For Social Justice, End Qualified Immunity

In the wake of George Floyd’s murder, so many of us are trying to figure out “how can we stop these things from happening”? Unfortunately, the answer is very murky. It’s hard to do anything federally to address local policing, and the general discussions of trying to combat racism and foster understanding isn’t likely to change the mindsets of members of the existing criminal justice system.

There aren’t many things that can be done, at the federal level, that have the chance to make a difference–except this: Justin Amash and Ayanna Pressley are working on sponsoring a bill to end qualified immunity.

The below letter was sent to my House Representative, Katie Porter. I sent the same letter with slight modifications (as they were to Senators) to Senators Feinstein and Harris asking that they publicly support the effort and try to duplicate it in the Senate. I also sent a copy to Rep Pressley, and unfortunately could not to Rep Amash because he doesn’t accept out-of-district communications.

For those of you who agree, and who want to contact your own representatives, feel free to use anything below as a template in your own communications.

Dear Representative Porter,

In the wake of the brutal murder of George Floyd at the hands of police, and the subsequent protests, riots, and continued unrest that followed, many of us are asking “how can we solve this problem?”

Many are hoping that we can find a way to end racism, to end systematic and institutionalized poor treatment of minorities in our criminal justice system, and that we as a society can begin to heal.

Unfortunately, what is missing is tangible solutions. I sincerely hope that we can end racism and heal ourselves as a society. I am doing my best, as a white man and a father, to not perpetuate this behavior in my personal life and to make sure that my children are likewise raised not to be a part of a problem, but to be part of the solution. I worry that’s a generational target that doesn’t help the situation, today, on the ground. It’s worthy goal, but the time horizon is too long. I’ve always believed people aren’t born racist; it’s inculcated in them by the biases of the generations ahead of them. Their parents, their extended family, their community. Very little that I can do to try to raise my own children properly will help avoid racism in those who are being taught wrongly elsewhere. Which makes trying to solve racism, while a wonderful goal and one that we should pursue, too little and too late to help people today.

I believe that most police officers are good people who chose that life because they want to make their communities safer. The problem is caused by a small minority, but the effects that small minority have on the whole are disastrous. I believe those good officers may detest the actions of the bad ones, but feel powerless to stop it for many–completely understandable–reasons. Sadly, the end result is a system that shields the bad apples from the consequences of their actions.

But we CAN make this better. And we can make this better in a shorter term, by changing the incentives that police have TODAY to act badly, and increasing the incentives to actually weed out the bad apples among them.

House Representatives Ayanna Pressley and Justin Amash are circulating a letter arguing that Congress can put an end to one of the key shields the bad actors in our police system hide behind: Qualified Immunity.

Today it’s possible to sue the police department in civil court for excessive force / brutality / wrongful death. But due to qualified immunity–and in particular the way qualified immunity is adjudicated–it is NEARLY impossible to sue the individual offending officer in civil court and have any chance of success.

So while cities may occasionally feel the pain in their pocketbooks due to losing a lawsuit (and it’s just taxpayer dollars anyway), the individual officers are mostly shielded from civil liability.

Now, it can be argued that we don’t want to subject officers to financial ruin because of a lawsuit. As politicians, I’m certain that some of your constituents and supporters, and possibly campaign contributors (police and their union) will argue that this will be the outcome. But that need not be the case, for it’s a faulty argument. The medical malpractice insurance industry already gives us a blueprint to avoid that. By ending qualified immunity but also requiring police to carry malpractice insurance, we create a financial system that incentivizes good behavior and punishes bad, and can be tailored to each individual officer based upon their history and risk profile.

Here’s how I see it potentially working.

  • The police malpractice insurance industry will need to have ways to accurately risk-price individual officers. Much like getting auto insurance, your risk is mainly tied to your own actions, and there are clear red flags that suggest you’re a higher risk (in auto insurance, regularly getting speeding tickets or causing accidents, for one).
  • Those red flags might be things like citizen complaints against officers, IA investigations, history of lawsuits brought, etc. Some officers [such as Derek Chauvin, who had a history of malfeasance before murdering George Floyd] may find themselves eventually priced out of policing due to their risk profile being so bad that they can’t afford the insurance. Want to weed out the bad apples? They’ll price themselves out by their own actions.
  • Officers could possibly qualify for premium reductions by doing things like regularly taking alternative escalation training, community sensitivity courses, etc. You can find ways to reinforce positive behavior and make it in officers’ financial interests to do so.

The only way that I see to improve this system in the short term–at the federal level which affects all departments–is to end qualified immunity. It is within Congress’ power to do so. While this will be fought, I hope that the above will help deflect the arguments which would be used against the bill.

Representative Porter, I ask that you cosponsor Rep Pressley’s bill when it is written, and do everything you can to help it pass.

Thank you for your time.

Modern Fascism

“Fascism” is today an insult, and generally for good reasons. When you realize that the Nazis were fascist, it kinda gives the movement it’s own bad name regardless of what “fascism” really is. Mussolini didn’t exactly help. So the word, “fascism” is often used to describe “extreme political action that I don’t like.” And for various reasons related to its authoritarian nationalist aspects, it has been described over time as right-wing.

Hence why it’s a label that has been used as a pejorative against Republicans over time, but much more actively against Trump and the alt-right of late.

The problem, however, is that most people who use the label have a VERY weak understanding of what fascism truly is. Fascism is its own comprehensive political philosophy and description for how a nation should be run. Thus if you want to call someone a Fascist, you should probably first compare what they’re doing with what fascism TRULY is, not with what you think it is.

I’ve done that. And for that reason I’ll state right up front my thesis: Donald Trump is close enough to a fascist to deserve the label.

Now that I’ve got your attention, let’s describe fascism and see if my thesis holds.

What is Fascism?

Fascism is a hyper-nationalist political and economic system that holds the edification of the State or the Nation (in some cases related to race) as the all-encompassing goal. This demands that the Nation be strong both economically and militarily, and that it be self-sufficient and not beholden to other nations for support (which would signify weakness). The needs of the Nation transcend freedom, liberalism, individualism. These things are only tolerated to the extent that they bring honor and strength to the Nation.

A strong authoritarian government is the vessel by which this edification is brought about, hence why “the State” and “the Nation” become synonymous. Actions which strengthen the Nation are to be lauded. Actions which diminish the Nation are deplored. People who diminish the Nation are deplored, and marginalized, and [in some cases] subjected to outright arrest or death.

Economically–as I previously touched on here–fascism is a mixed-economy where government and business cooperate to serve the interests of the state. It differs from socialism in that socialists want outright government ownership of the means of production, and a redistribution economy where all are equalized. Fascism is still a planned or managed economy, but done for the Nation rather than for “the people”.

To quote Mussolini, “The Fascist conception of the State is all-embracing; outside of it no human or spiritual values can exist, much less have value. Thus understood, Fascism is totalitarian, and the Fascist State—a synthesis and a unit inclusive of all values—interprets, develops, and potentiates the whole life of a people.”

This is the concept. People develop their worth through service to the Nation, whether that is direct service through something like the military [which is fetishized in a fascist nation], or indirectly through economic ways, in all things they are serving the Nation. The Nation is paramount; individual wants, desires, beliefs are secondary by a wide margin.

Are Republicans Fascist?

In America, fascism as an insult is largely used against Republicans and right-leaning fellow-travelers. The reasons for this are obvious. Generally “the left” has been the globalist, socialist, liberalist side of most political divides. Typically “the right” has been the patriotic, militaristic, nationalistic, pro-authority (law & order conservatism) side of most political divides. So, naturally, the left calls the right fascists.

I don’t think that’s remotely fair. I think the left/right divide is generally more of an idealist/pragmatist divide. The left is trusting and open. The right is guarded and closed. The left thinks you need a strong central government to provide for its people. The right thinks you need a strong central government to protect its people (from enemies foreign and domestic). The mainstream of neither party is anywhere near as authoritarian as their detractors on the other side suggest.

So yes, while there are elements on the fringe left that are authoritarian communists, there are elements on the fringe right that are authoritarian fascists. Oddly, the two aren’t much different from each other, when you get down to brass tacks.

But no, it is NOT fair to claim that Republicans are pro-fascism.

Is Donald Trump Fascist?

Here, I think a good example would be to refer to some of the descriptions of Fascism in Wikipedia:

Nationalism is the main foundation of fascism. The fascist view of a nation is of a single organic entity that binds people together by their ancestry, and is a natural unifying force of people. Fascism seeks to solve economic, political, and social problems by achieving a millenarian national rebirth, exalting the nation or race above all else, and promoting cults of unity, strength, and purity.

I’d argue that Donald Trump is absolutely a nationalist. Moreso than any President that I recall. In fact, I think most of his immigration policies are FAR more driven by nationalism than racism. Donald Trump doesn’t care about the rest of the world. He doesn’t care about people in other countries. He wants to protect America by keeping the “riffraff” of other nations out of our house. He wants to protect America by keeping manufacturing here and foreign products out [he REALLY wants tariffs on everyone].

All you really need to do is take a look at his inaugural address–for which I’ll use bullet points since he can’t really talk in complex sentences…

  • From this day forward, a new vision will govern our land. From this moment on, it’s going to be America First.
  • At the bedrock of our politics will be a total allegiance to the United States of America, and through our loyalty to our country, we will rediscover our loyalty to each other.
  • America will start winning again, winning like never before.
  • When you open your heart to patriotism, there is no room for prejudice.
  • A new national pride will stir our souls, lift our sights, and heal our divisions.
  • In America, we understand that a nation is only living as long as it is striving.

Donald Trump is no globalist, that’s for sure.

Fascists believe that liberal democracy is obsolete, and they regard the complete mobilization of society under a totalitarian one-party state as necessary to prepare a nation for armed conflict and to respond effectively to economic difficulties. Such a state is led by a strong leader—such as a dictator and a martial government composed of the members of the governing fascist party—to forge national unity and maintain a stable and orderly society.

Trump has repeatedly attacked members of his own party for failing to fall in line with what he wants. He believes he speaks for the American people as a whole. He’s constantly frustrated that our democratic processes stop him from doing what he knows is necessary for the Nation.

Now, I have not seen him push for a totalitarian state. However, he’s expressed admiration on numerous occasions for Vladimir Putin, as a “strong leader”. He’s tried to muck with the DoJ to interfere or stop federal investigations/prosecutions. And he’s recently pardoned Joe Arpaio, who was convicted of failing to follow court orders, because he supports what Arpaio was doing. This certainly suggests that he considers the power of the government to be a fluid and amorphous thing, which shouldn’t be repressed by silly things like “laws”, “separation of powers”, “checks and balances”, “constitutions”, and “courts”.

Fascist economics supported a state-controlled economy that accepted a mix of private and public ownership over the means of production. Economic planning was applied to both the public and private sector, and the prosperity of private enterprise depended on its acceptance of synchronizing itself with the economic goals of the state. Fascist economic ideology supported the profit motive, but emphasized that industries must uphold the national interest as superior to private profit.

Economic self-sufficiency, known as autarky, was a major goal of most fascist governments.

Fascists promoted social welfare to ameliorate economic conditions affecting their nation or race as a whole, but they did not support social welfare for egalitarian reasons

Trump has repeatedly publicly cajoled corporations to stay in the US, because he believes that American manufacturing is an aspect of National power, and that anyone doing business in this country should consider that a higher goal than individual corporate profits.

Trump is pushing for punitive tariffs, scrapping trade deals, and in my opinion is absolutely a mercantilist. I haven’t heard anything that suggests he desires 100% autarky, but that is perhaps merely due to the fact that it’s absolutely politically unfeasible in our global economy. Wherever he CAN get it, he pushes for everything to be done within our borders.

Trump is not an egalitarian socialist, that’s for sure. But he’s not opposed to state intervention. On many occasions, he has praised single-payer systems in other countries as “great” (which is the highest compliment Trump gives) and has stated that we need some sort of universal healthcare system in America, although it would be public-private hybrid.

Fascism emphasizes direct action, including supporting the legitimacy of political violence, as a core part of its politics. Fascism views violent action as a necessity in politics that fascism identifies as being an “endless struggle”. This emphasis on the use of political violence means that most fascist parties have also created their own private militias (e.g. the Nazi Party’s Brown shirts and Fascist Italy’s Blackshirts).

In the inaugural speech, Trump said: “We will no longer accept politicians who are all talk and no action – constantly complaining but never doing anything about it. The time for empty talk is over. Now arrives the hour of action.” Granted, that could be a meaningless platitude.

But his actions in reaction to Charlottesville to not unilaterally denounce the alt-right protestors and to equivocate on the violence being “both sides” suggests an unwillingness to offend those who could be his political “brownshirts”.

This, I realize, is getting into the territory of “wild speculation”. I don’t know what’s in Trump’s heart as it relates to Charlottesville. But he didn’t exactly offer much clarity.

Fascism emphasizes both palingenesis and modernism. In particular, fascism’s nationalism has been identified as having a palingenetic character. Fascism promotes the regeneration of the nation and purging it of decadence.

I’ll admit, I then had to look up palingenesis: “Its meaning stems from Greek palin, meaning again, and genesis, meaning birth. It is a central component of Roger Griffin’s analysis of Fascism as a fundamentally modernist ideology.”

Hmm, sounds kinda like “Make America Great Again”, doesn’t it?

Trumps inaugural address was replete with his characterizations of the American political system as corrupt, as self-serving of those in politics, as serving globalist masters before nationalist masters, and how he was going to change all that. His final lines of his address:

“Together, We Will Make America Strong Again.
We Will Make America Wealthy Again.
We Will Make America Proud Again.
We Will Make America Safe Again.
And, Yes, Together, We Will Make America Great Again.”

The idea of the current incarnation of the Nation as corrupt and of a rebirth through Trump to a more pure state is exactly the sort of play that past fascists have used to gain power.

So What Does This All Mean?

The fascists of history may have been evil, but they weren’t stupid. In post-WWI Europe, they preyed on the fears and disillusionment of populations who had just finished the War to End All Wars, and were dealing with rapid industrialization and a significant change to their ways of life. For many, the things they held dear were in peril, the world was changing in ways that they had trouble adapting to, and someone showed up promising to make it all better and return their past glory.

Today, the world is facing a change for which it is unprepared. The global instant communication of the internet is breaking down political, social, international barriers. It is remaking economies and breaking business models. It is enabling globalization to accelerate, and people are scared. People who thought they understood the world in 1997 are now bewildered by the world of 2017. And they want the old ways back. Trump preyed on those fears and didn’t tell them “you have to learn to survive in this new world”, he said he was going to make us great “again”–bring back the glory of the past.

Now, I don’t think Trump is going to lead us into The Holocaust, Part Deux. But I do think his tenets of nationalism and mercantilism are dangerous. They lead us into trade wars, into economic conflict, and could destabilize the world economy. As has been said many times, “When goods don’t cross borders, armies will.” And military action, destructive though it may be, is not a matter of fear to a fascist–it is how a Nation proves its strength. There are many sources of potential provocation out there in the world. Russia, China, North Korea, Iran, just for starters. Once we start mucking with the world economy and other nations start blaming America for those problems, one can only imagine that new sources will emerge.

But further, protecting Americans from globalization and this new world is the wrong tack. It’s hard for a mercantilist to grasp, but globalization, free markets, and gains from specialization, comparative advantage, and trade make us ALL richer. We need to understand how to continue to help Americans be great in a global marketplace, not shut our borders to people, ideas, and goods. North Korea–perhaps the most fascist nation existing on earth today–has already tried that.

To me, Donald Trump checks off too many boxes in his words and deeds, and it seems to me that he is politically and economically a fascist. But whether you agree with me that Trump is a fascist or not, it’s still hard to look at what he’s proposed and done and not see the danger that his Presidency brings to all Americans and to other peoples around the world. Hyper-nationalism and mercantilism has no place in the modern world, regardless of the label we apply to it.

The Old-Fashioned Regulatory State Has Failed

Today, in pitching the Democrats’ new economic plan, Sen. Charles Schumer (D-NY) claimed that “old-fashioned capitalism has failed“. In discussing the plan further, it became clear that corporate concentration was a key concern to Democrats. This should be a concern for all Americans. The question is, can the Democrats own up to the fact that they are responsible for the problem?

Capitalism and competition do not create monopolies. Far from it. Capitalism kills companies that fail to adapt. Blockbuster? Gone. Kodak? A shadow of its former self. Sears? Hemorrhaging money and shedding valuable assets in a death spiral. Motorola? Sony? Borders? Blackberry? Sun? Circuit City? Radio Shack? The list goes Here's lookin' at you, Comcast!on.

Then there are companies that are so awful to their customers that they deserve to be run out of business. Comcast. AT&T. Wells Fargo. Charter. Sprint. Bank of America. Look at the most reviled companies in America and you’ll notice the visible hands of government shielding them from competition.

Wonder why cable companies are so routinely hated? They’re literally the only game in town. In most parts, localities have granted cable companies monopolies. Even when there is competition, new entrants have to negotiate for access utility pole by utility pole due to Federal regulations, though this latter may be changing.

Even when regulators aren’t directly handicapping new entrants, regulations still favor the incumbents. To put it very simply, the bigger the company, the more lawyers it can afford. A startup has to run very lean, focusing all its money and energy into pulling market share away from an established name. Every time they have to spend energy filing paperwork, every time they have to consult a lawyer, the incumbents win a round.

Nobody likes this state of affairs more than progressives. Comcast is exactly the sort of company progressives want: big, stable, and focused on keeping the regulators and politicians happy. It doesn’t matter that their customers hate them with a passion and are desperate for alternatives.

By putting more power in the hands of progressives and regulators Democrats are promising more Comcast, AT&T, and Wells Fargo. A better deal indeed.

Today, I lift my glass, to celebrate our Independence Day

Today is not veterans day, or memorial day, or remembrance day…

 

It is not a day of mourning, or of thanks, but a day of recognition, celebration, and exultation…

Today  is the day we recognize, and celebrate our independence, as the only nation in all of history founded on the notion, that the only form of legitimate government, is that which is based on recognizing, securing, protecting, and defending; the fundamental, inherent, and pre-existing, unalienable individual rights of man…
… and deriving it’s just powers from the same… 
… a government of the people, by the people, for the people…
A government of the people, by the people, and for the people, AS INDIVIDUALS…
...all created equal, and with equal and unalienable rights…
…Not to secure, protect, and defend, society, or collective, or even nation… 
…but the individual rights of man…
To my knowledge we remain the only nation so dedicated.
Our revolution began April 19th 1775, at Concord and Lexington…
…a day we in New England celebrate as Patriots Day…
Our independence was officially declared July 4th 1776…
…the day we celebrate today, as independence day…
Our revolution was won, with the surrender at Yorktown, October 19th 1781…
…six years and six months, of mud, blood, and toil, from the day it commenced…
Our new nation was made whole, and strode forth under our Constitution, March 4th, 1789…

In the last 242 years,  millions of service men and women have fought, and over a million of them have died; fighting to secure, protect, and defend, those fundamental, inherent, and pre-existing individual rights of man.

 

…Every single day in this country…and around the world…
…millions still fight for those rights…

 

…in whatever way they can, according to their own gifts and abilities, and their own circumstances, whatever they may be…

 

…whether by bullet and blade, by badge or by ballot…

…whether by words on a page, or spoken on stage…

 

For all of my brothers and sisters who have fought, and all who have died…

 

For all who are still fighting today, at home and abroad…

 

Whether you’re here today celebrating with family and friends…

 

Whether you’re lost and alone out there…

… and if you are, rest assured we are coming for you brothers and sisters, to bring you home…

 

Whether we’ll meet again the other side of the veil, and share this toast with those who live forever, on fiddlers green…

 

Today, I lift my glass, in honor of those who fought…

Today I lift my glass in honor of those still fighting, at home and abroad…

Today I lift my glass in  honor of absent companions, and fallen comrades… 

Today, I lift my glass, to celebrate  our independence day!

Why Liberals should support Neil Gorsuch for the Supreme Court

What have we learned in the last week? First, the President of the United States is a man who has embraced progressive tactics and sees little restraint on his own power. Second, there is not much will in the Republican Congress to push back against a Republican president, even if he more resembles Barack Obama than Ronald Reagan. That leaves the Supreme Court as the last line of defense for the American people.

In this light, avoiding the confirmation of Merrick Garland to the court must be viewed as a tremendous win for the American people. Despite being a centrist on the politics, Garland’s key qualification in the eyes of the left was his deference to the other branches of government. He would have been the fifth vote for deferring to the competence and good will of the executive and the legislature.

For the left, and especially progressives, I can see the attraction so long as their president was in the White House. No pesky Supreme Court opposing progress! What could be better?

Whoops, the wrong guy got voted in by a regressive white minority! That’s what my left-wing friends tell me, anyway. Arguments about the electoral college aside, the left is now going to be fighting the agenda in Washington rather than driving it—and they’ll need the Supreme Court’s help.

So far, the left-wing reaction on Gorsuch is focusing on two things aside from straight up partisanship: abortion (naturally) and the Hobby Lobby case. It is, as usual, a case of tunnel vision. To his credit, Ian Millhiser at Think Progress goes deeper than most, and focuses on two additional topics: Gorsuch’s views on Chevron v. NRDC and his libertarian leanings on crime.

Even still, Millhiser and the rest of the left manage to miss the big picture on Gorsuch: He has an internally consistent judicial philosophy that embodies the same skepticism of power that our system of checks and balances is predicated on. His positions on Hobby Lobby, Chevron, and criminal law enforcement are all outgrowths of the same core belief. They all look at government exercises of power and ask if they are allowed by the Constitution.

Let me say it again: They all look at government exercises of power and ask if they are allowed by the Constitution. Who is exercising government power nowadays? Donald Trump. Looking at government exercises of power and asking if they are allowed by the Constitution seems like a pretty good idea now, doesn’t it?

This is where we need to split the left into two groups: liberals and progressives. Progressives will never support Neil Gorsuch for the court. He opposes, more than anything, their belief that the progressive agenda should be implemented with whatever power is needed.

Liberals, on the other hand, still care about things like individual rights and due process despite sharing some goals with progressives. It is liberals who need to take a fresh look at Neil Gorsuch. There are issues far more important in this Supreme Court appointment than abortion and birth control. The very concept of limiting executive power is at stake.

In nominating Neil Gorsuch, Donald Trump has put forward a justice who will be an impediment to his agenda. He is doing this now because he has not yet felt the yoke of the court come down upon him. In a year or two, once Trump has really figured out the way Washington works, we will not see a nominee like this. We will see another John Roberts or Merrick Garland, who put judicial deference first. Remember, in 2017 judicial deference will be deference to Donald Trump.

Liberal friends, support Neil Gorsuch while you have the chance.

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