Patterico's Pontifications

5/15/2019

Democratic Results Are Often Stupid but Nevertheless Important

Filed under: General — Patterico @ 8:05 am



Here’s another passage from Mises’s Human Action that caught my eye:

The modern revival of the idea of collectivism, the main cause of all the agonies and disasters of our day, has succeeded so thoroughly that it has brought into oblivion the essential ideas of liberal [a term which Mises always uses to mean classical liberal] social philosophy. Today even many of those favoring democratic institutions ignore these ideas. The arguments they bring forward for the justification of freedom and democracy are tainted with collectivist errors; their doctrines are rather a distortion than an endorsement of true liberalism. In their eyes majorities are always right simply because they have the power to crush any opposition; majority rule is the dictatorial rule of the most numerous party, and the ruling majority is not bound to restrain itself in the exercise of its power and in the conduct of political affairs. As soon as a faction has succeeded in winning the support of the majority of citizens and thereby attained control of the government machine, it is free to deny to the minority all those democratic rights by means of which it itself has previously carried on its own struggle for supremacy.

This pseudo-liberalism is, of course, the very antithesis of the liberal doctrine. The liberals do not maintain that majorities are godlike and infallible; they do not contend that the mere fact that a policy is advocated by the many is a proof of its merits for the common weal. They do not recommend the dictatorship of the majority and the violent oppression of dissenting minorities. Liberalism aims at a political constitution which safeguards the smooth working of social cooperation and the progressive intensification of mutual social relations. Its main objective is the avoidance of violent conflicts, of wars and revolutions that must disintegrate the social collaboration of men and throw people back into the primitive conditions of barbarism where all tribes and political bodies endlessly fought one another. Because the division of labor requires undisturbed peace, liberalism aims at the establishment of a system of government that is likely to preserve peace, viz., democracy.

People do not win elections because they are right. They win because a majority has voted them into office. Everyone must accept this because it keeps the peace.

Every so often we hear about a poll, often dubious, illustrating the stupidity and ignorance of much of the public. The most recent one I have heard suggests that a majority of Americans oppose teaching Arabic numerals in American schools. We don’t have to accept the legitimacy of such trolling polls to recognize that many Americans probably would answer a poll question that way — perhaps a majority. And they vote.

We accept the results of the vote because that is what is required to keep the peace. And keeping the peace is important. But those who parade around screaming “We’re Number 1″ because of election results, while telling pollsters that children should not be allowed to learn about the number 1 in school, are not people whose opinions I am bound to respect. And such people exist. All I agree to do is accept the results of their vote. I do not agree to respect them.

[Cross-posted at The Jury Talks Back.]

114 Responses to “Democratic Results Are Often Stupid but Nevertheless Important”

  1. I say this in part because I often encounter commenters saying: “Well, x person won the election.” As a brute statement of fact this is true. But nothing about that fact makes person x correct about anything. If I’m going to run a blog I want to have discussion about how things ought to be. Of course I know the way things are, but to be constantly reminded of that fact as if I have forgotten it suggests that the people “reminding” me actually think the election makes them right, as a matter of logic, rationality, or any other measure to be respected by the process of reason.

    It does not.

    Patterico (115b1f)

  2. A poll question about arabic numbers is an intelligence test. It’s not a test of wisdom, or life experience.

    Those that can’t tell the difference probably should stick to their pollster day job.

    Munroe (75c371)

  3. The term Arabic numerals is ambiguous. Arabs today use Eastern Arabic Numerals:٠‎ ١‎ ٢‎ ٣‎ ٤‎ ٥‎ ٦‎ ٧‎ ٨‎ ٩‎
    (hope they show up on your computers, folks). We Westerners use Hindu-Arabic numerals: 0123456789. Anyway, the wannabe smarty pants chuckling at American idiocy re not knowing Arabic numerals are not as clever as they think.

    In Saudi Arabia and other GCC countries, prices, license plates etc. are given in both sets of numbers.

    Golden Eagle (8e3954)

  4. It’s funny, but not particularly informative about anything. I suppose it might tell you the number of respondents that didn’t know what Arabic Numerals are AND don’t like Arabic things in general. So i guess it tells a lot of people don’t like Arabic things.

    But I don’t think it’s much of an intelligence test.

    Honestly if last month someone had asked me if i knew my Arabic numerals I’d probably have said I didn’t. Because although I learned what they were called way back in primary school, I doubt I’d have remembered it off the top of my head. I needed a reminder or some clue that it was a trick question.

    Time123 (daab2f)

  5. I say this in part because I often encounter commenters saying: “Well, x person won the election.”

    What amazes me is how they somehow banish from their minds the fact that y person, who they consider the devil incarnate, won the election four years before.

    Yet this did not make y correct about anything.

    Dave (1bb933)

  6. Don’t get pessimistic over the Arabic numbers poll. It was just a few years ago that 30% of Republicans and 19% of Democrats supported bombing Agrabah. Thing is, if they had followed up with “Has your kid driven you crazy with Aladdin?”, I’d bet most of the bombers would say yes. If you asked parents if they supported bombing Arendelle after Frozen came out, the numbers would have been even higher. Sure, there are plenty of uninformed jerks out there, but sometimes a joke is also just a joke.

    At least, I hope Bill Kristol was joking in the linked article when he said we’d need to follow up with ground troops.

    Eliot (32bbca)

  7. ‘to be constantly reminded of that fact as if I have forgotten it suggests that the people “reminding” me actually think the election makes them right, as a matter of logic, rationality, or any other measure to be respected by the process of reason.’
    Patterico (115b1f) — 5/15/2019 @ 8:08 am

    I would actually like to see a specific case where a commenter actually suggested that.

    Perhaps the reminder is repeated constantly because we have a tradition of respecting election results and moving on, and that tradition has been tossed aside lately.

    Munroe (713ba7)

  8. Regarding the actual point of the post.
    People do not win elections because they are right. They win because a majority has voted them into office. Everyone must accept this because it keeps the peace.
    This is true. It’s also part of the reason why our federal government was established with a system that had elected officials selected at different times and through different means. It helped prevent popular passions from having too much power. This system is mostly still in place.
    They also established checks and balances, this system is being eroded over time for a lot of reasons. I personally place most of the blame on congresses in ability effectively pass legislative solutions. This has pushed more work onto the executive and judicial branches. Just look at what the number 1 priority was for trumps first 2 years; appoint conservative judges. Not immigration reform, not civil service reform, not health care reform. They did a tax cut, they took 1 swing at health care, and after that it was all about the judges.
    I think a very large part of congresses problem is gerrymandering. This is something both sides do that creates an inventive for ideological purity. This purity allows candidates to win Primaries. Candidates that compromise, even if for good reasons, are attacked for it, lose primaries, and don’t get re-elected.

    Time123 (daab2f)

  9. Perhaps the reminder is repeated constantly because we have a tradition of respecting election results and moving on, and that tradition has been tossed aside lately.

    Can you define what you mean by “lately” My recollection going back to Clinton is that the opposition party has consistently opposed the president to the best of their ability to do so and with every tool at their disposal. I’m too young for first hand recollection of Reagan.

    Time123 (457a1d)

  10. I keep waiting for the time when the loser of an election does not accept the results, because Peace is not as important as Victory. In Georgia, Stacy Abrams sort of comes close to that, but she is not urging secession by the Atlanta metro area or armed conflict.

    The assumption is, of course, that if Trump loses, he won’t accept the results and start a fuss. Since the military, if it comes to that, will accept the results for him, I don’t worry. The real problem, here, is the Democrats, who have been in the result rejection business since 2000, and who STILL can’t get it out of their heads that, whatever Putin was up to in 2016, he did not reach into state election systems, and change Clinton votes into Trump votes.

    Appalled (d07ae6)

  11. Today = The 1930s.

    I once read something quoted that Konrad Adenaur said, to the effect that democracy also inncluded the rights (?) of the minority. Precisely that majority rule is not the dictatorial rule of the most numerous party.

    Both he and Ludwig von Mises might have gotten the idea from somewhere else. You have to look for another earlier theorist on that point.

    Sammy Finkelman (ec94de)

  12. I think the people who commissioned the poll probably don’t even know what else the term “Arabic numerals” could mean, but some of the respondents probably do, even if it’s a minority. That would help you get to the 56%.

    And besides all that, when people hear the question about teaching them in public schools, they most likely interpret that as making it part of the mandatory early grade curricullum, like spelling, or at least something more or less standard, like Roman numerals.

    There are different looking numerals used for 1 ,2, 3, etc. You may encounter them in a computer font, or in coins or pictures.

    Wikipedia calls them “Eastern” Arabic numberals. In this nomenclature, our numerals are Western Arabic numerals.

    The different looking Aabic numerals are fading away, in certain contexts anyway, even in Saudi Arabia:

    https://en.wikipedia.org/wiki/Eastern_Arabic_numerals

    In Arabic-speaking Asia as well as Egypt and Sudan both kinds of numerals are used alongside each other with Western Arabic numerals gaining more and more currency, now even in very traditional countries such as Saudi Arabia. The United Arab Emirates uses both Eastern and Western Arabic numerals.

    Sammy Finkelman (ec94de)

  13. I would have thought, in fact I did think, that this would be one post where you’d get unanimous consent, here, Patterico, but there’s always got to be “that one guy”, I guess.

    nk (dbc370)

  14. I only oppose the teaching of Arabic numbers in public schools if the teacher is a philatelist. Can’t trust them at all.

    People do not win elections because they are right. They win because a majority has voted them into office. Everyone must accept this because it keeps the peace.

    That is an elegant précis. It sang to me.

    Beldar (fa637a)

  15. @ time123, who wrote (#9):

    My recollection going back to Clinton is that the opposition party has consistently opposed the president to the best of their ability to do so and with every tool at their disposal. I’m too young for first hand recollection of Reagan.”

    I can vouch from personal recollection that this has been true going back at least to Nixon. From reading history, I honestly don’t think LBJ, JFK, or Eisenhower inspired the level of dementia in their political opponents as have the Presidents since them. But at least during the pre-WW2 portion of his presidency, FDR certainly did; and you can trace the phenomenon in varying degrees, of course, back to Hamilton and Jefferson insulting each other through clenched teeth around Washington’s cabinet table.

    Beldar (fa637a)

  16. “Ostracism” comes from the ancient Athenian practice of exiling the loser of an election so he would not be around to make trouble for the winner or, more accurately, not provide a center for his followers to coalesce and make trouble for the winner. It was not considered a reflection upon him personally — just a practical thing to do.

    nk (dbc370)

  17. 10. Appalled (d07ae6) — 5/15/2019 @ 9:27 am

    I keep waiting for the time when the loser of an election does not accept the results,

    It happened in the United States in 1860, although it wasn’t exactly the “loser” (Stephen A Douglas) who did that.

    Sometimes it is justified, and sometim4s it is not justified and they may do dfferent things. Turkey’s Erdogan got his pet court to overturn the election for mayor of Istanbul. (interestingly, they didn’t order a re-run for the other offices filled in the same electionwith the same ballots, where Erdogan’s party came out ahead)

    https://www.nytimes.com/2019/05/06/world/europe/turkey-istanbul-mayor-election.html

    In other cases not accepting the results of elections (as announced) has led to color revolutions, and in some cases failed revolutions.

    Sammy Finkelman (102c75)

  18. A poll question about arabic numbers is an intelligence test. It’s not a test of wisdom, or life experience.

    No. It’s a simple vocabulary/ignorance test. I am quite sure many, many people when taught in school that the numbers they commonly use are called “Arabic numbers”, they knew this and even got it right on the test. Just like you knew you should have capitalized the ‘A’ in Arabic. It’s just not a piece of information that is very important to know, even for mathematicians for that matter, so they’ve forgotten that they ever knew such a thing. Put that together with today’s news and political climate and it’s very understandable. Certainly not a valid way to judge intelligence. And certainly not charitable. And I thought we were supposed to be charitable?

    PTw (cbfa7c)

  19. @ nk: I think the modern-day practice is Osterizing.™

    Beldar (fa637a)

  20. 16. nk (dbc370) — 5/15/2019 @ 11:57 am

    16.“Ostracism” comes from the ancient Athenian practice of exiling the loser of an election so he would not be around to make trouble for the winner or, more accurately, not provide a center for his followers to coalesce and make trouble for the winner. It was not considered a reflection upon him personally — just a practical thing to do.

    Ostracism (exile from Athens for 10 years) was a special vote held whenever someone called for it. It didn’t have anything to do with elections. They would vote using ostracons (shards of pottery) on which the voter would write the name of the person he wanted ostracised, and whoever collected the most votes was ostracised. 6,000 votes cast (for al;l candidates for ostracism) were required to ostracize someone. It’s not entirely clear. First they had to vote to istracize someone and then they ahd to pick a person. Probably 6,000 yes votes were required for the first question. It could only take place once a year, and at that time, only one person could be ostracized, and there were two months between the first vote and the second one..

    It is more like impeachment than conviction of a crime, except that it applied to any citizen.

    https://en.wikipedia.org/wiki/Ostracism

    The last ostracism, that of Hyperbolos in or near 417 BC, is elaborately narrated by Plutarch in three separate lives: Hyperbolos is pictured urging the people to expel one of his rivals, but they, Nicias and Alcibiades, laying aside their own hostility for a moment, use their combined influence to have him ostracised instead. According to Plutarch, the people then become disgusted with ostracism and abandoned the procedure forever.

    It ended as a practical matter when two rivals were in danger of being ostracised and they both suported ostracising a third, irrelevant person, who “won” the vote.

    While ostracisim votes were held afterwards it never had any practical effect. People had discovered away to subvert it.

    Sammy Finkelman (102c75)

  21. “we should be charitable” says who? Hopefully not the people who support Trump.

    “not knowing Arabic numbers is not a sign of poor intelligence!” says who? Hopefully not the people who are on the internet, and have access to all this information about culture and civilization, and waste their time bitching about politics all day, every day, copying and pasting nuts like Ace of Spades explaining exactly what the democrats really think.

    Ignorance doesn’t happen in a vacuum anymore. We all could learn a lot about anything we want, right from our phones and computers, and all we need is interest in the world. It is so sad to see the same people here and there, on lefty and righty blogs, unreliably narrating what the other side is doing in the most hysterical and afraid way they can, only to reinforce partisanship and drive some clicks. The same people who say ignorance is no big deal will tell you that Mueller proved no collusion happened. They will actually get angry if you point out the truth, that collusion did happen and we all know it. Saw it on national TV. Saw Trump fire the guy investigating him and do all he could to shut down the investigation he plainly obstructed in any way he could. At the heart of all the collusion and obstruction that we all know happened, and all the lying that it didn’t, is the real truth: But Hillary. That’s what all those arguments eventually boil down to.

    I hope we all accept Patterico’s point that honoring elections is a good thing. There’s no better way to transition power. But we do not have a very good democracy. Both parties are terrible. Both parties will forever justify being terrible because But Hillary or But Trump or whoever the next boogeymen are.

    The single thing that could fix it would be to bust the parties. But until that’s realistic it’s too nice a life to waste worrying about the endless catalogue of what each party is doing wrong.

    Dustin (6d7686)

  22. I read this somewhere…”Apply the principle of charity, realize I am on the same side as you with this issue, stop trying to do gotchas, and maybe you’ll find you’re misreading me less.”

    Anyway, to your “says who?” says the dictionary. Ignorance is not the same as stupidity. The former is often easily curable. That is, if the person on the receiving side is willing to listen. Hopefully you will find this informative. I’d say more but I gotta run right now.

    PTw (cbfa7c)

  23. More liberal states are voting out the electoral college. So hows that going to change elections?

    mg (8cbc69)

  24. 21. Dustin (6d7686) — 5/15/2019 @ 1:24 pm

    “not knowing Arabic numbers is not a sign of poor intelligence!” says who?

    it is apoor sort of intelligence test, as it is really an literacy or education question.

    Some people might have thought “Arabic numerals” are some strange new thing, that we don’t ned to know. Others might think it refers to the way number are writen in Arabic, which they may know a trifle about. Not everybody remembers that the numerals we use, i.e., 1,2,3 etc are called Arabic numerals. Even if they read that in a 4th grade, or even an 8th grade textbook

    In addition, the very fact of asking the question leads people to believe that it must not have an answer that everybody would agree with. So even if at first a person would be inclined to believe that “Arabic numerals” are the numerals on the keyboard above QWERTYUIOP, they’ll reason it must mean something else

    The same people who say ignorance is no big deal will tell you that Mueller proved no collusion happened. They will actually get angry if you point out the truth, that collusion did happen and we all know it. Saw it on national TV.

    You mean “Russia, if you’re listening…”

    Saw Trump fire the guy investigating him

    No, Comey told him he was NOT under investigation. Trmp put that in is leter firing Comey and Comey has not disputed that, The (criminal) investigation (into Trump) was stated by Andrew McCabe.

    and do all he could to shut down the investigation he plainlyobstructed in any way he could. Then he couldn’t do very much.
    Both parties are terrible. Both parties will forever justify being terrible because But Hillary or But Trump or whoever the next boogeymen are.

    The single thing that could fix it would be to bust the parties.

    That is theproblem.

    Sammy Finkelman (ec94de)

  25. You mean “Russia, if you’re listening…”

    LOL I’m not going to get into the weeds with 9/11 truthers, antivaxxers, or people who pretend the series of meetings and coordinated efforts with Russia at the same time as Trump saying that on national TV = no collusion. The only people who would argue against it at this point know they are wrong, and I just don’t care enough about politics.

    MG, that’s an interesting development. As the GOP has become more corrupt, many states are recognizing our federal system isn’t, and are rejecting the electoral college. I have a very hard time accepting that there is a legitimate reason for an electoral college in 2019, when we really learn about candidates on the internet. What we really need is a system of laws to regulate the primary process, have run-offs, have access to information about candidates and their positions when we vote, and very obviously a better way to remove criminals from the oval office.

    Dustin (6d7686)

  26. I favor preserving the election of the president by electoral votes, as currently allocated, but the electors themselves should be dispensed with.

    The rationale for indirect election via electors was to prevent reprobates like Donald Trump from ever being elected. The system obviously failed, and is nothing more than a vehicle for mischief at this point.

    Dave (6d7f43)

  27. “We don’t have to accept the legitimacy of such trolling polls to recognize that many Americans probably would answer a poll question that way — perhaps a majority. And they vote.”

    Some do, without a doubt. But it does occur to me to ask: Just how likely is the “perhaps” of this hypothetical majority? Do we have any evidence to indicate that the Venn-diagram category overlap of “those who voted for the current President” and “those sufficiently biased / xenophobic / uneducated as to fall unironically for trolling polls of this type” is actually so large as to have made a critical difference to the outcome?

    My own experience as a Canadian may certainly be non-representative / non-applicable, but in my observation the genuinely small-minded don’t, in practice, actually go to the bother of voting nearly as often as people are afraid they do. (Which is a problem of its own, of course, but a different one.)

    Stephen J. (f77922)

  28. It’s also worth asking what somebody actually intends to convey to a listener when he says, “Well, ‘X’ won the election.”

    If what he means to convey is, “Therefore X’s policies must be taken as unchallenged gospel and only the treasonous would disagree,” that is one thing, and one I don’t think anyone here really believes.

    If what he means to convey is, “Dislike X’s policies or personality as you will, the fact remains that X is the electoral victor, and the office, if not the person, is objectively due a certain amount of both legal cooperation and public respect,” that is something else, and something I suspect most people would agree on in principle (while probably differing over what constitutes “properly due public respect”).

    If what he means to convey is, “Given the ineluctable fact of X’s victory, it’s more beneficial in the long run to concentrate on promoting and realizing the policies we like than on public criticism of the ones we don’t,” that is a third thing, and one where it seems to me reasonable people can and will differ without needing to assume ill will.

    (It’s entirely possible that any and all of the above may be used to disguise the most basic meaning of, “Shut up, I’m tired of hearing about this,” of course, which in itself needn’t even be an unreasonable sentiment. But in the context of a blog one can choose at one’s own discretion to read or not, I can’t muster much sympathy for it.)

    Stephen J. (f77922)

  29. I see it as losers stomping their feet in snowflake dementia, Dustin and Dave.

    mg (8cbc69)

  30. And lets add 4 more supreme court justices while were at it, ok?
    Peace Out…

    mg (8cbc69)

  31. I see it as losers stomping their feet in snowflake dementia, Dustin and Dave.

    mg (8cbc69) — 5/15/2019 @ 3:31 pm

    Yeah, you guys spend a lot of time worrying about what we really think. It’s not possible that someone is criticizing both political parties from a position of honesty. Just couldn’t be. If you don’t like Trump you’re a loser, a snowflake, stupid, maybe a cuck. Bla bla bla.

    But trust me, I don’t care that Trump won. It was just as bad if Hillary won. I said this a thousand times… I don’t see a bunch of difference between the options the parties give us. Mccain vs Obama seemed bad, but Trump vs Hillary? Eff caring about that. The GOP should have just laughed Trump off the stage at the convention and dared the binary choicers to vote for Hillary (and you better believe they would have).

    Dustin (6d7686)

  32. Change the rules and vote for Joe.

    mg (8cbc69)

  33. Off-topic, but Trumpy:

    Dave, I think it was you who asked me some days or weeks ago, on comments on a different post, what I thought about the possibility of House Democrats using their so-called “inherent contempt” powers to arrest and imprison Attorney General Barr for noncompliance with their subpoenas. I didn’t answer at the time, not wanting to venture an opinion without having done some research. I’ve since done it, and let’s just say I agree with the

    senior Democrats [who] privately scoff at the idea of using “inherent contempt” authority — having Congress detain or fine witnesses who won’t cooperate with subpoenas — although a number of junior Democrats want to try it, despite the fact it hasn’t been attempted by the House in more than 80 years.

    The House does have a Sergeant at Arms, a former Secret Service officer who looks quite formidable; let’s stipulate that he is. After all, his “[d]uties include overseeing the House floor and galleries, the House Appointments Desk, the House garages and parking lots, as well as administering all staff identification badges.” I’m not sure how well-armed he is, or whether he has SWAT backup without relying on the Capitol Police; he does look like he could take Bill Barr one on one, but I’m quite sure he wouldn’t relish being sent by Nancy Pelosi over to the Robert F. Kennedy Department of Justice Building to do so.

    It’s an open question whether Jurney v. MacCracken, 294 U.S. 125 (1935), is still good law today, since Congress’ power to use inherent contempt hasn’t been tested since then. But Jurney, citing Kilbourn v. Thompson, 103 U.S. 168 (1881), noted that the federal courts still have an oversight role even with respect to inherent contempt:

    The apprehensions expressed from time to time in congressional debates, in opposition to particular exercises of the contempt power, concerned not the power to punish, as such, but the broad, undefined privileges which it was believed might find sanction in that power. The ground for such fears has since been effectively removed by the decisions of this Court which hold that assertions of congressional privilege are subject to judicial review ….

    Perhaps Barr might be at risk when and if he deigns to set foot on the floor of the House of Representatives, whence he might be bundled into a closet or cloakroom in which he might be detained and fed bread and water, and forced to listen to recordings of the collected speeches of Rep. Alexandria Ocasio-Cortez (D-NY), until he cracks. (I venture no opinions on whether Congress may be immune from anti-torture laws, but if so, perhaps Barr could seek redress through the International Criminal Court, which prosecutes war crimes, for that.)

    I suspect that Barr will take his chances, though. This is one of those situations where, if you’re Speaker of the House, you supposed to consider whether it’s better for the institution if you destroy an old and questionable precedent by testing it again, or whether it’s better to leave it questionable but unchallenged. This is an old arrow that she or any Speaker would prefer to leave in the quiver.

    Beldar (fa637a)

  34. Beldar (fa637a) — 5/15/2019 @ 4:30 pm

    Hmm, thanks, but I don’t think it was me.

    A week or so ago I speculated about the possibility of obtaining a writ of mandamus telling Barr to indict Trump on the basis of the information in the Mueller report, as a way of testing the presidential immunity claimed in the OLC memo. And you pretty definitively opined that it wouldn’t fly in the presence of prosecutorial discretion.

    Your answer is still interesting though!

    Dave (1bb933)

  35. I favor preserving the election of the president by electoral votes, as currently allocated, but the electors themselves should be dispensed with.

    The first is important, for a number of reasons that one can mostly call “firewall.” The second is tradition. I disagree with dispensing them, but think they should wear powdered wigs at minimum. Breeches, stockings, coats, and lace are suggested for men, women have a wider variety of styles to choose from. See any painting by Gainsborough.

    https://en.wikipedia.org/wiki/1775–1795_in_Western_fashion

    Kevin M (21ca15)

  36. possibility of House Democrats using their so-called “inherent contempt” powers to arrest

    I think it may have been me. I did bring it up. If they did it my Orville Redenbacher stock would skyrocket. I agree it would be a stupid move on the Dems part and be somewhat thermonuclear.

    Kevin M (21ca15)

  37. I’m quite sure he wouldn’t relish being sent by Nancy Pelosi over to the Robert F. Kennedy Department of Justice Building to do so.

    I’m sure that Barr would go along gracefully while his aides called the networks.

    Kevin M (21ca15)

  38. The trash polls that Patterico brings up demonstrate why a Republic is preferable to Democracy. It’s not that the People are dolts, or that they will run rampant over their fellows, but that they cannot or will not take the time to study the issues. So they hire someone to do that for them, hopefully someone decent.

    All you have to do to understand this is watch a C-Span hearing on beet subsidies.

    Kevin M (21ca15)

  39. But trust me, I don’t care that Trump won. It was just as bad if Hillary won.

    For many things this is true. But the Supreme Court would be 6-3 “progressive” and the Army would be out rounding up the guns.

    Kevin M (21ca15)

  40. Perhaps Barr might be at risk when and if he deigns to set foot on the floor of the House of Representatives, whence he might be bundled into a closet or cloakroom in which he might be detained and fed bread and water, and forced to listen to recordings of the collected speeches of Rep. Alexandria Ocasio-Cortez (D-NY), until he cracks. (I venture no opinions on whether Congress may be immune from anti-torture laws, but if so, perhaps Barr could seek redress through the International Criminal Court, which prosecutes war crimes, for that.)

    I suspect that Barr will take his chances, though. This is one of those situations where, if you’re Speaker of the House, you supposed to consider whether it’s better for the institution if you destroy an old and questionable precedent by testing it again, or whether it’s better to leave it questionable but unchallenged. This is an old arrow that she or any Speaker would prefer to leave in the quiver.

    It’s fashionable to mock the notion that Congress might have anyone arrested for contempt, and it’s certainly the conventional wisdom that they wouldn’t dare employ the police force they have. But if their police force is too small and their jail or closet or whatever too pathetic to detain a single person, they should appropriate the money to make it feasible, and throw the next person who clearly is in contempt (not a guy just asserting some privileges like Barr) in the holding cell.

    Any old Superior Court judge in Los Angeles can throw people in jail. It’s uncommon to take a lawyer into custody for contempt but it happens. It’s actually quite routine for witnesses to be incarcerated if they ignore a subpoena. Frankly, if you want the subpoena to mean anything — and Congress’s subpoenas should — you have to be ready to enforce it. Of course, that’s best reserved for clear instances of clear contempt — and if the precedent is old and people aren’t used to it, the clearer the better. But I think it’s time Congress started giving itself the ability to enforce these things. Rules without any enforcement are quickly disregarded.

    Patterico (115b1f)

  41. the Army would be out rounding up the guns.

    If you believe this, that is really amusing. There are 400 million or more guns and we’re talking about a Democrat party that could barely pull off passing Romneycare.

    But the Supreme Court would be 6-3 “progressive”

    You win that point though. At the time, plenty of people thought Trump would pick terrible judges, with very good reason. Trump has picked good judges, period. He’s horrible on foreign policy, horrible on spending, horrible on setting an example for society (hahahahahahaha), but on judges he’s great. Do I care? Honestly less and less. The GOP is a cesspool of corruption now. I won’t support that.

    Your point about republics makes no sense. I do not trust Lindsey Graham or Donald Trump to be experts on beets, the sky being blue, or Russia. I would rather just put everything up to a poll on Nextdoor.com than trust them. They are exploitative. They are working against us. I’m not sure how many examples we need.

    Dustin (6d7686)

  42. @39 unlike biden, clinton, pelosi and other corporate establishment democrats dependent on silicon valley corporate billionaires who bemoan conservative control of supreme court and n.r.a. stoping gun control. AOC say when I become president in 2024 thanks to undocumented being allowed to vote in the states I need to win and or popular vote initiative is enforce. The day I take office their will be at least 9 vacancies on the supreme court and pro nra members in congress will be arrested for accessory to murder in all gun deaths. Not bad for my first day as president!

    lany (2da2d3)

  43. 41 possession go guns will be treated like possession of child pornagraphy. no round up necessary when your caught in possession you go to jail. If you dig a hole and hide your guns it reduces gun crime to a minimum and someone will rat you out for reward.

    lany (2da2d3)

  44. It’s so wonderful to see you commenting, Dustin.

    I share your frustration at the state of politics these days.

    Patterico (115b1f)

  45. Our host wrote (#40):

    But if [Congress’] police force is too small and their jail or closet or whatever too pathetic to detain a single person, they should appropriate the money to make it feasible, and throw the next person who clearly is in contempt (not a guy just asserting some privileges like Barr) in the holding cell.

    It might be hard to get a presidential signature on that appropriation, but I think I agree in general — so long as there’s judicial review upon conviction. There is already, of course, a statutory alternative to inherent contempt — going through the U.S. Attorney for the District of Columbia, whose next-to-ultimate boss is Bill Barr.

    Beldar (fa637a)

  46. Seriously, lany, is that the best you can do in the way of fantasies? Wouldn’t you rather have the power of telekinesis and the ability to telepathically communicate with dragons?

    nk (dbc370)

  47. Cicero had the Catiline conspirators tried and executed by the Senate, instead of the courts. Then, when Mark Anthony and Octavian had control of the Senate, they tried and executed him.

    nk (dbc370)

  48. Any old Superior Court judge in Los Angeles can throw people in jail [for contempt].

    Definitely true. But there are definitely appellate remedies for that.

    When I was held in contempt in 1983 by a federal district judge, I found some caselaw saying that I had an absolute and immediate right to make a full record in the trial court for purposes of my habeas/mandamus petition. It was at the end of my second day of introducing evidence in my defense that the judge threw up his hands, reversed himself, and vacated the contempt citation. And at the start of the trial some two weeks later, he granted my motion in limine preventing my opponent from mentioning the contempt proceedings or any other discovery disputes. I made sure he knew that I had just finished a Fifth Circuit clerkship; there were judges there who hadn’t seen me practice yet but knew me from clerking, and he knew I knew the procedures to get him called on the carpet. And he was entirely in the wrong, which I think he actually realized at least by the end of the first day of testimony.

    Still, without knowing I had appellate options, I’m not sure he would have come to that realization before I’d spent some time in a cell. After the Kavanaugh hearing, can anyone possibly trust Congress to honor the faintest notion of due process? If inherent contempt is an implied power of Congress, judicial review of it ought to be an implied right of convicted Congressional contemnors.

    Beldar (fa637a)

  49. I’m all for judicial review of it, especially since Congress is populated by clowns.

    Patterico (115b1f)

  50. It might be hard to get a presidential signature on that appropriation

    Just make it part of a giant appropriations bill. A President is going to veto it over small increases in the Capitol police force and improvements to the building?

    Patterico (115b1f)

  51. @ Dave (#34): I may have been remembering a discussion on inherent contempt that I had with Paul Montagu, Dave. I recall thinking, “That’s a thoughtful question, I ought to look that up,” but didn’t have time at that moment.

    @ Kevin M (#36): Yes, I recall your mentioning that in a comment, but it wasn’t the one I [thought I] was remembering.

    Beldar (fa637a)

  52. @ Dave (#34): I may have been remembering a discussion on inherent contempt that I had with Paul Montagu, Dave. I recall thinking, “That’s a thoughtful question, I ought to look that up,” but didn’t have time at that moment.

    @ Kevin M (#36): Yes, I recall your mentioning that in a comment, but it wasn’t the one I [thought I] was remembering.

    @ Patterico (#51): Provided that both chambers were in agreement, you’re right, as long as they don’t call it the “Bill Barr Apprehension and Holding Cell Act of 2019.” Of course that name would help sell it in the Democratic caucus. They could fund-raise off it.

    Beldar (fa637a)

  53. Sorry for that partial duplication; editing screw-up.

    Beldar (fa637a)

  54. nk (dbc370) — 5/15/2019 @ 6:51 pm

    Oliver Cromwell and Parliament did much the same to Charles I.

    Cromwell died of natural causes before Charles II returned to power, but they had his corpse exhumed, hung and beheaded anyway.

    Which seems just mean.

    Dave (1bb933)

  55. . Then, when Mark Anthony and Octavian had control of the Senate, they tried and executed him.

    Actually they just put his name on the list of proscriptions and sent some soldiers to kill him. Not even a show trial for old Chickpea.

    Kishnevi (9bda4f)

  56. I would rather just put everything up to a poll on Nextdoor.com

    Sorry, there are too busy with “what was that noise?!” or “My cat is missing.”

    I actually have some experience with a sizable NGO and the level of discussion of topics at a local chapter (the proponent speaks and then they vote), vs what goes on at the international business meeting. The problem that you mention with representation is DUE to the lack of attention that I speak of. If voters cannot spend enough time to pick a better candidate than Trump or some of the turds in Congress then I really want them delegating their decisions.

    It’s a lousy system, except for all the others. In Europe they went even further, letting the bureaucracy and elites run everything. Guess who benefits.

    Kevin M (21ca15)

  57. *they’re *gah*

    Kevin M (21ca15)

  58. Another distortion of the system few people seem to notice is the power that now accrues to certain Congressional positions. Mitch McConnell has a veto power not even Trump can claim: nothing gets voted on the floor of the Senate without his permission, unless almost all the GOP caucus revolts. Nancy Pelosi is not quite so powerful in the House, but that’s mostly because she has to fend off revolts from her caucus.

    Kishnevi (9bda4f)

  59. Tellingly I think, footnote 2 in Jurney v. MacCracken reveals that contempnor MacCracken was never actually in Congressional custody; rather, after the congressional contempt warrant was served upon him by the Senate sergeant at arms, MacCracken “was paroled in the custody of his counsel.” He was released from even that constructive custody three days later, and by the time his case was decided by the SCOTUS, he’d been out of custody for almost a full year.

    Beldar (fa637a)

  60. Kish, you’re right of course (#56) re the power of the Speaker and Majority Leader that inheres in their calendaring powers. But I don’t think that’s new. To the contrary, I wish there were better party discipline; the principal means of enforcing it in the past, logrolling and earmarking, made the process less fractious, the results more predictable, and the leadership unquestionably accountable. Without that power, the leaders too often can’t deliver, which prevents compromises from being made in the first place.

    It’s like we’re trying to make nonfat sausage.

    Beldar (fa637a)

  61. Or as I’ve heard said of redistricting: You can’t fix politics by trying to take the politics out of politics.

    Beldar (fa637a)

  62. #60 Give him an ankle monitor and confine him to the recognized continents

    steveg (354706)

  63. According to this Congressional Research analysis of the law of congressional contempt (https://static.politico.com/ea/09/0bf67f63459bbdbfcaad1ebc7699/contempt.pdf):

    [During the presidency of John Adams], the Senate exercised its contempt power against William Duane, who, as editor of the Aurora newspaper, was charged with the publication of a libelous article concerning the Senate and one of its committees. Mr. Duane was ordered by Senate resolution to appear before the bar of the Senate and “make any proper defense for his conduct in publishing the aforesaid false, defamatory, scandalous, and malicious assertions and pretended information.”

    At his initial appearance before the Senate, Mr. Duane requested, and was granted, the assistance of counsel and ordered to appear again two days later.38 Instead of appearing before the Senate as ordered, Mr. Duane submitted a letter indicating he did not believe he could receive a fair trial before the Senate. Mr. Duane was subsequently held in contempt of the Senate for his failure to appear, not for his alleged libelous and defamatory publications. As a result, he was held in the custody of the Senate for several weeks before the Senate, by resolution, instructed that he be released and tried by the courts.

    The Senate’s contempt of Mr. Duane generated considerably more debate concerning Congress’s contempt authority. A majority of Senators argued that the Senate’s contempt power was an inherent right of legislative bodies, derived not specifically from the Constitution, but rather from “the principle of self-preservation, which results to every public body from necessity and from the nature of the case.”

    Moreover, Senators supportive of this position argued that their reasoning was firmly supported by English and colonial practices, as well as the practice of the state legislatures. Finally, the majority asserted that if Congress did not possess a contempt power it would be vulnerable to the disruption of its proceedings by outside intruders.43

    aphrael (3f0569)

  64. Barr is in good company:

    Since 1975, 10 Cabinet-level or senior executive officials have been cited for contempt by subcommittees or committees for failure to produce subpoenaed documents. They are Secretary of State Henry Kissinger and Commerce Secretary Rogers C. B. Morton in 1975; Health, Education and Welfare Secretary Joseph A. Califano Jr. in 1978; Energy Secretary Charles Duncan in 1980; Energy Secretary James B. Edwards in 1981; Interior Secretary James Watt in 1982; Gorsuch, known as Anne Gorsuch Burford after a 1983 marriage, and Attorney General William French Smith in 1983; White House Counsel John M. Quinn in 1996; and Attorney General Janet Reno in 1998.

    http://www.nbcnews.com/id/19693051/ns/politics/t/what-contempt-congress/#.XNzNP_7PzIU

    nk (dbc370)

  65. but they had his corpse exhumed, hung and beheaded anyway.

    Yet, there is a statue of Cromwell on the Parliament grounds.
    https://previews.123rf.com/images/giuseppemasci/giuseppemasci1605/giuseppemasci160502043/57664929-london-the-cromwell-statue-in-front-of-the-westminster-palace-seat-of-parliament.jpg

    Kevin M (21ca15)

  66. Now, here’s my question: Hasn’t Congress itself preempted its inherent contempt power by codifying it as a crime, entitling to the contemnor to all the procedural rights of criminal defendants?

    nk (dbc370)

  67. And it was done after Jurney v. MacCracken.

    nk (dbc370)

  68. AOC say when I become president in 2024 thanks to undocumented being allowed to vote in the states I need to win and or popular vote initiative is enforce. The day I take office their will be at least 9 vacancies on the supreme court and pro nra members in congress will be arrested for accessory to murder in all gun deaths. Not bad for my first day as president!

    I doubt she actually said this. At least not out loud. Because this is pretty much a declaration of war on the Constitution.

    Kevin M (21ca15)

  69. nk, I think it is considered a civil action.

    Kevin M (21ca15)

  70. Sorry, there are too busy with “what was that noise?!” or “My cat is missing.”

    It’s called a joke.

    Dustin (6d7686)

  71. As was that. No issues, Dustin. Welcome back.

    Kevin M (21ca15)

  72. The popularity of Congress being what it is, the optics of arresting someone for contempt are likely not in favor of the arresting party. It’s laughable to think it’s a matter of securing sufficient appropriations. A Superior Court judge in L.A. has no such optics to worry about.

    Munroe (4a2909)

  73. Yet, there is a statue of Cromwell on the Parliament grounds.

    They’re weird about that kind of stuff in England.

    I was reading that every year when the Queen gives her speech in Parliament (which, remember, is *written* for her by the government), after Her Majesty is comfortably seated on the throne in the House of Lords, she sends one of her servants to fetch the riff-raff members of the House of Commons. And every year, they slam the door in his face. So rude!

    Then they make him knock three times before they answer the door, so he can tell them the Queen is there. And then (finally!) they make their way to where Her Majesty has been patiently waiting for them, as if she had nothing better to do.

    Which, actually, she probably doesn’t. But that’s beside the point.

    Dave (1bb933)

  74. But along those lines, and I recognize this is abhorrent to many in this audience, but why not completely overhaul voting?

    We need hundreds (or thousands) more congresspersons, and they should work from their district office, voting remotely. Instead of this bureaucracy of committees, each member can submit a single bill per term of office. Instead of bullshit parlimentary tactics, all bills are submitted on mondays, all bills are voted on all friday, and votes are conducted online with a paragraph written by the member explaining their vote.

    Each friday, all voters will get an email from their member explaining Friday’s votes, with a link to each bill, and each bill can contain a discussion forum between the members, kinda like these discussion forums politics nerds like us use.

    And we need better requirements for voters. Not only should they have an email address, they should have a biometric national ID. Every election should be online. Yes, really. And it should be easy to read a blurb from each candidate and about each proposition on the ballot. The same procedures used to proctor an exam online should be used for voting online. That email address should be something secure, where it costs 25 cents to send a message, and it can only be accessed with that biometric ID. And the USPS should run this program and get out of the parcel delivery service altogether. The penalty for trying to access someone else’s USPS email, or viewing how they vote, should be 99 years in prison. And if you are not a citizen, even if you’re here for years on a visa, you cannot have this ID. And if you do not have this ID, you cannot access many government services.

    What’s this got to do with Trump and democratic results? Everything. Trump was, in a nutshell, a lot of people saying they are sick of not being heard by the GOP or the nation as a whole. But Trump wasn’t a solution. The real problem has always been congress. Thousands more congresspersons, deflated of the fancy DC office, but hopefully professionals who take on an additional task for 2-6 years, much more accountable because they serve far fewer voters, with massive overhauls in communication, would mean a more democratic process. Not nextdoor.com polls, but not Lindsey Graham in a corner office of the Russell building deciding what side of the bread the butter’s on either.

    Dustin (6d7686)

  75. As was that. No issues, Dustin. Welcome back.

    Kevin M (21ca15) — 5/15/2019 @ 8:01 pm

    👌

    Dustin (6d7686)

  76. I have a comment in moderation explaining my ridiculous view on how to improve our democratic republic.

    Dustin (6d7686)

  77. Released.

    Patterico (115b1f)

  78. Thanks for the kind words, btw. I’ll try to be more patient.

    Dustin (6d7686)

  79. @ Kevin M, who wrote (#70), of Congress’ statutory contempt powers:

    nk, I think it is considered a civil action.

    The provision nk linked, 2 U.S.C. § 192, is definitely criminal in nature, with its penalty set as “a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.” A parallel provision, 2 U.S.C. § 194, specifies how it’s enforced — by presentation of a certified statement of facts “under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.” The resolution passed out on party lines by Nadler’s Judiciary Committee references both statutes.

    Beldar (fa637a)

  80. 75. There are about half a dozen important things wrong with this, but the one good thing about it is off-the-floor voting in Congress. You have no process for amending bills, and the whole process is too fast. I’d have the off-the-floor voting in Congress ciose – or rather freeze, because until then the member of Congress could change his or her vote – at 3:30 am.

    The basic idea of an online discussion board for members of Congress is also not bad – a more useful Congresional Record maybe. But don’t regulate it so much. And they don’t need never to assemble.

    Limiting members of Congress to one bill at a time is unfair, and they’ll just split the responsibility anyway. If you want to limit the number of bills, or amendments, under consideration at one time, let there be preliminary collection of sponsers. Even with thousands of members of the House, you’re still not going to have people electing people they know personally, and the importance of the office would mean it attracts no attention. You could have thousands of districts and candidates competing across many multiple districts – winning X number would be needed to be elected, and surplus districts could be transferred to someone else till everyone in Congress represented the same number of districts. Any state could elect its members of Congress this way.

    You’d have voting done by an elite. Punishment for doing somwthing in violation of regulations is far too severe. If this is so susceptible to fraud, don’t do it. I’m not sure how you have both secure online voting with no proxy voting and the secret ballot. PGP wouldn’t help because someone else could be at the keyboard. You can use a typing signature.

    Sammy Finkelman (78d0b5)

  81. For my friends, no explanation was necessary; for my enemies, none would ever have sufficed. On to better things and brighter days.

    mg (8cbc69)

  82. Beldar, I got that from this WaPo op-ed sourced from Wikipedia

    Kevin M (21ca15)

  83. The claim is that it is civil in nature since the inherent contempt is to compel an action and can be cured by doing so.

    Kevin M (21ca15)

  84. Dustin,

    I have a simpler cure for one of our ills — the gerrymander. Each district elects 3 representatives, but each voter gets ONE vote. Not only does this make a gerrymander impossible, or at least ineffective, but it means that minority views can get representation. It probably also decreases polarization in representation, to the extent that the electorate isn’t hopelessly polarized.

    A more drastic revamp would get rid of districts entirely. Each voter gets one vote which they can give to any candidate, the top X candidates are elected.

    But I really do NOT like the idea of any form of direct democracy. Nearly everything a legislature does is complex and uninteresting. Most people wouldn’t bother, most of the rest would just be system noise, and it would end up like a municipal election — controlled by the city employees, who all vote.

    Kevin M (21ca15)

  85. Each district elects 3 representatives, but each voter gets ONE vote. Not only does this make a gerrymander impossible, or at least ineffective, but it means that minority views can get representation.

    Giving small (fringe/niche/single-issue) parties seats creates a whole new set of problems.

    Dave (1bb933)

  86. American Patriots like myself are happy muslim John Brennan will be dressed in orange taking choppy little steps entering a prison cell.

    mg (8cbc69)

  87. Yes, there is a distinction between criminal contempt which is like lese majeste, and civil contempt which is like the Inquisition. In the first, you are whacked for dissing da Boss, in the second you are encouraged to recant your heresy and cleanse your soul.

    So 2 USC 192 et seq notwithstanding, Congress may have retained the authority to subject Barr to the three degrees until he has purged himself of the contempt by disgorging the information Congress wants.

    Still, an action may be civil in nature and prosecuted according to criminal procedure — quasi-criminal — although I have only seen it for petty offenses and administrative violations punishable only by a fine, such as running a red light or not baking a gay wedding cake.

    Civil or criminal, has Congress committed to turning it over to the US Attorney for prosecution and the courts for adjudication, by codifying it?

    nk (dbc370)

  88. Interesting discussion on governmental reform in this thread. Some comments are serious, some ignorant, and one ridiculous. (But then the ridiculous is often best read as the sublime art of satire, when written well. It’s like the prime rule of comedy: in order to be funny, it must be true. So it is with satire: in order to be thought-inspiring, it must be ridiculous. So much so that it makes one say, are you out of your mind? No, but I did make you think.)

    The idea of doing away with the Electoral College is an absurdity. The Constitution, or actually the Bill of Rights, can be amended, but the structure of government–three coequal branches with checks and balances–cannot be altered. Only an Article V Convention of the States can rewrite the Constitution, which establishes the Electoral College as the arbiter of presidential elections. Even if Congress could pass an amendment to abolish the Electoral College, the requisite number of states would never ratify it. In addition to the absurd impossibility of the proposition is the ineptitude of the deranged argument that totally misses the point and fails to make a case. The problem is not with the Electoral College. It’s in party control over electors.

    What is needed is a uniform process in all fifty states. As it is now, some states allow for proportionate distribution, while others mandate majority distribution. The latter forces electors to vote for a candidate at the convention that did not win in the district they were appointed to represent. In other words, electors can only vote for the candidate that won the nomination in their state and are not allowed to vote for the candidate that won the nomination in their district. That caused much consternation at the Republican convention in 2016. Remember, free the electors, vote your conscience!? If the electors had been able to vote for the candidate that won in their district, Trump would not have been nominated. GOP leadership, under Priebus, and the Trump campaign, under Manafort, were not going to be denied, so they manipulated convention rules, denied a floor vote by the electors, and pushed the nomination through over objections.

    I watched the whole thing unfold, and it was infuriating. Electors should, and in fact have a duty to vote for the candidate that won their district, not their state (however marginally). The party would not allow them to do that. It was then that I realized the Republican party was in thrall, and it disgusts me that the GOP would elevate a corrupt fraud over a reliable conservative, who would have won more electoral votes than Trump and probably more popular votes than Clinton.

    Trump corrupts everything around him–he is the anti-Midas, who turns gold into lead. Where is Priebus today? Nowhere, he’s out of a job. Where is Manafort? He’s going to jail. The entire party has been corrupted by its obsession with winning; it was a pyrrhic victory. Yes, Clinton was the absolute worst candidate the Democrats could have possibly nominated (they can thank their super-delegates for that), but she would have lost in a landslide against a credible Republican, a conservative/libertarian.

    The duopoly forced upon the electorate two unacceptable nominees, by party control over electors. It is no longer about who the people elect, but who the parties select. Both parties made bad choices.

    So, what are we the people going to do about it? Well, I’m going to propose an absurd, ridiculous solution. Reject the duopoly and free the electors. More seriously, impose term limits on Congress and the Judiciary. We already have term limits on the Executive, eight years. I’m thinking twelve years for Congress: two terms for Senators, and six terms for Representatives. Get into office, get the job done, then go home. The original idea of America was that of citizen governance, not political class of overlords.

    As for the Judiciary, I am opposed to lifetime appointments. With those we get doddering old fools who live in the past, instead of diddering young fools who live in the present. Both are injudicious, but it would be preferable to have judges appointed for a limited term, say twelve years, pending reconfirmation.

    Gawain's Ghost (b25cd1)

  89. In civil contempt, you hold the key to your jail cell in your own hand, as Judith Miller did when she was jailed for refusal to testify in response to Patrick Fitzgerald’s grand jury subpoena in La Affair d’Plame. She relented; she was released to testify; and she went on with life.

    By contrast, criminal contempt is indeed punishment meted out as punishment — as when one is fined and sentenced to a misdemeanor term of up to one year. The resolution from Nadler’s committee would empower the Speaker to ask the U.S. Attorney for the District of Columbia to obtain a statutory criminal contempt indictment from a grand jury — which, as nk pointed out earlier, triggers the whole range of due process requirements (including, for instance, a right to court-appointed counsel for indigent alleged contemnors, the requirement of proof of every element beyond a reasonable doubt, etc.).

    I’m not sure what the “it” was when you wrote, Kevin M (#70), “nk, I think it is considered a civil action.” But nk had just linked the statute, so my assumption was that he and you were both talking about statutory contempt, not inherent contempt. Your WaPo source discusses both (and correctly notes Miller’s jailing as being for civil contempt), although I don’t share its writer’s confidence that the very old precedents it cites are still good.

    As I’ve written earlier, I expect that Pelosi will permit the Nadler committee resolution to go forward if and only to the extent it’s part of a larger PR plan to prepare for the 2020 elections (per a secret master calendar on some House conference room wall). I do not expect her to actually schedule a floor vote on it ever, because Dems could not resist the pressure from radical donors and constituents (in that order) to vote in favor, but once the certified statement of facts was sent to the USADC, he’d bounce it upstairs to DoJ HQ to whoever Rosenstein’s acting successor as Assistant Attorney General is (since that position has first-line responsibility for supervising U.S. Attorneys), who might then bump it sideways to DoJ’s Assistant Attorney General for Legislative Affairs — who’d then deliver a letter like the one the Holder DoJ wrote to put an end to the House’s attempt to prosecute Eric Holder for contempt in Fast and Furious. She’d rather leave the specter of contempt hanging than have it handed to DoJ to be shot down.

    So: Kabuki theater.

    Beldar (fa637a)

  90. nk asked (again)(#88):

    Civil or criminal, has Congress committed to turning it over to the US Attorney for prosecution and the courts for adjudication, by codifying it?

    You’re correct in noting that 2 U.S.C. §§ 192 & 194 were passed in 1938 and 1936 respectively, which was after Jurney v. MacCracken (1935), the latest SCOTUS case on inherent contempt, which sets up the argument that “Congress impliedly preempted itself,” perhaps in response to that decision (even though Congress technically won).

    There’s certainly no express preemption: The statutes don’t say, “This is in lieu of Congress’ inherent contempt powers, which are hereby abolished.” So any preemption would have to be implied. Even using the standards courts consider for federal preemption of state laws, however — and this isn’t that — I don’t think courts would find an implied preemption. There’s no “field preemption” because there’s no “comprehensive regulation” scheme in the statutes. Nor is there a “conflict preemption,” because there is no “purpose and objective” of the statutes that is in conflict with, or that would make impossible the operation of, the inherent contempt power. So I think the preemption argument is inherently weak anyway.

    But more fundamentally, I don’t think preemption analysis applies at all when one’s speaking not of legislative powers and rights, but allegedly constitutional ones inherent in the structure of Article 1 (which creates and empowers Congress). One Congress couldn’t bind a future one, by a mere statute, from exercising a power impliedly granted to Congress by the Constitution. Or so the congress-critters would surely argue. They’d say that inherent contempt, vague though it be, simply exists in parallel with the statutes as a long disused alternative, unless and until the Constitution itself is amended to rule out the implied power of inherent contempt.

    Since Congress hasn’t tried to use inherent contempt since these statutes were passed, though, we don’t have a test case and don’t know what the courts would say about preemption. But I think that the better court attacks on inherent contempt would instead be founded on due process and separation of powers arguments, perhaps with an equal protection angle if someone can articulate a suspect class (“Congressionally-besieged Executive Branch members”?).

    Beldar (fa637a)

  91. 89. Gawain’s Ghost (b25cd1) — 5/16/2019 @ 6:24 am

    The idea of doing away with the Electoral College is an absurdity. The Constitution, or actually the Bill of Rights, can be amended, but the structure of government–three coequal branches with checks and balances–cannot be altered.

    That’s not true, and the method of electing the president was actually changed in the Twelth amendmentin 1804. A structural amendment if there ever was one. The 23rd and the 25th amendments are also structural. (giving Electors to DC (but no more than 3 – the terms is no more than the least populist state, and all sorts of provisions regarding the oresident and vice president)

    There are only two changes that can’t be made, according to Article V, and they can’t be changed by a convention either. They are:

    1) Abolishing the slave trade or changing the provision about capitation or direct taxes in Article I, Section 9, clause 4, before the year 1808, and

    2) Changing the equal representation of any state in the Senate without its consent.

    An amendment did in fact affect Article I, Section 9, clause 4 in 1913 (sent to the states in 1909) because the Supreme Court had based its ruling in 1895 rendering the income tax unconstitutional on Article I, Section 9, clause 4, a problem with it that had somehow not been noticed bt anyone during the Civil War. (sarc) The Supreme Court was actually getting close to reversing its decision – Taft weanted it to go that way, rather than amending the constitution.

    Two states have been split in two: Maine was separated from Massachusetts and admitted to the Union in 1820 – this was part of the Missouri Compromise legislation, and Virginia was considered to have abandone its claims when it seceded West Virgibia seceded from Virginia and was admitted to the Union in 1863. It was not any kind of territory efore as a Bicentennial Minute nroadacast sometime during 1974-76 implied. What was later West Virgiia was part of Virginia before the Civil War. Someone got misled by looking at a table of the dates were admited to he Union, and it wasn’t caught. And Massachusetts consisteds of two non-contigious bits of territory separates by New Hampshire before 1820. At that time the northern and estern boundary of Maine wasn’t eve clear. Someho the United States existed till about 1842 without a border although this no doubt created practical problems, but it mus have been limited because the area was sparsely settled and it was cold up there..

    Also Dakota territory was admitted to the Union as two states in 1889 and New Mexico and Arizona were also split before admission.

    No states have been combined.

    To change the equal represenattion of each state in the Senate, you’d have to amend the constitution in two steps, but you could change the method of electing presidents or the compositon of the Electoral College directly, in one step.

    Sammy Finkelman (78d0b5)

  92. One Congress couldn’t bind a future one, by a mere statute, from exercising a power impliedly granted to Congress by the Constitution. Or so the congress-critters would surely argue.

    And they would be right. That has already been litigated, although I can’t remember the case offhand.

    But I think that the better court attacks on inherent contempt would instead be founded on due process and separation of powers arguments

    I agree again. Thank you, Beldar.

    PS On locking the contemnor in a closet and making him listen to AOC’s speeches: Federal prisoners can avail themselves of a Bivens action to challenge the conditions of their confinement, analogously to a 1983 action for state prisoners.

    nk (dbc370)

  93. Electors should, and in fact have a duty to vote for the candidate that won their district, not their state (however marginally).

    There’s no reason for that, just because he number of Electors in each state equals the total of the states senators and representatives in Congress. THe state legilatures have plenary power over the selection of Electors. Every state elects them by popular vote.

    Sammy Finkelman (78d0b5)

  94. On locking the contemnor in a closet and making him listen to AOC’s speeches: Federal prisoners can avail themselves of a Bivens action to challenge the conditions of their confinement, analogously to a 1983 action for state prisoners.

    Not if they die laughing first.

    Dave (1bb933)

  95. 75. If you want to overhaul voting, a good start would be to repeal the 17th amendment. That would go a long way in making the Senate more responsive to local concerns.

    Gryph (08c844)

  96. Congress using its inherent contempt power opens up many legal issues. Here are some off the top of my head:

    1. Are we talking about civil or criminal contempt? The key difference under Supreme Court precedents is that civil contempt is used to coerced compliance — the contemnor “holds the key to his own jail cell.” Where is Congress going to specify what the person has to do to comply? Who decides if he has or has not?

    OTOH, if it is criminal contempt , how can a person be punished without grand jury indictment and then a jury trial, as guaranteed by the Fifth and Sixth Amendments?

    2. What privileges apply? Constitutional ones (like the 5th Am right against self incrimination)? Common law ones (like the attorney-client privilege), which were incorporated by Rule 501, Fed.R.Evid.? Statutory ones, like the prohibition against disclosing grand jury materials contained in Rule 6, Fed.R.Crim.P?

    3. Who rules on assertions of privilege, for example? If there are factual issues (as there often are), who receives and evalautes evidence on that topic?

    4. What Due Process is afforded the putative contemnor? In court, one has to have notice and an opportunity to be heard before a contempt finding is issued, usually by Order to Show Cause. What notice would Congress give? To whom does the target submit his opposition arguments and evidence?

    5. Does the writ of habeas corpus apply to challenge incarceration by Congress, if the person claims it is in violation of his rights?

    Lots of fun for lawyers to play with. Not sure this is a good use of the republic’s resources.

    Bored Lawyer (998177)

  97. 86.Each district elects 3 representatives, but each voter gets ONE vote. Not only does this make a gerrymander impossible, or at least ineffective, but it means that minority views can get representation. There was a system for the lower House in Illinois where each disrict elected 3 representatives but each voter got 3 votes, which did not all have to be cast for different candidates. A voter could give 2 or even all 3 of his votes to the same candidate. This is called cumulative voting. It used to be used fairly commmonly in stockholder voting.

    https://www.sec.gov/fast-answers/answers-cumulativevotehtm.html

    For example, if the election is for four directors and you hold 500 shares (with one vote per share), under the regular method you could vote a maximum of 500 shares for each one candidate (giving you 2,000 votes total—500 votes per each of the four candidates). With cumulative voting, you are afforded the 2,000 votes from the start and could choose to vote all 2,000 votes for one candidate, 1,000 each to two candidates, or otherwise divide your votes whichever way you wanted.

    In Illinois, it usually resulted in 2 seats going to one party and 1 to another, and the parties usually split the dstrict in advance, with the minority party running 1 candidate.

    https://en.wikipedia.org/wiki/Illinois_General_Assembly

    From 1870 to 1980, the state was divided into 59 legislative districts, each of which elected one senator and three representatives. The representatives were elected by cumulative voting, in which a voter had three votes that could be distributed to either one, two, or three candidates.

    This system was abolished with the Cutback Amendment in 1980. Since then, the House has been elected from 118 single-member districts formed by dividing the 59 Senate districts in half. Each senator is “associated” with two representatives.

    In New York Cityt we had something different with the election of At-Large members to the City Council, except that you could vote for on;y candidate, but two were elected. This ended after a lawsuit based on equal proportion because the five boroughs of New York City not having equal populations, with Staten Island not even being close. Otherwise, Brooklyn had about twice the population of the Bronx, with Queens and Manhattan being in between.)

    Sammy Finkelman (3fda43)

  98. 89. Gawain’s Ghost: “Clinton was the absolute worst candidate the Democrats could have possibly nominated … but she would have lost in a landslide against a credible Republican, a conservative/libertarian.”

    Which candidate would you have preferred? And how do you conclude that that candidate was (a) credible, and (b) would have been seen as credible by enough voters to defeat the Democratic machine?

    As I understand it, a key part of how Trump flipped the Midwest “blue wall” states was (in public perception, anyway) his comparative outsider status among politicians, which by definition an establishment Republican couldn’t have exploited, and part of how he broke the Democratic media advantage was by taking an attitude of public disdain that I am not sure any other Republican candidate could have pulled off, or would have dared in 2016 to attempt to pull off. If such an electoral landslide was waiting for a genuinely credible Republican, I can’t help but think it would have been perceptible in the primaries first.

    (It should probably be admitted that I am inherently skeptical of “would have been” hypotheses, because by definition there’s no way to test or disprove them. But that doesn’t mean I don’t find them interesting, if a convincing case can be made.)

    Stephen J. (308ea7)

  99. Dustin,

    I have a simpler cure for one of our ills — the gerrymander. Each district elects 3 representatives, but each voter gets ONE vote. Not only does this make a gerrymander impossible, or at least ineffective, but it means that minority views can get representation. It probably also decreases polarization in representation, to the extent that the electorate isn’t hopelessly polarized.

    A more drastic revamp would get rid of districts entirely. Each voter gets one vote which they can give to any candidate, the top X candidates are elected.

    But I really do NOT like the idea of any form of direct democracy. Nearly everything a legislature does is complex and uninteresting. Most people wouldn’t bother, most of the rest would just be system noise, and it would end up like a municipal election — controlled by the city employees, who all vote.

    Kevin M (21ca15) — 5/16/2019 @ 12:12 am

    Very interesting thought, Kevin.

    It’s enjoyable to muse about this stuff. Of course the folks who have power under whatever system is in place can effectively block any changes, and will.

    I am somewhat optimistic that if given enough of a chance, we could do a better job making good decisions as a society, and take more of an interest. I don’t want direct democracy either, but I do want each citizen to be able to follow what’s going on and have more of a voice with their representation. A big part of the issue is how our antiquated legislature handles voluminous bills, and how it decides what is voted on. I see no reason for congress to meet in person or take up so many bills. I think the whole thing could be handled on the internet.

    The idea of doing away with the Electoral College is an absurdity. The Constitution, or actually the Bill of Rights, can be amended, but the structure of government–three coequal branches with checks and balances–cannot be altered.

    We live in bizarre times. We’re only a few more bizarre steps from what passes for a president these days from some drastic reforms. Conservatives are wise to fear a complete overhaul of our constitution. We would not keep many of the things we need.

    Do we have three coequal branches? Is there a check on the presidency? He’s a legislator these days.

    Dustin (6d7686)

  100. Which candidate would you have preferred?

    Ted Cruz of course.

    Dustin (6d7686)

  101. Giving small (fringe/niche/single-issue) parties seats creates a whole new set of problems.

    Only if there are a lot of them. And why fringe parties? It might be as simple as Garden Grove getting at least one Vietnamese assembly person, or Newport Beach electing a Democrat to go with the 2 Republicans.

    Kevin M (21ca15)

  102. Do we have three coequal branches? Is there a check on the presidency? He’s a legislator these days.

    I don’t think we ever have, except maybe in passing. At times Congress has been supreme, at times the Executive, and right now the Judiciary is showing some teeth. Both Trump, being ineffective, and Congress, being divided and dysfunctional, are weaker than they could be.

    Substitute Cruz for Trump and many things change. You’d probably have Ryan leading a united GOP House in getting things done, with an agenda from Cruz, and the WH would not be making any legal mistakes to give liberal judges a point of attack.

    Kevin M (21ca15)

  103. Every election should be online. Yes, really.

    What about hacking, Dustin? You and I have both been on edge at times knowing that we have enemies who are or who know hackers. They worry me, and I worry about their ability to swing an election.

    Patterico (115b1f)

  104. Only if there are a lot of them. And why fringe parties? It might be as simple as Garden Grove getting at least one Vietnamese assembly person, or Newport Beach electing a Democrat to go with the 2 Republicans.

    Yes, it could work out like that. But would it?

    The number of alternative parties is currently heavily suppressed by the futility of belonging to or voting for one. History shows that in systems where there is a relatively low threshold for winning seats, narrowly based parties will proliferate.

    In your system, it’s not hard to imagine that the top vote getter might receive only 25-30% of the vote in some cases – similar to the current “jungle primaries” in CA, although these haven’t triggered the explosion of minor parties since they are followed by a 1v1 run-off of the top two. The more ways the vote is split, the smaller percentage you need to win a seat, and the greater the incentive for splinter parties, resulting in the vote being split even more ways.

    Dave (1bb933)

  105. @101. Ted Cruz of course.

    Ted Cruz warns Space Force is needed to battle ‘Space Pirates.’ – yahoonews

    Space pirates, Ted? Seriously? But then, “you only live twice,” Mr. Cruz. Of course:

    https://www.youtube.com/watch?v=3ftN0zqHtn0

    DCSCA (797bc0)

  106. What about hacking, Dustin? You and I have both been on edge at times knowing that we have enemies who are or who know hackers. They worry me, and I worry about their ability to swing an election.

    Patterico (115b1f) — 5/16/2019 @ 6:18 pm

    Huge concern, and a legit one. Of course hacking occurs with ballot box stuffing already. I think many of the concerns with elections need to be reconsidered. You should be able to review your vote’s serial number and count the votes yourself if you want. Each vote should simply be associated with the same biometric ID that we would use for things like social security and this secure email system (I think this is important for accountability and communication… when my congressman votes, he should have to report that vote and his reason for it in an email).

    So I’m envisioning something pretty grand (and probably ridiculous) where the entire USPS department changes to something that ensures secure and reliable (and not for free) delivery of electronic messages throughout the USA, and gets out of the paper mail business entirely. That means some sort of device that does not permit access to this system without biometric and two factor confirmation it’s really you (after all, our phones do this). Yes, of course, this system can still be hacked, and people could sell their votes, but I think we can do a better job with this system than with the current hodgepodge system. And the benefits go beyond security, in that I get to vote while I’m at home and can research the new names I see for various offices before I make a choice (I often just don’t even vote on a third of my ballot these days, as I have no clue who is who). And with each vote associated with a real person, with a unique biometric identifier, social security, health insurance, taxes, maybe even a credit score, it’s going to be much harder to keep dead people voting, or to vote multiple times. Of course this also means it’s a lot easier to vote, which tends to favor democrats, or at least that’s what my poli sci professor thought.

    Though it’s probably against some court decision, I would absolutely include some basic multiple choice civics test before you could vote. Something you can take as many times as you like, and some of the questions will be the same every single election (list the countries our military is operating in, what is the current total debt and last year’s deficit, who is your mayor, congressman, senators, gov, etc).

    Like I said, ridiculous.

    I also think we need to get out of the business of electioneering in other countries, and construe efforts to manipulate our election as an act of war/felony, with part of the USPS’s enforcement duty being actively investigating and prosecuting those who do it here.

    Dustin (6d7686)

  107. I don’t think we ever have, except maybe in passing.

    True. It’s always been somewhat of a gentleman’s agreement, and it’s not like Trump is the point where the president started legislating.

    Substitute Cruz for Trump and a surprisingly high amount of the grief the left directs at Trump would still be directed at Cruz. After all both parties define the opposite’s leader as the maximum evil person possible (for example, republicans pretend Hillary is uniquely horrible, did the same with Obama and Gore).

    Dustin (6d7686)

  108. I’m not sure what the “it” was when you wrote, Kevin M (#70), “nk, I think it is considered a civil action.” But nk had just linked the statute, so my assumption was that he and you were both talking about statutory contempt, not inherent contempt.

    Well, it doesn’t matter now, but I took nk’s question to be “how can they have this power when they passed a criminal statue covering the same”, and my reply was that the inherent power was civil, not criminal [so they were really different things].

    Kevin M (21ca15)

  109. But I understand the general problem of pronouns.

    Kevin M (21ca15)

  110. The number of alternative parties is currently heavily suppressed by the futility of belonging to or voting for one. History shows that in systems where there is a relatively low threshold for winning seats, narrowly based parties will proliferate.

    Perhaps, but I also think about Dustin’s complaint that people feel left out of the process. In such a system as I proposed, people would be voting FOR someone, not against the hated bogeyman. It might be that 80% of the district would feel represented. There is still a margin you have to beat (candidate #4). It also prevents an incumbent in a single-party district from preventing competition within her own party (see what happens if you file for a primary against, say, Maxine Waters). Two more people are going to be elected, and if it’s not from your party, it will be someone else.

    Kevin M (21ca15)

  111. > Electors should, and in fact have a duty to vote for the candidate that won their district, not their state (however marginally).

    I don’t know how it’s done in your state, but in California electors aren’t districted. The entire state votes for a single slate.

    aphrael (3f0569)

  112. Dustin: Every election should be online. Yes, really.

    Patterico: What about hacking,
    —————————————

    For voting in Congress this is not so serious, since all the votes are public, ad amember of Congress can see how his vote was recorded , (unless that is, nothng is done about the forged voting) I would make the votes public at the time, but have t finalized only at 3:30 am. It woud be pretty hrd to hide hacking in that case

    The only thing is, Congress holds many unrecorded votes now. Voice voting or unanimous consent no objcection voting, and there is this thing where they divide into two groups and count the nmber in each group. The rule should be: Online voting only for votes that are on the record. Then it is like banking transactions, except that care needs to be taken to avoid anybody giving someone else his proxy, or log in information, and if that happens, swift action needs to be taken.

    For a secret ballot, online voting is far more problematical.

    Sammy Finkelman (3fda43)

  113. 112. aphrael (3f0569) — 5/16/2019 @ 9:12 pm

    in California electors aren’t districted. The entire state votes for a single slate.

    In every state except Maine and Nebraska.

    In 2008, Obama won the district that includes Omaha, but lost the state, and in 2016 Donald Trump won one Electoral vote in Maine, carrying the larger district that contained the more rural part of the state.

    But Gawain’s Ghost at 89 was talking about the way, in his opinion, things were supposed to be, and he’s also confusing Electors in the general election, with delegates at a party convention. Quote:

    If the electors had been able to vote for the candidate that won in their district, Trump would not have been nominated.

    That whole nominating process is not really enacted into law, except that states can hold elections for delegates to a national political party presidential nominating convention.

    But it’s the political parties that decide how to use the election results, ever since the supreme Court decided that in 1972. Even how to elect them: By district, or at large, amd how much to allot to each; is it winner take all, or proportional representation, and if so, what’s the minimum to qualify? All these are party rules. (In the Democratic Party it’s 15% to get any delegates – the Republican Party allows winner take all for an entire state and tends to follow what is written in state law, maybe that it must is aparty rule, but maybe that has changed.)

    Now a national political party presidential nominating convention does resemble in many ways the original idea of the Electoral College, except, that there, too, the Electors are not usually making any decisions any more.

    Sammy Finkelman (3fda43)


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