Category Archives: Constitution

We Don’t Need No Stinkin’ Ethics

If there is one thing Trump actually understands, it’s the utility of the “firehose” championed by Steve Bannon–the tactic of spraying the country with so much excrement each day that the body politic misses behaviors that would, in ordinary times, be scandalous.

Permit me an example.

While we have been distracted by “little things” like an illegal war on Iran, Pam Bondi’s transparent efforts to keep the lid on Trump’s multiple and damning appearances in the Epstein files, and the re-emergence of measles thanks to RNK, Jr.’s war on medical science, the goofball who is currently in charge of the Pentagon has been in a standoff with Anthropic, a tech company opposed to unregulated and unethical use of its AI product, Claude.

As the Atlantic has reported, Secretary of Defense Pete Hegseth issued an ultimatum to Anthropic’s CEO, Dario Amodei. He ordered the company to strip the ethical guardrails from its AI models “or face the full weight of the state.” Hegseth accompanied that order with a threat that, unless Anthropic allowed the Pentagon “all lawful uses” of its Claude models, he would designate Anthropic “a supply-chain risk,” effectively blacklisting the company  from doing business with “any entity that touches the Department of Defense.”

To his eternal credit, Amodei refused, explaining that while he believed “deeply in the existential importance of using AI to defend the United States and other democracies, and to defeat our autocratic adversaries,” there is a narrow set of cases in which AI can “undermine, rather than defend, democratic values.” He concluded that the Pentagon’s “threats do not change our position: we cannot in good conscience accede to their request.”

As the linked article argues, the company’s stance represents a principled objection to the use of its AI for mass surveillance.

It is not opposed to autonomous weapons per se and has already carved out exemptions for missile defense and cyber operations. The company’s hesitation regarding autonomy is technical: Large language models are simply not yet reliable enough to operate without a human in the loop. Pushing them too far, too quickly, invites a mistake that could prove disastrous. Anthropic is asking for an exclusion on autonomous weapons not out of an ideological refusal to fight, but to allow for the research and development necessary to make such systems safe.

People in the Trump administration, however, are impervious to both logic and ethics. Not long after the Atlantic published its article about the dispute, the Washington Post reported that Anthropic had been cut off from all government contracts. The Post reported that the action “shook the tech industry” and hardened the political and cultural battle lines across Silicon Valley over military use of artificial intelligence.

As the article noted, Trump has now put all of Silicon Valley on notice: if tech companies want to do business with the  Pentagon they should be prepared to accede to any and all administration policies and hand over control of how their technology is used.

Less ethical rivals of Anthropic (including–surprise!– Elon Musk) have rushed in to pledge that their own companies would not question Pentagon policies, styling themselves as “loyal patriots.”

It isn’t surprising that Trump’s transactional administration would favor companies willing to trade their ethical concerns for lucrative contracts.  Last fall, the administration characterized Anthropic’s ethical concerns as attempts to manipulate the government with “fear mongering” about AI technology. Media outlets reported that the White House was “displeased” when Anthropic raised ethical objections to the ways in which the administration wanted to use its technology–especially its intent to use the company’s product for surveillance. 

The Atlantic article called this ethical quandary over domestic surveillance an “unbridgeable divide.”

Under an administration that invoked the Insurrection Act, or that sought to map domestic dissent, the Pentagon’s demand for “all lawful uses” of Anthropic’s models could become a skeleton key. Amodei articulated this danger in a recent interview with Ross Douthat, noting that, although it isn’t illegal to record conversations in public spaces, the sheer scale of AI changes the nature of the act. As Amodei put it, AI could transcribe speech and correlate it in a way that would not only identify one member of the opposition but “make a map of all 100 million. And so, are you going to make a mockery of the Fourth Amendment by the technology finding technical ways around it?”

The answer to that question is obvious. The fascist regime that currently controls America’s federal government–and the Silicon Valley “bros” who are rushing to ignore those pesky ethical concerns–will be happy to make a mockery of the Fourth Amendment.

Comments

Rights Aren’t Just For People We LIke

One of the pithier explanations of the Free Speech clause of the First Amendment was written by Supreme Court Associate Justice Oliver Wendell Holmes Jr. in a case titled United States v. Schwimmer. In that opinion, Holmes wrote that “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”

Holmes was acknowledging the obvious: majorities don’t seek to censor popular opinions. They seek to suppress the “ideas we hate,” the beliefs and utterances that they find offensive.

That lesson–that rights are universal, and not reserved for people with whom we agree or people we consider part of our “tribes”–was one of the most difficult for my undergraduate students to learn. Surely the government can sanction people we know are lying! Surely the City Council can pass ordinances against material we consider smut! Surely religious liberty doesn’t mean that atheists and Satanists have the same rights as good Christians!

That pesky principle–that rights also apply to disfavored folks–was the subject of a recent article in the Washington Post,describing yet another aspect of Trump’s inability to grasp that simple concept, or the fact that people he hates (and boy, there are a lot of them!) are entitled to equal treatment under the law.

This particular evidence of Trump’s ignorance involved the pardon power.

As Biden prepared to leave the presidency, he had used that power to commute the sentences of 37 of the 40 federal prisoners awaiting execution. He didn’t free them; the commutation meant that they will serve life in prison. The article reports that Trump “was outraged at this decision and set out to roll it back.”

Ironically, if Biden had pardoned the murderers altogether or had them released (which would have been constitutionally possible but politically scandalous), Trump couldn’t have done anything about it. But because they remain under life sentences, his administration can still influence their fates. It can’t lawfully kill them, but it can dictate the conditions of their confinement.

Our vicious President issued an executive order on his very first day back in office, declaring his intent to “ensure that these offenders are imprisoned in conditions consistent with the monstrosity of their crimes.” The Justice Department that he has turned into a weapon he controls proceeded to implement the directive by sending those prisoners to the most isolating imprisonment possible — “a ‘supermax’ facility that cuts inmates off from most human contact.”

A number of the affected prisoners brought suit.  U.S. District Judge Timothy J. Kelly, a Trump appointee in the District of Columbia, ruled that the transfer violated the Constitution’s guarantee of due process, at least in their cases.

As the article points out, It’s a decision that “cuts to the heart of the rule of law.”

Kelly’s opinion is on appeal, and given the unprecedented leeway granted to Trump by the Supreme Court, there’s no telling what the final outcome will be. But as the article points out, Trump’s effort to undo Biden’s clemency is a warning about Trump’s own flagrant misuse of the pardon power, including the threat that it might encourage future presidential successors to “reach for more boundary-pushing ways to get around past pardons.”

Trump has been nothing but “boundary-pushing.” Most pundits attribute that boundary-pushing–more properly labeled illegality–to Trump’s overwhelming desire for power, to the self-aggrandizement that he has displayed throughout his life. That explanation, however, assumes a degree of “knowingness”–a deliberate decision to ignore restraints that he doesn’t believe should apply to him.

I think that’s wrong.

If We the People have learned anything about this sad excuse for a human being, it is that he isn’t just mentally ill, isn’t just slipping into a senility that is getting harder and harder to ignore. He is also profoundly ignorant. He has consistently manifested a lack of understanding of–or even a basic familiarity with– the Constitution he took an oath to defend. He is quite clearly incapable of understanding the quote by Holmes with which I began this post, and if he did understand it, he would reject it.

What We the People have come to understand is the immense–and in many cases, irreversible– damage that can be done to a nation when it elevates a profoundly flawed, incompetent and thoroughly vicious man-child to a position of power.

Comments

The Tariff Decision

The Supreme Court’s decision striking down Trump’s illegal tariffs was welcome, but hardly unexpected–and as Josh Marshall has reminded us at Talking Points Memo, hardly a sign that the Court has changed its corrupt ways.

For one thing, the tariffs were so transparently illegal it would have been incredibly difficult to save them (although three of the Court’s most incorrigible members tried.) As Marshall noted, there simply was no ambiguity in the law in question. He is absolutely correct when he says the decision wasn’t some big win. Granted, it’s certainly better to prevent a rogue president from continuing immensely harmful and blatantly illegal acts than permitting him to continue them. But it would be a mistake to view this decision as evidence that the Court is abandoning its substitution of political preferences for legal analyses.

This is a case where the legal merits of the President’s action were just too transparently bogus even for this Court to manage and — critically — his actions and the theories undergirding his claims to the power were, for the Corrupt majority, inconvenient. The architect of the current Court — the Federalist Society’s Leonard Leo — was behind the litigation that undid the tariffs. That tells you all you need to know. In this case Trump’s claim to power was neither in the interests of the Republican Party — the Court’s chief jurisprudential interest — nor any of their anti-constitutional doctrines. So of course they tossed it out. This may sound ungenerous. It’s simple reality.

Actually–as Marshall also points out– the decision can be viewed as an indictment of the Court, which delayed issuing its decision for almost a year, and allowed the tariffs to upend whole sectors of the U.S. and global economies during that time. The Court allowed this president to exercise clearly illegal powers for almost a year, and it’s hard to disagree when Marshall says that “If the Constitution allows untrammeled and dictatorial powers for almost one year, massive dictator mulligans, then there is no Constitution.”

Part of the delay of this ruling is the fact that most major corporations were afraid to bring litigation because they didn’t want to go to war with the president. But that’s also an indictment of the Supreme Court’s corruption. Because they made clear early on that there was little, if any, limit they would impose on Trump’s criminality or use of government power to impose retribution on constitutionally protected speech or litigation. So that’s on the Court too. But it’s only part of the equation. The Court also allowed the tariffs to remain in place while the government appealed the appellate decision striking down the tariffs back in August. Let me repeat that: back in August, almost six months ago.

In other words, most of the time in which these illegal tariffs were in effect was because of that needless stay. The logic of the stay was that deference to President’s claim of illegal powers was more important than the harm created by hundreds of billions in unconstitutional taxes being imposed on American citizens. It’s a good example of what law professor Leah Litman — one of the most important voices on the Court’s corruption — earlier this morning called the Court’s corruption via “passivity,” empowering anti-constitutional actions through deciding not to act at all or encouraging endless delays it could easily put a stop to in the interests of the constitutional order.

The word “corruption” is harsh, but deserved.

Consider the Court’s increasing and unprecedented use of the so-called “Shadow Docket” to issue orders untethered to analysis. And that corruption hasn’t only been in service of the Justice’s political ideology. Investigations have uncovered copious evidence that both Alito and Thomas have accepted numerous, undisclosed luxury trips and gifts from billionaire donors with interests in pending court cases. ProPublica has reported on the numerous  gifts Thomas has accepted from Harlan Crow, and on the trips Paul Singer gifted Alito. 

The Separation of Powers prescribed by America’s Constitution requires three branches of government acting with integrity to preserve their separate prerogatives. The crisis we currently face is, in very large part, a result of a corrupt Supreme Court and a Congressional majority composed of cowards and eunuchs, branches that have ceded their constitutional authority to a bloated, lawless and increasingly lunatic executive.

When We the People retrieve our government from the MAGA fascists and neo-Nazis, reform of the Supreme Court should be one of the first orders of business.

Comments

How To Disenfranchise A Population

Every American who paid even the least amount of attention in history class is familiar with the phrase “No taxation without representation.” It was a rallying cry during the war for independence, and it has re-entered our national conversation. As economists have pointed out, Trump’s insane tariffs are really taxes on American consumers, taxes that our elected Senators and Representatives did not impose, despite that pesky constitutional provision to the effect that taxation is exclusively within the legislature’s jurisdiction.

Lincoln Square has recently considered the issue from another perspective. The linked essay argues that–thanks to systemic flaws–We the People no longer have representation. Neither the tax burden nor policy decisions are guided by the votes of citizens.

The analysis is persuasive. The essay points out that gerrymandering has diluted representation, that establishment of a 435-member ceiling for the House of Representatives caused representation to continually thin as the population grew, and that the Electoral College allows Presidents to be elected by a minority of voters. Add to that the growing malapportionment of the Senate and a variety of what the essay calls “veto points”–very much including the filibuster–and we have structures that have–little by little– given popular minorities durable governing power without requiring explicit legal disenfranchisement.

I keep thinking of that “frog in boiling water” analogy…

Under Trump, these flaws are being further exploited to permit wildly unpopular and damaging policies (environmental, health, ICE), and what the essay calls “conditional provision of services.” The administration has withheld or delayed delivery of congressionally authorized funds to institutions and programs of which Trump disapproves, and especially to Blue states. Taxation without representation? “When residents of those states continue to pay federal taxes while services are delayed, conditioned, or withdrawn, the resemblance to the original colonial grievance becomes difficult to ignore.”

It’s hard to dispute the author’s assertion that these structural flaws, resulting in minority rule, vote dilution, and conditional governance—have created a legitimacy crisis, and represent “the most serious institutional stress test of the American political system since the Civil War.”

The claim is structural: the United States has long maintained systems capable of separating contribution from control. Minority rule through malapportioned institutions. Vote dilution through engineered districts and capped representation. And—most destabilizing in practice—governance that becomes conditional, where baseline services and administrative capacity are experienced as leverage rather than as citizenship guarantees.

In a weird way, our present situation mirrors that of the Revolution. As the author notes, those participating in the Boston Tea Party weren’t just objecting to a tax. They were objecting to a system in which “representation existed in theory but not in practice.” American victory in the Revolutionary War was followed by the establishment of a system that may have been democratic in aspiration, but was–as the essay asserts– oligarchic in structure, not to mention selectively enforced.

And as the essay reminds us, those undemocratic mechanisms are still with us, albeit in altered form. Gerrymandering has replaced the explicit disenfranchisement of disfavored populations with “engineered outcomes.” The cap on House membership has diluted representation. The Senate is the epitome of minority rule–states with some thirty percent of the population have the same number of Senators as states with seventy percent, while the Electoral College enables presidents to assume office despite losing a majority of the vote.

In other words, while voting has persisted, power no longer follows. As the essay concludes, real representation has become lost within “a dense architecture of veto points capable of absorbing popular dissatisfaction without producing institutional change. Elections became mechanisms of rotation rather than accountability.”

At this point, America’s election outcomes increasingly fail to direct or even influence national policy. We have formal “democratic” participation, but actual power continues to be exercised by a wealthy, entitled and entrenched minority.

When the Trump circus implodes (and thankfully, there are signs that that blessed day is coming), we need to elect true democrats–small d–who will address the structural and systemic flaws that have turned American governance by We the People into a charade, and have once again created a situation in which we have taxation–and policy–without representation.

Comments

The Ten Commandments–Again

Indiana’s terrible legislature is at it again. Lawmakers have advanced revised legislation that would allow — but not require, as in the original proposal — public schools to post the Ten Commandments in school buildings and classrooms.

This effort pops up repeatedly, and each time it passes, it is predictably challenged in Court and found unconstitutional. So rather than writing about the current effort, I just went back into my archives and found what I’d written about previous attempts to force our legislative overlords’ version of religiosity on captive student audiences.

This one was from 1997.

______________________

If I believed passionately that everyone would be better off for reading my religion’s version of the Ten Commandments, what would I do?
I’d probably start by distributing leaflets containing the Ten Commandments everywhere I could–on street corners, at the grocery store, at sports and entertainment events.
I might ask local churches and individuals to erect replicas of the Ten Commandments on their lawns or porches.
I could ask local newspapers to reproduce them; if the papers wouldn’t do so as a contribution, I might try to raise the money to buy a paid advertisement.
I would certainly use the Internet to find others who agreed with me on the importance of widespread distribution, and would engage them in my project.
I might sell t-shirts printed with the Commandments.
I might hold a rally, and bring in people to speak about the importance of the Ten Commandments in their lives.
And of course, I would do my very best to live up to the principles of the Commandments and other great religious precepts. ( “Do unto others as you would have others do unto you” comes to mind; there are many others.)
Every single one of those methods for promoting the Ten Commandments and righteous behavior is constitutionally protected.
If, however, all I really want is for my government to send a message that my particular beliefs are the proper ones, I wouldn’t bother with any of these time-consuming activities. I’d just petition my local officials to post the Commandments so that everyone visiting a public building will know who really belongs in this country and who doesn’t. It will be important that my document appear on government-owned buildings, so it will be very clear what my government approves–and by implication, what (and who) it doesn’t.
Unfortunately for those who wish to be more equal than others, the First Amendment forbids government from issuing such endorsements, just as it would forbid the passage of laws requiring the posting of the Bill of Rights in all churches. The First Amendment protects our right to advocate in the public square, but it forbids us to enlist the help of the 800 pound gorilla– government– aka the public sector.
__________________
I saw no need to revise any of the foregoing…Indiana’s “Christian” soldiers are nothing if not repetitive and predictable.
Of course, our legislative culture warriors aren’t limiting themselves to their love affair with the Cecil B. DeMille version of the  Ten Commandments. Just in case they haven’t intruded into women’s healthcare sufficiently–while incidentally adding to the state’s brain drain and maternity-care deserts, and making it difficult for Indiana businesses to recruit women employees–they are intent upon passing a bill empowering individuals to sue companies that fill prescriptions of abortion-inducing pills.
As usual, these GOP “pro-life” warriors are supporting other measures that rather vividly demonstrate that they are actually  “pro-birth.” Once those babies are born, Indiana isn’t interested in either feeding them or providing them with medical care–Republican bills limiting poor families’ access to Medicaid and SNAP are likely to make it through the legislative process.

And Indiana wouldn’t be a “good Christian state” without a transgender bathroom bill targeting the vanishingly small number of transgender children whose very existence apparently contradicts their narrow and hate-filled theologies.

Forgive me for sounding like a broken record, but if it wasn’t for extreme gerrymandering, it is doubtful that Indiana’s legislature would be dominated by this wildly unrepresentative super-majority. (Polls regularly show that some 55 percent of Indiana voters are pro-choice, for example. And the absence of faux-religious iconography in our public school classrooms rarely if ever makes the list of Hoosier political concerns.)

Most Americans are currently and understandably fixated on resisting the neo-Nazi takeover of our national government, but if and when actual Americans regain control, Hoosiers really will need to do something about our undemocratic and unrepresentative state government.

Comments