the state legislatures, and before that, by royal charter.  To form a corporation, you needed to petition your state legislators, and possibly to subsidize some of them.  It was not until the 1840s that states began to adopt laws that allowed ordinary people to form corporations. In fact, at the end of 1791 the United States had only 41 corporations.  Thus, if you follow the reasoning of Justice Alito, the constitutional rights of corporations are not deeply rooted in the nation's history and tradition, and thus are not protected by the Due Process Clause of the Fourteenth Amendment.  The court has said that corporations have a constitutional right of free speech under the First Amendment, but the originalists on the bench have to twitch a little when they say that, because the Framers weren't thinking of corporations when they wrote the First Amendment any more than they were thinking of semiautomatic weapons when they drafted the Second Amendment.

Justice Alito's draft opinion overruling Roe v. Wade has been more than ten years in the making - you can see it foreshadowed in the opinion in Citizens United.  If the Supreme Court's final opinion adopts the logic and conclusion of his draft opinion, when the initial shock wears off, look for some of the federal appellate courts, the Ninth Circuit especially, to apply Alito's test for overruling Roe v. Wade as an excuse to disregard or very narrowly interpret other decisions of the Supreme Court that aren't supported by sound reasoning.

This is the CAPTCHA that I'd like to see

The failed promise of Donald Trump

            Even before Willis Carrier invented the electric air conditioner in 1902 and made it possible for the government to sit in the District of Columbia through the summer, our nation’s capital fostered ideal conditions for political inbreeding.  Bright young people took posts staffing Congressional offices and committees, got to know one another, and then either went to work for federal agencies on their way to becoming lobbyists, or moved back home to enter elective politics for themselves, keeping the insular system in action for another generation.

            Much like a refrigerator, every now and then the system needs a deep cleaning.  About every 30 to 40 years America’s voters bring out the Electrolux and point it at the capital.  I'd buy American and say that they bring out the Hoover, but for what happened in 1928.

            The Carter Administration (1977-1981) was the voting public’s most recent attempt at invigoration, when the president brought in a large team of Washington outsiders to leaven the Potomac party.  Earlier housecleanings occurred, not so extensively, under Dwight Eisenhower (1953-1961), Theodore Roosevelt (1901-1909), James Garfield (1881), and Andrew Jackson (1829-1837).    

            The first revolutionary president was Andrew Jackson, a frontiersman who followed the six aristocrats who had started the country off, and who espoused the interests of the common man (women did not then vote) against those of the ruling classes.  He viewed the Second Bank of the United States, a federally-chartered creation directed by Philadelphia aristocrat Nicholas Biddle, as the political plaything of the powerful, and in 1832 he vetoed a measure to extend its charter.  He stated in his veto message that the bank was “unauthorized by the Constitution, subversive to the rights of States, and dangerous to the liberties of the people.”  (I’m going to need a separate post to unpack everything in Jackson's message.)

            James Garfield, the second of our reformers, did not even want the job – he went to the Republican convention to nominate John Sherman, and in the middle of his speech someone shouted out, “We want Garfield!”  He was nominated on the 36^th ballot, defeating among others the war hero and past president Ulysses Grant.

            President Garfield chose three graduates of Harvard or Yale for his cabinet of seven.  Unusually for his time, he also picked three men who came from humble circumstances.  One was an autodidact, and another ceased his schooling at 15.  He opened the top ranks of government to people outside the usual American ruling classes, and would likely have been even more reforming had he not been assassinated in 1881.

            Theodore Roosevelt was not elected as a reformer.  The New York political machine got him chosen as William McKinley’s vice president for the 1900 election to get him out of his position as the governor of New York.  When McKinley was assassinated in 1901, Roosevelt owed his presidency to no one.  He quickly set about breaking up large business combinations and promoting the rights of labor.

            Let’s look at the 40 years since the Carter Administration ended.  Our ballots included George H.W. Bush or his son George W. Bush in 1980, 1984, 1988, 1992, 2000, and 2004.  Our ballots included Bill Clinton or his wife Hillary Clinton in 1992, 1996, and 2016.  Our ballots might reasonably have included Hillary Clinton or Jeb Bush in 2008 and 2016.  The election of 2020 was only the second since 1976 that had neither a Clinton nor a Bush on a primary or general ballot.  It’s hard to say that the system changed much during a period when two families supplied the candidates for forty years of elections.

            Across First Street NE from the Capitol, the Supreme Court has been busy defending the sinecures of the inside-the-Beltway establishment, most notably in its 2010 decision in the Citizens United dark money case.  The court held that the government could not limit the amounts that corporations, labor unions, and independent political groups could spend on political speech, regardless of the ultimate source of the money, on the basis that corporations and labor unions were “people” entitled to the protection of the free speech clause of the First Amendment.  Funds from shadowy sources have come to play a large part in national politics ever since.

            Returning to 2016: among the 17 serious Republican candidates were three who had never held any government position, either elective or appointive: Carly Fiorina, Ben Carson, and Donald Trump.  Each portrayed his or her inexperience in government as a virtue, Mr. Trump most successfully.  In his campaign speech of August 18, 2016 in Charlotte, North Carolina, after listing some specific campaign promises, he said:

As you know, I am not a politician. I have worked in business, creating jobs and rebuilding neighborhoods my entire adult life.  I’ve never wanted to use the language of the insiders, and I’ve never been politically correct – it takes far too much time, and can often make more difficult.

Sometimes, in the heat of debate and speaking on a multitude of issues, you don’t choose the right words or you say the wrong thing. I have done that, and I regret it, particularly where it may have caused personal pain. Too much is at stake for us to be consumed with these issues.

But one thing I can promise you is this: I will always tell you the truth.

I speak the truth for all of you, and for everyone in this country who doesn’t have a voice.

I speak the truth on behalf of the factory worker who lost his or her job.

I speak the truth on behalf of the veteran who has been denied the medical care they need – and so many are not making it. They are dying.

I speak the truth on behalf of the family living near the border that deserves to be safe in their own country but is instead living with no security at all.

Our campaign is about representing the great majority of Americans – Republicans, Democrats, Independents, conservatives and liberals – who read the newspaper, or turn on the TV, and don’t hear anyone speaking for them. All they hear are insiders fighting for insiders.

These are the forgotten men and women in our society, and they are angry at so much on so many levels.  The poverty, the unemployment, the failing schools, the jobs moving to other countries.

I am fighting for these forgotten Americans.

            His specific campaign promises, which I did not quote here, are unremarkable.  President Trump failed at some and broke others, as is the wont of politicians.  His peroration, however, recalled the language of Andrew Jackson, of Theodore Roosevelt, of Franklin Roosevelt.  He cast his appeal to Americans in the heartland (if you live there) or the flyover states (if you don’t) who believed, with some reason, that the elites of both parties sought their votes but not their welfare.  And it is that aspect of his presidency that I describe as his failed promise, not “promise” in the sense of his commitment to his voters, but “promise” in the sense of the hope that they thought he was offering.  In the end Mr. Trump turned out to be a purveyor of both failed promise and broken promises, rather as if Andrew Jackson had committed to the public that he would close down the Second Bank of the United States to protect farmers and small businesses from its rapacity, and then upon being elected had bought bank stock and put his son-in-law on the board of directors.

Isaac to Congress: Back the Blue