gracchusdixit

For opposing Donald Trump’s nominee to the Supreme Court of the United States, Republicans accuse Democrats of being petulant and obstructive, childish and churlish.  How, they incessantly demand, could anyone refuse to confirm “this good man?”  As if Neil Gorsuch’s “goodness” were self-evident.  As if principled opposition to his nomination were ipso facto indecent.  All this sanctimonious tut-tutting is little more than a cynical shell game, designed to distract attention from the clear and present dangers posed by this nomination.

There are three reasons for rejecting Neil Gorsuch, none of which is in the least degree petulant or obstructive, childish or churlish.

The first is that Republicans in the Senate shattered all norms and precedents by refusing for nearly a year even to meet with President Obama’s nominee, Merrick Garland.  Garland was a “good man” if ever there was one, but Republicans denied him so much as a hearing.  This denial was nothing less than a constitutional theft.  Having exacted their pound of political flesh from President Obama, Republicans now cannot abide the thought that Democrats might somehow be able to do the same to Donald Trump.  Their complaints about Democratic obstruction can therefore be dismissed as hypocritical and self-serving drivel.

The second reason is that, for all the talk about “this good man,” Neil Gorsuch’s judicial record is anything but good—it is terrible.  He is a radically right-wing judge, whose political agenda saturates and perverts his judicial opinions.  Republicans would like to pretend that this is not so, pointing to a handful of decisions in which he has broken with conservative orthodoxy.  This, too, is a shell game.

Gorsuch opposes the right of women to make their own reproductive choices.  He believes that states should have the right to criminalize homosexuals.  He thinks that corporations are “persons” and, as such, are entitled to the same protections granted by the Bill of Rights to you and me.  In virtually every contest between corporations and citizens, employers and employees, the powerful and the powerless, Gorsuch has sided with the rich, the powerful, and the privileged.

The third and principal reason to oppose this nomination is that Gorsuch intends to walk in the footsteps of the late Antonin Scalia.  Not only does he hope to take Scalia’s seat, he considers Scalia to be a personal hero and follows Scalia’s judicial philosophy to the letter.  To understand Gorsuch, we must therefore understand Scalia.

Antonin Scalia is known for advancing two, parallel theories of how the constitution and the law should be interpreted.  Those theories are “original intent” and “textualism.”

“Original intent” rejects the idea that the Constitution is a living document, expressing broad and aspirational rights that can and should be adapted to changing historical conditions.  The adherents of “original intent” view the constitution as a sacramental text, graven in stone.  When new circumstances or challenges arise, they assert that the “original intent” of the 55 men (they were all men) who framed the Constitution must be the sole interpretive standard.

Apart from the obvious fact that it is all but impossible to reconstruct the intentions of men who lived 200 years ago, the theory of “original intent” is shameful on its face.  The framers lived in an agrarian society, in which African-Americans were chattel, the very idea of women being able to vote was unimaginable, and Native Americans were an inconvenient  and disposable impediment to the brutal land-grabbing of white Europeans.  The framers had no experience of the Industrial Revolution, of coal mines, steel mills, or factories.  They did not foresee the transportation revolution, with its web of railroads and highways, nor could they have imagined the communications and information revolutions. Why, one must ask, should the “original intent” of the framers be considered morally or practically definitive in anything but a metaphorical sense?

“Textualism,” on the other hand, asserts that statutes—that is, laws passed by legislatures—must be taken literally, without regard for the intentions of their authors.  Its adherents insist that, once statutory language appears on a page, that text becomes the law, even when the text is ambiguous or contradictory.  This theory is rather like Colin Powell’s quip about the unintended consequences of military action:  “If you break it, you own it.”

One does not need to be a judge, a lawyer, or a legal scholar to recognize that these two theories of the law are illogical and incompatible.  To assert them simultaneously, as Scalia did and Gorsuch does, makes no sense.

The defenders of this approach claim that constitutional and statutory law are entirely different things, that the former deals in abstract principles. whereas the latter concerns itself with tangible practices and policies.  This distinction collapses under even cursory inspection.

The Constitution of the United States not only promulgates abstract principles, it also concerns itself with mundane specifics:  the age at which a person may be elected president, the apportionment of congressional districts, the establishment of a national postal service, and so on.  Conversely, many supposedly mundane statutes—the Civil Rights Act of 1964 and the Voting Rights Act of 1965, to name but two—concern themselves with broad, abstract principles no less than does the Constitution itself.

In the final analysis, the legal theories advanced by Scalia and Gorsuch are not a coherent philosophy at all, but, rather, an intellectual trick, allowing the law to be interpreted for political purposes.

This became glaringly apparent in 2008, when Scalia wrote the majority opinion in  Heller v. District of Columbia.  This narrow five-to-four decision upended nearly a century of settled law and, for the first time in our history, defined the Second Amendment as an individual right to bear arms.  In advancing this proposition, Scalia’s problem was that the language of the Second Amendment nowhere mentions such a right.  It merely states:  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

To subvert the unambiguous meaning of this language, Scalia dismissed references to a “well regulated Militia” and the “security of a free State” as a “prefatory clause,” having no effect on the true intent of the amendment.  This was a grammatical and logical fiction, invented out of whole cloth.

Scalia was still left with the problem that the Second Amendment talks about “the people” rather than individual persons.  So, he turned to “original intent,” cobbling together a dubious historical narrative about gun rights in colonial America, claiming that, when the framers used the collective expression, “the people,” they were actually talking about individual persons.  That anyone still takes his argument seriously would be laughable if it weren’t for the fact that it is now, tragically, the law of the land.

Scalia tried a different trick in King v. Burwell, a 2015 case that ultimately affirmed the constitutionality of the Affordable Care Act.  Scalia seized upon a sloppy bit of language in the statute, stipulating that premium subsidies could only be provided to those who acquired their insurance on state-run exchanges rather than the federal exchange.  This stipulation, if upheld, would have destroyed the act.

In this case, Scalia used “textualism” as his weapon of choice, insisting that the precise language of the law should be followed, without regard for the undisputed intent of Congress, which was that subsidies should go to anyone and everyone who qualified for them, regardless of where they acquired their insurance.  Tossing his precious doctrine of  “original intent” overboard, Scalia tried to turn a typographical mistake into the law of the land.  Even John Roberts, the resolutely conservative Chief Justice of the Supreme Court, balked at the fundamental absurdity of Scalia’s argument.

The plain truth is that the legal theories of the late Antonin Scalia and the man who now hopes to replace him are, and always have been, intellectually dishonest.  These theories are little more than a judicial shell game, the only purpose of which is to pursue a political agenda.  However brilliant, witty, and articulate Antonin Scalia may have been, he did not deserve to sit on the Supreme Court of the United States.  However brilliant, academically qualified, and “good” Neil Gorsuch may be, neither does he.

In 1923, Adolph Hitler led an attempt to overthrow the  democratically elected government of Bavaria in what came to be called the “Beer Hall Putsch,” because it had been planned in one of the bierhallen for which Bavaria’s capital, Munich, is renowned.  When the putsch failed through the sheer incompetence of its planners, Hitler was arrested and sent to Landsberg Prison, where he spent his brief sentence writing the first volume of Mein Kampf—“My Struggle”—a book describing his world view and his political ambitions.  In this infamous and chilling work, Hitler did not seek to cloak his vision of an Aryan master race, his virulent anti-Semitism, or his vicious plans for the Jews, Slavs, and Gypsies of Europe.  Neither did he disguise his contempt for democratic and parliamentary institutions, which he intended to disrupt and destroy.  To give Hitler his due, he was utterly clear about what would happen if he ever gained power.

There were many at the time who dismissed the notion that Hitler’s words should be taken literally or that the man himself—with his clownish mustache, slicked-back hair, and melodramatic rhetoric—ought to be taken seriously.  The chance that such a man might succeed and actually implement his mad project seemed so unlikely, even preposterous.  Ten years later, when Hitler became Germany’s chancellor, and then its Führer, this incredulity proved to be tragically blind.  Hitler had been deadly serious.  He had meant every murderous word.

When I read Mein Kampf in my student days—and I remember it even now—it still cast its terrifying spell.  The year was 1966, and even though Hitler was long dead, the rise of Nazi Germany, the horror of the Holocaust, and the global cataclysm of the Second World War remained living memories.  My father was only in his 40s, had served in that war, and like many former soldiers, rarely cared to speak of it.  My older aunts and uncles, on the other hand, reminisced frequently about the rationing and the wartime work that finally ended the Great Depression, about Pearl Harbor and Normandy, about the boys in uniform who came home and those who did not.  Before meeting and marrying my father, my mother had dated another of those boys.  He disappeared somewhere in the Pacific.   Only once in her life could she bring herself to speak of it to me and then could barely get the words out.

Today, of course, such living and anguished memories are all but gone.  Hitler and the murderous philosophy he proclaimed in Mein Kampf are for most Americans mere historical artifacts, the relevance of which seems remote to those who did not live through the war, who did not experience its consequences first-hand.  This may be why it is difficult for so many Americans to see the parallels between then and now or to understand what is befalling our country.

In the dismal and tense weeks that elapsed between the election and inauguration of Donald Trump, there was endless hand-wringing among pundits and politicians about what had happened and why, about what this outcome might or might not portend.  The “I told you so” voices at both ends of the political spectrum castigated the news media and the Clinton campaign for taking Trump “literally but not seriously,” all the while they seemed to praise—or at least exonerate—his supporters for taking him “seriously but not literally.”

This inversion of opposing rhetorical phrases—which the ancient Greeks and Romans, who knew a thing or two about verbal tricks, called a “chiasmus”—was quickly embraced by Trump’s mouthpieces to distract and disinform.  Kellyanne Conway, inarguably the most duplicitous of Trump’s propagandists, chastised the media for judging Trump by what “comes out of his mouth” rather than “what’s in his heart,” as if she, the news media, or anyone else could possibly know what is in Donald Trump’s heart—assuming that he has a heart.

One thing at least is indisputable:  Trump’s critics and opponents did not take him seriously enough.  All the while they fretted and fumed about his offensive language, they did not give sufficient credence to the serious and dangerous possibility that he might actually be elected.  By fair means or foul, he is now ensconced in the White House, he and his gang are ruthlessly concentrating power in their own hands, and the country is already suffering the consequences.

It is no less indisputable that Trump’s supporters were mistaken to take him “seriously but not literally.”  During the campaign and after the election, many of them rationalized their candidate’s inflammatory rhetoric as mere political showmanship, just as they dismissed his vulgar and aggressive sexual boasting as “locker room banter.”  They clung to the belief that, once sworn into office, he would put aside his bullying promises and become more presidential.  He wouldn’t really impose a Muslim ban—that would be unconstitutional.  He couldn’t possibly deny health insurance to thirty million people—that would be shameful.  He wouldn’t actually build a ridiculous and unaffordable wall across the Mexican border, let alone arrest and deport millions of innocent immigrants who came here as children—that would be an act of deliberate cruelty.  He surely wouldn’t allow Republican ideologues to return the country to the dark ages of back-alley abortions, no matter what he may have said about “punishing the woman” during the campaign—that would be unthinkable.   Their hopeful plea was:  “Just give him a chance; let’s see what he does.”

In scarcely more than a week, the hopelessness of that plea has become abundantly plain.  We can now see Trump for what he is because of what he has already done.  The only consolation is that he didn’t waste time pretending or prevaricating.  He has quickly revealed himself to be precisely what he promised to be:  a demagogue, a racist, and a danger to the nation.

He must be taken literally and seriously.  And if we hope to save our democracy, he must be taken down.

On March 17th, 180 CE, the Roman Emperor, Marcus Aurelius, died in a fortified military encampment near the Danube River where today the city of Vienna sits.  Having spent years fending off a confederation of Germanic tribes, he finally achieved a decisive victory but did not live long enough to see that victory bear fruit.  Marcus Aurelius was the last of the so-called “Five Good Emperors,” who gave to the world the Pax Romana, an extraordinary, and arguably unique, century of peace, order, and civilization.  The historian, Edward Gibbon, famously said of this age:

If a man were called upon to fix the period in the history of the world, during which the human race was most happy and prosperous, he would, without hesitation, name that which elapsed between the death of Domitian to the accession of Commodus.

It is doubtful that very many professional scholars or historians would today agree with that sweeping assessment.   But its claim on the popular imagination persists, and there is a fair case to be made that, in one sense at least, Gibbon was right.

Marcus Aurelius and the other “Good Emperors” who came before him were exceptional public figures: capable, cultured, civic-minded, and personally virtuous.  Each was adopted by his predecessor, having been singled out for talent, intellect and character.  Each was taught philosophy and trained in the arts of war and government.  Each strove quite consciously to become what Plato called a “philosopher king,” a guardian of the public good, rising above the petty ambitions of politics and personal gain.  Being human, these five men did not always succeed, and the empire over which they reigned was riddled with contradictions and cruelties that seem to us unpardonable.  But for the time and society in which they lived, the “Five Good Emperors” did more than rulers before or since to live up to the ideals of enlightened government.

Marcus Aurelius, in particular, embodied those ideals.  He was not only an emperor but an important philosopher in the Stoic tradition, who declared that his obligation was to govern “a polity in which there is the same law for all, a polity administered with regard to equal rights and equal freedom of speech, and a kingly government which respects most of all the freedom of the governed.”  These words came two thousand years before the Declaration of Independence or the Declaration of the Rights of Man.

For all that, it was Marcus Aurelius who broke with the practice of his predecessors to adopt and train an heir on the basis of merit and character.  Instead, Marcus decided  that his son, Commodus, would succeed him.  We do not know why he made this decision.  Perhaps it was the simple affection of a father for a son.  Perhaps he thought that his son would rise to the occasion, that the office would somehow change the man.  Whatever the reason, his decision was disastrous—for the Roman Empire and for the world.

Commodus turned out to be insecure, inattentive, and ultimately unhinged.  He had none of his father’s personal austerity and scrupulous sense of public duty.  Having no interest in or patience for the dreary details of governing, he turned them over to subordinates, many of whom proved to be incompetent or corrupt.  His vanity was boundless.  He renamed the months of the Roman calendar to honor himself.  He changed the  venerable names of the Roman legions to reflect his own.  Craving the applause and approbation of the Roman mob, he fought in the arena as a gladiator and of course won every match.   Any Roman Senator sitting in the box seats who failed to cheer loudly enough was threatened with immediate execution.

Finally, it all became too much.  Commodus was poisoned by his mistress, and when that attempt failed, he was strangled in his bath.  His disgraceful reign, and his death, marked the beginning of the “Decline and Fall of the Roman Empire.”  A number of strong emperors—Septimius Severus, Diocletian, Constantine—succeeded in temporarily arresting that decline.  But the trajectory had been set.  After Commodus, the long, upward arc of Roman civilization spiraled irretrievably downward.

Mark Twain once said:  “History doesn’t repeat itself, but it does rhyme.”  For all the obvious differences between then and now, it is impossible to ignore the eerie, rhyming similarities.

Barack Obama, our Marcus Aurelius, bid his farewell to the nation just days ago.  Among our many “Good Presidents,” it is difficult to think of one who was more thoughtful, humble, and gracious or more genuinely committed to the public good.  It is equally difficult to escape the thought that, in Donald Trump, we now have our own Commodus—an insecure, inattentive, and ultimately unhinged monster, whose only concern is his own vanity.

With Trump’s occupation of the White House, an unbridgeable fissure seems suddenly to have opened in the political ground under our feet, a chasm dividing our past from our future.  I do not see how we can cross over this chasm and go back.  I do not see how we can reclaim our republic and restore the liberal order we bequeathed to the world at the end of the Second World War.  I fear that the decline and fall of the Pax Americana has begun.

If the presidential inauguration of Donald Trump had been a TV show, it would have been cancelled after the first episode.  By all objective measures, the latest of these quadrennial spectacles has turned out to be an historic flop.  First-rate celebrity entertainers were conspicuously absent.  The second-rate entertainers who were on display were embarrassingly amateurish.  The parade of marching bands who filled out the truncated program would have been more at home on a high school football field.  And the sight of Trump himself, stuffed into a tuxedo like a bloated pumpkin, struggling to dance with his wife without stepping on her toes or crushing her to death, was ridiculous when it wasn’t outrightly repugnant.

More consequentially—and far more ominous—was Trump’s “acceptance speech,” which was less about “acceptance” than about aggressive self-assertion.  His harangue was little more than a string of fear-inducing slogans from the campaign trail, stitched together like a patchwork quilt.  In all of its seventeen minutes, there wasn’t a scintilla of grace, grandiloquence, or generosity.  For its ungrammatical banality and sheer awfulness, Trump’s speech must surely be accounted the worst in American history.

The only memorable words in this ugly discharge—”American carnage”—were the most fear-inducing and dishonest words of all.  Trump would have us believe that the United States of America is a shambles, that our cities are ridden with crime and chaos, that order must be restored lest we descend into a hell on earth from which only he, the new supreme leader, can save us.  His most devoted and blinkered supporters may actually believe this apocalyptic fiction.  If so, they are beyond reason or redemption.  They are simply—and sadly—suckers and fools, the very sort of losers Trump holds in utter contempt.

It is unlikely, of course, that any of that matters to Trump himself.  We have learned by now that all he cares about is his own gargantuan self-esteem and his “brand” as the richest, smartest, “winner” on earth.

Which is why, down deep, Donald Trump must be so galled and infuriated by the tawdry reality of his inauguration.  In the darkest recess of his self-regard and self-loathing, even a sociopath like Trump must on occasion see the truth when it stares him in the face.

Before the inauguration, Trump boasted that it was going to “break all records,” and on the day after, his mouthpiece, Sean Spicer, tried to assert, against all evidence to the contrary, that Trump’s boast had come true.  Spicer, of course, was lying.

Attendance at the 2017 presidential inauguration was anemic.  The number of people who came to celebrate Barack Obama’s inauguration in 2009 was roughly two million, a crowd so massive that it filled to the gills the great mall that runs from the Lincoln Memorial to the steps of the Capitol.  As Trump put his hand on the bible under that looming dome a few days ago, it was plain that large swaths of empty real estate were lying at his feet.  Those who study such things estimate that Trump’s crowd was a third the size of Obama’s.

Where, one must ask, were all those Hillary-hating ex-coal miners just up the road in West Virginia, who voted for Trump in droves?  And where were all those Trump-loving ex-steel workers in nearby Pennsylvania, whose votes helped to swing the electoral college in his direction?  Thousands of Trump’s purportedly enthusiastic supporters were just a bus-ride away, but they didn’t bother to show up.  Maybe they didn’t have enough money to buy a bus ticket.  Maybe they didn’t care.  Maybe the “movement” Trump talks so much about isn’t a movement at all but, rather, little more than a disgruntled and anxious growl from people who voted for Trump the way they buy lottery tickets, hoping against reason to hit the big one but expecting to lose their two bucks.

Even worse for Trump’s self-esteem, the “Women’s March” that occurred the day after his inauguration completely upstaged the inauguration itself.  At least half a million demonstrators jammed the streets of the nation’s capital.  In other cities—New York, Chicago, Los Angeles, San Francisco, Boston, and countless others—as many as three  million demonstrators joined in.  And around the world, in the capitals of Europe and Asia, millions more did the same.  These demonstrations were a complete rebuke of everything Donald Trump stands for, and their sheer size makes its impossible for him, or the Republicans in Congress who slavishly support him, to lay any credible claim to a “mandate” from the American people.  As they do their worst, which they almost certainly will, their political legitimacy will evaporate.

Worst of all for a media creature like Donald Trump were the inaugural television ratings, which may be the ultimate and only measure by which Trump judges his self-worth.  The A.C. Nielsen company estimates that 31 million people watched Trump’s inauguration.  That sounds like a big number, and it is.  In comparative terms, however, it is humiliatingly small.

Far from “breaking all records,” the audience for Trump’s inauguration was middling.  Eight million more people watched Barack Obama’s swearing-in in 2009.  Ten million more watched Ronald Reagan take the oath of office for the first time.  More people tuned in to see Jimmy Carter of all people, hardly one of our country’s most popular or successful presidents, put his hand on the bible.  Even Richard Nixon, who, after Trump, may qualify as the most unpopular president of modern times, got a bigger audience for his first inauguration.

More than 120 million people voted in this election, and about 60 million voted for Trump. Yet only half that number bothered to watch the culminating moment that crowned, and presumably validated, their choice.  If Trump is leading a “movement,” as he claims, it would appear that millions of his followers weren’t moved enough to turn on their television sets.

In television terms, Trump’s campaign to win the Republican nomination was indisputably a “hit.”  It now seems that his inauguration and the opening days of his presidency are no less indisputably a “flop.”  We can only hope that this “flop” will be cancelled before it does irreparable damage to the country.

Two days ago, in hundreds of towns and cities across the land, thousands of Americans gathered to protest the “election” of Donald J. Trump and, even more pointedly, to decry the looming repeal of the Affordable Care Act—an event that would deny health insurance to 30 million people and send insurance premiums rocketing skyward.

In the long and hard-fought run-up to the passage of the Affordable Care Act—arguably Barack Obama’s greatest achievement as president—tea party lunatics like Michelle Bachman charged that the ACA would lead to the rationing of healthcare and, far worse, the creation of bureaucratic “death panels,” which might decide to pull the plug on dear old granny just to save a few pennies.

Needless to say, this prophecy of a satanic, socialist future never materialized, since the worldview of people like Bachman is rooted, not in reality, but in the nightmarish fantasies of the Book of Revelations.  Not only did the ACA not create “socialized medicine,” let alone “death panels,” it immediately began to make things better for millions of Americans, expanding coverage, improving health outcomes, slowing cost increases, and  strengthening the long-term financial prospects of Medicare.

None of this caused Republicans to change their rhetorical tune or budge from their bitter opposition.  From the very day the ACA was passed, they declared it to be a catastrophic failure, a canard endlessly repeated on the campaign trail by Donald Trump and echoed by Republican leaders.  Trump is now promising that he will soon reveal an alternative that will “take care of everyone” and do so with lower deductibles at a lower cost.  Since he has thus far failed to deliver on any of his promises, this latest boast is in all likelihood pure fiction, another rhetorical bait-and-switch designed to sucker his hapless, naïve, and gullible supporters.

What is not fictional is that, within hours of the new Congress being sworn in, Republicans took the first steps to abolish the ACA, without having the slightest idea of how to replace it.  The only alternative they have thus far presented is the hopelessly vague notion that “market-based solutions” will somehow fix the fundamental problems of our healthcare system.  This notion would be laughable if its consequences weren’t so serious.

The truth is, Republicans are so blinkered by their ideology that they have lost all ability to see reality even when it stares them in the face.  Their mystical faith in the efficacy of “market-based solutions” is a dramatic case in point.  It is a faith that is not only impractical but immoral.

The impracticality is abundantly clear to anyone with open eyes and an open mind.  The healthcare system of the United States is already “market-based,” and it is a woeful failure.  Our system is twice as expensive as any other in the advanced world and by virtually every measure produces inferior results.

The reason for this outcome is also abundantly clear.  The reason is that our system is not primarily designed to provide decent and affordable healthcare to all our citizens, but, rather, to generate wealth and profits for insurance companies, drug-makers, and healthcare providers.  Every other advanced country in the world confronted this reality a long time ago,  came to the conclusion that a “market-based” system is utterly incapable of providing adequate healthcare at a reasonable cost, and pursued a different solution.

The choices other countries made range across a wide spectrum.  The United Kingdom and Canada chose to nationalize their healthcare systems outright, decisions that, no matter what you hear from critics in the United States, are overwhelmingly popular in both countries.  France, which by virtually every metric provides to its citizens the best healthcare in the world, chose a hybrid approach, in which the government provides essential healthcare to all citizens, leaving individuals free to pay for supplementary private care.  Germany chose to make employers responsible for providing healthcare, under strict and mandatory guidelines.  Other countries, like Switzerland and Japan, chose to leave the job of funding healthcare to private insurance companies, while the government negotiates prices and regulates costs.

The moral choice made by the rest of the advanced world is no less clear.  The United Kingdom and Canada, France and Germany, the Dutch and the Scandinavians, the Swiss and the Japanese, have decided that decent healthcare is a fundamental human need, even a “right,” which a responsible society must provide to all its citizens.  The only question is how to provide it most effectively and affordably.  Every advanced country in the world, other than our own, has concluded that “market-based solutions” are neither effective nor affordable.

Republicans in Congress have chosen to ignore these facts, to ignore the evidence, to insist on solutions that are ideological, impractical, and immoral.  The tragic irony is that, in the name of “appealing and replacing” the Affordable Care Act, Republicans are about to impose upon the American people the very nightmare they once pretended to deplore.  Millions will lose their health insurance, and many will sicken or die as a result.  The Republican majority in Congress has become a “death panel,” and its members will soon have blood on their hands.

Donald Trump held a press conference today, the first in more than six months.  Like everything else Trump has done since he announced his candidacy eighteen months ago, it was a disgrace and a travesty—an act of political theatrics designed to aggrandize himself, to distract attention from his innumerable conflicts of interest, and to intimidate anyone who dares to question or oppose him.

His plan to “isolate” himself from his business interests is a sham.  His claim, once again, that an ongoing IRS audit prevents him from releasing his tax returns is an outright lie.  His attack on news organizations like CNN and NBC is nothing less than an attack on the First Amendment.

To anyone who questions the legitimacy of the 2016 presidential election results, let alone the legitimacy or fitness of Donald Trump himself, Republican politicians, pundits, and  propagandists declaim:  “Get over it!”

Mitch McConnell has dismissed such people as “sore losers.”  Fox News Channel’s Sean Hannity, Trump’s most slavish and obsequious sycophant, has dubbed them “whiners.”  And Kelly Ann Conway, the Joseph Goebbels of our new Führer, has declared, “We didn’t need Wikileaks to prove that Hillary Clinton was unpopular,” as if that (even if it were true) somehow justifies the actions of Julian Assange and his Russian handlers.

Even those on the right who are prepared to concede the now all but certain fact that Vladimir Putin intervened in the election to tip the scales in Trump’s favor insist there is “no evidence” that Russia manipulated the vote count itself.

In a strictly limited and literal sense, that assertion may be true.  In a far more consequential sense, however, it is a dangerous falsehood—which undermines our democracy and risks normalizing the most abnormal election in our history.  The consensus report of our intelligence agencies, released just days ago, states:

Russian intelligence accessed elements of multiple state or local electoral boards.  Since early 2014, Russian intelligence has researched US electoral processes and related technology and equipment.

The report goes on to say that “the types of systems we observed Russian actors targeting or compromising are not involved in vote tallying.”  That would be a reassuring qualification—except for several complicating facts.

One is that our “vote tallying” mechanisms are hopelessly complex and, in many cases, antiquated, vulnerable, and suspect.   The only way to verify questionable “electronic” results is to compare them with paper ballots, but 14 states do not use paper ballots, and many others use odd combinations of electronic and paper voting, which cannot easily be audited or verified.

Another complication is that merely three companies manufacture our electronic voting machines.  All are owned by major GOP donors—a conflict of interest that is inherently suspect.  Worse yet, the largest of these companies, Diebold, manufactures machines that have repeatedly been revealed to be vulnerable, unreliable, and easy to manipulate.

Still another complication is that the results of the 2016 election have not been verified by any objective, non-partisan third party.  The Green Party candidate, Jill Stein, tried to get an “audit” of the results in the three swing states that gave the Donald Trump his electoral college victory: Wisconsin, Michigan, and Pennsylvania.  Stein succeeded in Wisconsin but was stopped in Michigan and Pennsylvania.  By all accounts, Pennsylvania, where Trump had his biggest margin of victory, has the most decrepit, unreliable, and “hackable” voting mechanisms in the country.

Trump’s total margin of “victory” in these three states, spread out over 222 separates counties, each of which was allowed to audit and verify election results in its own way, was a mere 78,000 votes—less than one tenth of one tenth of one percent of the total national vote.  To imagine that such an outcome was impervious to manipulation is fantastical.

Finally, there is the fact that countless academic studies have exposed the flaws in our system.  To quote one of the leading experts in the field:

America’s voting machines have serious cyber security problems.  This isn’t news.  It’s been documented beyond any doubt over the last decade in numerous peer-reviewed papers and state-sponsored studies by me and by other computer security experts.  We’ve been pointing out for years that voting machines are computers, and they have reprogrammable software, so if attackers can modify that software by infecting the machine with malware, they can cause the machines to give any answer whatsoever.  It doesn’t matter whether the voting machines are connected to the Internet.  

The author of these words goes on to point out that the local boards and committees that oversee our elections lack the knowledge, technical skill, or resources to detect, let alone prevent, the corruption and manipulation of their vote tallies by even moderately sophisticated “attackers.”  He does not claim that such attacks occurred.  He merely states that such attacks were feasible and that no adequate defenses exist to prevent them.

Given these facts, given what we know about Russian actions and intentions, given what we know about the unseemly and cozy relationship between Donald Trump and Vladimir Putin, is it reasonable or responsible to dismiss the possibility that Russia hacked this election?  I think not.

The only way to get to the bottom of this possible scandal is to conduct a true forensic investigation, state by state, county by county, vote by vote.  The reason there is “no evidence” for the direct manipulation of this election by the Russians is that nobody has looked for it.  And thanks to the partisan scheming of Mitch McConnell and Paul Ryan, it is unlikely that anyone ever will.  Until, or unless, such an investigation occurs, we must never, ever, “get over it.”  Given what we know, it is up to Donald Trump to prove that he is the legitimate 45th President of the United States.  That case has yet to be proved.

With the dismal year of 2016 behind us, and the uncertainties of the years ahead hanging over us like a glowering cloud, millions of Americans are facing the future with trepidation, anxiety, and dread.  Muslim Americans worry that they will be forced to register like enemy aliens, will be spied upon, may even be banned; Hispanic Americans fear that a fist will soon pound on the door in the middle of the night and rip their families apart; African Americans are afraid that they will once again be stripped of their voting rights and their most basic civil rights, relegated to a new regime of subordination and humiliation; women are terrified that their long and hard-fought struggle to control their own bodies, make their own reproductive choices, and make a place for themselves in a world too long controlled by men will be swept aside; gay and lesbian Americans shudder to think that their basic humanity will again be denied, that they will be shamed, shunned, and shut away in a closet of social and legal ostracism.  All these—our neighbors, our friends, our family members, our fellow Americans—are asking themselves whether there is any longer a place for them in their own country, whether their country is any longer the United States of America.

These are fundamental and fearful questions, to which there are no clear and present answers.  One thing is clear, however.  We are not the country we were just eighteen months ago, and we are unlikely to be that country ever again.

Since the founding of our republic, we have prided ourselves on the stability and resilience of our democratic institutions, on our role as a morally “exceptional” nation, providing a beacon of hope and inspiration to countless millions around the world “yearning to be free.”

Whatever else we may have learned in the last eighteen months, we have learned—to our ever-lasting shame—that neither of these self-congratulatory myths any longer applies.  Our democratic institutions are far more fragile and defenseless than we ever imagined, and it is abundantly clear that we no longer morally “exceptional”—if, in truth, we ever were.

Little more than a month ago, more than sixty million Americans cast their votes for an autocratic demagogue and  sociopathic bully who has no regard whatsoever for our democratic institutions.  He knows nothing of our constitution and quite obviously doesn’t care.  Even before taking the oath of office, he has committed countless impeachable and criminal offenses, insisting that he, as president, will not be bound by any laws or constitutional limitations.

Such claims are outrageous, of course.  But that is not the problem.  The problem is  that our democracy depends not only on the expressed formalities of law but on the constraints imposed by informal and unspoken political norms.   The only legal remedy to rein in a demagogue like Trump is impeachment.  It is already clear that a slavish and sycophantic Republican Congress is unlikely or unwilling to invoke this remedy, and even if it were, it is by no means certain that Trump would comply.  The sad truth is that our democracy has no way of constraining a president who refuses to abide by political norms and unspoken rules, who refuses to accept the authority of law itself.  When a tyrant in the making, like Donald Trump, chooses to ignore—or deride—such norms, a democracy like ours has no defense.

Trump has already provided ample evidence that he believes himself to be above all normative constraints as well as the law itself.  He has refused to release his tax returns.  He has refused to disclose, let alone divest or separate himself from, his businesses and his  innumerable conflicts of interest.  He has refused to tell us, as he once promised he would, whether his wife violated immigration laws and worked in this country illegally.  Indeed, he has declared that the President of the United States “cannot have a conflict of interest”—a claim so breathtakingly preposterous that it beggars the imagination.

The election of Donald Trump has exposed the Achilles heel of our democracy.  Legal remedies only work when those involved are willing to abide by the law.  Absent that willingness, the only remedy is force.  Since our constitution makes the president the ultimate arbiter when it comes to the use of force, it strains credulity to think that Donald Trump would ever allow himself to be removed from office.  If he is finally exposed to be the criminal that he almost certainly is and nonetheless refuses to go, how will our democratic institutions be capable of compelling him?  The dismal answer is:  they won’t.

The election of Donald Trump has upended another of our consoling national myths—the notion that we are a morally “exceptional” nation.  In confronting Trump’s vulgar and hateful rhetoric, our current President, Barack Obama, has frequently opined: “Those are not our values.  That’s not who we are.”  I wish it were so.

Although a sizable majority of the American people did not vote for Donald Trump, more than sixty million of them did.  Many of those people did not merely excuse, dismiss, or rationalize his inflammatory antics, they hooted, hollered, and cheered him on, applauding his every lie and dismissing any criticism of those lies as “political correctness.”  Any claim we might once have had to being a morally “exceptional” nation has been completely undone by Trump’s election.  He is merely the American embodiment of a virulent political tidal wave that is sweeping across the western world.  There are Trump avatars in the United Kingdom and France; in the Netherlands, Germany, Austria, and Italy; in Poland, Hungary, the Czech Republic, and Serbia; even in the legendarily liberal democracies of Scandinavia.  These “populists,” as they like to call themselves, all bend in the same direction——nationalistic, racist, xenophobic.  They are all supported, and in many cases funded, by Vladimir Putin’s Russia.

I would like to be more optimistic about the future.  I would like to believe that our democracy has enough resilience to survive, recover from this catastrophe, and reconstitute itself, to become, once again, that “city upon the hill” that for more than 200 years offered hope to countless millions around the world.  I am afraid, however, that our claim to being a morally “exceptional” nation is finished and that the death of our democracy will soon follow.  If that democracy somehow survives the presidency of Donald Trump even remotely intact, it will be a lucky and unlikely accident.

In less than 24 hours, the real 2016 presidential election will take place.  Not the mythical election in which the American people supposedly get to decide who their next president will be—but the real election in which an arcane and antiquated institution called the “electoral college” makes the actual decision.  When the 538 members of the “electoral college” gather in their separate states tomorrow to cast their ballots, they will, in all likelihood, elect Donald J. Trump, defying, for the second time in 16 years, the will of a majority of the American people.  In this case, that  majority will amount to almost three million votes—an historical record.  When this occurs (assuming that it does), it will be the culminating failure of a political institution that became obsolete almost on the day it was born and has now become completely moribund.

The principal architect of the electoral college was Alexander Hamilton.  Its purpose was two-fold:

(1) To entice the less populous slave states to join the union by giving them a disproportionate influence over the selection of the president;

(2) To check the impulses of pure democracy on the grounds that “the people” might too easily be persuaded to elect a tyrannical demagogue.

Writing under the pseudonym Publius (the Founders were deeply influenced by the history of the Roman Republic), Hamilton explained his reasoning in the Federalist Papers, a series of 85 essays he co-authored with James Madison and John Jay.  Their purpose was to advocate for the adoption of the Constitution of 1787, which, at the time, was by no means a sure thing. There were those—they called themselves the Anti-Federalists—who wanted a more openly democratic constitution, untrammeled by constraints like the electoral college.  To combat their arguments, Hamilton warned against a particular kind of presidential candidate:

Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.

Reading these words more than two centuries after Hamilton wrote them is akin to reading the declamation of an Old Testament prophet.  It is hard to imagine a more accurate and evocative description of Donald Trump’s particular awfulness than words “talents for low intrigue, and the little arts of popularity.”

The electoral college envisioned by Hamilton was to be a body of men (it was only men in those days) who had sufficient “information and discernment” to prevent the election of just such a disreputable character—a candidate who was “not in an eminent degree endowed with the requisite qualifications.”

More specifically, Hamilton warned against the potential for “foreign powers to gain an improper ascendant in our councils.”  The prescience of this particular warning is stunning. In Donald Trump, we now have a president-elect who appears to welcome the idea of foreign powers—or at least one foreign power, namely Vladimir Putin’s Russia—gaining an “improper ascendant in our councils.”

The ultimate and tragic irony in all this is that the institution Hamilton designed to deny the presidency to a candidate precisely like Trump is now about to anoint him.  That is because Hamilton’s vision of the electoral college—a vision that in hindsight seems hopelessly naïve—went off the rails almost immediately.

In little more than a decade after the Constitution was adopted and ratified, the electoral college had become the plaything of the political partisanship the Founders abhorred.  Even Hamilton himself saw the mistake and the folly.  By then, however, it was too late.  He and his colleagues had given political parties and the individual states an instrument to defy the national popular will, all in the name of  “detachment” and “virtue.”  As wise as the Founders in so many ways were, in this particular way, they proved to be astonishingly foolish.  In striving to prevent an authoritarian demagogue from becoming the President of the United States, they devised an institution that, perversely, has paved the way for just such a result.

The final proof of their folly will almost certainly come tomorrow, when the electoral college votes to elect Donald J. Trump.  For this, we will have Hamilton and other, like-minded Founders to thank.  The electoral college they devised is not merely the political equivalent of a vestigial and useless biological organ, like the appendix or the prostate.  It is a danger to the body politic.  If, when tomorrow comes, the electoral college refuses to fulfill its role, if it refuses to reject a candidate who is “not in an eminent degree endowed with the requisite qualifications,” it will itself—like other vestigial and useless organs—deserve to be cut out and incinerated.

It is now clear beyond any reasonable doubt that the Russians and Vladimir Putin intervened in the 2016 presidential election, not merely to discredit and destabilize our democratic institutions, but specifically to ensure that Donald Trump would defeat Hillary Clinton and become our next president.  We have learned that the Russians hacked the servers of both the Democratic and Republican National Committees.  They chose solely to leak agitprop damaging to the Democrats, using Wikileaks as their compliant mouthpiece.  We do not yet know whether Russian intervention went further, extending to the manipulation of electronic voting records in the crucial swing states of Michigan, Wisconsin, and Pennsylvania.  When the audits initiated by the Green Party candidate, Jill Stein, are completed, we may have an answer—or not.  What we do know is that the Department of Homeland Security was sufficiently worried several weeks before the election to warn the states against the vulnerabilities of their vote-tallying mechanisms and to offer its help in protecting those mechanisms.  Shamefully few states accepted that offer.

In response to all this, Donald Trump and his campaign staff have dismissed the conclusions of our intelligence agencies and have belittled those agencies for past mistakes.  Trump himself blamed the intervention on China or “some guy in New Jersey” rather than the obvious culprit, which is the Russian government.  There are three possible reasons for this dismissive and irresponsible reaction.

One is that Trump is so insecure that he feels compelled to repudiate any person or fact that threatens his fragile ego.  If he were to admit to the possibility that the election was stolen, he would of course become a “loser,” which may be the most insulting word in his limited and crude vocabulary.

Another is that Trump and his children intend to continue doing business with the Russians and believe that any admission of Russian wrongdoing would undermine their chances of getting richer than they already are.

Still another is that Trump and his campaign actively colluded with the Russians to undercut Hillary Clinton and to rig the election, a prospect that is not only terrifying but ironic, since Trump on the stump never tired of claiming that the election was indeed going to be rigged—against him.

All these potential explanations for Trump’s response are dismal, but the second and the third are worse than dismal; they are positively sinister.  If Trump or his children intend to continue doing business with Russia while he sits in the White House, he will be violating the constitution and will be impeachable the moment he takes the oath of office.  If he and his campaign actually colluded with the Russians, they have already committed treason, and Trump is open to remedies far worse than impeachment.  Is it even remotely plausible that either of these  possibilities might be true?

The answer, unfortunately, is yes.

The Trump family has already admitted to extensive business dealings with Russia.  At least one Russian oligarch—a gangster in all but name, who is a member of Putin’s inner circle—has invested heavily in a variety of Trump projects.  Trump’s former campaign manager collected millions for consulting and lobbying in behalf of Ukraine’s ousted president, a Putin  lackey and protégé.  Trump’s national security adviser-to-be was a contributor to Russia’s state-owned television network, RT, which is little more than a propaganda arm of the Kremlin.  And Trump’s likely nominee for Secretary of State is the CEO of ExxonMobil, who has a long and deep relationship with Putin; he and his company stand to gain enormously if the foreign policy of the United States turns in a Russia-friendly direction.

In a court of law, these facts would be considered “circumstantial evidence,” insufficient to produce a guilty verdict.  In the court of public opinion, they should at the very least make us profoundly suspicious.

President Barack Obama has initiated a investigation into the role Vladimir Putin’s Russia played in manipulating our election.  Democrats and at least three Republicans have called for a parallel investigation in the Senate.  These steps are all well and good, and they may help to avert similar catastrophes in the future.  But they come too late to correct the current catastrophe.

We are left to confront the fact that our democracy has few constitutional or legal weapons to defend itself against an unprecedented attack on its most fundamental institution, namely, free, fair, and honest elections.  Given what we already know, the 2016 presidential election should, by any rational calculus, be nullified, and we should be starting all over again, from scratch.  That we have no mechanism for contemplating, let alone acting upon, such a step is our greatest weakness.  Having successfully exploited that weakness once, it is all but certain that Russia—or some other hostile power—will do so again.

Whatever comes of this, one thing is now certain:  the legitimacy of Donald Trump’s presidency is forfeit.  He can bluster and bully all he wants, he can wreak as much social and economic damage on the country as his time in office allows, but he can never claim to be the democratically elected President of the United States.

When Fidel Castro died five days ago, after more than fifty years at the helm of Marxist Cuba, Canada’s charismatic prime minister, Justin Trudeau, lamented his passing, observing that Castro had been “a remarkable leader who served his people.”  All hell immediately broke loose, less in Trudeau’s Canada than  here, south of the border, in the United States.

Marco Rubio and Ted Cruz, who have long peddled their “life stories” as tales of victimhood under the Castro regime, were quick to disgorge ritual outrage and predictable sanctimony.  Rubio assailed Trudeau’s comments as “shameful and embarrassing;” Cruz called them “disgraceful.”

Coming from the likes of Rubio and Cruz, such rhetorical dudgeon is richly ironic as well as hypocritical, since neither has even the slightest claim to victimhood.  Rubio’s parents emigrated to the United States several years before Castro came to power and suffered not a moment under his regime.  Indeed, they several times considered returning.  Cruz’s Cuban father not only did not suffer, he actually fought in the revolution that Castro led.  When, later in life, his youthful idealism became inconvenient and embarrassing, Cruz père tried to explain it away by claiming that he never realized Castro was a communist—a claim so preposterous that neither Cruz père nor Cruz fils can utter it with a straight face.

The preposterous life stories that Rubio and Cruz have peddled are in no way atypical.  On the contrary, they exemplify a mythology that has sustained Cuban “exiles” from the day they landed on the shores of South Florida and began their coddled, privileged and highly subsidized life in the country that decided to give them shelter.

It is not my intention to defend Castro the dictator or to excuse the worst excesses of the Marxist government that he led, but a long, deep breath of historical context is in order.  For more than fifty years, Americans have been fed such a steady diet of Castro-bashing—not only by the politically powerful Cuban émigré community but also by our own government— that we have lost all sense of proportion or any sense of who the victims really were and are.

Castro was born to privilege and wealth.  He could easily have spent his life enjoying both.  Instead, he decided to champion the cause of those who lacked either, who were, in fact, the victims of the privileged and the wealthy.

Starting in 1956, Fidel Castro led a guerrilla war in the western mountains of Cuba against the corrupt military dictator who then ruled his country.  The name of that dictator was Fulgencio Batista.  For all Castro’s later abuses of power, they pale in comparison with Batista’s dismal record.  Batista conspired with Cuba’s richest landowners, the American mafia, and dozens of major U.S. corporations to exploit the Cuban people and to enrich himself.  In this, he was not only encouraged but actively helped by the government of the United States.  For years, our government gave Batista military and financial support, knowing full well how corrupt he was.

As resistance to Batista’s autocratic rule intensified, he executed thousands of dissidents and political opponents, jailing and torturing many more.  Castro’s guerrilla war soon turned into a full-scale national revolution.  When it became clear that this revolution could no longer be contained, Batista abandoned his supporters and fled the country, with a personal fortune of $300 million.

The nation that Fidel Castro inherited from Batista was a political, social and economic wreck.  The top echelons of Cuban society—a handful of powerful landowners of Spanish descent, upper-middle-class professionals, and influential business people—owned virtually all the wealth, while the vast majority of Cubans were living in a desperate poverty.  Castro’s first concern was to remedy this fundamental inequity.  In less than three years, he vastly expanded public education, built hundreds of miles of new roads, brought clean water and sanitation to countless towns and villages, and created a national health care system that is, to this day, one of the finest in the world, producing results that are as good or better than those in the United States for a fraction of the cost.

Castro’s American critics, particularly those in the Cuban émigré community based in South Florida, would like us to believe that he was Satan incarnate, that they, in turn, are his innocent victims.  This is a fairy tale.  The first wave of Cubans who fled in the wake of Castro’s victory—about 100,000 out of a total population of seven million—were not victims.  They were the beneficiaries of and complicit in Batista’s crimes.  They did not come to the United States seeking freedom.  They came seeking to escape punishment.

Castro’s critics would also like us to believe that his social and economic experiment—the creation of the only explicitly Marxist polity in the Western Hemisphere—has been a total failure and was doomed to failure from the start.  This, too, is a fairy tale.  The most remarkable aspect of Castro’s experiment is not its failure but, rather, its ability to survive against seemingly insurmountable odds.

From the moment Castro took power, the government of the United States set out to strangle, starve, and extinguish the Cuban experiment.  Our obsession was so intense that we tried (and notoriously failed) to invade the country, that we repeatedly tried (and no less notoriously failed) to assassinate Castro himself, that we were even prepared to risk nuclear war with the Soviet Union to bring Castro down.  For almost sixty years, we imposed embargoes and blockades, we harassed and intimidated, we used every trick in the spymaster’s book to vilify Castro’s Cuba and Castro himself.  In the end, none of it worked.  Against all odds, Castro’s Cuba struggled on and survived.

That is why, when a few thousand jubilant Cuban émigrés were dancing in the streets of Miami to ghoulishly celebrate Fidel Castro’s death, millions of ordinary people in Cuba itself were, with tears in their eyes, filling the streets to shout: Viva Fidel.