This is the world globalists want!“Green Lives Matter” – Yes, our Border Patrol actually believes this shit.
Earlier this week, President Trump delivered his second annual speech concerning his administration’s national security strategy. In it, Trump presented a Manichean world, in which America’s cultural, economic, and military hegemony must be maintained at all costs against an insidious Asiatic peril that consists of the combined forces of Cathay and the Volga Tartar. While it is encouraging to finally see recognition of the fact that “history” is far from over, with Trump specifically, and without obfuscation, declaring Russia and China as “rival” nations of which “protection” of a nebulously defined American economic interest is a prerequisite for “cooperation,” one is forced to inquire in what essential way does Trump’s national security policy deviate from the zero-sumWeltanschauung of the neoconservatives?
After all, it was Trump’s putative national security and foreign policies that were the banner Rockwellians held aloft, front and center, when declaring a ‘libertarian case for Trump’. Instead, the bill of goods sold to libertarians by Bannon, Gorka, Miller, et alia was merely the The Project for a New American Century covered with a lamina of mercantilistic trade protectionism. Thus, what we have now is a mandate to para-militarize our borders to serve the triple purposes of escalating the Wars on Drugs, Terrorism, and Illegal Immigration; increased federal spending to defense and infrastructure cronies; going all-in on the Israeli position in the Middle East, the provision of arms to Ukraine, and continued support for adventures abroad to “confront, discredit, and defeat radical Islamic terrorism and ideology.” As we have learned on Monday, there is no meaningful distinction between the Trump administration’s strategy and the six major articles of the Wolfowitz Doctrine.
Sometimes I like to write stream-of-consciousness posts when I’m procrastinating on more research intensive articles. This is yet another one of those situations. (Crafting a Narrative Pt. 3 will be ready soon)
Let’s have some fun together tearing apart this whole NFL v. Trump shitshow piece by agonizing piece. If we do this right, we’ll trigger literally everybody.
First, let’s address the elephant in the room. The entire frickin kneeling protest is an unorganized shitshow. When Kapernick started kneeling, it was vaguely in support of Black Lives Matter, but even BLM is a fucking mess of intersectional leftism. I’m not going to kill brain cells by going to their website again, but there was shit about ableism and transgenderism last time I went. On top of that, now everybody is kneeling for a thousand different reasons. Some are civil rights LARPing, some are protesting police brutality, some just hate Trump, and most of them have no fucking clue why they’re kneeling except for the fact that it pisses Trumphitler off.
Why the hell are you kneeling during the national anthem? Cops are employees of the state and local governments. They’re not even affiliated with the American flag, let alone somehow symbolizing it .Of course, if you’re smart, you don’t take the kneelers’ stated intentions at face value. The reality is that this protest against “systematic injustice” is really just a bunch of rich idiots being played like marionettes by no-kidding communists. Kapernick is in neck-deep with the commies, and his totalitarian milieu has polluted the NFL as a whole.
Why are you biting the hand that feeds you? We’ll get to the ridiculous reaction from fans in a minute, but it was a quite predictable reaction. Most football fans lean conservative and working class. Most conservative and working class folks are quite patriotic. They tend to either be veterans or know quite a few veterans. Disrespecting the flag is seen by them as pissing on their service and sacrifice. Any idiot can see this dynamic, and any idiot could have predicted the backlash that was created by these overprivileged multimillionaires disrespecting the flag.
It’s virtue signalling at its finest. There’s nothing accomplished by kneeling during the anthem. Not one cop is going to think twice about shooting some black kid just because some NFL player kneeled during the national anthem. Rather, the NFL is sending the message that they play ball with the SJW left. Unfortunately, the SJW left has resoundingly ignored the NFL… y’know because contact sports are icky and boring and not artisanal enough.
What of the boycotters? If there’s anything more pathetic than protesting a symbol that has nothing to do with the supposed object of your ire, it’s the people who are acting offended because other people won’t play patriotism olympics with them. By all means, boycott the NFL if you don’t like the message they’re sending. Hell, I’m watching much less NFL because I’m sick of all the personal interest stories, the “special interest here” month this and that, every other commercial being a PSA for some stupid cause, CTEs, and lefty virtue signalling around every corner (*cough* Bob Costas *cough*). What happened to football being about men in pads hitting one another? At the end of the day, though, respect or disrespect of the flag is a pretty stupid reason to change your entertainment habits. Why?
Because modern patriotic nationalism sucks. I completely get the connection between the flag and the service of our soldiers and veterans. I completely respect their courage and sacrifice. This is why I stand for the national anthem, even though I don’t participate. However, if there’s one thing that gets and eye roll from me in record time, it’s the old tired line of “freedom isn’t free. They fought and died for your freedoms.” Sorry, but when were my freedoms last threatened by a foreign power? Maybe WWII? That’s really stretching it, because the biggest threat to my freedoms in that era was FDR (internment camps, threatening the supreme court if they didn’t rule favorably, etc.). Maybe one could argue that the actions in Afghanistan were preserving our freedoms after 9/11, but again, the Patriot Act, TSA, and DHS are much bigger threats to my liberty than Al-quaeda has ever been. In my opinion, it’s completely appropriate to honor those who fought and died in the name of our nation without bullshitting us by saying that they were “fighting for our freedoms.” If anything, that cheapens their legacy, because it paints a paper thin GI Joe veneer over a much more complicated and difficult situation.
Beyond this, why the hell do we need to sing the national anthem at sporting events in the first place? What a stupid and ridiculous tradition that is! We don’t sing the national anthem before music concerts or starting the workday or before the movie starts at the theater. The idolatry that passes as patriotism these days would have the founding fathers rolling so hard they’d power the entire country’s electric grid.
Speaking of violently spinning founders, let’s talk about the bullshit that is both sides of the police brutality argument. On one side, you have the SJWs and civil rights LARPers who think this is Birmingham in 1958. On the other side, you have law & order conservatives who think this is Mayberry in 1965. Both are laughably wrong, but there’s no adult in the room to tell them to stop being idiots.
Cops aren’t heroes, at least not all cops are heroes. Cops are not tyrants, at least not all cops are tyrants. I’m not a strict individualist. I believe that you can assign generalities to individuals of a group. However, I think that you have to pursue such generalizations very carefully. By and large, people apply generalities too strongly and too broadly. That is the case here, as well.
The BLM agitators are notorious for swinging and missing every. single. time. Trayvon Martin? *whiff* Michael Brown? *pbfffft* The few cases that were actually open and shut abuse cases were completely ignored by BLM. Why? Because their end goal isn’t ending police abuse. Their end goal is stirring up racial strife in order to elevate their political (and financial) clout.
Cops aren’t walking targets in urban areas. Despite what some would have you believe, most folks don’t get their rocks off by taking pot shots at pigs. Save for one major incident, and a handful of one-off incidents per year, most people who have an issue with cops simply try to run away. This aura painted by the right of embattled cops struggling to make it home to their wives and 2.5 kids is completely made up.
Questioning the motives of cops is very patriotic. Police are armed enforcers of the state. They do good things (like handling outlaws), but they’re also the single quickest path to authoritarianism. The rapid militarization of police over the past 2 decades, paired with lax due process protections and highly aggressive tactics has turned policing from an Andy Taylor/Barney Fife context to a wannabe soldier context. The conservatives are happy to play along, grouping “first responders” with veterans in the exalted ranks of “heroes” to be honored with the flag.
Before this gets too long, I’ll wrap it up with a few quick hits.
If cops were heroes, they’d be held to a higher standard than the public. Instead, they’re held to a lower standard.
Qualified immunity has been abused and distorted to cover a cop’s every action. If it were “right sized,” any escalation by the cop would fall outside of qualified immunity.
The fact that BLM and other civil rights griefers are even treated as legitimate shows how absolutely fucked up our media is.
If the NFL players wanted to kneel before the thing that destroyed the black community, they’d find the nearest Medicaid office and kneel there. Then they’d join Antifa in tearing down all the LBJ statues.
Nothing about the treatment of urban blacks is going to change until their culture changes. Holding police accountable for their overreaches isn’t going to fix the “systematic” issues. Only a massive cultural shift will do that.
The NFL and Goodell are utter dumbasses. They should’ve nipped this in the bud a year ago, but they were sympathetic with Kapernick, and now they’re getting their asses bit for it.
Notice I haven’t even mentioned Trump’s or Pence’s reaction. That’s because they have nothing substantive to add to the conversation. They’re charlatans playing the controversy for political points.
Non-interventionists of every stripe from libertarians to paleo conservatives to standard anti-war types have had their dreams dashed this past week after the president announced a troop surge in Afghanistan. To be fair, the president had already been offering mixed results to non-interventionists. Some actions were commendable, such as ending the CIA program that was arming Syrian opposition groups (BBC News), while others were the same interventionist impulses that we’ve seen from every post-World War II administration, such as bombing Syrian airfields (CNN). But even those who justified their support for President Trump’s election by noting his less militaristic foreign policy never truly believed that he would fulfill their long held dreams of closing overseas military bases, and ending American support for quasi-wars undertaken by our allies (such as the conflicts in Yemen or Syria). Writing in the American Conservative (a publication founded by anti-war conservatives opposed to the Iraq War) Robert Merry noted that based off of polling “it seems that the preponderance of public opinion ran counter to both of those foreign policy philosophies [neoconservative and liberal interventionism]. Donald Trump, in his often crude manner, captured this opposition view.”
Relationship status: It’s complicated.
With Trump, it was believed, we would finally have a conversation about our relationship with Russia, which some have argued has been overly hostile and counterproductive since the end of the Cold War (The National Interest and the American Conservative). With Trump we could finally ask the question of whether it is worthwhile to pledge open-ended military support, through NATO expansion, to countries such as Montenegro with little benefit to our own security. With Trump we could finally discuss the cost, both financially and morally, of engaging in and supporting barbaric wars against Yemen and Syria (to name a few), which pose no threat to our country. With Trump, some dreamed, we might finally come to debate the words of President Eisenhower who warned of the unchecked powers being acquired by the ‘military-industrial complex’ or, even better, we might rediscover President Washington’s warning about ‘foreign entanglements’. But, why did these non-interventionists hope that these conversations might be possible, but only with Trump?
President Trump is not a principled or moral man. He is a thrice married, petty man who finds it more important to engage in school yard taunts with his opponents rather than arguing over policy. He is no scholar, as he himself has admitted that he rarely reads (The New Republic) and, with regards to foreign policy, he has said that “I’m speaking with myself [about foreign policy], number one, because I have a very good brain and I’ve said a lot of things” (POLITICO). He is, on nearly every issue, malleable. But, since the 1980’s, when Trump first flirted with the idea of running for political office, he has been consistent on two topics: foreign affairs and trade. As early as 1987, during the height of the Cold War, Trump stated that the US “should stop paying to defend countries that can afford to defend themselves” and advocated for nuclear disarmament (NY Times). During the 2016 campaign, Trump’s advocacy for non-interventionism became a topic of debate, as it was alleged that he had voiced support for the Iraq War, based upon an exchange between himself and Howard Stern. Some Republicans who had voted against the Iraq War, such as former representative John Hostettler, defended the real estate magnate and said “Last night, in the midst of the first presidential debate, the moderator prefaced a question about Sen. Clinton’s vote to authorize the Iraq War with the suggestion that Donald Trump’s comments to a shock jock prior to Sen. Clinton’s vote was equivalent to that vote” (Washington Examiner). There is little evidence to suggest that Trump was ever an interventionist, whereas he has made statements in the past and during the 2016 campaign that delighted non-interventionist advocates throughout the country, such as his skepticism about NATO commitments and opposition to continued military involvement in Syria. Even his recent declaration about a troop surge in Afghanistan was preceded by numerous reports stating that Trump was rebuffing the requests of his generals, and fellow Republicans, who were requesting that surge (The Intercept and POLITICO). It is quite logical to understand why some non-interventionists saw him as a preferable option than the status quo offered by his opponents.
Yet some supposed non-interventionists have gone about berating others who had hoped (and some still hope) that, at the very least, the Trump administration would be nominally better than sixteen years of intense interventionism. These supposed non-interventionists have gone about declaring that they have been vindicated and they have begun pondering whether those who oppose war and voted for Trump are ‘gullible’ (Reason). This is a rather odd assertion to be made, considering that most of these people did not vote for even a nominal non-interventionist in 2016. Of Trump’s 2016 opponents, only Jill Stein was more stringently opposed to adventurism overseas than him. Yet, beyond Stein, the other two major candidates were significantly more predisposed to war than Trump. Specifically, I would highlight the Libertarian Party candidate, Gary Johnson, who was the preferred choice for many of the supposed non-interventionists that are sneering now.
… Also complicated.
In 2012, when Johnson first ran for the presidency, he offered a mixed bag with regards to foreign policy in an interview with the Daily Caller. He suggested a 43% reduction in defense spending, but he also said that “he supports America’s efforts to aid African troops in tracking down Lord’s Resistance Army leader Joseph Kony and that he wouldn’t rule out leaving behind American bases in Afghanistan” (Daily Caller). Around the same time, in an interview with the Weekly Standard, Johnson also said that he supported the notion of the US waging war on humanitarian grounds (Weekly Standard). These positions are almost indistinguishable from the long-forgotten breed of warmonger once known as the ‘Rockefeller Republican’. Make war, but on the cheap. As if cost is the only issue to consider when waging unnecessary wars. More recently, in 2016, Johnson tried to avoid foreign policy issues and became less hawkish and more non-interventionist in his attitude to conflicts. He told CNN in 2016, that in order to solve the conflict in Syria he believed that “There is only one solution to Syria, and that’s being hand in hand with Russia diplomatically to solve that” (CNN). A position, ironically enough, that was nearly indistinguishable from that of Trump. But beyond a few flubs, of which the media exaggerated, Johnson spent little time discussing his foreign policy vision in 2016. So if the contention of these supposed non-interventionists sneering at Trump voters now is that Trump’s past statements, and those during the 2016 race, were not sufficient enough to conclude that Trump would be a non-interventionist than why were Johnson’s decidedly pro-interventionist positions supposed to have made him a better alternative? The only ‘gullible’ voters in 2016 were those who refused to accept what they were hearing.
At this time, it would appear that President Trump is behaving as a standard Republican president with regards to foreign policy, with a few exceptions. Nine months into his administration, we cannot determine if Trump will correct his way and become non-interventionist or continue with the interventionist foreign policy that has dominated Washington since the end of World War II. More likely than not, Trump will end up being more restrained, in some regards, than his two immediate predecessors. Which, some might argue, is still preferable than a continuation of the status quo. In hindsight, it appears that the only moral vote a non-interventionist could have made in the 2016 election was to either vote for Jill Stein or abstain. But at the time, in November 2016, there was good reason for non-interventionists to be hopeful about the prospect of a Trump presidency. And no one should fault them for the choice that they made, based upon the information that they had available at the time.
The only way to describe the media’s reaction to Trump’s press conference and statements about the events in Charlottesville yesterday is irrational. To understand how irrational the reaction was, just imagine if instead of involving white nationalists and antifa counter protestors the events of last weekend had been a conflict between two rival biker gangs.
Do not change a single event from this weekend but imagine the events being the result of violence at a biker rally. One biker club has its national rally and a rival biker club shows up to protest and disrupt it. During the course of the weekend, a lot of shouting and violence take place. Fights break out on Friday. For reasons yet to be known the local police do nothing to separate the rival gangs and violence and conflict spills over into Saturday. Finally, on Saturday afternoon a member of the first gang runs a car into a crowd of its rival gang injuring nineteen and killing one.
Now ask yourself, would anyone in their right mind claim that only the first biker gang was to blame and everyone is obligated to condemn it? Of course, no one would. There would be national outrage about the problem of biker gangs. The local police would be called to the carpet for not maintaining order. Law enforcement would crack down hard on both gangs and biker rallies in general.
The only reason the media and the nation at large are not having the same reaction it would if Charlottesville involved a fight between biker gangs is because it involved white nationalists. And the media and political class are incapable of having a rational conversation about anything involving white nationalism or white supremacy. The reason for this is that to do so would be to call into question the entire concept of white guilt.
White guilt, like all racial collectivist beliefs, is completely irrational. White guilt is doubly irrational because it embraces the very sort of racial collectivism it claims to reject. It is irrational to say that one person is responsible for the actions of another person just because they share the same color of skin. It is irrational to say that anyone living today is in any way accountable or responsible or has any reason to feel guilty about events that occurred before they were born. The entire concept of collective guilt, be it based on race, class, sex or anything else is utterly irrational. It represents the worst sort of tribalism that civilization and rationality seek to end.
White guilt, like all irrational belief systems, is completely antithetical to any form of rational discourse about any of the areas it concerns. Once a believer in an irrational ideology is forced to have a rational discussion about one area of the ideology the entire ideology comes into question. This is why the integration of professional sports did so much towards ending the idea of white racial supremacy. When blacks and whites were not allowed to compete on the same field, whites could hold the irrational belief that whites were inherently superior athletes to blacks. Once Jackie Robinson became a star in the major leagues and Jim Brown became the best football player in the world, whites could no longer hold that belief. They were forced to have a rational conversation based on facts about the relative athletic ability of the two races. And once they did that, they could no longer refuse to question or discuss rationally their views on racial superiority in every other area of life. The entire ideology fell like a house of cards. Within a few decades, white supremacy went from a societal given to a fringe belief.
One of the primary tenants of white guilt is that white nationalism is a unique evil. White guilt necessitates that white nationalism not just be wrong but a unique wrong in the world, worse than communism or any of the sins of other races. If white nationalism isn’t worse than other isms, then whites have no more or less to answer for than any other race or creed and the whole edifice of white guilt collapses. This is of course irrational. White nationalism and belief in white supremacy is evil but no more or less evil than any other form of nationalism or religious or racial supremacy. So no believer in white guilt can have a rational discussion about white nationalism without calling the entire concept of white guilt into question.
When Donald Trump spoke yesterday, he attempted to force the nation to have an honest and rational conversation about white nationalism and its involvement in the events last weekend. He said two undeniably truthful and rational things about the events this weekend. First, he said that not everyone at the march in Charlottesville was a white nationalist. This is true. The march was a protest against tearing down of the Robert E. Lee statue. It was organized by white nationalists but 200 or so people attended. It is perfectly rational and truthful to say that not all of them were white nationalists. Some of them, albeit a small minority, no doubt were there because they wanted to save the statue.
Second, he said that the counter protesters deserve a significant share of the blame for the resulting violence and death. This is also true. The counter protesters were active willing participants in the violence that occurred. The proof of that is in the photos and accounts of the weekend given in the Virginia ACLU Twitter feed. And as I explained above, had the events in Charlottesville involved any other group but white nationalists everyone involved would be assessed their share of the blame.
To say those things and to try and have a rational and truthful conversation about last weekend is to admit that it is possible for white nationalists, no matter how bad they are, to have been if the victims of a wrong or at least not be entirely responsible for the events of last weekend. And to do that is to necessarily admit the reality that white nationalists are not uniquely evil or worse than other violent or supremacist groups. Donald Trump’s statements were a direct challenge to the entire concept of collective white guilt.
One of the interesting things about Charlottesville that no one seems to have noticed is that an event that was supposed to be about white nationalism and white supremacy was not a race riot. I have not, in any of the pictures and video I have seen of the weekend, seen a single black person. Charlottesville was a conflict almost entirely or maybe entirely between white people. There is a good reason for this. The debate and conflict over white guilt is almost always a conflict between upper class and middle and lower class whites. Black people are nearly always bystanders or props in that conflict.
To understand why you have to understand how white guilt works. You would think the belief in collective white guilt would be an expression of self-loathing, but it is not. When a white person believes in white guilt they are engaging in one of the purest forms of virtue signaling. Since the belief is irrational and has nothing to do with their actions, they are not accepting any real moral responsibility. What they are doing is asserting their moral superiority over other white people who refuse to accept the belief. When a black person asserts collective white guilt, they are doing it to attack white people. When a white person does it, the white person is saying they understand their burden and the horrible sins of their race. In doing that, the white person is showing their moral superiority over other white people who refuse to accept their guilt and responsibility.
Embracing some level of white guilt is one of the primary ways upper class and gentry whites assert their moral superiority over middle and lower class whites. Middle and lower class whites don’t believe in white guilt. As a result, they often have more rational views about race. Middle and lower class whites can say and think rational things about race that upper-class whites cannot do without losing their class status. Lower and middle-class whites can believe that black people are sometimes just as racist as whites. They can believe that black supremacist groups can be just as bad as the KKK. They can believe that the Civil War was a complex event that wasn’t just about slavery and white supremacy, or that just because South Carolina or Mississippi were slave states and have a bad racial history doesn’t mean there are no good parts of those places or that people from there can’t be proud of being from them.
Upper-class whites cannot believe any of that. No upper-class white would ever wave a Confederate flag. No upper-class white would ever say that the Black Panthers are as bad as the KKK. If they are conservative, they might say the KKK is insignificant but they would never say that a black group is qualitatively just as bad. To do any of that would necessarily call into question the idea of white guilt and mean being kicked out of the class.
So when Trump yesterday tried to force a rational conversation about white nationalism, Washington, that most white and upper class of cities, lost its mind. It was all hands on deck, left and right, to save and assert the white guilt moral privilege. The responses to Trump were predictably irrational and counter factual. For the crime of saying not every incident is entirely one sided, Trump was accused of being a white supremacist; the President everyone feared he would be. Some of the reaction was so counterfactual it can fairly be called insane. Mitt Romney and John McCain described the counter protesters as fighters for justice and equality against the forces of prejudice and racism. People who showed up waving Communist flags and carrying pepper spray and bags of feces and urine are now fighters against evil and prejudice. Really? The entire response boiled down to a giant guttural groan of “How Dare You!!” by the white upper class. Trump had attacked their most sacred moral privilege and they were not going to take it lying down.
What will be the fall out of all this? Like most things involving Trump, a lot less than people think. First, I don’t think it is going to make a bit of difference politically. The people who voted for Trump are almost to the person people who reject the concept of white guilt. So, they won’t see it the way the media and Washington has. They will see it as Trump saying entirely fair and rational things. I don’t see Trump’s support dropping one bit. Trump’s enemies will just have a new reason to feel aggrieved.
Second, I don’t think we are going to see much white nationalist antifa violence going forward. Trump tried to force a conversation the left doesn’t want to have. For the left white guilt is not just about class it is also how it enforces identity politics. The left needs white guilt. Trump also tried to force the left to talk about its role in this violence. And that is also not a conversation anyone on the left wants to have. The left has condoned and enabled antifa violence for years and gotten away with it. They do not want to have to answer for that.
So I think the police departments in Democratic cities are going to start doing their jobs. Instead of standing down at these marches and counter protests, the police will start keeping the two sides apart, arresting people who show up with weapons and bags of urine and cracking down hard on any fights that break out and maintaining order. Deprived of the ability to riot with impunity, antifa will find better things to do. They don’t want to go to jail any more than anyone else and protests get pretty boring if you no longer have free reign to attack people. Deprived of any violence to use to slander the right, the media will lose interest as well. These marches are going over the next few months return to being the small events of paper hanging losers they have always been. So, I wouldn’t stock up on ammunition for the coming civil war just yet.
Lastly, I think that the drive to tear down Confederate monuments will likely fizzle as well. They will tear a few more down in Democratic cities but the issue will fade away as well. Trump did another thing yesterday and laid down the mark that if this stuff didn’t stop they would be calling for tearing down George Washington statues. Of course, all right thinking people are today dismissing this. They, however, know that it is true. There are already calls to tear down the statues of Theodore Roosevelt in museums in New York City. You can tear down Confederate statues and largely avoid a rational conversation. Most people really don’t know who the people were and you can always use the “but it’s racist” charge to keep the average observer from objecting. George Washington or Teddy Roosevelt are different. People do know who they are and can’t be scared off by the racist charge. And the left doesn’t want a rational conversation about that any more than they want a rational conversation about last weekend.
The statue controversy like all leftist causes is entirely manufactured. We had a hundred year struggle for black civil rights in this country. During that time not a single person to my knowledge, not Martin Luther King, not W.E.B Dubois, not Booker T. Washington, not Malcolm X, ever cared or said a single word about those monuments. Yet, suddenly in 2017, they are a threat to all that is right and good. Give me a break. Once the left decides tearing them down is no longer to their advantage, and they will if they haven’t already, no more will be heard about the subject.
What is libertarianism’s best strategy to gain a legitimate amount of power nationally (and then happily cede it to the people)? Libertarians of the small-l and big-L varieties have sought to gain power by either co-opting one of the major political parties (See; Ron Paul Revolution that the GOP squashed) or by finding candidates to run as a Libertarian that appeal to establishment voters (see: Aleppo). But I believe there is a third, and overlooked, option: get a candidate who does some libertarian things that irritate the major parties and the deep state apparatus, and allow those actions to result in political hysterics from ultra-partisans while average Americans see no net loss from the actions and in many cases a serious net gain. I believe this will continue to set in motion a series of events where the government can be shrunk to a level that’s at least tolerable to minarchists and other run-of-the-mill libertarians.
How libertarian is President Donald Trump?
The answer is: not very. I think that’s been established. The man swam in a pool of cronyism sharks his entire professional life. He, through desire or necessity, has been a rent-seeker. He has used eminent domain to further his projects. He has sought special treatment from political entities both domestic and foreign to further his interests. The man is no altruist. But does that make him distasteful, or does it make the system in which he operated distasteful? Personally, I will rarely fault someone for utilizing the same processes his competition would use, so long as it does not originate from a position of government authority. And Trump never held office before his inauguration. In other words, he never utilized political office for financial gain by, say, orchestrating government access to foreign actors that overwhelmingly donated to your personal foundation or for trade groups and banks that hired your unqualified husband to give speeches at ridiculously over-inflated fees. In other words, I don’t hate the player, I hate the game.
And yes, Trump is allowing Jeff Sessions to wage the drug war, which is a sticking point to a lot of libertarian minds. But I ask you, is it better to wage a drug war and uphold the concepts of equal protection and the rule of law (while allowing Congress to do their job and vote to legalize drugs the right way)? Or is it better to arbitrarily enforce duly enacted laws based on the geography of a person and/or their willingness to bend a knee to the state and support legalization with a ton of unlibertarian strings attached?
The sadder these people are, the happier I get.
Some policy positives already achieved and in the works:
So now we come to Donald Trump’s libertarianism or lack thereof. The man, no doubt, will continue some of our military adventurism overseas. But he has already stopped our policy of running guns to terrorists and terrorist-sympathizers in Libya and Syria after the previous admin established those programs and destabilized an entire region, while thoroughly destroying the likelihood that a rogue regime would abandon its weapons programs and try to re-enter the international community (read: we came, we saw, he died). There has been no resurrection of the programs nthe last two administrations ran to ship guns into Mexico through the drug cartels, for different motives yet still in gross violation of Mexican sovereignty. And perhaps he will continue to not carry out targeted assassinations of American citizens that have never been charged with a crime, which the prior admin was all too happy to do in gross violation of the Fourth Amendment. Furthermore, he has already started to roll back our country’s association with liberty-robbing agreements like the Paris Climate Accord and the Trans-Pacific Partnership. Both of those agreements undercut the ability for American companies and consumers to freely negotiate what they were willing to exchange goods and services for. Removing our name from them is a step in the right direction, especially if it’s followed up with free trade agreements that haven’t existed in a century or more. That action is yet to be seen, but at least someone had the audacity to upset the globalist apple cart and stop a little bit of the insanity those agreements put us further along the path to.
Get us out of this circus, please!
As for civil liberties, Trump is still an unknown quantity. His statement about “roughing up” suspects is problematic to say the least. And I can only hope it was hollow bluster. But even so, it sets a very poor example and he should correct it immediately. Now, having said that, he has not furthered Obama’s policy of killing Americans without due process, but that’s not going to be enough. His willingness to stop going after businesses that exercise what should be a fundamental right to free association looks good so far. As do his overtures to Second Amendment causes. As does his willingness to tackle Affirmative Action and Title IX insanity. Holy crap, I just realized he’s been the best president on civil liberties we’ve had in recent memory. People that overlook the substance of these actions due to his boorishness need to reassess what their priorities are, in my opinion.
Furthermore, our business climate has benefited greatly from having an outsider installed as the head of the regulatory apparatus. Trump has already vowed, and started to carry out, a dismantling of the bureaucracies that stifle economic growth and freedom for Americans. From the onerous EPA regulations to CAFE standards being rolled back or passed to the states, there has been a serious uptick in confidence from the business and manufacturing sectors that Trump will get the government out of the way of prosperity. The hilarious irony there is that Trump was a crony his entire life, as I mentioned earlier. But perhaps he had no choice but to play the game the only way that could lead to success: do what the government tells you and push others out. Now, when given the reins, he seems to be more than willing to eliminate programs that he personally benefited from but that create barriers to entry for others. Yes, he could have opposed the system while benefiting from it. But let’s not pretend he’s some awful hypocrite because he played the hand he was dealt. Business “leaders” like Elon Musk, Mark Bezos, Mark Zuckerberg, Bill Gates, etc, etc, etc have done the same thing and so did their forefathers like Ford, Carnegie, Mellon, and others on back through the ages as long as there was a government agent with a hand in their pocket. So I’m willing to forgive that.
Be happy for this.
And lastly, he put what appears to be a strict constructionist on the Supreme Court in Neil Gorsuch. That is a marked improvement on any names mentioned by establishment candidates on either side of the aisle during the last campaign.
The other intangible positive results of a Trump presidency:
Another thing libertarians have always sought is a diminished reverence for elected officials and other “public servants” whose goals are often at odds with those of the people. Trump’s mere presence has caused probably 2/3 of the political spectrum to demand the reverence for the office be scaled back. They are now calling for more power in the hands of the states or localities and even ::gasp:: the people, on occasion. These are people that have been statists to the core. They are the Big Government democrats and NeoCon statist Republicans. And they are finally unified in an effort to diminish the role of the Executive Branch. This serves to re-establish the separation of powers that has become all-too-muddy with much of the congressional responsibilities being passed to Executive Branch agencies in an attempt to deflect responsibility and ensure easy reelection for entrenched politicians. The more responsibility that is pushed back into the laps of our directly elected officials and down to the state or local level, the better for us. It helps us create a more diverse political environment where “laboratories of democracy” are able to compete for ideas and human investment, rather than an all-powerful centralized state controlling everything. And one need look no further than minimum wage laws (since we have them, I’ll address it) to realize a top-down approach where the minimum wage “needed” in New York is imposed on small towns in New Mexico or Wyoming, where the cost of living doesn’t even come close, is a horrific idea. The Trump era is returning us to an ideal the founders embraced in that respect.
And he is returning us to another ideal the founders cherished: temporary service from business-people and non-careerist politicians. The flood of people on Trump’s coattails from all sides of the political spectrum is refreshing. Sure, many are moneyed and or celebrity candidacies. But so what? Its a step in the right direction any time we start to end political dynasties and careerists that sit in the Senate for 30 years as they grow further and further out of touch from average Americans. More turnover from political novices has a much better potential upside of shrinking our government than does further entrenching those who have pushed us to near financial ruin and reduced individual liberty.
Pucker up!
The net result so far (in my opinion):
So let us all embrace the non-libertarian president. For one of these reasons or for another I might have missed. But embrace it nonetheless, because it has already borne libertarian fruit, and I suspect it will continue to do so for many of the right and some of the wrong reasons. Its the best we could have hoped for and probably the most libertarian moment in America for a hundred years.
In both England and the United States, the legal establishment, helped by would-be reformers, first curtailed the power of grand juries to reach independent judgments, and gave grand juries the power to abuse power on behalf of prosecutors. Then the enemies of the grand jury turned around and indulged in concern-trolling about how grand juries didn’t give adequate protection to suspects. This softened up the grand jury system, making it more vulnerable to attack, and in some cases to abolishing the institution or making it optional.
Zachary Babington (1611-1688) was a functionary in Restoration England’s judiciary system. He was at various times an associate court clerk, a deputy clerk, and a justice of the peace. Zachary’s brother Matthew had been one of the chaplains to Charles I, who was killed when his royal tyranny provoked a counter-tyranny by revolutionaries. That unpleasantness was supposedly over after Charles II, son of the “martyr,” took the throne, but the new king’s supporters were on their guard to safeguard royal prerogatives and minimize the opportunities for the people to thwart the royal will. Zachary may well have learned from his pious brother about the perils of trusting the judgment of the people. So Zachary had a crack at grand juries, trying to limit their usefulness as shields for the rights of suspects. Fortunately, Zachary did not prevail at that time.
In a 1676 book, Advice to Grand Jurors in Cases of Blood, Zachary Babington complained that grand jurors often dared to ignore the judge’s instructions, and to refuse to indict suspects, or to indict suspects for manslaughter when the judge wanted a murder indictment.
“Hi, it’s me again, William Penn. The judges wanted me punished for preaching in the streets, and when the jurors refused to convict, the jurors got punished, but some of the jurors fought their case in a higher court and won, and here we are…isn’t it weird how I keep turning up everywhere?”
…as well as the House of Commons had told judges they couldn’t punish jurors for making “wrong” decisions. Most pertinently for our purposes, the House of Commons had raked Chief Justice John Kelynge over the coals for his treatment of grand jurors. Don Jordan and Michael Walsh wrote that Kelynge was so biased toward suspects and defendants that he “made George Jeffr[e]ys, ‘The Hanging Judge,’ [look] like Rumpole of the Bailey.”
Lord Chief Justice Jeffreys presided at the Bloody Assizes, but he was still a piker next to Kelynge (not shown)
Kelynge had punished grand jurors for refusing to indict for murder in homicide cases, and the Commons warned Kelynge that he had to allow both grand jurors and trial jurors vote how they wanted, without penalty.
Babington apparently realized that, deprived of their power to punish recalcitrant grand jurors, judges could only rely on persuasion to get grand juries to fall into line. So in his Advice, Babington tried to use argument to achieve what threats and punishment had failed to do in Kelynge’s situation. Babington urged grand jurors to give the prosecution, not the suspect, the benefit of the doubt, and to err on the side of overcharging the defendant. If the defendant was innocent, or was guilty of a lesser offense, the trial jury could figure that out later. Babington specifically applied his principles to homicide cases. So long as the prosecution showed evidence that the suspect had committed a homicide, Babington said, the grand jury should indict for murder, even if there was evidence that might justify, say, a lesser charge of manslaughter. The grand jurors “are only to prepare fit matter for the Court to proceed further upon, and to make a more diligent inquiry after.” Only the trial jury can figure out the true nature of the crime after hearing “both sides” – Babington assumed the grand jury would only hear the prosecution’s side, and seemed to think that this was prejudicial…to the prosecution.
“There is very much difference in Law betwixt an Inquiry and a Trial, betwixt a Presentment and a Conviction,” said Babington, and there was a lesser standard of evidence for the grand jury’s “Presentment” – “if they find upon their Evidence, that the party said to be slain in the Indictment, by the person there charged with it, with the time, and place, and manner how, they are to enquire no farther into the nature of it.” If the charges the grand jury files turn out to be excessive, it was up to the trial jury to exonerate the defendant – “however it passeth fairly out of [the grand jurors’] hands, they may more clearly than Pilate wash their hands in Innocency from the Innocent blood of such a person.”
Pontius Pilate washes his hands to symbolize his total innocence of shedding innocent blood. (Matthew 27:24)
Babington was discussing cases of murder – then automatically a capital crime – but his reasoning would justify the grand jury in giving the prosecution the benefit of the doubt in any kind of case.
(Babington’s view of a grand jury’s functions were articulated in 2014 by, of all people, an avowed libertarian deploring the grand jury’s failure to indict police officer Darren Wilson – “the likelihood that Darren Wilson would have been acquitted if he had faced a homicide charge in connection with the death of Michael Brown does not mean he should not have been indicted….A public airing of the evidence, with ample opportunity for advocates on both sides to present and probe it, is what Brown’s family has been demanding all along….”)
Actual grand juries do not seem to have taken Babington’s Pilatian advice. While the evidence is incomplete, Professor J. S. Cockburn says “surviving gaol [jail] calenders suggest that in the seventeenth century approximately twelve per cent. of all assize bills were returned ignoramus” – that is, grand juries disagreed with the prosecutors in 12 percent of cases and refused to indict.
A colorful figure and prolific author, Henry Care, eloquently rebutted authors like Babington. Care published the book English Libertiesin 1680, expressing doctrines directly contrary to Babington’s, and more in line with the real-world activities of grand jurors.
Care said that grand jurors, “if they be doubtful, or not fully satisfied” about the truth of the accusation against a suspect, should not file charges.
People may tell you; That you ought to find a Bill [of indictment] upon any probable Evidence, for ’tis but matter of Course, a Ceremony, a Business of Form, only an Accusation, the party is to come before another Jury, and there may make his Defence: But if this were all, to what purpose haye we Grand furies at all ?…Do not Flatter yourselves you of the Grand Jury are as much upon your Oaths as the Petty [trial] Jury, and the Life of the man against whom the Bill is brought, is–in your Hands…The [famous judge and legal author Edward Coke]…plainly calls the Grand Jury-men all wilfully forsworn: and Perjured, if they wrongfully find an Indictment; and if in such a Case the other Jury [trial jury] through Ignorance, &c. should find the person Guilty too, you are Guilty of his Blood as well as they: but suppose he get off there, do you think it nothing to Accuse a man upon your Oaths of horrid Crimes, your very doing of which puts him, tho never so Innocent, to Disgrace, Trouble, Damage, danger of Life, and makes him liable to Outlawry, Imprisonment, and every thing but Death itself, and that too for all you know may wrongfully be occasion’d by it, your rash Verdict gaining Credit, and giving Authority to another Jury to find him Guilty…
Care wrote that, before a grand jury can indict a suspect, the testimony must be “clear, manifest, plain and evident.” The grand jurors must “diligently inquire” into the credibility of the witnesses.
The prophet Daniel exposes the lying witnesses who falsely accused Susannah
It was Care’s defense of English liberties, not Babington’s attack on them, which became a popular work in the American colonies. Not only did Care’s English Liberties fill shelf space in colonial libraries, its content was invoked by the Patriots of the Revolutionary era in defending American liberties against British oppression. The side which cited English Liberties was the side that won the American Revolution, while the side that looked to the likes of Zachary Babington for advice was the losing side. At least for the moment.
And in both England and America, the influential eighteenth-century jurist William Blackstone came down on the side of the duty of grand jurors to protect suspects against unfounded charges.
Sir William Blackstone
In Blackstone’s words, grand jurors should only vote to indict “[i]f they are satisfied of the truth of the accusation.” Blackstone spoke of a “strong and two-fold barrier, of a presentment [grand-jury indictment] and a trial by jury, between the liberties of the people, and the prerogatives of the crown.” Before approving charges, at least twelve grand jurors had to be “thoroughly persuaded of the truth of an indictment” – “remote possibilities” were not enough.
While America was going through its founding era, on the other side of the Atlantic English grand juries blocked indictments in 10%-20% of cases – so for every ten suspects, one or two were cleared without the danger, expense, anxiety and humiliation of a public trial.
But the legal reformers were circling like birds of prey, waiting to enfeeble and then devour the grand jury system. Jeremy Bentham, the utilitarian legal reformer, denounced the grand jury in the eighteenth century, but added that the legal establishment wanted to keep the system: “lawyers and their dupes never speak of [the grand jury] but with rapture.”
If only that were so! In the nineteenth century, many lawyers and judges, in England and America, joined the ranks of the reformers. “Probable cause” became the standard which grand juries were told to follow in deciding whether to indict. This is certainly curious in the American case – the Bill of Rights does indeed mention “probable cause,” but that’s in the Fourth Amendment, dealing with warrants, rather than in the Fifth Amendment’s grand jury clause.
Probable cause doesn’t seem to be the same thing as believing the suspect is guilty. In fact, the concept is kind of vague. As Professor Orin Kerr put it: “In one study, 166 federal judges were asked to quantify probable cause. Their answers ranged from 10% certainty to 90% certainty, with an average of 44.52% certainty.” Perhaps that sort of vagueness is tolerable when judges or magistrates are issuing warrants, but not in the case of grand jurors accusing their fellow citizens of serious crimes.
Not only was the standard of proof watered down, but grand juries were limited in the kind of evidence they could hear. The only outside evidence they were entitled to examine was the evidence provided by the prosecutor (including private prosecutors in England – contradicting Justice Brown, English reformers said the grand jury was not an adequate protection against unjustifiable private prosecutions). Members of the public could not submit evidence to grand juries, the legal establishment made clear – not even suspects could send in affidavits and lists of witnesses with information favorable to them. Unless the grand jurors had personal knowledge of an alleged crime, they would have to rely for their information on what the prosecutor chose to spoon-feed them, and then they had to vote on the proposed indictment based on the loose “probable cause” standard, with the evidence stacked in favor of indictment by the prosecutor.
The New York judge Sol Wachtler, an opponent of grand juries who supposedly said a grand jury would indict a ham sandwich…
…had further animadversions against grand juries in his prison memoir, After the Madness. (The judge was convicted of stalking and harassing his former lover.)“If anyone should try to convince you that the grand jury is not a device used by prosecutors to garner publicity at the expense of someone still presumed innocent, watch out! The deed to the Brooklyn Bridge is probably in his back pocket.” That sort of misbehavior, of course, is the fault of the prosecutor, not of the grand jury. And somehow, even when they bypass grand juries, prosecutors find ways to generate prejudicial publicity about their cases.
Ovio C. Lewis, a law professor who served on a grand jury in Cleveland, Ohio, decided that the grand jury system was defective in comparison to the reformers’ favorite objective of a preliminary hearing before a judge. Writing in 1980, Lewis said: “In most cities where the grand jury is used it eliminates fewer than twenty percent of the cases it receives. In Cleveland, Ohio, the figure is seven percent; in the District of Columbia, twenty percent; and in Philadelphia, Pa., two to three percent.” From these figures, we see that at least some people were getting exonerated even under the watered-down grand jury system which had come to replace the robust grand jury of the founding era. It would be nice to know what those figures would be like in the case of a grand jury which fulfilled the functions described by Care and Blackstone: investigating and sifting the evidence and only indicting people whom the grand jurors are convinced are guilty.
Returning to the 19th century: some English grand juries – especially in big cities – called for their own abolition. These grand juries were influenced by presiding judges who discussed the alleged uselessness of the grand jury in front of the grand jurors themselves. The Birmingham Daily Post criticized one of these judges in 1872. Even though the newspaper agreed with the judge about the desirability of abolishing grand juries, it said it wasn’t cricket to harangue the grand jurors themselves on the subject:
The Recorder of Birmingham, in his charge the other day, made the usual remarks about the uselessness of grand juries. . . . It is unpleasant enough to have to sit in a stuffy room for two or three days, against one’s will, and it certainly does not render the infliction more tolerable to be penned up in a box, and be publicly told that one is incompetent and useless, and out of date, and in the way-nothing more in fact, than a sort of antiquated machine, less ornamental than a barrister’s wig, and less useful and important than the wheeziest of ‘criers of the Court’.
With these attitudes, it’s hardly surprising that judges and juries were making their talk of grand juries’ uselessness into a self-fulfilling prophecy.
Parliament put grand juries on hold during the First World War, as a supposed emergency measure. This simply whetted the appetite of the judicial establishment for a permanent, peacetime ban on grand juries, and such a ban was finally achieved by Act of Parliament in 1933.
You know why else 1933 was a bad year for liberty?
Albert Lieck, chief clerk (or former chief clerk?) of London’s Bow Street Police Court, rejoiced at the abolition of the grand jury, while inadvertently suggesting reasons the institution should have been retained. Lieck acknowledged that grand juries had sometimes released suspects: “Here and there a bill [of indictment] was thrown out, but on no discoverable principle.” Perhaps the grand jurors hadn’t been satisfied of the suspects’ guilt?
Lieck uttered a non-sequitur which one would associate with Yogi Berra more than with a distinguished British bureaucrat: “the real security against oppression lies not in outworn judicial machinery [i. e., the grand jury], but in the alertness and resolution of the citizen.” Of course, grand jury service has the potential to provide citizens a vehicle to exercise their alertness toward the criminal-justice process.
American critics of the grand jury cited (and still cite) abuses which are not in any way required by the Fifth Amendment. That amendment simply says you need an accusation from a grand jury in order to be brought to trial for a sufficiently serious crime. The Fifth Amendment doesn’t say grand juries should be dependent on prosecutors for their information, or interrogate witnesses without their lawyers, or wield overbroad subpoena powers, or act in complete secrecy (unless the prosecutors chooses to leak information, of course), or fail to keep records of their proceedings. Critics have harped for a long time on these “Star Chamber” features of grand jury procedure, suggesting that the only cure is to bypass the grand jury and have magistrates or judges hold preliminary hearings, where both sides can present evidence and argue over whether probable cause exists. Then the magistrate or judge, after such an open hearing, would decide if there is probable cause to bring the suspect to trial. This type of “reform” has been adopted in England, and in many U. S. states.
The problem with such a “reform” is that it cuts the public – at least the informed portion of the public which has actually heard the evidence – out of the decision whether to bring charges against a suspect. The suspect is dragged into a public hearing by the accusation of a prosecutor, and put at the mercy of a judge who – at least in a well-publicized case – may well feel the voters – who generally don’t know the details of the case but know that the suspect is guilty – breathing down the judicial neck and demanding a trial. With the vagueness of the term “probable cause,” it wouldn’t take a whole lot of evidence for the judge to put the case down for trial, if that’s the judge’s mood at the time. Not to mention the loss of the opportunity for nullification if the defendant, while technically guilty, is morally innocent and doesn’t deserve to be dragged through a trial.
There are some useful features which were traditionally associated with American grand juries. These features are not required by the Fifth Amendment, but they provide some historical context to refute those who think the founders would have been happy to do without grand juries. Grand juries used to have (and to a greatly limited extent sometimes still have) responsibility for making recommendations relating to the problems of their communities: from fixing bad roads to dealing with polluted streams to making new laws, American grand juries have historically often broadened out from simply looking at local criminal cases.
Sometimes, and this is hard to believe nowadays, grand juries, on their own initiative, looked into corruption and misconduct by local officials, including even prosecutors and judges and cops and jailers. Sometimes grand jurors took the bit between their teeth and looked into certain types of local crime which the prosecutors and judges would just as soon not look into – maybe because the prosecutors and judges were trying to sweep that crime under the rug.
Whatever we think nowadays of these crusading, self-assertive grand juries from history – and the Fifth Amendment doesn’t require that grand juries play this role – we can reject the idea that most of the founding generation took a dismissive view of grand juries or would have been willing to abolish or sideline them, or to abolish their constitutional role in protecting suspects from overzealous or corrupt government prosecutors and judges.
The point of having two juries – a grand jury and a trial jury – is to have the grand jury make a broad inquiry, with comparatively few technical rules, in order to find the truth, and if the grand jury believes the charge, then it’s time to have the evidence heard by a trial jury under much more rigid procedural rules. For serious enough charges, it should take these two juries – one acting broadly and informally, the other following careful rules – to agree that someone is a criminal before that person can be punished as a criminal.
Now, in the real world, where most criminal charges are resolved through plea-bargaining, I’d advocate a more limited objective: To make sure that a person suspected of a serious crime has his case considered by at least one jury – and since cases are generally resolved with pleas before a trial jury can be called, that one jury would have to be the grand jury. There should be laws to prohibit plea negotiations from beginning in serious cases until after a grand jury has issued its indictment(s). We may have come full circle to the days of Henry II – grand juries are usually the only criminal juries involved in a case, and the trial procedure is almost as unreliable as in Henry’s day – a plea negotiation approaches in arbitrariness the old dunking-in-cold-water procedure when it comes to sorting out the innocent from the guilty. All the more reason to keep grand juries, so that some type of jury, at least, will review serious cases.
Is there any chance that the right to a grand jury, as intended by the Founders, will be restored any time soon? Probably not. The political and judicial establishment seems to have no particular interest in encouraging such a degree of citizen involvement. They either want to keep grand juries on a tight leash, acting on the limited evidence the prosecutors spoon-feed them, or to keep them on the sidelines, taking no role in cases unless a prosecutor needs political cover for a controversial decision.
And many regular citizens are parading around demanding that the right to a grand jury be abrogated.
And of course advocates of a restored grand jury system will be called racists.
Well, it’s too bad, but there it is.
Works Consulted
Richard L. Aynes, “Unintended Consequences of the Fourteenth Amendment and What They Tell Us About its Interpretation,” 39 Akron L. Rev. 289 (2006).
William J. Campbell, “Eliminate the Grand Jury,” 64 J. Crim. L. & Criminology 174 (1973).
Nathan T. Elliff, “Notes on the Abolition of the English Grand Jury,” Journal of Criminal Law and Criminology, Volume 29,Issue 1 (May-June) Summer 1938.
Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury 1200-1800. Chicago: University of Chicago Press, 1985.
Don Jordan and Michael Walsh, The King’s Bed: Sex, Power and the Court of Charles II. London: Little, Brown, 2015.
Orin Kerr, “Why Courts Should Not Quantify Probable Cause” (March 28, 2011). The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz (Klarman, Skeel, and Steiker, eds), pages 131-43 (2012); GWU Law School Public Law Research Paper No. 543. Available at SSRN: https://ssrn.com/abstract=1797824
Andrew D. Leipold,”Why Grand Juries Do Not (and Cannot) Protect the Accused,” 80 Cornell L. Rev. 260 (1995). Available at: http://scholarship.law.cornell.edu/clr/vol80/iss2/10
Ovio C. Lewis (1980) “The Grand Jury: A Critical Evaluation,” Akron Law Review: Vol. 13 : Iss. 1 , Article 3. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol13/iss1/3.
Albert Lieck, “Abolition of the Grand Jury in England,” Journal of Criminal Law and Criminology, Volume 25, Issue 4, November-December (Winter 1934).
Kenneth Rosenthal, “Connecticut’s New Preliminary Hearing: Perspectives on Pretrial Proceedings in Criminal Law.” University of Bridgeport Law Review, Volume 5, Number 1, 1983.
Suja A. Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries. New York: Cambridge University Press, 2016.
___________, Nonincorporation: The Bill of Rights after McDonald v. Chicago, Notre Dame Law Review, Vol. 88, 2012.
Mary Turck, “It is time to abolish the grand jury system,” Al Jazeera America, January 11, 2016, http://america.aljazeera.com/opinions/2016/1/it-is-time-to-abolish-the-grand-jury-system.html
Rachel A. Van Cleave, “Viewpoint: Time to Abolish the ‘Inquisitorial’ Grand Jury System” (2014). Publications. Paper 656. http://digitalcommons.law.ggu.edu/pubs/656.
Sol Wachtler, After the Madness: A Judge’s Own Prison Memoir. New York: Random House, 1997.
_________, “Grand Juries: Wasteful and Pointless,” New York Times, Opinion, January 6, 1990, http://www.nytimes.com/1990/01/06/opinion/grand-juries-wasteful-and-pointless.html.
Richard D. Younger, The people’s panel: the Grand Jury in the United States, 1634-1941. Providence, RI: American History Research Center, Brown University Press, 1963.
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…” – Fourteenth Amendment, U. S. Constitution
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger…” – Fifth Amendment, U. S. Constitution
We saw in Part One how, according to the Supreme Court, the Fourteenth Amendment doesn’t require the states to obey the grand-jury clause of the Fifth Amendment. Most of the Bill of Rights has been applied to the state – “incorporated” is the technical term – but not this part.
(In its incorporation cases, the Supreme Court likes to talk in terms of “due process,” but here’s Justice Clarence Thomas explaining how the Privileges and Immunities Clause is what we should be looking at.)
For the most part, when the U. S. Supreme Court exempts the states from part of the Bill of Rights, most states don’t take advantage of this. With some exceptions, the states chose on their own to obey the Bill of Rights, even when the Supremes wouldn’t hold them to it – state courts would sometimes interpret some rights differently than the federal courts, but they admitted the rights were applicable, if only as a matter of state law.
That’s not the case with the grand-jury clause. Here, the Supremes opened the door for the states to disobey this clause, and the states rushed through the open door.
Between the Civil War and the end of the First World War, many American states amended their constitutions so that suspects could go to trial for serious crimes without the approval of a grand jury (Michigan had started the ball rolling on the eve of the Civil War). This analysis summarizes the situation as of 2014. In most cases, grand juries were kept in reserve in case the prosecutors, in their discretion, wanted to use the grand jury procedure. Only two states – Pennsylvania and Connecticut (I would probably add Michigan) – banned grand juries even as an option (apart from extraordinary cases). Twenty-three holdout states still mandated that certain serious crimes be reviewed by grand juries, at least if the suspect demanded it.
Rather than give a comprehensive history of the victories of “reformers” who curtailed grand-jury rights in state after state, let me attempt to give some historical vignettes, and tie these vignettes together with some semblance of narrative coherence. Then later, I’ll give an account of the triumph of the reformers in their battle against the grand jury.
The Plessy Judge vs. Grand Juries
U. S. Supreme Court Justice Henry Billings Brown came to the Court too late to take part in the Hurtado case, which said the states could limit or abolish the right of a suspect to have his case considered by a grand jury. But Brown was one of the many would-be reformers of that era who wanted the institution of the grand jury largely abolished.
Justice Henry Billings Brown
Brown gave a speech to the Ohio Bar Association in 1892 that included the judge’s discussion of this issue. Getting rid of grand juries, said Brown, would make criminal procedure more simple and efficient. Brown noted that he had begun his legal career in Connecticut, where grand-jury indictments were only required for crimes punishable with death or life imprisonment. Then Brown boasted of his fifteen-year legal career in Michigan (1860-1875), where grand juries were rarely used and were never required before a defendant could be brought to trial.
Brown suggested that grand juries may have been necessary in England to protect suspects against false charges by private accusers, but this problem didn’t exist in America. In America there were public prosecutors to bring charges and judges to rule on probable cause, and with these steadfast public servants on the job, Brown triumphantly concluded, grand juries were no longer necessary to shield suspects from wrongful accusations.
Brown went on to praise trial juries for their power of nullification – they could spare a guilty defendant, if punishing him went against local community norms. Of course, grand juries could perform that function too, sparing worthy but technically guilty suspects from the ordeal of a trial, not to mention saving them many legal expenses. That did not seem to occur to the Justice. “I think the question whether a man in a particular case should be punished for a crime is a question that is properly left to the public,” Brown said. But under Brown’s scheme, the nullification of an unfair charge would have to wait until the end of an excruciating trial for the suspect, since “the public” would only be able to get a word in edgewise after the trial was over. The public would be kept out of the decision of whether to bring charges in the first place.
Another defect in Brown’s logic is apparent with the growth of the plea-bargaining system, which requires a defendant to gamble on the possibility of a higher sentence if he wants to try his luck with a trial jury.
Brown concluded his speech with a boast that “[t]he Anglo-Saxon is a slow-moving race, but it rarely takes a step backward. It makes mistakes, but its progress has been in the right direction. No serious mistakes have yet been made.”
Speaking of serious Anglo-Saxon mistakes: four years after his speech, Brown again showed his ability to have things both ways and to spin nice-sounding legal theories which were oppressive in practice. Brown gave the Supreme Court’s decision in Plessy v. Ferguson. States could pass Jim Crow legislation separating blacks and whites, Brown’s opinion declared, so long as the separate facilities were “equal” (Justice John Marshal Harlan dissented in the Plessy case – Harlan had also defended the right to a grand jury in his dissent in the Hurtado case). Brown had affirmed the importance of equal protection under the law, while negating this principle in practice with his endorsement of racial segregation. In a similar manner, Brown had praised trial juries for their power of nullification, while calling for the abolition of grand juries which were in the best position to nullify charges against a suspect before he could be dragged through the court system.
Plaque on Homer Plessy’s tomb, New Orleans
Grand juries as scapegoats for police abuse
The fact that one of the most infamous racists in American judicial history wanted to abolish grand juries hasn’t stopped modern, hip and woke activists from throwing the racism charge at grand juries themselves.
In Minnesota, a proposed state constitutional amendment on the 1904 ballot would abolish the right to a grand jury and empower the legislature to decide how prosecutions were to be initiated – and it was correctly anticipated that the legislature would allow the elected county prosecutors to bring charges without grand jury approval. This concerned an anonymous “Voter,” who wrote to The Princeton Union to warn against the amendment. This voter was more skeptical about the professionalism of prosecutors than Justice Brown had been:
The grand jury is a body of citizens who are selected regardless of political belief or creed….[T]he law throws around them secrecy in their actions and they are entirely removed from all political taint or influence. It very often happens that county attorneys are not men wholly competent to exercise powers ordinarily delegated to a grand jury. Much of our politics is run on the “good fellow” plan and sometimes men are kept in office for being good fellows or for various reasons, regardless of qualifications or fitness for office….[County attorneys] are human and to say that their judgment in a case would be as good as as that of the members of a grand jury would be to make an extravagant statement.
The “good fellow” plan
A majority of Minnesotans went ahead and approved the amendment despite these arguments, and the legislature proceeded to give county attorneys the option of bringing charges without using grand juries. Grand juries would still be held in reserve if the prosecutor wanted to employ them, but suspects would no longer have the right to have their cases considered by grand juries. The optional system necessarily gives grand juries a bad odor – prosecutors who use grand juries when they don’t have to do so are often hiding behind the grand jurors’ skirts in order to pass the buck for controversial decisions. And sometimes the public falls for it.
In 2015, two Minneapolis cops confronted and shot Jamar Clark, who died of his injuries. The fact that Clark was black made the issue particularly volatile. Protesters demanded that the county attorney, Mike Freeman, investigate the shooting without involving a grand jury. Freeman had this option thanks to the voters’ decision back in 1904.
Minneapolis protesters in the Clark case
The protesters got their wish. Freeman announced that his office would no longer use grand juries when investigating shootings by police. The president of the Minneapolis NAACP, Nekima Levy-Pounds, said:
I am overjoyed that in this instance Mike Freeman decided to do the right thing. Mike Freeman is fully aware that the grand jury process has been ineffective here and nationally in holding officers accountable. I believe sustained community pressure played a huge role in Mike Freeman’s decision.
Then Freeman, without the help of a grand jury, announced he wouldn’t be bringing charges. The omission of a grand jury didn’t placate the protesters. An NAACP spokesperson (not Levy-Pounds) said, “You, Mr. Freeman, did not give a fair and accurate portrayal…and let me tell you: If the city burns, it’s on your hands.”
Last I heard, Minneapolis was still standing, though the shooting did provoke some protests. Nevertheless, cutting the grand jury out of the loop in the Clark case didn’t ease community tensions, or lead to charges being filed (assuming for the sake of argument that charges ought to have been filed).
The opposition to grand juries was exacerbated when a grand jury in Missouri failed to charge Officer Darren Wilson for shooting Michael Brown. The grand jury’s decision sparked riots. But the Obama/Holder Justice Department, examining the evidence against Wilson, also decided not to bring charges, and there was no grand jury involvement in that decision. So a grand jury took the rap for taking the same position on a racially-charged police shooting as the country’s two top-ranked race-baiters.
(Click here for an article about a controversy over using grand juries in police-abuse cases in California.)
Grand juries came first
The grand jury system was itself created through the actions of a would-be reformer, Henry II of England. The ruler who encouraged St. Thomas Becket’s assassination…
…was not a civil libertarian, but he “built better than he knew” in creating the grand jury. Henry was thinking more in terms of law and order when he decreed that panels of his subjects would be summoned and commanded to report about crime in their localities. What Henry wanted was to root out criminals who had managed to evade justice. Before Henry’s decree, bringing alleged criminals to trial in the secular courts required a private accuser to voluntarily come forward, risking punishment if he failed to prove his charge – and risking retaliation from the criminal. Henry knew that there were criminals running around who were known to the general public, but not known to the courts, since nobody had the guts to make a formal accusation. Not to mention that England was an occupied country whose rulers spoke a foreign language (French) and might not be au courant with the news circulating among their English-speaking subjects.
So Henry II’s early versions of grand juries were required to name people in their area who were believed by the public to be guilty of serious crimes. The grand jurors were not making their own investigations or reaching their own conclusions, but were reporting what was widely believed among their neighbors. Malicious local gossip need not be reported – just the solid consensus of public opinion.
King Henry, the scourge of the Church, was actually adapting a procedure used in England’s Church courts. The Church’s jurists and reformers borrowed from Roman law the maxim that the public interest required crime to be punished. This was in contrast to the Germanic idea of using the justice system to mitigate blood feuds. The descendants of the Germans who conquered the Western Roman Empire wanted people who had mortal grudges against each other to resolve their differences without dragging entire clans into Hatfield/McCoy style, multigenerational cycles of reprisal and counter-reprisal. So if angry relatives came seeking an alleged murderer, the matter would be settled with a trial by battle (if the feud was among aristocrats) or by some form of ordeal (if the feud was among the lower orders) – putting your hand on a burning piece of iron, getting thrown in water to see if you floated, trying to swallow a morsel of bread after boasting of your innocence (choking=guilt). If these methods didn’t identify the criminal with 100% accuracy, at least it was an agreed-upon method, presided over by priests, to settle the feud and move on. And if a crime didn’t spark a feud, or if the victim or their would-be champions were too weak, then it was like “OK, forget about it and let’s have some more mead.”
The Church’s reformers noticed that a lot of crime was overlooked in this way, and that trial procedures left something to be desired in terms of accuracy. So the Church courts, at least in England, came up with a procedure which seemed to inspire Henry II. Instead of waiting for a private individual to take the initiative and prosecute, the Church’s judges would identify a suspect and summon a panel of the suspect’s neighbors to see if public opinion regarded the person as a criminal. If the community wasn’t fairly solid in believing that the suspect committed the crime in question, that was the end of the matter – or rather, any crimes would have to be settled in the “internal forum” (the confessional). But if the community witnesses were like, “yeah, everyone thinks he did it,” then that counted as “fama” – the equivalent of a formal accusation – and a trial would begin.
King Henry thought that was a good idea, so he created his early version of the grand jury to report to the secular courts about those people whom local public opinion identified as serious criminals. If a person was so reported, the accused would undergo an ordeal – apparently the throw-them-in-water-to-see-if-they-drown ordeal – because the criminal trial jury hadn’t been invented yet. Yes, in criminal cases there was only one jury, and that was the ancestor of the grand jury – and unless you put your reliance in the cold-water ordeal, you better hope that public opinion, as reflected by the grand jury’s accusation, was accurate.
“So if the water receives my body, I’m innocent? And if I float, I’m guilty, and you execute me? It’s a good thing the grand jury correctly identified me as the murderer, otherwise I’d be really annoyed at this whole procedure.”
The creation of the English criminal jury was kind of forced on England by the Church. The Fourth Lateran Council in 1215, decided that priests should not preside at ordeals – because priests shouldn’t be shedding blood and because ordeals were not always reliable anyway. Without priests to bless the water ordeal, the practice fell into disuse, and so the English started using trial juries to decide the guilt or innocence of people who had been charged by grand juries with serious crimes.
Another important decision of the Fourth Lateran Council was in clarifying how church courts would go about ascertaining whether a suspect had a reputation as a criminal, so that the court could proceed in the absence of an individual accuser. It wasn’t enough if the rumors against the suspect were generated by “enemies and slanderers” – the public accusations had to come from “prudent and honest persons, not once only, but often.” Commentators gave Biblical examples: the clamor against the sinners of Sodom and Gomorrah, which prompted God to investigate (Genesis 18:20), and the complaints against the steward in Luke 16:1, which prompted the master to demand an accounting from the steward.
Since the creation of secular grand juries in England had probably been prompted by church-court procedure, it is not surprising that grand juries, acting on the same principles as the Fourth Vatican Council, undertook to distinguish between true and false public opinion. As the grand jury evolved, it came to do its own investigation, not simply reporting what their neighbors believed. Grand jurors were becoming the representatives of responsible public opinion by acting as “prudent and honest persons” and seeking reliable evidence about suspects.
But at least people who were accused by grand juries could now look forward to a full trial by another jury, not simply an arbitrary procedure like the water ordeal where one prevails only through blind good fortune. Even today, a small proportion of those who are indicted by grand juries go on to have their cases heard by a trial jury (the rest, of course, resolve their cases by plea-bargains, where the result totally isn’t arbitrary).
Works Consulted
Bab(b)ington Family – Descendants of John de Babington, http://members.iinet.net.au/~billeah/babingdesc.html
Henry Billings Brown, “Justice Brown’s Address,” in Proceedings of the Ohio State Bar Association, 13:35-51 (July, 1892).
Rebecca V. Colman, “Reason and Unreason in Early Medieval Law,” Journal of Interdisciplinary History, 4.4 (Spring, 1974), 571-591.
Nathan T. Elliff, “Notes on the Abolition of the English Grand Jury,” Journal of Criminal Law and Criminology, Volume 29,Issue 1 (May-June) Summer 1938.
Richard M. Fraher, “The Theoretical Justification for the New Criminal Law of the High Middle Ages: ‘Rei Publicae Interest, Ne Crimina Remaneant Impunita’” (1984). Articles by Maurer Faculty. 1854.
http://www.repository.law.indiana.edu/facpub/1854
Richard. H. Helmholz, “The Early History of the Grand Jury and the Canon Law,” 50 University of Chicago Law Review 613 (1983), online at http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2484&context=journal_articles
Finbarr McAuley, “Canon Law and the End of the Ordeal.” Oxford Journal of Legal Studies, Vol. 26, Issue 3, pp. 473-513, 2006.
Kenneth Pennington, “Introduction to the Courts,” in Wilfried Hartmann and Kenneth Pennington (eds.), The History of Courts and Procedure in Medieval Canon Law. Washington, D. C.: Catholic University of America Press, 2016.
“Proposed Amendments to the Constitution of Minnesota,” Cook County Herald (Grand Marais, Minn)., Oct. 22, 1904, p. 8, column 1.
“Shall we abolish the grand jury,” The Princeton union, October 06, 1904, p. 3, column 2, http://bit.ly/2strpg7
Suja A. Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries. New York: Cambridge University Press, 2016.
___________, Nonincorporation: The Bill of Rights after McDonald v. Chicago, Notre Dame Law Review, Vol. 88, 2012.
Richard D. Younger, The people’s panel: the Grand Jury in the United States, 1634-1941. Providence, RI: American History Research Center, Brown University Press, 1963.
As far as I can tell, there is no other plausible explanation for his actions in retrospect.
Many of you watched the hearing as I did. Hell, I think it was watched by half of America (not including John McCain apparently). And its hard for me to comprehend how there are any true winners or losers here from either a legal standpoint other than maybe Loretta Lynch losing some footing as being above partisanship when it comes to her department’s handling of the Clinton private email server investigation.
John McCain in his natural state.
But what should be attacked vigorously by any responsible authority tasked with oversight or any media talking head is Comey’s ability to be a man and do his job with any form of integrity whatsoever. Because he completely contradicted prior sworn testimony today by suggesting that Trump was attempting to influence him. And that he should have carried himself differently many times with interactions with the President in regards to how he reacted and how he reported (or failed to report) what he perceives months later as attempts to coerce or manipulate the FBI head into dropping investigations.
I’m sure there is some sense of being awe-struck by someone being summoned to the White House. I would like to think I’d be immune to that, but you never know. But the head of the nation’s federal law enforcement apparatus should never be of that mindset unless he is feeling guilty about something. He has spent his life climbing into situations and relationships that are complicated and him being somehow cowed by a President he believes is acting in an unprofessional and borderline-illegal way defies common sense.
I swear to tell the truth. Even if its different than the “truth” I told the last time I was under oath here.
Which leads me to my personal opinion: Comey is changing his tune because he feels like he was wronged. He deliberately leaked government property to a friend so they could be sent to the media. He allowed erroneous leaks to remain in the news in order to damage a President he didn’t care for. He contradicted prior sworn testimony in an attempt to change the public narrative on meetings that he considered “notingburgers” until he was fired to “possible attempts at coercion” in the aftermath of that termination.
Whatever your thoughts about Donald Trump are, whatever you think his relationship with the Russians was, and whatever you think the Democrats are attempting to accomplish here, one thing should be taken away by anybody with an ounce of brains: Comey is gutless or Comey is grinding his axe. I’ve made my decision. Please discuss yours in the comments.
It’s really amusing watching the MSM twist their panties in a wad trying to connect Trump to Russia. They’ve gotten the smallest amount of traction and the chants for Trump’s head have started. Besides the fact that the original Trump to Russia connection is based on innuendo and suggestion, the witch hunt has broadened out into a general search for any connection between Trump and the entire nation of Russia. Like a brain damaged chihuahua, the media chants “Russia! Russia! Russia!” hoping beyond hope that they will scare the GOP and Trump into submission. “We can finally control the renegade!” they think, as they piss away the last of their credibility.
Although people joke about “alternative facts,” it’s not a joke. There are two prevailing agendas across the country: 1) Trump is LITERALLY HITLER and A RUSSIAN MOLE AT THE SAME TIME!!! 2) Trump is DADDY and GOD-KING OF KEKISTAN, VANQUISHER OF THE SJWs and CUCKS!!! The left has their educational and media empire churning out outrage by the gallon. The right has their independent media matching the outrage of the left.
Antifa is smashing windows and folks like Based Stickman (who the fuck is Based Stickman and why is he called that??) are bashing Antifa heads in. People are primed to believe that the violence will do nothing but escalate.
I tend to be quite skeptical of claims that the next civil war is about to start. Like the Rapture, many people have predicted a civil war, only to be laughably wrong.
However, let’s travel through another dimension, a dimension not only of sight and sound but of derp. A journey into a scandalous land whose boundaries are that of imagination. That’s the signpost up ahead – your next stop, the Derplight Zone!
This is Donald. Donald is a normal man, somewhat spoiled, somewhat outspoken. Donald has been a real estate mogul for the last few decades, accumulating a vast amount of wealth and notoriety. Recently, Donald was chosen to be the sacrificial lamb of the GOP to allow Hillary Clinton to ascend to her rightful place as Grand Master of the Lizard People The First Female President of the United States. However, something went wrong. Horribly wrong. Donald had an energy that transfixed the public, and nobody could explain it. Donald became President.
Okay, I can’t keep the Twilight Zone schtick up, but let’s continue to investigate why this latest push to impeach could lead to a civil war. There is one big reason why: Trump’s election was an unexpected boon to a class of people that have felt trod over by the political elites for decades. People most fiercely defend unexpected gains, especially when it is threatened by their enemy. The Alt-Right has ascended and has labeled Trump as their knight in shining armor, here to wipe out the scourge of establishment politics and social justice. The Fascist Left has also ascended, using Hitlerian tactics while decrying Trump as literally Hitler. While an escalation of rhetoric isn’t a sure sign of war, it is a prerequisite.
The desperation seen on both sides is significantly more concerning. Antifa Nazis have normalized mob violence and intimidation as protest tactics, and Alt-Righters have responded in kind. This powder keg is gonna blow at some point, and we’re gonna get another Kent State. The question then becomes what happens in response to the deaths of 5 or 10 rioters (of either side). Everything in my mind and heart tells me that a crisis like that would boil up for a few weeks and slowly subside. However, what if it didn’t? What if it boiled up into a tempest?
I think it’s unlikely but possible that this could happen. Either Antifa is gonna beat some people to death, or the Alt-Righters are going to start shooting when Antifa gets violent in the wrong town. This could escalate to people seeking out the melee to contribute, which could escalate to large-scale violence between groups of people. . . also known as a battle. From there, things could snowball into nationwide insurrection.
Obviously, I find this quite improbable, but the increasing violence and radical rhetoric inspire some unlikely thoughts.
Because modern patriotic nationalism sucks. I completely get the connection between the flag and the service of our soldiers and veterans. I completely respect their courage and sacrifice. This is why I stand for the national anthem, even though I don’t participate. However, if there’s one thing that gets and eye roll from me in record time, it’s the old tired line of “freedom isn’t free. They fought and died for your freedoms.” Sorry, but when were my freedoms last threatened by a foreign power? Maybe WWII? That’s really stretching it, because the biggest threat to my freedoms in that era was FDR (internment camps, threatening the supreme court if they didn’t rule favorably, etc.). Maybe one could argue that the actions in Afghanistan were preserving our freedoms after 9/11, but again, the Patriot Act, TSA, and DHS are much bigger threats to my liberty than Al-quaeda has ever been. In my opinion, it’s completely appropriate to honor those who fought and died in the name of our nation without bullshitting us by saying that they were “fighting for our freedoms.” If anything, that cheapens their legacy, because it paints a paper thin GI Joe veneer over a much more complicated and difficult situation.
.jpg "In one part of the book, Care urged voters to elect independent, incorruptible men to Parliament - Care was charged with seditious libel for these statements, which the government considered a reflection on its Parliamentary supporters.")
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This is Donald. Donald is a normal man, somewhat spoiled, somewhat outspoken. Donald has been a real estate mogul for the last few decades, accumulating a vast amount of wealth and notoriety. Recently, Donald was chosen to be the sacrificial lamb of the GOP to allow Hillary Clinton to ascend to her rightful place as