Wednesday, July 3, 2024

First Brief Comment on the Immunity Decision (the Rebuttable Presumption Theory)




All of you will of course have read or heard by now that the Supreme Court, has by a 6-3 majority, recently distinguished two sorts of "official acts" a U.S. President may engage in: those that are explicitly reserved for our nation's chief executive by language within the Constitution (or is at least implied by this Court's extremely robust theory of the separation of powers), and those that are not dispositively out of prosecutorial range, but are nevertheless related somehow to the President's explicitly enumerated Constitutional responsibilities--even if only peripherally. 

What has been frequently written, broadcast and posted about what the Court said about this division of Presidential activities is that the first group must have "absolute immunity" from prosecution, while the second group is afforded only a presumption of immunity, one that may be rebutted by prosecutors at trial. 

That isn't quite right, though.

Here's what the Roberts decision actually says about this matter:

"We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient."

"The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct."


"[W]e conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility."


"At a minimum, the President must...be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch."


"The President...therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts."


As you see, no fewer than five times did the Court quite clearly indicate that there is at least or at a minimum a rebuttable presumption of immunity for any ex-President who is accused of violating a criminal law for any even marginally "official" act taken while President. It thus seems to me quite obvious that the Roberts Court has given an unmistakable warning that (assuming Trump does not win the election and make this whole business go away forever) if a lower court were to hold that a presumption of Trump's immunity from prosecution were effectively rebutted by the prosecution in the case of his attempted coup or fraudulent elector scheme, it would be perfectly consistent for SCOTUS subsequently to decide on appeal that having a rebuttable presumption of immunity just turns out to be insufficient to afford certain Presidents who may want to take bribes or effect coups or overturn elections the certainty of stress-free retirements. For, as they repeatedly told us, we don't want our Presidents to be afraid to be bold!


So, contrary to a lot of reports about this decision, Roberts and his colleagues have made it crystal clear that granting Trump something better than a mere rebuttable presumption of immunity is precisely what we should expect in the unlikely event that this case somehow continues to survive its long swirl around the drain for another trip to the immense heights of the Supreme Court of the United States, our absolute guarantors of equal justice for all.

Tuesday, June 18, 2024

Why I Stay Under My Bed


I've never done anything like this before, but this Sidney Blumenthal piece in The Guardian is so good, and captures what's ruining any chance for anything resembling democracy in the U.S. to occur in the near future so well, that I can't resist putting a link to it here. 


If you're reading this, you know that I mostly write about democratic theory. But any sort of democracy--even the quite skimpy version available in the U.S. since it's earliest days--requires at least a modicum of sanity and a dollop of self-worth among the electorate. Those elements don't seem to be available in sufficient amounts in one of our two major parties at present to support elections.


To understand, what I mean, one really should read this. Sadly, it seems that sometimes you just have to say out loud, "Theory, Shmeory."



Saturday, May 25, 2024

I Try to Review Elgar Publishing's New (and Encyclopedic) "Handbook" on Populism




My background is in philosophy, meaning that I'm not trained in any empirical science, social or otherwise. Neither can I properly be called a successful auto-didact in any scientific area--in spite of my long-term interests in psychology and political science. Arguably, I am insufficiently sedulous, or maybe just too capricious--to have studied those subjects in the careful, methodical manner required to earn that designation. 

In addition to those flaws, maybe as a result of reading so many great works by philosophical and literary giants over the years, I have come to be drawn to writings that seem (to me, anyhow) to be of lasting value. But the desire to be widely read for philosophical elucidation and/or aesthetic pleasure 100 years from now cannot have been among the goals of the editors or publisher here. A snapshot of the current state of research is simply not that sort of work. 

In view of my multiple disqualifications, I am probably not the best choice to review Elgar's new Research Handbook on Populism, (edited by Yannis Stavrakakis and Giorgos Katsambekis). Nevertheless, I gave that task a shot. And, to be honest, I did learn a few things about both populism and social science research methodologies that I did not know before. But to be even more candid, I will admit to not being entirely sure it was worth the (fairly considerable) time and effort it took for me to absorb even those small portions of this giant tome that I did manage to plow through. 

Anyhow, I hope the publisher, editors. and authors will take my review with a grain of salt, and chalk up the criticisms therein to Horn being an old dilettante who should stick to Hobbes, Hall, Hart, Huxley, and Haack (and if he absolutely MUST be allowed to muse out loud about some non-H-surnamed thinker, maybe Trollope or the Buddha), and stay the hell out of the way of scholars who are either conducting or writing about actual SCIENTIFIC RESEARCH!

Incidentally, just the other day, I received the (extremely generous, given the cost of these books) offer from Elgar Publishing to also review their next Research Handbook: this one on authoritarianism! Perhaps strangely, I was a little bit tempted. But I'm pretty sure we'll both be happier if I take a pass this time. 


Thursday, April 25, 2024

A Break From Democracy Articles With Some Democratic Music

 



While I slowly slog through Edward Elgar Publishing's new and massive Research Handbook on Populism, which will be the subject of my next review and also work on a few revisions to a paper on epistemic democracy I recently completed, I thought a few of my readers here (two or three maybe?) might like to hear some new freely improvised music from--as anyone can easily tell from the picture above--Framed Ophelia (though obviously not the pre-Raphaelite version). You can listen free at Bandcamp

If, as I suspect, a couple of quick, easy-to-swallow excerpts is way more than enough for most democracy researchers, I recommend tasting "Robot Beat Poets" and "Swarm Intelligence"--maybe topped off with "A Brief Dilemma."  (Yoshi can be soooo lyrical.) 

FWIW, I insist that, while these recordings represent neither left- nor right-wing populism, they do kind of symbolize authentic, radical democracy--even if of a kind that is sometimes a bit undistilled for my liking. That's life, I guess.

Here's a bit more, for those with an interest in the solemnity of Graduation Days:

Back soon with the regular (more boring? less annoying?) stuff. 

Cheers.

Thursday, April 18, 2024

Are There Any Important New Books on Democracy That are Fun to Read?

  




After writing what seems like a hundred reviews of contemporary books on democratic theory, my own (likely idiosyncratic) view about the current lit is that the best stuff written this century so far is by Roslyn Fuller. She has three recent books on the subject (and I understand is about to start a fourth). I have just completed a review of one of them: Defence of DemocracyI here provide the last three sentences as a bit of a teaser/trailer. 

This is a terrific work that would be important for its informative discussion of Athenian democracy alone. It’s not only fun to read and convincing, but the issues it addresses are of the highest importance. In fact, it’s my view that Fuller is the heir apparent to Robert Dahl, and that she is currently producing the most valuable and readable contributions to political theory that anyone is likely to find anywhere. Highly recommended.

 

[NB: The picture above is of the book's author!]


Friday, March 8, 2024

Can "Wasted Vote" Really Mean All These Things?



 

Those who have hung around "voting reform" advocates for any period of time will have surely heard nearly every group brag that the particular procedure they are pushing has the most wondrous merit of reducing (maybe even eliminating!) wasted votes. This is claimed to be a big deal because the wasting of votes exhibited by the most common voting method around the world, First-Past-The-Post (or "FPTP," the procedure where a bunch of people or things run against each other, and whichever person or thing gets the most votes wins) is said to be particularly profligate.  Lots and lots of votes are claimed to be wasted with FPTP. Maybe all of those cast for losers; even, maybe, a lot of those cast for the winner too if he, she, or it won by a landslide!

 One of the great virtues often claimed for non-FPTP voting methods is that each (brilliant) procedure being proposed is said to cut down tremendously on FPTP vote wastage, which, to its eternal disgrace, rivals that of the tonnage of food still thrown away by wealthy nations--even in our era of widespread inexpensive refrigeration.

A problem with this brag is that there are several widely diverging understandings of just what a wasted vote is. The old-fashioned and perhaps still the most common understanding, one that elicited several papers in the scholarly press in the 70s and 80s to the effect that no vote is ever entirely wasted (and the one with which Ralph Nader and other third party supporters have to deal pretty regularly) is this:

(1) A wasted vote is any vote cast for a candidate or question that has no legitimate chance of winning the election in which the vote is cast.

It's easy to see why people have claimed that this definition is vague, and that rather than being clarified, it should just be dropped altogether. First, what's a "legitimate chance"? Furthermore, people vote for lots of reasons besides obtaining a winner, and many will deny that a vote they have made as a protest or to improve a party's future or just to piss off a neighbor has been "wasted." But whether or not (1) is a good definition, it may well still be the most common understanding around. And there's little doubt that the fighting over whether somebody has or hasn't absolutely wrecked everything by wasting their vote (as so understood) is likely to continue.

Perhaps because Definition (1) has caused so much ill-will over the years, a newer and arguably less contentious one has gained prominence. If one looks up "wasted vote" in Wikipedia (as, of course, anyone with a question about anything always does these days), one will find this new, (and maybe improved?) version

"In electoral systems, a wasted vote is any vote that does not receive representation in the final election outcome."

Of course, one might ask, just which votes in an election do "receive representation"? Always happy to help, the Wiki author(s) of this entry have supplied the following answer: 

There are two different types of wasted votes:

  • Excess votes are votes that a candidate receives above and beyond what was needed.
  • Lost votes are votes that were not enough to make an impact by winning a seat.

Sometimes the term "wasted vote" is used by those referring only to "lost votes," while others use the term to refer to the sum of the lost votes and the excess votes.

Here, it seems, is where the idea comes from that lots (maybe almost all!) votes are wasted in nearly every election, regardless of the sort of procedure being used. I'll put the definition this way:

(2) A wasted vote is any vote that was not needed for the winning candidate or question to have won. If the person who cast such a vote had stayed home, it would have made no difference to to the eventual results.

I must say that, whether or not (2) is less contentious and/or ambiguous than (1), I have no idea what it means. I take it that in a FPTP election, it takes only one vote more than those cast for anybody or anything else to make a winner. So, under this definition, only one vote in any election having a winner will be unwasted. But...which one? Who knows?

It is quite possible that the weirdness of both (1) and (2) has played a significant role in leading to the creation of a third version that can be found around the voting method advocacy water bubblers. FairVote, a large organization pushing Ranked Choice as the way to go defines "wasted votes" as follows:

Wasted votes occur when a candidate's name appears on the ballot after they have dropped out of the race. Early and mail-in voters often fill out ballots a week or more ahead of Election Day, before they know which candidates will be active when their state holds its primary.

While I haven't exactly searched high and low regarding this matter, if I'm honest, I have the sneaking suspicion that FairVote might like this extremely restrictive definition of what a wasted vote is because if you use it, ranked choice looks good. I'm not entirely making this up, incidentally: I get it from this additional remark of theirs:

Early voting isn't the problem; our "choose one" voting method is to blame for wasted votes. Ranked choice voting ensures every vote is counted, and every voice is heard when choosing presidential nominees. It empowers voters....If their favorite candidate has dropped out, their ballots are still valid.

Certainly, if "wasted votes" mean what FairVote says it does, we can presume that any system that allows you to vote for a bunch of candidates (this would include Approval Voting too, btw) is much less likely to produce waste. In any case, here is my rendering of this definition:

(3) A wasted vote is any vote cast for a person who is on a ballot in spite of dropping out of that race prior to Election Day.

This one has the virtue of being clear and understandable, but even if its sole purpose was not to make ranked choice look good compared to its most popular competitor, nobody prior to this FairVote concoction (and nobody else since as far as I know), has ever put forward such a restrictive understanding of what it is to waste a vote. I mean, it's one way for sure but....aren't there many others?

My point in all this is just to suggest that the next time you use the term "wasted vote," maybe think about what you mean by it. Is it one of the three concepts described above? Something else? And the next time you hear anybody else use it, maybe ask them what they mean. 


Alternatively, maybe switch to "squander"! Because it's now election season here in the U.S.A., folks, and it may be the last time we get to freely squander anything!  Fare thee well, my poor fellow Americans! {As you can see, I've rolled back under my bed now.} 

Wednesday, February 28, 2024

Is Picking Representatives by Lottery More Democratic Than Electing Them?

 


There is widespread agreement these days that elections aren't working very well for the people of supposedly democratic polities around the world. There's a lot of blame to go around and plenty of suspects to nail it on: Parties, Single-Winner Districts, First-Past-The-Post Majoritarianism, Special Interests, Incumbency Stickiness, Campaign Finance Shortcomings, Endless Campaigns, Polarization, Vote Splitting, Referendums, Lack of Referendums, Anti-Majoritarian Federalism, Recall Perils, Lack of Recall Availability, Etc., Etc., Etc. As a result of all these flaws, it has seemed for some time that electoral politics is a waste of time and money--at least for regular folks.

It's unsurprising, then, that there has been a big renewed interest in doing things the way the Ancient Athenians (sometimes) did them. The Occupy Wall Street movement notwithstanding, most modern countries--and even their major political subdivisions--seem much too big to have all of the legislative, executive and judicial obligations of government handled exclusively by the entire mass of citizens anywhere, but the idea of picking representatives by lot has made a huge comeback. After all, if that single (though radical) change were made, a lot of the problems mentioned above could simply be scratched off the list.

And it isn't just political scientists and historians who have been pushing this change* advocates have found their way into popular media as well. A tiny selection of the organs that have included positive pieces on the idea recently include: Vox, Irish Times, Bloomberg, Boston Review, NJ.Com, San Diego Union-Tribune, Aeon, The Boston Globe and India Today. There are many other examples that could be given.

So, does the ancient past give us the best solution to our current political morass? I take up that question in my new review of David Van Reybrouck's book, Against Elections: The Case for Democracy, here.

_________________

* Although there definitely are a bunch of recent books on the subject. You can find a batch of them listed here. (One quite engaging book on the alleged superiority of Athenian democracy not mentioned there is Roslyn Fuller's Beasts and Gods.)