Sliding into Disrespect

Is the United States of America losing the world’s respect? Are we losing respect not just among our rivals and enemies, but among our friends and non-aligned nations? And is there good reason for this dismal trend?

The answers to all three questions, I submit, is “yes.” And the reasons are the same as ones that would cause anyone to lose respect. We don’t or can’t keep our word. In increasingly important matters, we don’t fulfill our moral, legal and historical obligations. And, for a nation founded on Reason and the Enlightenment, what we do increasingly doesn’t make sense.

Let’s take Ukraine first. But let’s start with history. The last century saw the two bloodiest wars ever. Both started in Europe. Both involved disputes that, at least initially, seemed none of our business.

But, despite strong isolationist trends in both cases, we got involved. We lent our allies money. We supplied goods and munitions. Eventually we jumped in directly, sending our own people across the great ocean that protected us to serve, fight and die in foreign fields. Still today, row upon row of graves of Americans—in Flanders Field and in the much bigger fields of Normandy—attest to the determination and sacrifice of Americans in great causes.

What were those great causes? It’s easier to see them now, with the benefit of hindsight. There were at least three. First and foremost, we helped our allies: the nations with whom we shared history, values and democratic ideals, the nations of the Enlightenment. Second, we fought to advance those ideals for themselves, in a perhaps quixotic attempt to improve the human condition.

In World War I, our slogan was “Make the World Safe for Democracy.” We failed at that task, in part because we couldn’t persuade our victorious allies to refrain from punishing the German people collectively for the sins of their Kaiser. But at least we tried. Later, in and especially after World War II, we succeeded spectacularly.

And that brings us to the third and most important great cause of all: bringing some sense of reason, humanity and order into international relations, what today we call “geopolitics.”

The widest and bloodiest single war in history had ended with the first use of nuclear weapons, which we invented. Any idiot could see where continuing geopolitics based on tribalism, tribal wars and imperialism would lead. And where we couldn’t rise above the foresight of idiots, scientists credibly told us that continuing such politics in the nuclear age could lead to our species’ self-extinction.

For a brief moment after the war’s end, we Americans were the sole superpower. We were also the sole surviving combatant nation to have incurred minimal attacks on and damage to our homeland. Did we use our nuclear weapons, our military power, our industrial might and our intact homeland to intimidate and dominate the rest of the world? No. We used them to lead the world, peacefully, toward a better and less bellicose future, based on mutual respect, negotiation, agreement and peaceful rebuilding. While still paying off our own war debt, we stretched to rebuild Europe, including our former enemies Germany and Italy, under the Marshall Plan. We did much the same with Japan. We organized and helped found the United Nations.

Recognizing the economic causes of World War II, we organized the world economy to promote progress and reduce causes for war. Beginning with the Bretton-Woods agreement on monetary exchange, we continued with the General Agreement on Tariffs and Trade (GATT), which eventually morphed into the World Trade Organization. We helped found the World Bank and International Monetary Fund and became their principal contributor.

Taken together, these acts of ours were unique—and uniquely successful—in world history. You could summarize the thrust of our global leadership in four words. As Jesus once had advised, we loved our enemies.

For decades, we lived Enlightenment values. We not only loved our former enemies. We helped rebuild them and paid for their renewal. As a result, our bitter former foes Germany and Japan now stand not as an axis of aggression, as they had been in World War II. Instead, they serve as global anchors of democracy, peace, scientific and technological progress, and the values of the Enlightenment. Today’s Germany, with its full confession and repentance for its wartime aggression and the Holocaust, has become a model nation, a global exemplar, and the industrial and defense anchor of a united Europe.

Now we Americans face an embarrassing paradox. We didn’t win the last century’s big war in Europe. Soviet Russia did. While Soviet Russia was fighting two hundred Nazi divisions in the East, we and our other allies were fighting a mere ten in the West. But we gave Soviet Russia critical help in supplies, arms, munitions and food. Without that help, the Eurasian continent might look far different today.

Not only were we the “Arsenal of Democracy,” as the wartime slogan went. We were also the Soviet Union’s arsenal. Our arms and aid allowed it to survive and continue, and the Russian people to escape domination by a relentlessly violent, self-proclaimed “Master Race.”

Now Russia itself has gone rogue under a twenty-first-century tyrant like Ivan the Terrible. It has attacked and invaded a democratic-leaning neighbor, without provocation, in the baldest act of imperialist aggression in almost ninety years. And what do we Americans do?

After a good start in supporting a stalwart and democratic-leaning victim of imperialism, we are now failing to provide absolutely crucial support. A bill to fund the “Arsenal of Democracy” is stuck in Congress because the Speaker of the House—the second in mere months—won’t bring it up for a vote, although it would almost certainly pass if he did. A novice politician from one of our least advanced and least significant states, Louisiana, is holding up the world’s most powerful democracy and making us look weak, cowardly and indecisive.

Unlike the two world wars, this war won’t require a single American to fight or die for the cause. All we have to do is make and provide arms and ammunition. Not only will doing so build up our own defense industry and make us profit; it will give good jobs to many of the skilled workers left high and dry by globalization, who’ve turn to Trump as a savior in their desperation. We have everything to gain, nothing to lose, and an innocent would-be democracy to save. So why don’t we act?

Imagine how all this looks to Europeans. Not only have valiant Ukrainians been forced to retreat from Avdiivka for lack of ammo. Our President also won’t authorize giving them the advanced fighter jets and long-range missiles they need to at least control the skies over their cities and troops. Why? Because he’s afraid that Ukrainians might use them to attack Russia proper, as Ukrainians have already done with their own drones and missiles. Add this to the President’s continued refusal to confiscate some $300 billion in Russian monetary reserves sequestered in American-controlled banks—money that could be used to buy Ukraine all the arms it needs—and it begins to look as if President Biden, while giving Ukraine a small set of brass knuckles, is holding Russia’s coat while it beats up its neighbor with long metal bats.

I know, I know. Russia has nuclear weapons. But so do we. So do France and Britain. It would only take one to wipe out Moscow and the Kremlin and kill the man who is the single greatest threat to global peace and security—and to our species’ survival—since Hitler and Stalin. We also have stealth technology to deliver those weapons, while it’s unclear whether Russia has anything of the kind.

Of course I’m not suggesting that we “go nuclear.” I’m merely suggesting that we understand that Putin has as much to fear as we do, even more. We should know by now that he’s the great deceiver, so we should not let him bluff us. He wants us to think he is crazy and will do anything. That may well be part of the reason for Aleksei Navalny’s untimely death, coming as it did during the Munich Security Conference. That infelicitous timing surely didn’t help Putin divide and weaken NATO, as he had hoped!

Vladimir Putin is the epitome of evil rationality. Whatever the ravages of age upon him, he undoubtedly has the dark intelligence to have foreseen the effect of Navalny’s death on NATO. So he must have intended Navalny’s untimely death as a warning against rising discomfort inside Russia with the cost and sacrifice of his bloody, gratuitous war in Ukraine. Putin has, above all, a fully functioning evil intelligence: he will not start something that could lead to disaster for his empire and himself.

On our side, the problem goes much deeper than an elderly, perhaps overly cautious president. The Gulliver of our nation is tied down by new Lilliputians: half-crazed pols from our least significant states and least important districts. A rump-group of “burn-it-all-down” crazies in the Republican Party is holding back what news reports suggest is a clear majority of the House in favor of giving Ukraine its aid package now. Every day that passes without a discharge petition, which would clear the aid bill in the House for passage, our allies’ trust in our ability to keep our president’s word and deliver on our clear moral obligations (not to mention military necessity!) declines.

But this issue, dear reader, is just the tip of the iceberg. Because we are still the global colossus, Europeans, Japanese and South Koreans (among others) diligently read the news about us. What do you think they think about the Alabama Supreme Court’s decision that frozen fetuses used for in-vitro-fertilization (IVF) procedures are “children” with full legal rights? Do you think they fail to understand how that decision threatens not only IVF medical services, which miraculously promise children to women having difficulty conceiving, but all of modern reproductive medicine? What do you think they think on reading this peroration of Alabama’s Chief Justice in the case:

“[T]he theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself."

What I think they think is that at least one state in our great nation has been captured by people who have abandoned science, rationality and the Enlightenment for law and politics based on Scripture, i.e., for theocracy.

But our allies’ (and our rivals’) analysis has to go much deeper than that. They see how our supposed popular majoritarian democracy has degenerated into something quite different. They see how pols, seeking ever-greater power for themselves individually, have multiplied many fold the deviations from simple majority rule inherent in our Electoral College and our malapportioned Senate.

In particular, they see how the filibuster and Senate “holds” allow a 41% minority of the Senate, and even individual senators, to block legislation and presidential appointments to key administrative and judicial posts. They see how the GOP’s so-called “Hastert Rule,” in a nearly equally divided House, allows a 26% minority of the whole House (a majority of the GOP majority) to block legislation like the Ukraine aid and border-protection bill.

Both allies and rivals see how a single, solitary senator—Mitch McConnell—cynically and hypocritically manipulated the Senate’s role in the Supreme-Court appointment process to conjure up a so-called “conservative” majority on the Court. They watch as that illegitimate judicial majority decides fundamental issues bearing on everything from human rights and home life to corporate domination of our society.

Allies and rivals don’t even have to read much to understand these things. They can just watch TV. They can, for example, watch a recent “Frontline” episode to see how McConnell, who apparently values personal power above all else, managed to throw the Supreme Court, in an increasingly diverse and modern nation, backward toward an Old-Testament theocracy.

Not only is our government under increasing theocratic pressure from small states and outback districts with inordinate political power. Because of the political gridlock in Congress, real power is passing inexorably to the judiciary, which a small cabal of unelected judges on our Supreme Court rules for life, like potentates of old. That so-called “conservative” majority is in the process of remaking this nation in ways that will have great impact on private life, rights, voting, technology, health, and ultimately war and peace.

In Citizens United (2010), the Court legalized “soft” corruption by making corporations “people,” with consequent free-speech rights. It thus legitimatized the use of unlimited corporate money to propagandize the people, “lobby” their political leaders, and influence political decisions, often in secret meetings.

I have written at least twice (see this post and this one) about a modern megatrend. Real, secular power power over laws, public money and national events is passing inexorably from government and political entities to private corporations, if only because corporations have a wider scope of operation, fewer legal restraints, and far more money. In the long run, this trend may help corporate power displace government power as thoroughly in our new millennium as the power of monarchies and eventually democracies displaced the all-consuming of power the Church during the second millennium after Christ.

Citizens United helped shift that ongoing transition into hyperdrive. The evidence is manifold. Antitrust law is suffering a laxity and lassitude unmatched since the Sherman Act was passed into law in 1890. Without any effective legal restraint, Fox enjoys huge financial and political success as a private propaganda organ, far surpassing the state-sponsored propaganda organs of Hitler, Stalin and Mao. And Big Tech has, without significant legislative or judicial pushback, flooded the Internet zone with propaganda, “alternative facts,” conspiracy theories, and now AI-simulated “reality.” With all this going on at home, who needs foreign spooks? But we have them nevertheless: Russian, Chinese and Iranian intelligence agencies are operating round the clock to divide and delude our people and influence our elections, all assisted by corporate algorithms that magnify their impact out of lust for profit or sheer indifference.

In Shelby County v. Holder, the Court, in its infinite wisdom, decided that the South (and the rest of the nation) had “come to Jesus,” so that the section of the Voting Rights Act that required the Justice Department to “pre-clear” changes in certain states’ voting laws was no longer needed. Within the single decade after that decision, twenty state laws restricting voting rights were enacted. The overall result of Shelby County was thus to invite the mostly Southern states that had sought to restrict minority voting rights since the Civil War to do so again and more freely.

In Dobbs (2023), the Court obliterated the productive rights of women that its more thoughtful earlier counterpart had established in Roe v. Wade a half-century earlier. The sequelae of this decision, including the Alabama IVF decision, bid fair to throw the legal status of women back to the days of male-dominated patriarchy under the Old Testament. So what were the good “conservative” justices “conserving”—a fifty-year-old precedent, or a bit of scripture over two millennia old?

In Heller (2008) and McDonald (2010), the Court read the “well-regulated Militia” clause out of the Second Amendment, decided that the “right to bear Arms” is a personal right of self defense, and made that right active as against the states. In so doing, it arrogated to itself the ultimate authority to decide what weapons can be carried on our streets, and how, when and for what purposes they can be carried. It thus arrogated to itself—nine unelected judges, or today the mere six that constitute the so-called “conservative” majority—the power to restrain (or not) the carnage of rampant gun massacres now overwhelming our civil society. The results today are both dismal and self-evidently the consequences of judicial action.

As if all that were not quite enough, two of the most consequential ways in which the Court might usurp the functions of elected officials are coming up this Term, with decisions expected before June. The first is an appeal from a decision of the Colorado Supreme Court that let election officials disqualify Donald Trump from running for president in Colorado under Section 3 of the Fourteenth Amendment (the “Disqualification Clause”). As I have analyzed in another essay, the justices’ questions in oral argument hint at a burning desire to outlaw disqualification without deciding the central legal issues of the Disqualification Clause: whether an “insurrection” happened on January 6, 2021, and whether Trump “engaged in” or “gave aid and comfort to” it. Some of the reasons cited by observers for so ducking a substantive decision include non-legal and blatantly political ones, such as letting the people “decide” in the election, or “giving each side one win,” by denying the Democrats disqualification while refusing absolute immunity to Trump as a defense against 91 felony charges.

In the long run, the second pending case may be even more important, at least if our democracy survives the first. In Loper Bright Enterprises v. Raimondo, the court appeared ready to overrule or cut back a 39-year-old precedent that is the foundation of our administrative state, which demagogues refer to pejoratively as our “bureaucracy.” That precedent, nicknamed Chevron for its corporate party, held that when Ph.D.s and our other administrative experts lawfully make rules that are “permissible” interpretations of congressionally delegated authority, they are valid. It thus allows administrative experts to operate freely within general authority, and for general purposes, that Congress has specified, much as executives in corporations are expected to follow the general purposes and limits established by their boards of directors.

If the Supreme Court overrules or cuts back this Chevron precedent, what will be the consequences? Experts who know the science and the facts will be unable to act within their expertise and best judgment. Instead, the “law” will expect Congress to micromanage them, rather than just setting general goals and limits, such as reducing pollution or toxic hazards in our food and considering the costs and benefits of regulation.

That would be bad enough in the best of times. But these are not the best of times. Today our gridlocked Congress is barely able to pass a budget and avoid a temporary government shutdown, let alone provide vital aid to a courageous ally fighting the worst case of imperialistic aggression in Europe since World War II. So, if Chevron falls or is wounded, who will ultimately have to decide precisely how to curb pollution, fight global warming, keep toxins out of our food and medicines, and keep cars safe and airplanes from having their doors fall off while flying? With Congress gridlocked and unable to act, the Supreme Court itself will have to decide.

The sheer insanity of this proposition boggles the mind. But that is precisely what overruling or cutting back Chevron would portend. It would allow, if not force, lawyers and judges, in cumbersome years-long lawsuits, to hobble, if not gut, our administrative agencies as they seek to protect us with expert knowledge of modern science, technology, biology, chemistry and engineering. Can you imagine, for example, what a botch people trained only in verbal jousting under the law would make of microbiology?

Perhaps it wouldn’t be quite as bad as asking priests to decide. But it’s in that direction. And as the Alabama Chief Justice’s peroration in the IVF case reminds us, having priests decide might well be next.

Writ large, the crux of the matter is that the USA is no longer a democracy, at least if “democracy” means anything like majority rule. It’s some kind of hellish mix of oligarchy and anarchy, with a touch of despotism, as revealed by how quickly Trump got House Republicans to change their minds on the border and Ukraine.

Minorities in either House, not to mention single senators, can thwart any action by Congress, including senatorial “consent” to presidential appointments. The cabal of six unelected, so-called “conservative” justices on our Supreme Court has undertaken to make the Court the ultimate arbitrator of: (1) corporate “soft” corruption of politics, (2) legal restrictions on voting rights in the states; (3) women’s reproductive rights, and now (4) whether the post-Civil war constitutional amendment to keep insurrectionists out of public office will actually work today; and (5) whether our expert administrative agencies will by stymied by a broken Congress and judges like the theocratic Alabama one in the IVF case.

Neither our allies nor our rivals are stupid. Xi Jinping and (in his own bent, criminal way) Vladimir Putin can match any global leader, including our president, for sheer analytical intelligence, if not emotional intelligence. (Dictators don’t need much emotional intelligence; they don’t have to worry as much as leaders of even flawed democracies about persuading “the masses.”) No doubt Xi and Putin can see what’s happening to us: a once-thriving democracy is being undermined by: (1) minority rule in both Houses of Congress: (2) rules that give individual senators and minorities in the House veto power over legislation; and (3) a Supreme Court that increasingly arrogates to itself, and to lawyers and lawsuits, decisions on basic moral, operational and important substantive issues of government that ought properly be characterized as executive.

None of these things our Founders would have approved. None did they anticipate. Their major focus was their eagerness to create a self-governing nation from a barely viable chimera of slave and free states. We have long since passed the point where we should revere their foresight as impressive, let alone good for a millennium.

But none of this matters now. As today’s cliché goes, “It is what it is.” At risk today is not just some theoretical respect for American ingenuity, inventiveness and goodness, based on our checkered but sometimes glorious past. Today’s question is whether our allies and adversaries can respect a nation with a Congress riven by a deep ideological divide, hog-tied by minorities and (in the Senate) even by whacko individuals, which is ultimately ruled in key respects by a small cabal of Supreme-Court Justices (backed by a larger cabal called the “Federalist Society”) intent on arrogating some of the most fundamental decisions to itself and, in the process, hog-tying those decisions with all the complexity, delay and uncertainty of modern high-stakes litigation.

This is the reality in which we live. For better or for worse, this is how we now govern ourselves. To say it’s a “dysfunctional” and “non-democratic” system would be understatements. And bear in mind that none of this depends on whether the Demagogue becomes president again, although a lot of this will affect his chances, and his winning would make all this much worse.

If you were a leader of a foreign country under these circumstances, would you respect our government and trust the president’s word? Would you bet your national budget, let alone your national survival, on our promises? If the Enlightenment is to survive this perilous passage, it’s going to have to have Britain, the EU, Japan, South Korea, and a re-invigorated India carry it along.

Our nation may well help. It may even carry a substantial burden. But as of this moment in time, there can be no assurance that it will do so. We have our heads too deeply buried in all the following to focus on what matters in the real world today: the enduring consequences of slavery, tribal politics, the presumed rights of Americans to do exactly as they please at all times, and the alleged abstract constitutional rights of corporations, as “people,” to spread lies electronically and to magnify disinformation, misinformation and foreign propaganda algorithmically without effective legal restraint.


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“Killers” and the Rehabilitation of Government

This year, there’s a fair chance that the USA will fall into the oubliette of “great” democracies that eventually failed. We might follow the ancient Greek city-states, ancient Rome, and the once-great British Empire. If that happens, Hollywood will bear a hefty but as-yet-unrecognized share of blame.

Its mavens of course will disclaim blame vociferously. They will say that their “art” only “tells stories” of human nature as it is.

But the award-winning movie “Killers of the Flower Moon” tells a different story. It’s one of very few movies in the last two generations that shows government in a favorable light. It protrays J. Edgar Hoover’s government crime-fighting agents, or “G-men,” as vindicators of the right and good. (Spoiler Alert: if you haven’t seen the movie and want to, do that first; reading this post first may spoil it for you.)

I first noticed Hollywood’s malign influence over eight years ago, when I saw that year’s stunning award-winning movie, “The Martian.” It told the story of an American astronaut stranded on Mars. The whole world, including China, cooperated to bring him home. Not only was the movie a good cliff-hanger. For Hollywood, it also got the science and technology mostly right.

But what motivated me to write a whole blog post about “The Martian” wasn’t its quality as entertainment or its relative scientific accuracy. It was the first movie I had seen in a long time in which “government” did anything right. It was the first movie in my then-recent memory to highlight the evolutionary advantages that have given our species total dominance over our small blue planet: empathy, cooperation, and that vague, abstract thing called “morality.” (We wouldn’t have gotten very far in our evolutionary competition if, like hamsters, we ate our young.)

For two generations before “The Martian,” the heroes and plots of big-budget, “blockbuster” movies had been dismally predictable. The villains were politicians, government soldiers or government agents. The hero or heroes were all private actors, devoid of legal authority.

Entirely gratuitously, the heroes took on the evil government actors, eventually besting them, often killing them in gruesome ways. The male heroes were slightly better-educated and better-spoken versions of “Rambo.” The females were attractive and svelte, submerging their sexuality and nurturing instincts in a dystopian display of egalitarian but mindless violence.

Let’s leave aside for a moment whether this mindless screen violence was and is a virtual reprise of a key symptom of the onset of ancient Rome’s decay: the real violence of gladiatorial fights to the death, “mock” battles with real blood and gore, and throwing early Christians to the lions. In today’s over-the-top screeen violence, the heroes’ only perceptible motivation was often pure ego—a form of selfishness—and the drive to survive. Here Bruce Willis’ series of “Die Hard” movies was paradigmatic, although sometimes he had a veneer of legal authority as a rogue cop.

This dramatic paradigm became so common that many plot outlines of blockbuster movies practically wrote themselves. It didn’t matter whether the presumed “subject” was white-collar crime, politics, environmental pollution, or space aliens. Self-willed and supremely violent rogue cops or private actors always prevailed over government villains of some kind. Even the famed (and vastly successful!) Star Wars series featured an Evil (government) Empire, personified by a cartoon-villain Emperor, eventually bested (with supreme planet-killing violence!) by a ragtag force of rebels and a “traitor” within the Empire.

That Star Wars series debuted almost half a century ago. Do you think maybe a half-century drumbeat of “macho private rogue beats evil government actor” helped our people accept the current Republican myth that government is an evil, bumbling, predatory force, that regulation of private business is always excessive, and that all good comes from private business and low taxes?

Some time ago, a deranged right-wing geezer screamed,“Get your government hands off my Medicare!” Surely Reagan’s insistence that government “is the problem” contributed to his derangement, as did Fox’ incessant anti-government propaganda. But could decades of movies portraying an evil government thwarted by rogue heroes’ private acts of courage and over-the-top violence also have contributed?

Perhaps I have an unusual perspective. I’m the son of a Hollywood screenwriter, Jay Dratler, who died early of a heart attack in 1968. So I grew up watching “old” movies from the forties, some of which my father wrote.

The Hollywood zeitgeist of that era was as different from the last half-century’s as day from night. Most of Hollywood, and the major studios, were then run and staffed by Jewish refugees from Nazism and fascism in Europe. Their love of this country—and their relief at its sparing them from the Holocaust!—were palpable. That love and veneration appeared in almost every movie of the time.

Perhaps the best examples came from the series of George M. Cohan/James Cagney movies celebrating our nation and its victory in World War II, epitomized by the hit tune “I’m a Yankee-Doodle Dandy.” (Even today, it’s worth a listen, if only to contrast its upbeat, patriotic tone with the dismal zeitgeist of our own time.)

But I digress. The moral message of “Killers of the Flower Moon” differed from that of “The Martian” in a key way. In “The Martian,” the “evil” against which a cooperative mankind struggled was an accident: a freak sandstorm on Mars that kept the hapless hero from getting home. In “Killers” the evil lay in the hearts of men, specifically two well-developed anti-heroes. Leonardo DiCaprio played the weak-as-dishwater main character, who does incredible evil, even to the wife he loves, simply because his uncle tells him to. The evil uncle, played by Robert De Niro, hatches fatal plot after fatal plot from a seemingly inexhaustible store of evil.

The movie’s substance need not detain us long. Apparently it reflected real historical events in Oklahoma from the 1920s and 1930s. Having been driven by white man’s “Manifest Destiny” from several other states, the remnants of the Osage Tribe of Native Americans had settled in a dismally barren part of Oklahoma. Oil fortuitously discovered on its Reservation made the seemingly small tribe rich. Then poor, mean white men flocked to the Reservation, some for work, some to marry into the Tribe’s riches, and some, by marriage and murder, to take possession of the easy money that oil brought.

That apparently historical reality is the basis for the movie. Its two main characters contrive to murder, or to have murdered, over thirty Osage Tribe members, male and female, by methods including poisoning, shooting from the back, and dynamiting a whole house with a target married couple inside. The Osage wife of the weak nephew, Molly, goes to Washington to beg help from President Cleveland, and J. Edgar’s G-men arrive. Eventually, the perpetrators end up in prison, where they belong, and Molly moves on from the nephew to a less weakly predatory husband. The movie’s finale is a reprise of a mid-twentieth century radio show on the story, which apparently is also actual history.

The heart of the movie’s moral “message” is the supreme evil that De Niro brilliantly portrays. His character has a single, solitary goal: to end up the last human standing at the head of a big “allotment” of “Indian” oil land. His method of achieving his goal is simple. He aims to kill anyone and everyone, especially “Indians,” who stands in his way of reaching his goal through family connections and the laws of inheritance.

What makes the De Niro character interesting is that he’s also a benefactor of the Osage, the sheriff of his small town, a highly influential “elder statesman” and (albeit duplicitously) a “friend” of everyone around. When his nephew announces that his Osage wife Molly is pregnant, a small cloud passes over the uncle’s face; then he announces piously “Blessings on this house!” You can almost see him thinking, “Another rival heir to kill off.”

This character is about as pure evil as you ever see in movies today. Yet he somehow has achieved the pinnacle of success, power, influence, and fame (albeit not yet secure wealth) in his small Oklahoma town. Whenever his plotting harms his fellow townspeople, he smiles, snake-like, and commiserates with them about the arbitrariness and pain of “God’s will.”

By sheer coincidence, mere days before seeing this movie online I had read Robert Draper’s brilliant exposé of Mark Meadows. Meadows was Donald J. Trump’s Chief of Staff. Now he’s a suspect and possible witness in the federal insurrection trial. As Draper portrays him, Meadows could be the evil uncle in “Killers” come to life. From hard-scrabble, dirt-poor beginnings in a small, rural Southern town, Meadows rose to become the former president’s right-hand man.

As Draper’s reporting portrays him, Meadows rose to wealth, influence and fame by (apart from murder) much the same means as the evil uncle in “Killers.” He practiced being many faced until it became a high art. He reportedly told everyone what he thought they wanted to hear. He seems to have had the spine of a jellyfish, with no discernible character, principles, or morality. His personality could have been an AI programmed for temporary, situational advantage, in every situation from informal conversations to the Situation Room in a hypothetical nuclear attack.

In other words, Meadows as reported is the perfect match for Donald J. Trump as President. Whether he will testify for or against Trump is anyone’s guess. Only one thing is certain: he will do what he thinks is best for Mark Meadows, no more, no less.

So “Killers” is an important movie, if only because it gives us deep insight into what we are dealing with in this agonizing political time. Its direction is much too slow, suggesting that Matin Scorsese, who made his reputation by romanticizing flagrant, gruesome violence, often in slow-motion, is slowing down with age. But its message is absolutely right—and vitally necessary—for our times.

Eventually, the movie’s G-men solve the many Osage murders and send De Niro’s avuncular wolf and his rotten, cowardly nephew off to prison. But the movie’s portrayal of them is strangely anodyne. They are professional and polite, but firm. There is no hint of triumph in their eventual “victory” over the evil pair and their minor genocide. They are just doing their jobs, punishing law breakers so that order and justice can prevail. You can almost feel a sense of sadness in the director and producer that the plot gets resolved, and evil is vanquished, without the spectacular, gruesome violence that has become Martin Scorsese’s trademark.

What the movie doesn’t show is how its innocent, anodyne portrayal of the G-men marks the end of an era and recalls an earlier, more innocent one.

J. Edgar Hoover got his start, and began his climb to fame and power, by applying good organization, scientific methods, and better weaponry to battling crime. Apart from spectacular minor gangsters like rural bank robber John Dillinger, Hoover fought the American Mafia and other organized gangs that arose in the aftermath of our First Gilded Age, Prohibition and its failure, and the lawlessness of the interwar era.

Back then, Hoover was a “good guy.” He did what he had to do keep America’s cities and small towns safe, tranquil and honest. As Hoover performed that near-mythical task, he and his “G-men” became public heroes. The FBI that he invented and developed became a global paradigm for professional, efficient, effective and relatively restrained crime-fighting.

Then he went beyond crime and started messing in politics. He tried to root out and destroy the Communist Party in America. He ultimately spied on and oppressed leaders as great as MLK, on mere suspicion of having “Communist” leanings. He was suspected of keeping secret dossiers on the love lives and foibles of major politicians, including presidents. And he became one of the most sinister forces opposing our nascent civil-rights movement.

Perhaps for this reason, even some left-wingers began to buy into the great myth of “government as evil.” As a physics grad student in the late 1960s, I often ended political discussions on the telephone, opposing our tragic Vietnam War, with the phrase “F— you, J. Edgar!” Partly from youthful paranoia, and partly from strange crackles on the line, I imagined that Hoover’s minions were listening in on my private antiwar telephone conversations.

In retrospect, it’s easy to see how anti-government paranoia, whether coming from the right or the left, serves the interests of the oligarchs and billionaires. After all, government is the only institution with the reach and power to curtail their selfish caprice and unbridled lust for money and power. And government is supposed to be the only institution in which every citizen has a say. The less government, the more “freedom” the wealthy and powerful have to oppress us all privately, and the less power we all have to insure that law prevails.

The “gospel” of government-as-evil is what Ronald Reagan first preached in earnest. Today, two generations later, we can see its fruits. Airplanes, or at least their doors, are falling out of the sky. Phthalates, PFASs, BPAs and other ubiquitous plasticizers are poisoning us, disrupting our endocrine systems, and appearing in our rivers, seas, food, drinking water and bloodstreams.  Pollution-sparked planetary heating is running amok and could become self-sustaining. Private media control what we hear, see and think, vastly outdoing the long-dead governmental propaganda organs of Hitler, Stalin and Mao. And big-tech’s private versions of artificial intelligence are busy creating convincing, artificial material to make that propaganda indistinguishable from fact.

So the former “arsenal of democracy,” which once helped protect “Mother Russia” against the most brutal invasion in human history, is now standing idly by while Soviet Russia’s own nuclear-armed and lawless descendant pillages a democratic neighbor. Why do we stand by? Because our Republican “leaders” are concerned, like the evil uncle in “Killers,” only with their own personal advancement in the world. In this way, “Killers” is a brilliant metaphor for the banal forces of personal evil that threaten to push us down the path of ancient Rome.

If “Killers” can teach us that self-love on the part of the powerful is the road to perdition, that principled government can help us, and that having a well-funded, professional, science-based force fighting crime and collecting lawful taxes is a good thing, we might just muddle through this dismal era. We just might begin to see how, in every sector of society—our government, our military, our police, our politics, our business, our medicine, and even now our sports (the Super Bowl in Las Vegas!)—love of self, money and fame is replacing love of country, principle, fairness, equality, good science, a “fair shake” for labor, and even common sense.

Today we are terribly short of institutions to teach us human morality: the evolutionary advantages of empathy, compassion, cooperation and love of others, and the gentle restraint of shame. Organized religion, which once served that function, is now hopelessly corrupt, complicit in an apocalyptic battle of tribes, and therefore on the ropes. Perhaps politics and even government can help us, if not to love each other as Scripture recommends, at least to realize a modicum of cooperation, goodness and truth. Perhaps it can help the Western Enlightenment survive this season of gloomy promotion of the self above all.

“Killers” conveys that message, if only subliminally. It shows how bad things can get when love of self prevails over all else. And it shows how bland government—as boring, anodyne, and lacking in flair as it may seem—might help at least eliminate the worst self-loving evildoers. It’s a lesson we must learn quickly, lest we follow the list of fallen democracies down the garbage chute of history.


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Common Sense in Disqualification

In the case of Trump v. Anderson, the Supreme Court recently heard arguments whether or not our Fourteenth Amendment disqualifies Donald J. Trump from the presidential ballot in Colorado as an insurrectionist. Summaries of the justices’ questions and responses to the arguments appeared in many news media.

I’m an ex-Ph.D. physicist who attended Harvard Law School, served as Articles Editor on the Harvard Law Review and became a lawyer. Then I taught law for 24 years before retiring.

Never in my 32-year legal career have I experienced such intellectual revulsion as in reading those summaries. It seemed to me that nearly all the justices who spoke focused on politics, not the law, and that those who focused on the law focused more on legal trivia than on the origin and purpose of the Fourteenth Amendment.

Let’s start with the Amendment itself. Our Bill of Rights arose out of our Pyrrhic victory in our six-year-long Revolutionary War. But our Fourteenth Amendment was the product of an even more brutal war. In fact, it derived from the most brutal and bloody war ever fought on our own territory. Almost as many Americans perished (over 600,000) in our Civil War as died in all the other wars in our history, including our Revolutionary War and both World Wars.

So to say that our Civil War and its aftermath were “formative” events in our nation’s history would be an understatement. They were more like a Second Founding.

The Civil War produced three Amendments to our Constitution. The Thirteenth abolished slavery and involuntary servitude (except as punishment for crimes). The Fifteenth guaranteed the right to vote against infringement by federal or state action “on account of race, color, or previous condition of servitude[.]” Together, these first and last of the three abolished slavery and guaranteed former slaves (and those who look like them) the right to vote.

But the Fourteenth Amendment has much broader sweep. It’s much longer and filled with new substance. That’s why some historians and legal scholars consider it a Second Founding all by itself.

Section 1 gives citizenship, both federal and state, to all persons “born or naturalized in the United States.” It also guarantees all citizens the Constitution’s “privileges and immunities” as against State action. Next it guarantees to “any person” the so-called “due-process” rights—rights against deprivation of life, liberty or property without due process of law. This guarantee alone has led the Supreme Court to view many rights in our Bill or Rights as guarantees against both state and federal infringment. Finally, Section 1 gives any person within US jurisdiction the right to “equal protection of the laws.” It thus provides even aliens living within our borders minimal human rights and equal protection under our law.

Section 2 requires representatives in Congress to be apportioned according to the several States’ whole populations, “excluding Indians not taxed[.” It thus erased the rule in our original Constitution that each Black slave counted as only three-fifths of a person. The rest of Section 2 purports to reduce any State’s representation in Congress in proportion to the number of its over-21 male inhabitants denied the right to vote other than for rebellion or crime. To my knowledge, this provision has never been invoked. Yet it reflects how the Fourteenth Amendment’s drafters expected and predicted precisely the “race”-influenced whittling away of voting rights that persisted long after the Civil War and continues even today.

Section 3 is the “Disqualification Clause.” It precludes a “person” from holding any listed federal or State office, who “having previously taken an oath” for such an office “to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” I have analyzed the Disqualification Clause at length in another essay.

Section 4 validates the “public debt of the United States . . . including debts incurred for payment of pensions and bounties for services in suppressing insurrection and rebellion.” At the same time, it invalidates debt “incurred in aid of insurrection or rebellion against the United States,” and “any claim for loss or emancipation of any slave.”

Section 5 gives Congress the power to enforce all these provisions. But it does not require congressional action for enforcement. As noted in my earlier essay, the Supreme Court, in numerous cases involving Section 2, has found the Fourteenth Amendment’s provisions self-enforcing.

These short summarizes reveal the Fourteenth Amendment’s broad scope and reach. It made a complete revision of our nation’s constitutional framework after the worst rebellion and most brutal war ever fought on our own territory. It reformed our rights to citizenship. It extended our human rights and our voting rights. It revised our apportionment of representatives in Congress and our state and federal public debt. Under the Disqualification Clause, it denied the right to hold public office to previous office holders who have participated in insurrection or rebellion.

Like all amendments under Article 5 of our Constitution, the Civil War Amendments were “proposed” by a two-thirds vote in both the House and the Senate and then ratified by three fourths of our all respective State Legislatures. These triple supermajorities reflected the gravity and the importance of our Fourteenth Amendment as a Second Founding.

So what did the justices do with all this in oral argument over Trump v. Anderson? They nit-picked Section 3, the Disqualification Clause, as if it were fine print in a warranty for the sale of a used car, rather than part of a foundational document that reformed our whole governmental structure and approach to civil and human rights in the aftermath of the bloodiest war ever fought on our own territory.

How so? Let me count the ways.

First, some justices questioned whether the Disqualification Clause applies to candidates for President of the United States. Some went so far as to cite the work of an obscure law professor, now teaching in Ireland, arguing that Americans at the time did not use the term “officer of the United States” as including the president.

Really? Jefferson Davis had been President of the Confederacy and, as such, a chief rebel in our Civil War. He lived until 1889. Can anyone imagine that he would have been allowed to run for the presidency in 1868, when former Union General Ulysses S. Grant beat Horatio Seymour, the Democrat, to succeed the impeached but not convicted Andrew Johnson? The men who drafted, adopted and ratified the Disqualification Clause would have run Davis out of the Capital on a rail, suitably tarred and feathered. (They were all men in those days; women didn’t get the right to vote until 1920.)

Second, the justices sparred with advocates over whether the Disqualification Clause is self-enforcing, or whether it requires some sort of congressional legislation to enforce. Again, really? Congressional “consent” came with the two-thirds supermajority of both Houses then (and still) required to amend the Constitution. That’s among many reasons why Section 2 of the Fourteenth Amendment, which most resembles a second Bill of Rights, has been repeatedly enforced judicially without further congressional authorization, just like our original Bill of Rights.

Third, some justices quoted the Disqualification Clause’s precise language, noting that it only prohibits an insurrectionist from “holding” the presidency, not from running for it. This approach to ducking the issue is practical idiocy of a high order. If one worries about political division and a second civil war, what is more likely to provoke one? a disqualification of Trump from running for the presidency, or a ruling that he can’t hold that office after he wins it in what is likely to be the most contentious election in our history, and after all his supporters have been denied the chance to select a suitable substitute?

Doesn’t that question answer itself? Letting him run but denying him the office if he won would be tantamount to shoving his legal disapproval in the faces of the tens of millions of people who had already voted for him, actually thought they had elected him, and no longer had any alternative.

None of these approaches is serious. Immunizing Trump from disqualification on the ground that the Disqualification Clause doesn’t apply to the presidency, that it requires something else for enforcement, or that it doesn’t disqualify him from running would not only enrage his opponents. It would immeasureably strengthen the distrust and contempt that many ordinary people already feel for lawyers and judges. It would cause the Supreme Court’s crumbling reputation as a sensible and reliable arbiter of our highest law to fall over a cliff. And it would convince every college-educated citizen that the Court’s primary goal in applying the Disqualification Clause was to duck responsibility for deciding what may be the most important case ever to come before it—one that may determine whether our nation remains a democracy.

So if the Court wants to do its constitutional job, and not duck its most important duty, what must it decide? There are only two real legal issues. First, did the events of January 6, 2021, coupled with their planning, incitement, execution and consequences—including the Big Lie of the “Stolen Election” that Trump and many Republicans maintain to this day— constitute an “insurrection” or “rebellion”? Second, if so, did Trump’s participation in, encouragement of, and incitement of those events—including his inaction for hours during the fateful day and evening and his maintenance and encouragement of the Big Lie to this day— constitute “engaging in” or “giving comfort to” an insurrection or rebellion?

Unbeknownst to most non-lawyers, both these issues are “special” in a peculiar sense. They are not purely legal issues at all. Rather, they are mixed issues of law and fact, just like negligence in an auto accident case. The “legal” part is the precise definition of what constitutes “insurrection” or “rebellion” and “engaging in” or “giving comfort to” one. The factual part is deciding, based on evidence admissible in court, what Trump and his followers actually did before, on and after January 6, 2021, and whether those facts fit those definitions.

An appellate court, let alone the Supreme Court, has no direct jurisdiction over the factual part of this puzzle. Article III, Section 2 of our Constitution makes crystal clear that our Supreme Court has “original” (i.e., trial) jurisdiction only over a specific set of cases, none of which involves application of the Disqualification Clause. So all the Supreme Court’s constitutional purview permits is policing the outer edges of the definitions of “insurrection”, “rebellion,” “engaging in” and “giving comfort to” i.e., the legal boundaries of what those words mean. Applying the Court’s boundaries to the facts is the job of federal district courts (including juries), state trial courts, and state and federal administrative tribunals.

The justices’ reported questions and remarks during oral argument made absolutely clear that they are desperate to avoid deciding. They twisted and turned in every direction to duck a substantive decision. They would love to disqualify the disqualification process on procedural or structural ground, without ever addressing the fundamental substantive question that the Disqualification Clause poses: did Donald J. Trump engage in or give comfort to an insurrection or rebellion against the Constitution of the United States?

But as Chief Justice John Marshall once said in establishing the Supreme Court’s legal supremacy, it is the Court’s function to decide “what the law is.” It cannot duck that responsibility on procedural or structural ground. At least it can’t without totally destroying what remains of public trust in it as an institution, and perhaps becoming complicit in the loss of our democracy. Insofar as concerns final interpretation and application of the law, “The buck,” as Harry Truman said of his presidency, “stops here.”

Will the Court do its job? Or will it duck its constitutional responsibility in an historic case with powerful implications for the survival of American democracy and the Western Enlightenment?

The justices’ desperate twisting and turning during oral argument provide no cause for optimism. They seem cowards all. They seem desperate to avoid making a decision that will anger tens of millions of voters, even at the cost of seeing a half-crazy narcissist, ready now with much better plans for despotism, crush our 248-year-old experiment in popular democracy under his heel. They seemed almost eager to welcome that result, as long as they are not blamed for it. They focus on legal technicalities while the world burns.

The drafters of the Fourteenth Amendment had other ideas. They bequeathed us clear law to keep insurrectionists and rebels from ascending to high office a second time, in either the federal or any state government. They got that law approved by two-thirds of each House of Congress and the legislatures of three-fourths of the States at the time. Their voices cry out over the words they wrote, and over the dead bodies of some 600,000 Americans: “Don’t let it happen again!”

The good justices may think they can duck responsibility for making the decision that landed on their desks. But they can’t. If Trump runs and wins, and our democracy dies (and with it the Western Enlightenment), many will know. The millions who ultimately will flee the United States for remaining developed democracies will know. Their families will know. (Perhaps some of the justices and their families ultimately will be among them.) Foreign observers will know. History and historians will know.

And the justices’ cowardice will cement for all time the notion that the judicial branch is indeed the weakest and least reliable of all. Future nations may even omit a constitutional court from their governmental structures entirely, seeing it as a useless appendage of strongmen.


For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

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