Showing posts with label Political Tactics. Show all posts
Showing posts with label Political Tactics. Show all posts

07 September 2026

Don't Believe The Hype

 


This narrative is common and it's mostly wrong.

First, it vastly overestimates the electoral strength of progressive Democrats in particular races. Sure, there are places, like CO-1 in Denver, where a progressive can be elected. But a whole lot of Democrats don't come from those jurisdictions.

Second, the main reason that Democrats have failed to elect their agenda is that they haven't controlled the Presidency, the U.S. House, the U.S. Senate, and the U.S. Supreme Court at the same time. And, even when they have, by narrow margins, usually, a handful of "moderate" or "conservative" Democrats have thwarted them - usually Democrats elected from jurisdictions very inclined to vote for Republicans.

Democrats have consistently been the party pushing to protect and enhance the social safety net. LBJ's war on poverty brought us programs including Medicaid. Obama brought us the ACA. Democrats have pushed for fair elections. Democrats have pushed to protect civil rights.

Also, not all "corporate Democratic" policies have been bad ones for the working-class and middle class. Free trade and more open immigration rules pushed by "corporate Democrats" have been central to American prosperity. Fiscal responsibility kept deficits smaller and sometimes produced surpluses. Democrats reduced military spending after the Cold War. Most of the corporate bailouts during the financial crisis ended up paying for themselves with interest.

"Corporate democrats" haven't been clamoring for a return of child labor, didn't gut scientific research, didn't gut food safety, worker safety, consumer safety, consumer fraud protections, and public health measures. "Corporate democrats" didn't push to pardon drug kingpins, white collar criminals who committed tens of million dollar to billion dollar fraud, and violent criminals who attacked police and tried to overthrow an election. They resisted Republican efforts to give massive tax cuts to the rich. They tried to support farmers economically, even though farmers didn't vote for them.

The push to make every Democrat campaign on a progressive platform is not a winning strategy nationwide. There are races where it can work, and there are races where it won't. You aren't going to elect a progressive Democrat in West Virginia or Kentucky or Nebraska. But politics is a team sport, and without national majorities you can't accomplish anything.

03 September 2026

Replacing MAGA

The MAGA Republican Party is horrifically bad. Weimer Republic Nazi party bad. Cambodian Communist party bad. Iranian government of 1979 bad. George Wallace bad. Less sane than the John Birch society. More criminal and less moral than Al Capone. Proven to be absolutely incapable of governing competently.

While the Democratic Party in the United States is a big tent party, MAGA has left a Democratic Party which was already straining to find common ground for its immensely ideologically diverse coalition ripping at the seams, which has produced a lot of unproductive infighting.

This is not good for America. A country with only one viable political party capable of governing is not a healthy democracy.

In the British Commonwealth, there is a concept called a "loyal opposition". A loyal opposite disagrees on lots of important policy issues with the party or coalition that it opposes, but in not an existential threat to the government it is seeking office in, and shares fundamental process and normative values with the party it opposes that are ultimately more important that its policy disagreements with the other party or coalition that it opposes.

Our current election laws, as a practical matter, lock the U.S. into a system with two dominant political parties in any one political jurisdiction at one time. But that doesn't mean that it isn't possible to have a different pair of political parties in one state from another state, and it doesn't mean that it isn't possible for one of those two dominant political parties to be replaced with a different dominant political party.

This has happened several times in U.S. history, most recently when the Republican Party replaced the Whigs, which collapsed around 1860. It has happened in other countries, like Canada, with similar electoral rules, too.

The U.S. is engaged in an experiment along those lines this year in the Nebraska Senate race, in a deep red state that no Democratic Party candidate had any chance of winning, but which is a state that is also not happy with the way MAGA Republicans are running our country. The Democratic Party declined to field a U.S. Senate candidate in that race to clear the way for a center-right independent candidate, Dan Osborn, to run against a GOP nominee who would toe the MAGA line. 

If he is elected in November, he surely won't be a reliable party line vote for the Democratic Party, but he will also be willing to stand up to the insanity of Trump 2.0 when it goes beyond favoring partisan policy preferences to undermining the previously shared foundations of our political system. He won't embrace blatant corruption. He won't support gross incompetence. He won't be a friend of Putin. He won't agree that pedophiles and fraudsters should be protected. He won't try to undermine the rule of law. He won't lie about things that are obvious lies to everyone who hears them. He will understand that there were no air bases in the Revolutionary War. He will understand that the U.S. did not have diplomatic relations with the classical Roman Empire. He will not try to impose tariffs on islands inhabited entirely by penguins. He won't fall asleep in the middle of important meetings. He won't support the violent overthrow of free and fair U.S. election results. He won't completely disregard science. He will provide people with conservative political views who aren't evil or stupid, and don't want the United States to become a failed dictatorship an alternative that they can stomach.

Will he win? 

Who knows? The polls are all over the place in this race (according to the New York Times):



But the vast majority of candidates running for statewide office without being either major party's nominee has no chance of winning at all and would face a complete blow out. But he's been within the statistical margin of error of the Republican or winning in four of the seven general election polls conducted in the race. The only poll conducted since May (about three weeks ago) put him in a tie with the Republican, when the Republican was favored by 16 percentage points in one poll at the end of May. 

Maybe other deep red states can follow suit. Maybe if enough people like him start winning elections, they can band together and form a new political party that is conservative without sharing the worse vices of MAGA Republicans.

Nebraska might be a special case. Its unicameral state legislature is nominally non-partisan, and that might influence the political attitudes that voters have towards independent candidates.

But it is also possible that a lot of red state voters, despite being poisoned by anti-Democratic party rhetoric so deeply that they can't bring themselves to support a Democrat, and holding only moderate views, would support a center-right party not unlike the one that the GOP used to be, over the far-right party that the GOP has become.

Indeed, the mere existence of a credible threat to their re-election from the center instead of the left could be enough to give the GOP in red states like Nebraska to moderate its positions in a way that they didn't need to when it was certain that a Democrat couldn't win in their state, no matter how despicable the candidate running for the GOP.

And, this isn't just about getting the GOP itself to be more moderate (or better yet, replacing the MAGA GOP with a center-right party that is capable of governing sensibly and supports some shared fundamental values that used to be shared across the political spectrum).

It is also about making the Democratic party less of a herd of cats in places where it does have a chance of electing people to public office.

There are lots of pretty conservative people who hold their noses and vote Democratic, and try to influence the Democratic party in their direction, because the MAGA GOP is an existential threat to them personally, or because the MAGA GOP is not a recipe for securing a tolerably functional government.

There are cattle ranchers and food company executives out there who recognize that a healthy food inspection system is good for business, and that high tariffs, sky high diesel and fertilizer prices, and buying tainted meat from Argentina in deals that even the Secretary of Agriculture knows nothing about, are not good for business. So, MAGA may not be right for them. But that doesn't mean that the agree with much of the Democratic Party platform, and trying to make everyone happy just isn't possible.

There are wealthy doctors out there who are economically conservative and socially moderate rather than liberal, who still have no patience for a MAGA regime that is anti-vax, that votes to shut down rural hospitals, that orders the CDC to fake data on measles deaths, and encourages people to eat beef tallow to be more healthy.

There are cold war veterans out there who don't like having a President who cozies up to Russia and North Korea and China. They aren't impressed with a President who runs such a loose ship that destroyers go a week without power in the middle of the Pacific Ocean, that sailors on aircraft carriers don't have adequate food or working toilets, that commissaries on military bases have spoiled food because their freezers don't work, that military family members and people who risked their lives to be translators for U.S. troops are being deported for no fault of their own to places where they face serious risks of harm, that service members are being ordered to commit war crimes, and that sycophants are promoted while seasoned generals and admirals are purged. Those things don't make you proud of your country.

There are probably plenty of god and country conservatives who are absolute disgusted with the way that Trump has held cage fights on the White House lawn, demolished half the White House, put his scowling image on everything like some third-world dictator, told obvious lies to their face, disrespected veterans, shown not a scintilla of understanding of the Bible, blasphemously portrayed himself as Jesus, mocked disabled people, engaged in rampant infidelity with multiple wives and mistresses, corruptly enriched himself and his family, engaged in insider trading, been convicted of crimes, raped children, paved over the White House rose garden, shown utter ignorance of basic facts in his public speeches, encouraged and promoted immoral aides, and been embarrassed by him falling asleep at important meetings and shitting his pants at public functions, even if they agree with him of many economic and social issues.

There are states like New Mexico which by all race neutral economic and social indicators looks like a red state, where a lot of people are very conservative in their political views, but where they won't support Republicans for office, because MAGA Republicans show open contempt and hate for Hispanics and Native Americans who make up a huge share of the state's voters, President Trump demonizes them, and MAGA thinks that Native Americans and partially Native American mestizos should be deported despite having ancestors who have lived there since long before their land was part of the United States.

There are plenty of Muslim voters who are as socially conservative as the average Evangelical Christian and who are economically moderate at most, who can't in good conscience vote for the GOP because Republicans consider them terrorists and want to actively persecute them, so their stuck in the big tent Democratic Party instead. Many Black Evangelical Christian voters are in a similar boat.

The far right extremism and just plain mendacity and incompetence of MAGA Republicans is probably going to get a lot of Democratic candidates who wouldn't have a chance running against a center-right GOP elected to Congress in two months, in what is likely to be a blue wave election (knock on wood). But a country with only one functional major political party isn't a healthy democracy.

If someone launched a center-right party in the U.S. called, for example, the "Conservative party", it could and should have a good shot at replacing the MAGA Republican party in the U.S. And, that may be the only solution, because the MAGA Republican party may at this point, after more than a decade under Donald Trump's thumb as a cult of personality for him, be beyond saving as an institution.

I'd rather live in a country with two viable reasonably functional political parties than one that's a lost cause and the other that's become a tent where it is very hard for everyone to fit comfortably. But until MAGA is replaced, or the election system is reformed to be a proportional representation system, this is the situation we have to live with and try to make work as best we can.

28 August 2026

The Executive-Judiciary Interface In Undermining The Rule Of Law

One of the most distinctive features of Trump 2.0 has been the breakdown of the rule of law. The administration has routinely ignored the law and settled interpretation of existing law in a wide variety of domains.

It has enacted illegal tariffs, it has denied due process to immigrants, it has deported immigrants to countries to which they have no connection, it has illegally impounded Congressionally appropriated funds, it has conducted the Iran war without complying with the war powers act, it has illegally and in violation of international law bombed suspected drug boats in the Caribbean and the Pacific and killed survivors of its attacks, it has unlawfully meddled in state election processes, it has fired government officials whom Congressionally enacted statutes don't allow it to fire, it has pardoned January 6 insurrectionists, it has corruptly allowed officials to benefit personally in monetary terms from their offices, it has openly admitted to denying FEMA disaster relief based upon how states have voted in recent elections, it has brought sham criminal prosecutions of political opponents, and so on.

Trump 1.0 was odious, incompetent, dishonest, and violated some political norms and legal rules, but shows much less disregard for the rule of law and for well-established political and legal norms.

What changed? How will that affect future administrations?

A lot of the change can be fairly attributed to the courts, especially lower court judges appointed by Trump and the U.S. Supreme Court, which attained a conservative majority and an ultra-conservative plurality under Trump 1.0, consistently letting Trump circumvent rulings against him personally, and against his administration, made by lower courts and non-Trump appointed judges (including many judges appointed by Republican Presidents in prior administrations).

The U.S. Supreme Court's decisions to grant Trump expansively Presidential immunity from criminal liability for his official or arguably official acts (even if they are clearly ultra vires), and to interpret the insurrection clause out of the 14th Amendment, were some of the earliest and most damaging of its steps down this path.

Yes, the U.S. Supreme Court hasn't given Trump a complete blank check in Trump 2.0 to be a dictator, largely because the non-ultra conservative justices and the liberal justices on the Court has sometimes formed coalitions to block the ultra-conservative agenda. But this hasn't been consistent enough to discourage mischief in the executive branch.

Of course, the Republican controlled Congress also hasn't pro-actively intervened, but as some justices on the Supreme Court such as Gorsuch are starting to acknowledge, while Congress has significant power to deny funds to the President, Congress has very little capacity to pro-actively contradict or restrain a President inclined to ignore it.

The relative irrelevance of Congress has also been illustrated by Trump 2.0's heavy reliance on executive orders to act, rather than Congressional legislation, despite the fact that Republicans hold majorities in both the House and the Senate, and despite the fact that past precedents have pretty well established that the filibuster in the Senate is a voluntary restraint that the Republican Senate majority has afforded to the minority, and not a legally binding barrier to action, and despite the tight hold that Trump has acquired over the Republican party, effectively turning it into a MAGA party.

So, the existence of a GOP trifecta has, in practice, been less important to the disappearance of the rule of law than judicial and especially U.S. Supreme Court, connivance in facilitating unilateral illegal actions by President Trump (in a highly partisan fashion that it did not afford to President Biden).

Indeed, if anything, the Republican majorities in Congress have been more even handed in protecting the limited rights of the minority Democrats in Congress on a non-partisan basis, than SCOTUS has been in its rulings, many of which simply can't be explained by anything but partisan bias.

28 May 2026

How We Got Here, And Where We Might Go Next

Proximately, the U.S. is in a bad way because Trump and MAGA secured a federal trifecta and also control the U.S. Supreme Court, as well as the governmental apparatus of many states, because our laws do too little to discourage the concentration of economic power.

Political theory seeks to explain what factors in the complex political economy we live in led to this situation.

This post surveys some of the possible answers.

An institutionalist approach

An institutionalist approach is a social engineering outlook on why political systems work or do not work. It takes as an axiom the belief that the right rules and systems and organizations more or less directly produce good political economy outcomes, so reforming existing institutions is the path to a better political economy. 

This is closely aligned with a notion that the rule of law is the key to a good society, something that is an article of faith in "Western culture" (with its roots in Western Europe) and is widely rejected in "Eastern culture" (with its roots in China).

Fundamentally Broken Institutions

The U.S. Constitution, other key laws, and important institutions of political and civic society (like political parties and the media) are broken. There are deep design flaws with the status quo that can't right itself without decisive, and indeed, perhaps revolutionary change in our institutions.

Common reform proposals in this approach are campaign finance reform, gun control, abolition of the electoral college, expansion of the franchise, proportional representation electoral systems or ranked choice voting, better procedural rules within legislative institutions, improved methods of selecting judges and other key public officials, tweaked checks and balances (like a unicameral legislature, a conversion from a Presidential to a parliamentary system, laws prohibiting corrupt practices enforced by effective enforcement agencies, and so on.

Imperfect, But Fundamentally Sound Institutions

The U.S. Constitution, related key laws, and important institutions of political and civic society (like political parties and the media) are flawed but are not fundamentally broken. These institutions are robust enough to eventually right the ship of our political economy, even though they aren't as fool proof and rapid as we'd like.

Really bad Presidents produce electoral backlash and encourage more competent people who otherwise would pursue careers other than politics to resist bad political leaders, which puts us back on track. But this feedback mechanism can't react much sooner than every couple of years, can't prevent serious abuses and failings, and often takes decades. Lessons learned in the last crisis are forgotten until we pay the price for forgetting those lessons again. In worst case scenarios, it can take long insurgencies or wars or full on Great Depressions to trigger support for the necessary reforms.

Bad high court judges need to be threatened with court packing to overcome their biases. Legal scholars seeing legal doctrines producing bad results propose new legal theories. New political parties need to replace old ones much like the GOP replaced the Whigs. People come to realize that voting for openly corrupt liars and criminals is maybe not such a good idea.

Culture

The main counterpart to an institutionalist approach to the success of a political economy (which has strong parallels in the economic development literature), observation that laws and institutions that are identical in all material respects can produce wildly different results, when people who are culturally different utilize these institutions.

This approach concludes that the character, morals, norms, and values of the people who use the institutions profoundly influence the quality of the political economy outcomes that a society produces, while the particulars of the institutional arrangements put in place to facilitate management of the political economy aren't particularly important within a fairly finite set of combinations of big choices in institutions.

Differences between the success of parliamentary systems and Presidential systems, in this view, have more to do with the political culture of the people utilizing those systems than with the inherent, universal virtues of different reasonable sets of institutions and rules. 

There may be some sets of institutions and rules that usually led to bad outcomes, but people with a good political culture can make any remotely reasonable set of institutions produce good outcomes, while people with a political culture ill-suited to their demands of their current circumstances will find a way to break any set of institutions and rules, no matter how expertly crafted.

The optimal political culture is also not universal. In times of economic hardship and scarce resources which give rise to weak states, cultures of honor, clan based societies, cousin marriage, and systems that reward might over right may be more functional. In times of economic abundance that facilitate the rise of strong states, more atomized social structure, meritocracy, forgiveness, out marriage, and systems that reward truth over power may be more functional.

For example, one way to explain the rise of Christianity in the Greco-Roman classical era is that Christianity was a tool of cultural change that helped a society that was becoming more abundant, more urban, and more mercantile transition managed by a strong state, and away from a Greco-Roman pagan culture more suited to rural living, herding, and tradition based allocations of resources, in small and weak states. The expansion of the Islamic empire likewise involved a massive cultural change from a decadent and disorganized society without strong state management in the post-Roman era to a society with more firm and decisive, yet decentralized leadership that functioned well in the absence of Western Roman Empire type institutions.

This cultural-first approach to political theory is closely aligned with a notion that rule by good and moral leaders is the key to a good society, something that is an article of faith in "Eastern culture" (with its roots in Chinese Confucianism) and is widely rejected in "Western culture" (with its roots in Western Europe), where the "rule of man" is synonymous with authoritarianism, corruption, and arbitrary treatment of people.

Malleable culture

One version of a cultural approach to political economy sees a society's political culture as harder to change in many respects than institutional rules, but feasible with measures like widespread public education, religious conversion or deconversion, and grass roots activism through "movement politics" over decades. And, while this takes longer to accomplish than institutional rule changes, it is almost more robust and enduring.

A malleable culture theory concludes that while the relative political leanings of groups and geographic regions with different cultures are persistent over time periods measured in centuries, that societal progress is attainable over time. Yesterday's segregationists become today's advocates of a color blind society without affirmative action. Yesterday's corporal punishment advocates become today's advocates of large fines and long sentences of incarceration. 

In absolute terms, society gradually abandons specific practices and norms that are conservative or backward at the time, while the descendants of people who held those specific practices and norms come to adopt views that were liberal in the times of their ancestors and are conservative now. But the descendants of the liberal leaning ancestors in turn, become even more progressive.

Even proponents of malleable culture approaches to political economy acknowledge that the process can be two steps forward and one step back. But ultimately, technology and the accumulation of knowledge and fundamental, universal human impulses that are masked by different immediate material conditions point humanity in the same general direction in the long terms (although there are shorter and longer routes to progress), so we progress more often than we regress.

Static culture

In contrast, a view that culture at an ethnic group or geographic area scale is predominantly static, even if isolated and exceptional individuals can change their cultures, see mass movements and programs to change a society's culture intentionally as largely futile.

It isn't that this view believes that the culture of a particular geographic area can't change. But, it sees the main mechanism for a change in the culture of a particular geographic area to be replacement of people of one ethnicity or mix of ethnicities with people of another ethnicity or group of ethnicities.

In this view, some of the main mechanisms of cultural change are colonization by people of a different ethnicity, genocide (through forcible abandonment of culture, actually murder, restrictions on fertility, or economic marginalization), immigration, and differential rates of births and deaths between ethnicities, with these mechanisms being particularly strong among men, while women more easily assimilate into new cultures in which they find themselves. This is also a more zero sum worldview. Flavored with ideas about ethnic or religious or cultural superiority, this can morph into righteous missionary zeal, ethnic nationalism and/or religious nationalism.

Along the same lines, languages associated with dominant cultures tend to increase their market share of language speakers in a society, while languages associated with economically marginal ethnicities tend to decrease their market share of language speakers in a society, in both cases at a pace measured primarily in generations, rather than within the lives of individual speakers of a language.

This outlook was heavily disfavored in the 1960s and 1970s in the Western world (under the motto that pots are not people), but has enjoyed a resurgence as research into ancient DNA, historical linguistics, and physical archaeology have been synthesized in a manner that has reviewed that over time frames of centuries and millennia, that these mechanism of demic change have been far more common than culture change through intercultural contact and elite dominance. Admittedly, there have been notable exceptions to this general trend (e.g. the linguistic transition of the country now known as Hungary, or the Brahui people, or the expansion of the Islamic empire, or the rise of Christianity). But cultural transition without demic change has been the exception rather than the norm.

This outlook on political economy, for example, perceives Zionism and the formation of new West Bank settlements in Israel, or ethnically and religiously motivated raids by Sahel Muslims from traditionally herding societies in Africa on Christian/animist communities to their immediate South, from a very different worldview framework than a worldview in which institutional approaches or malleable cultural views are the norm.

More generally, a political theory bent rooted in the worldview that culture is predominantly static, particularly when fused with the concepts of economic and environmentally driven cultural change discussed below, tends to see political tactics that "civilized society" condemns most intensely, as largely inevitable and natural, even if it is not morally desirable at an individual level.

Political worldviews and theories that emphasis the static nature of culture at the group and regional level are more sanguine about the inevitability of progress than those which see culture as malleable. These worldviews tend to see cultural progress as exceptions to the general rule that require specific and rarely recurring conditions, rather than as a universal law or inevitability.

Environmentally determined culture

A premise which is widely accepted in anthropology, but less widely accepted in political theory, is that people's material conditions determine which cultures are optimal for those conditions.

While no culture is inherently better than any other in a vacuum, in any given set of circumstances, some cultures are more functional than others.

Plough based agriculture tends to favor patriarchy and patrilocal clan systems. Hoe based agriculture and hunter-gatherer societies can tend to favor matriarchal social structures, with households often led by brother-sister couples rather than households led by monogamous co-parent households. 

Affluent, urban societies, without low rates of childhood morality that rely on skilled labor that takes many years of investment in human capital tend to favor small family households; poor, rural societies, with high rates of childhood mortality that rely on unskilled labor tend to favor large family households. 

Weak states tend to favor cultures of honor, and clan based social organization. Strong states tend to favor a focus on individual autonomy, meritocracy, rule based justice, and weaker extended family ties. 

Perceptions of economic scarcity and uncertainty favor conservatism and societies where religion and/or superstition are important. Perceptions of economic abundance and security favor secular, liberal societies that rely on science rather than superstition.

Perceptions of economic decline or stagnation of an ethnicity or geographic group or social class, and societies where the economy is heavily reliant upon economic rents like land ownership or fossil fuel resources, can further fascism, far-right movements, ethnic and religious nationalist movements, and support for authoritarianism. Shared prosperity in a society where the economy depends heavily on a diffuse class of merchants, professionals, and skilled labor rather than natural resources, in contrast, tend to further democracy, an absence of corruption, respect for individual rights, and tolerance for diversity.

Cultures ill-suited to their conditions decline, due to both conversion to better suited cultures and economic and demographic decline. Cultures well-suited to their conditions thrive. Conversely, religious institutions that support threatened cultures tend to thrive, while religious institutions associated with establishment, secure, dominant cultures tend to wither despite the fact that the communities that they serve tend to have more economic resources.

The notion that culture is economically or environmentally determined is relatively agnostic about whether culture is malleable or static, with their very different mechanisms and tactics that give rise to cultural change.

Synthesis

Of course, none of these political theories is 100% true. 

Even a strong culture oriented political theorists who takes a hard look at all the data will acknowledge that institutions and rules can matter, and can shape culture. You can see this particularly clearly when looking at the divergent paths taken by North Korea and South Korea, by Taiwan and mainland China, by East Germany and West Germany prior to unification and persisting in regional culture differences in the thirty-seven years that have elapsed since unification, even though the highly distinct institutions in these places that once shared a common culture including a political culture arose only about eighty years ago or less, in these cases.

On the other hand, scholarly works like Albion's Seed, and studies of persistent regional cultural differences in Germany (that predate the formation of a unified Germany state about 150 years ago), also establish that once regional or ethnic cultures are established, they are remarkably resilient in the face of institutional change and political unification, and can persist for centuries.

If you were to guess how politicians in the late 1700s and early 1800s in newly formed U.S. states leaned politically relative to each other on major groups of political issues like being pro-war or anti-war, or on economic or social issues, based upon the current political leanings of those states, you would overwhelming be correct 250 years plus or minus a few decades later.

The Catholic-Protestant divisions of Europe have been mostly static for the entire early modern period that started with the Protestant Reformation in the 1500s that were decided based upon the decisions of late stage feudal lords to choose one side or the other of this divide in European Christianity. And, those religious divisions, as famously noted by Max Weber in the 19th century, are associated with a whole suite of larger cultural divides epitomized by what he called the "Protestant work ethic."

Persistent culture divisions whose effects predominate in places where different cultures function within the same formal political institutions, like divisions in economic prosperity and political economy between regions dominated by different ethnic groups in Nigeria, whose characteristic cultures and cultural identities pre-date the relatively recent conversion of southern Nigeria to Christianity across a wide variety of diverse ethnicities starting in the 19th century or so, are still very real (even though many formal statistics on African immigrants to the U.S. aren't so fine grained and don't make these distinctions in their record keeping mask these differences).

In India, genetic testing has confirmed the anthropologically well-documented phenomena of caste endogamy and inequalities, pin pointing the time frame, centuries ago, when endogamous caste divisions at the jati level started to harden upon which historical accounts from those time periods were inconclusive and scarce, and eighty years of Indian independence with egalitarian institutions and ideals have only modestly dented the resilient cultural juggernaut of caste divides. Genetic studies also establish the time frame of the much older origins of varna level caste/ethnic divisions within India and help establish more clearly the magnitude, timing, and nature of introgression of people from one varna into another one.

Particularly in my own personal world and my own country, I am well aware that I instinctually lean towards institutional explanations and solutions, and that I also tend to favor malleable culture worldviews over static culture worldviews, to a greater degree than that evidence available to me supports.

How We Got Here

Each of these political theories naturally lends itself to a different narrative about how we go here, and the deeper driving factors behind the proximate causes of our woes.

Environmental determinism points to technological changes and human driven climate changes as the source of structural economic changes and changes to the U.S. social structure and social class system that has shunted the benefits of economic growth to an educated upper middle class serving a thin veneer of old money and new money billionaires and big businesses, and while reducing the less educated whom the modern economy has little use for, from a broad unifying middle class that has a stake in our society to a working class and underclass. The upper middle class has small stable prosperous families, while the working class is seeing their families fall apart despite having as many or more children, and their prospects for social mobility or comfort without generational wealth and social capital fading. The upper middle class has become far more secular, while comparatively the working class has remained more religious despite its long term trend away from religion as well.

The neo-fascist MAGA movement is, in this analysis, a natural consequence of two generations of economic stagnation for the non-college educated working class.

Static cultural worldviews emphasize the fact that there is a straight line from antebellum Southern whites to the KKK and Jim Crow and segregation supporters and American Nazis prior to WWII to opponents of the civil rights movement to MAGA.

Malleable cultural worldviews emphasize the fact that far right political viewholders skew heavily towards older white men while younger generations are much more liberal on a wide variety of issues. They note that the divorce between the MAGA worldview and reality is the product of intentional propaganda by billionaire class funded conservative media outlets like Fox News, conservative think tanks, talk radio, and fundamentalist Christians and Christian clergy who are wary of reality based inquiry because it undermines their religious doctrines, and can be reversed with carefully crafted interventions to deprogram MAGA adherents.

Institutionalists who see the system as fundamentally broken see the proximate causes of our woes as more directly caused by particular flaws in our Microsoft of political systems which was state of the art in the late 1700s, but had rules that didn't benefit from the next couple of centuries of experience with democratic political institutions which addressed the inherent flaws in our own system which the Founders, not being omniscient, and with their own narrow franchise and biases could not have foreseen. The trouble is, that if indeed, our Institutions are fundamentally and deeply broken, there is no clear path to fixing them.

Institutionalists who see the system as flaws but fundamentally sound, in contrast, acknowledge that the flaws in our system have prevented our political system from preventing or more swiftly ending the MAGA scourge. But they are more optimistic and stoic. In an analog to the idea that suppressing all wildfires can make a forest more vulnerable to more devastating big wildfires, or to the hygienic hypothesis that an environment that is too sterile and devoid of threats can lead to autoimmune diseases and allergies because the immune system didn't have a chance to do its job non-pathologically, they argue that as unpleasant as it is at the time, healthy political economies need periodic threats to its values so that the people served by them remain vigilant in developing a combination of institutions and political cultures that can defeat even strong threats to their health.

People never exposed to fraud become too trusting and become easy marks (something that is a big problem in the overall high trust society of Mormon Utah). Politicians who grow too used to playing nice with their political opponents forget the tactics that their predecessors used to win when their political opponents didn't play fair. 

A near miss constitutional crisis of our political economy with fascism and authoritarianism, with an scary dose of corruption and lies, may be what it takes to build broad enough support to fix the most important institutional flaws in the status quo, much like the U.S. did in the New Deal, and again in the 1960s and 1970s.

Institutionalists who see the "bones" of U.S. political institutions as fundamentally sound will note that the U.S. system has been good enough to last 250 years including multiple comparably bad or worse political crises, like those leading up to, during, and following the U.S. Civil War. And, they see the gridlock and shifting political coalitions that have predominated in the time frame from the 1980s to the present, as a feature rather than a bug, by preventing thin majorities from making big and bold political changes in the absence of widespread, bipartisan, cross-ethnic, cross-regional support. Our federal system funnels paths to innovations to the states and refrains from making big changes until with the passage of time, some approaches are widely understood to be desirable, and other approaches are seen as failures. And, like the seventy year plus era of doctrinaire communism in Eastern Europe, China, and Southeast Asia, on one side, and mixed capitalism in the "West" and some Western leaning East Asian nations, this deadlock can seem completely intractable and static, until sudden it collapses, with Eastern European communism collapsing in just a few years, and Asian communism more resiliently adopting market-style reforms to the point where it has become communism in name only with billionaire capitalists holding all positions of power in these one party states.

We saw something similar leading up to the abolition of slavery in the United States. This issue divided the new republic for eight-five years from its inception right up until 1861, only for slavery to be formally abolished four years later all at once, in turn followed after a brief reconstruction interlude, with another eight-five years of so of Jim Crow, only for that institution to in turn collapse over the course of about a decade when it had seemed in 1950 that Jim Crown might persist eternally. Sixty years after the Civil Rights movement had achieved most of its major objectives, MAGA is trying its best to undo the reforms of the civil rights era in a last dying eruption of a movement that know that democracy will mean its death as socially and economically regressive Baby Boomers, some of whom were born in the era of segregated water fountains, bathrooms, and schools, die and reduce their share of the electorate only to be replaced by liberal Generations Z and Alpha in the electorate for whom racial diversity is second nature and is their generation's reality.

Trump has been a racist all of his life, just like his Nazi father. Joe Biden came around later in his political career, but got started in Congress on a platform of opposition to school desegregation in Delaware. Many of the leaders in Congress, and especially in the U.S. Senate, are from that same generation and still wear ideological and worldview boots of clay developed in their politically formative years.

Eventually, however, cancer, cardiovascular diseases, dementia, COVID, geriatric falls, and the like will do the job of replacing them with the next generation of politicians, that Baby Boomers have prevented from happening in the ordinary course as it should have a couple of decades ago.

The midterms in 2026 could end the GOP's trifecta control of the federal government and reducing the bleeding that our national institutions and esteem on the global stage have been suffering. Ideally, its defeat could be crippling enough to lead to the GOP's replacement with some new center-right opposition party that starts over after MAGA has burned all of the GOP's bridges and poisoned the well with several younger generations. Democrats could take the Presidency in 2028 with majorities not seen in recent memory and a commitment to play hardball after the horrors of Trump 2.0, and make enough major reforms to put the U.S.A. on track again with wide consensus backing, even though it may take decades to undo the damage done by Trump already that is not irreparable. And, if that happens, the Institutionalists who believe that flawed as it is, that the U.S. political system is not broken beyond all repair, will be vindicated. The fact that the U.S. has weathered past crises makes this a far from unlikely scenario, and the optimist in my wants to hope that they are right. Polling leading up to the midterms that are barely more than five months away, suggest that they might be right. 

While MAGA stayed loyal during Trump 1.0, his more radical Trump 2.0 term has finally seen Trump's steadfast support start to erode and has seen some prominent GOP/MAGA leaders, like Marjorie Taylor Green, break ranks with him.

What Happens If We Don't Escape And End Up In A Deeper Circle of Hell?

I want to believe that they are right, because the alternatives are very dark indeed. If Democrats can't do this over the next three years or so, because its institutions are too badly broken to return the nation to a positive path, all of the paths before us are nightmares.

One need look no further than North Korea, Cuba, Albania until the fall of communism, Saudi Arabia, Kuwait, Iraq, Afghanistan, East Germany, the Soviet Union, post-Soviet Russia, the Ottoman Empire, and the slave states of the U.S. prior to the U.S. Civil War, to observe that the fact that a regime is authoritarian, undemocratic, and performs dismally economically in its non-natural resource sector, and faces significant sustained pressure from  the international community to reform, does not mean that these regimes are fragile or vulnerable to prompt collapse. Eventually, many of these regimes did collapse. But it took an entire lifetime or so to do fall, and more often than not it took an international military intervention (or at least a costly cold war interspersed with periodic hot proxy wars) to make it happen.

The U.S. is to big and militarily powerful for a turn for the worse to be cured with a foreign military invasion of the U.S. to liberate us any time soon. 

If one of the darker scenarios has developed in the U.S. by 2028 or 2030, it is entirely possible that the U.S. will degenerate into a full fledged malevolent dictatorship and remain in that state until sometime in the early twenty-second century. 

This dark era for the U.S. could possibly punctuated by an ugly and deadly military insurgency, and waves of assassinations, asymmetric warfare, sabotage, and non-violent resistance that persists as long as Afghanistan has been in a state of near continual war since the 1970s, that may only end or at least subside when it is put down with brutal ruthless efficiency that scars our nation with horrors we have yet to imagine like the annihilation of every soul in a whole liberal leaning rebellious metropolitan area like Minneapolis, rather than a mere attempted ICE and National Guard driven show of force. The Handmaid's Tale was meant to be a warning and not a prophecy, but there is no certainty that it won't turn out to be one.

There are happier paths that one could imagine, like a bloodless coup that is followed by a new covenant that replaces our existing political and economic institutions, if the existing ones don't solve the problem in the next three year or so, that reboot our nation in some manner or another, or a wave of blue state successions, that leaves unsubsidized red state America in a state of total economic collapse, and followed by reform or reunification.

One could also imagine something like the experience of the Romans, who first transformed from a genuine Republic, to a more flawed Republic, to a truly non-democratic empire, stuttering from crisis to crisis, with bandaid temporary political fixes that don't last, punctuated with emperors like Nero and Caligula, who are still remembered about two thousand years later for their perfidy and insanity. Trump could end up being a model for future corrupt, authoritarian, delusional demagogues who are equally bad, but even less restrained by the democratic actions of the electorate or the courts or federalism or military independence, than Trump 2.0 which is actually exploring every avenue to end these constraints upon it.

Some of these nightmares seem almost unthinkable now, after the imperfect and slow mechanisms and institutions for slowing down Trump and MAGA's destruction of the federal government and everything good in the United States of America finally started to kick in. But the United States doesn't get three strikes. If the midterms to provide a decisive and effective check on Trump 2.0 in what has so far been a Congress that has ceded its responsibilities, we'll be lucky to get a federal election at all in 2028, and if there is one then, it will probably be less free and less fair (despite the fact that Republicans are pulling out all stops to undermine the regularity of the 2026 elections and to persecute Trump's enemies with no regard to the law or any notion of anything greater than Trump's momentary whims).

If Americans, collectively, fail to decisively interrupt its current course in either 2026 or 2028, we're pretty much done. Democracy and democratic values and the rule of law and civil liberties will be no more, and there will be no way back within the confined of legal political action or even civil disobedience. The U.S. is too big, and too culturally divided to secure the final turnabout that ousted a far right authoritarian regime in Hungary earlier this year.

Those who can will become political refugees, much like the scientists who fled Germany when the Nazis came to power, and fled the Soviet Union as it grew ever more oppressive. Those who can't will suffer, or sell their souls for petty subordinate power at the whim of some unsteady dictator (probably not Trump for long, given his ill-health and age, but possibly some successor who is equally evil but more competent).

16 April 2026

Affordability

What are the easiest policies to make life more affordable?

* Unilaterally end tariffs.

* Legalize car imports from China and reduce trade barriers to importing smaller cars from Europe. This would greatly increase choices and competition for basic cars.

* Support the infrastructure to shift to electric vehicles making us less vulnerable to global petroleum prices and less incentivized to go to war over oil.

* Eliminate fares for high volume transit routes.

* Encourage renewable energy sources like solar and wind which are now cheaper than coal and are not subject to natural gas price fluctuations.

* Remove barriers to building affordable housing, especially zoning that restricts density and rules out multi-family housing, parking mandates, lot size limitations, and aesthetic building code requirements. Encourage high quality manufacturing of homes and large components of homes in lieu of stick building everything on site.

* Encourage the Fed to take a more gradual approach to increasing interest rates when economic conditions call for it to do so, so that housing markets have time to adjust to higher mortgage rates which decrease affordability until housing prices transition to adjust to the ability to pay.

* Tax unoccupied housing more heavily to discourage hoarding of empty housing that reduces housing supply and drives up housing prices.

* Enact policies that financially penalize profitable companies for the burden that they impose on government when a significant share of their workers need welfare to make ends meet, in part, by increasing the minimum wage.

* Shift revenue sources for ECE (early childhood education)-12 education from property taxes to income taxes. This makes the taxes more progressive. It increases funding equity between places with large property tax bases per student (like rich suburbs and resorts) and places with small property tax bases per student (like low income municipalities and rural areas). This also reduces housing costs.

* Make free meals for all part of the standard ECE-12 education package.

* Make access to ECE and kindergarten and afterschool programs universal.

* Encourage international students at colleges and universities who basically subsidize domestic students by paying full tuition.

* Publicly fund higher education, without significant student loans, with all students with a reasonable chance of completing their degrees, while limiting admissions for students who have a high probability of failing. This makes access to higher education possible for working class and middle class kids increasing their future incomes and class mobility while making the economy more productive, and reduces the squeeze on families at the low end of upper middle class who don't easily qualify for need based grant financial aid, but still pay higher shares of their income than others.

* Reinvigorate vocational programs at high schools and community colleges for students for whom a traditional liberal arts college curriculum or four year degree isn't a good fit.

* Establish new medical school and medical professional school capacity to increase the supply of doctors and other medical professionals.

* Welcome foreign medical professionals, thus increasing the supply of medical professionals whose compensation is driven up by a limited supply, especially in rural areas where domestic medical professionals are least likely to prefer.

* Medicare for all or similar universal health care financing, that cuts out health care billing and insurance company administration costs and profits, ends barriers to health care for the self-employed and unemployed and those with jobs providing only second rate health insurance with high deductibles, funds health care in proportion to ability to pay, ends medical debt and bankruptcies, takes pressure off high cost ER care, and improves the bargaining power over drug costs and other provider costs. Health care expenses of employers also reduce wages more or less dollar for dollar.

* Broaden access to long term care, including home health care and assisted living, on a basis similar to universal healthcare, and finance it with estate taxes.

20 March 2026

Some Quick, Ill Developed, Political Ideas

In defense of the deep state

The "deep state" is valuable and good, not a conspiratorial anti-democratic force. It is the bureaucratic manifestation of the rule of law.

We say we live in a "democracy" but that's an oversimplification. Obeying the law is not a matter up for popular vote. When we say we are a democracy what we really mean is that changes in the law must be made democratically. Not even the President is allowed to deviate from the law, which the President is sworn to faithfully execute. The President, wearing a different hat, can participate in the legislative process. But the bureaucratic organization that is the state can and normatively should push back against a President who tries to deviate from the way that the law mandates that the organization should behave.

Fiscal federalism

Trump 2.0 has illustrated the perils of relying too heavily on the federal budgetary process to spend funds for public purposes. So have many past government shutdowns.

Of course, dysfunction in the federal budgetary process leaves undisturbed public functions funded and operated at the state and local level with state and local funding. Most law enforcement comes from state and local law enforcement, most court cases (criminal and civil) are handled in the state courts, most K-12 and higher education funding is state and local, most roads and bridges are maintained at the state and local level, state and local law and funding keeps the water running, the sewers flowing, clears away trash from homes and businesses, and regulates the construction industry and real estate development for the most part.

We've seen what happens when this falls apart now. Because Medicaid and VA Health Care are federally funded and don't even had dedicated federal tax funding, they can be undermined quickly when the federal budgetary process goes astray and also equalize services between poor states and rich states. A simple federal tax law change can undermine ACA individual health insurance marketplace subsidies. K-12 education relies heavily on federal funding for special education (i.e. educating the disabled) and for schools in low income areas (which also equalizes situations between poor states and rich states). Higher education relies upon federal funding for grants for low income students, higher educational institutions for military officers and the deaf, student loan financing, and research grants. Disaster relief is heavily federally funded and leaves havoc unchecked when that is suspended. Disease control and weather prediction and monitoring are also heavily federally funded and are screwed up when this changes.

While we couldn't fund the military or the national debt at the state and local level, we could have a system where more health care and education spending is state and local. This would reduce federal influence on how those industries run and remove those industries from the whims of the federal budget process to a great extent, but would also lead to weaker subsidies of poor states and disproportionately worse services in poor states and would subject those services to greater state and local political influence.

After 9-11 we federalized airport security creating the TSA. Today, we see the political price of that as a federal budgetary process fight unrelated to the TSA itself disrupts airport service. Early in Trump 2.0 we saw what happened to FAA air traffic control as a result of exposure to the Trump 2.0 administration and the federal budgetary process.

So far, Social Security is only suffering deficiencies in administrative processing of disability claims for the most part, because it has its own dedicated funding source that insulates it from the federal budgetary process as an entitlement.

But national parks and major transportation ad energy infrastructure programs have seen a twirl.

Could we build a more robust system without facing too many costs?

08 March 2026

Indirect And Non-Obvious Effects Of The Iran War

The U.S.-Israeli attack on Iran (the NYT recaps the first week here) will have some indirect and non-obvious impacts, some of which mirror those from the Ukraine War.

* Iran is the sole significant outside military supplier for Russia in the Ukraine War (supplying drones) apart from North Korea which has supplied artillery rounds and some old school military equipment (and even about 10,000 troops) all of which have been subpar in quality and not very useful. The attacks on Iran are likely to divert existing supplies of drones to domestic military use from exports to Russia for use in counterstrikes, and are likely to somewhat degrade Iran's military production capabilities.

* Iran's counterattacks and continued war-like footing have driven up global oil prices dramatically, have had direct supply effects on most of Asia, and have damaged the oil production infrastructure in many Middle Eastern oil producing nations (including Saudi Arabia) which will reduce the capacity of these countries to produce oil in the short to medium term.

* This oil price shock, like many more before it, makes electric vehicles and public transportation more attractive to policy-makers and consumers alike, all over the world, potentially resulting in long-term systemic reduction in demand for oil.

* This mirrors the indirect effect of the Ukraine War in causing Europe to rush to find long term alternatives to oil and natural gas, resulting in wider adoption of EV vehicles, renewable energy sources for their power grids, and energy conservation measures. Again, this results in long-term systemic reductions in demand for oil and natural gas in one of the largest economically developed regions in the world.

* The Ukraine War also strengthened NATO, strengthened European cooperation, and caused re-militarization of European countries, especially those most at risk of attacks from Russia.

* Trump's inexplicable decision to temporarily ease sanctions on Russian oil sales to India, helps Russia in the Ukraine War despite the fact that Russia has used its intelligence resources to help target the U.S. and its allies for Iranian counterstrikes.

* Generally, an international war strengthens the regime attacks vis-a-vis external dissent (something that partially explains Russia's persistence in the Ukraine because the ongoing war there makes Putin more able to crush dissent against him at home). The protests of the Iranian people against its regime may suffer because of this effect. While the U.S. assassinated the Ayatollah, Iran's supreme leader, and many of the likely successors, the successor chosen for this reason is probably more likely to be a hardliner than the person who might have been chosen if the Ayatollah (who was 86 years old and close to 87 when he was killed by a U.S. strike) had died of natural causes as was likely in the near future.

* It seems unlikely that Iran will experience regime change, either in favor of a more democratic regime (Iran's democracy was actually more robust than a lot of regimes in the Middle East), or a monarchist restoration of the Shah. Pre-attack, this had been conceivable because of huge protests against the too conservative Shiite religious regime's social policies, despite the fact that Iran is actually quite religiously and ethnically diverse. Air strikes and missiles are rarely sufficient to secure regime change.

* The war probably delays steps that could be positive for the residents of Gaza.

* The war probably depletes military equipment supplies of Iran, and to a lesser extent, the U.S. and Israel, weakening the affected countries' capacity to fight further wars.

* In much the same way, the Ukraine War has dramatically depleted Russia's military resources (despite half the national budget in Russia being spent on the military and interest on loans to support it).

* The strikes in Iran are very likely to weaken the Republican Party's MAGA coalition, since MAGA campaigned on ending foreign wars of choice and then has repeatedly sought out those wars in Trump's second term, striking Venezuela, embargoing Cuba, striking Iran, and renewing a "drug war" in Mexico, Ecuador, the Caribbean, and the Pacific, which doesn't seem very calculated to actually do anything about drug abuse and drug related crime in the U.S. (as well as threatening Canada and Greenland). This coalition has already been beaten up in special elections and survey results and has a very thin majority (especially in the U.S. House).

* The inflation caused by rising oil prices, weakens support for Trump and the Republicans and strengthens Democrats chances in the 2026 midterm elections, which are just seven months away.

* The Iran War hasn't been particularly effective at diverting attention from the Epstein files which graphically reveal a coalition of child trafficking, corrupt, and Russian influenced officials in senior levels of politics, business, and academia, with Trump at the center of all of it as a highly culpable serial child rapist.

* The Venezuela invasion, by the way, seems inconclusive and certainly doesn't seem to be having much of an oil supply impact.

18 February 2026

In The Resistance We Drive Minivans

The left is resilient. We have strong communities. We care for our neighbors. We are the grown ups in the room and we prove it with our actions. Trump and the Republicans are doing immense damage to our nation, but at the grass roots, we are doing what we can to mitigate the harm.
In the resistance we drive minivans, we take ’em low and slow down Nicollet Avenue, our trunks stuffed with hockey skates and scuffed Frisbees and cardboard Costco flats. We drive Odysseys and Siennas, we drive Voyagers and Pacificas, we like it when the back end goes ka-thunk over speed bumps, shaking loose the Goldfish dust. One of our kids wrote “wash me” on the van’s exterior, etched it into the gray scurf of frozen Minneapolis slush. Our floor mats smell like mildew from the snowmelt.

In the resistance we play Idles loud, we prefer British punk, turn the volume up, “Danny Nedelko,” please and thank you — we cast that song like a protective spell across our minivans: Let us be bulletproof, let us be invisible. . . .

Everyone is doing his part here, each to his ability. This is easier to accomplish, it seems, when joy and love are the engines. Outside the Bishop Henry Whipple Federal Building, where detainees, some of them American citizens and legal residents, are being held without beds or real blankets, the grannies of the Twin Cities are serving hot chocolate to college kids in active confrontation with ICE. I know of an off-grid network of doctors offering care to immigrants, a sub rosa collective of restaurateurs organizing miniature food banks in their basements. A friend of mine is a pastor who went with around 100 local clergy members to the airport in protest. Another friend is an immigration lawyer who spends his days endlessly filing habeas petitions, has gotten 30 people released from detention over the last few weeks. He recently offered a training session on how to file habeas petitions and 300 lawyers showed up, eager to do the work pro bono. . . .

Here’s what you need to remember: There is no reward that comes later. No righteous justice will be dispensed, not soon and not ever. Renee Good and Alex Pretti don’t come back to life. The lives of their loved ones are not made whole again. Thousands of people will remain disappeared, relatives scattered, families broken. This story does not have a happy ending, and I can assure you the villains do not get punished in the end. If that is your motivation, try again, start over.

But you also need to understand — and this is equally important — that we’ve already won. The reward is right now, this minute, this moment. The reward is watching your city — whether it’s Chicago or Los Angeles or Charlotte or the cities still to come — organize in hyperlocal networks of compassion, in acephalous fashion, not because someone told you to, but because tens of thousands of people across a metro region simultaneously and instinctively felt the urge to help their neighbors get by." . . .

you slow down to the speed limit, you turn Idles a little louder, you play “Danny Nedelko” again. That song comes from an album called “Joy as an Act of Resistance.”

Today I’m driving a girl who never speaks other than to say thank you. She’s out of the car now and trying to clamber ungracefully over a dirty ice bank that walls off the roadway from her house. There is no entry point — she’d have to walk down to the corner to gain access — and I’m cursing myself for where I’ve dropped her off. The skies are an unsympathetic oatmeal. It is very cold, the dark dead of winter.

Out on the stoop of her building, the girl’s mom and little sister are waiting. The mother looks on nervously, wishing to minimize this vulnerable transition point between car and home. The little sister is probably 3 years old. She is in pigtails and wearing footie pajamas and she is radiant, leaping up and down, clapping, ecstatic to see her big sister come home. The quiet girl is stone-faced and stumbling, and eventually she makes it across the wall of gray ice to her stoop, where her little sister grabs her by the leg. 
I’ll admit: This was the only time I cried, throughout this whole disgusting affair, as I sat in my car watching the girl in the footie pajamas clapping for big sister’s safe return[.]

29 January 2026

Brainstorming Possible Public Law Reforms

There are important gaps in our public law system:

* If we are to reject taxpayer standing, voter standing, and citizen standing, we need to empower someone to enforce violations of the law that harm the general public, but not any specific person differently from any other, like many forms of public corruption.

* Judges should have the power to remove government officials who defy court orders and commit serious breaches of the public trust from office, certainly, officials who are not elected officials.

* There needs to be a parallel to 42 U.S.C. § 1983 for federal officials and agents (i.e. people who act under color of federal law) that is more robust than the federal common law Bivens remedy, which doesn't cover all federal officials or all federal rights.

* The unitary executive theory adopted by the U.S. Supreme Court is just a pure political trick, with no historical basis. INS v. Chadha (1983), in which the U.S. Supreme Court held that legislative vetos in duly enacted laws were unconstitutional was also a bad decision.

* The gutting of the insurrection clause of the 14th Amendment by SCOTUS was a horrible legal decision not supported by any fair reading of the document.

* The grant of immunity from criminal prosecution for all official acts of the President was a very bad idea. Granting both civil immunity and criminal immunity should be a matter of common law or statutory law that can be changed by Congress, not a matter of constitutional law.

* Granting unfettered pardon power to the President now looks like it was a bad idea on the part of the Founders. Notably, a great many U.S. states do not afford the same power to their Governors.

* Requiring a two-thirds majority of both Houses of Congress to override a Presidential veto greatly upsets the proper balance of power between Congress and the President. Let the President veto legislation that unwittingly contains a bad provision which the President noticed but Congress did not. But let them reaffirm and override it by a simple majority of both houses. Part of the big picture problem in the United States is that it is far too hard to legislate, so the courts and regulations adopted by the executive have to fill the gap.

* Making the respective houses of Congress the judges of their own elections was a bad idea.

* The impeachment power is too weak and too political. And, it should be easier and less political to remove a President (or any other public official) for disability.

* A proposal is pending in Colorado to remove absolute immunity for prosecutors from civil liability, which as drafted I don't support, even though I can somewhat sympathize with the motivations for it. Judges also have absolute immunity. I think that the solution is to make a finding of professional or judicial misconduct or criminal conduct have the collateral consequence of forfeiting absolute immunity, with the statute of limitations for a private civil action to impose liability in those cases running from the time that there is a final criminal conviction or of professional or judicial misconduct. If a judge convicts you of a crime and sentences you to a private prison due to a bribe from a private prison investor, and the judge is convicted of that, the judge should have civil liability to you.

* An alternative to the fault based approach of § 1983 and Bivens for civil rights violations, would be to instead adopt the takings jurisprudence that applies when the government takes property without fair compensation. Rather than being perpetrator focused, if someone is deprived of their civil rights, they would be entitled to just, compensatory only, compensation, by the government under whose color the deprivation occurred, without regard to the intent of the person violating the right, and without individual liability on the part of the agents who participated in the deprivation of civil rights. Indemnification and defense mandates of public employees basically gets you to a similar place in most cases, but denies any relief when someone is deprived of life or liberty wrongfully, if no one individual intentional or almost intentionally violates their rights (e.g. if the injuries or destroyed property or other harm arose from mere negligence or mistakes, or due to broken systems rather than malicious individuals). Thus, if you were incarcerated and later found to be innocent, or incurred attorneys' fees defending a criminal case only to be acquitted, you would be entitled to compensation from the government that brought the charges and incarcerated you, without regard to how you were wrongfully convicted or were charged with a crime for which you were not convicted. Qualified immunity and intent requirements would be much less problematic if § 1983 lawsuits and Bivens actions were secondary remedies to punish individual bad apples (and included, for example disqualification from serving in law enforcement for serious willful wrongdoing), while municipal liability for compensatory relief only was available much more easily.

* Many countries vest prosecutorial power in the judiciary rather than in the executive branch, and many states have an attorney general or DA who is independently elected to create a built in special prosecutor. There is wisdom in depriving an elected executive branch politician like a President or Governor or Mayor from having absolute control over enforcement of the criminal laws.

* Colorado has the Colorado Open Records Act and the Colorado Criminal Justice Records Act to allow pre-litigation discovery of incidents that might give rise to civil liability on the part of public officials, which makes Warne v. Hall, which prevents people from suing first and getting discovery to determine if they really have a claim, by adopting the federal standards of Twombly and Iqbal for pleading civil actions more tolerable than in other contexts. It isn't clear to me that FOIA (the Freedom of Information Act) at the federal level, provides an equally effective tool to bring claims against federal public officials.

* While allowing all U.S. District Court judges to impose national injunctions can be problematic, mostly because it allows for forum shopping, it is also deeply problematic to allow the federal government to re-litigate issues that it has lost in other jurisdictions over and over again, which is just reverse forum shopping. Maybe national injunction power needs to be reserved for the U.S. District Court for the District of Columbia.

* Felons should be able to vote. But maybe they shouldn't be able to run for public office without some process establishing that they were reformed or just the passage of time of a certain number of years after they fully served their sentence.

* A statutory obligation for all law enforcement officers to be unmasked and clearly display their badges subject to narrow exceptions that would have to be authorized much like a search warrant on a case by case basis, wouldn't be a bad law.

* We need a better structure to limit the use of military force and covert operations by intelligence agencies to legally authorized act, that doesn't simply give the President absolute power.

* No President should have the power to unilaterally impose any taxes, including tariffs.