“Before he [the President] enter on the Execution of his Office, he shall take the following Oath or Affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” —Article 2, Section 1 of the U.S. Constitution
“The President of the Senate [the Vice President of the United States] shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.” —Article 2, Section 1 of the U.S. Constitution
This afternoon, a mob went to the Capitol at the instigation of the incumbent President. By forcibly entering that seat of government, it prevented Congress from carrying out a duty prescribed by the Constitution itself. With this action, Mr. Trump has demonstrated, explicitly, that he cannot be relied upon to ensure that the provisions of the Constitution of the United States are carried out. Instead, he has indicated a desire to actively obstruct them through the incitement of brute and unlawful force. While he remains in office, our Republic is in immediate and dire peril.
It is thus now my belief, as a private citizen, that, in order to preserve our Republic, the incumbent President ought at once to be impeached, again, and this time removed from office by the Congress that he has menaced through his actions today; and this action ought to be done immediately before or else directly after the counting of Electoral College votes is resumed and finished. The incumbent Vice President, it appears, may be relied upon to oversee the functions of government for the two weeks remaining before President-Elect Biden’s assumption of the responsibility to preserve, protect, and defend the Constitution of the United States, as the President is bound by oath to do.
I think, also, that it will now be necessary for ordinary, healthy Americans who are able to do so to attend the inauguration ceremony in Washington, D.C., on January 20th, and by their presence—unarmed and peaceful—to present a barrier to those who might attempt to disrupt that necessary and vital function of the Constitution. Under present circumstances—the Covid-19 pandemic—it is unfortunate that this must be the case. But, to my regret, I believe that it has been forced on us.
A Republic cannot persevere unless its citizens stand up for it.
Update January 12, 2021: The Mayor of the District of Columbia and the Governors of Maryland and Virginia have discouraged citizens from coming to Washington, D.C. for the Inauguration in person. I fear that this may be an unwise course of action, but I hope nonetheless that they are correct in their assurance that “we will get through this period because American ideals are stronger than one extreme ideology.” Their statement:
“The History of the present King of Great-Britain is a
History of repeated Injuries and Usurpations, all having in direct Object the
Establishment of an absolute Tyranny over these States. To prove this, let
Facts be submitted to a candid World.” —The Declaration of Independence.
The impending Presidential election does not present an
ideal choice to those whose foremost concern is the upkeep of our Republic’s
might and liberty. But it does, in my view, present an easy choice.
The history of the incumbent President of the United States
is a history of repeated injuries and usurpations, all tending in instinct
toward—though not yet mature in execution—the establishment of a capricious
tyranny over these States. To show this, let facts be submitted to our
He has openly voiced his desire to remain in office past
the term limit imposed by the Constitution of the United States, and he has
several times refused to say that he would accept the results of elections
in which he is a candidate and commit to a peaceable transfer of power,
should he emerge the loser;
He has rendered his party and his administration into empty
cults of personality;
He has not comported himself with any dignity,
and he has demeaned
the office of the President;
He has displayed gross incompetence in the actual practice
he has been indifferent to the suffering of his fellow citizens in natural disasters,
and he has recklessly endangered the health
of the nation throughout the course of the plague that
presently engulfs it;
He is, in sum, one of those base demagogues who embrace the dark contradiction of ‘illiberal democracy’ and see election to high public office not as a summons to serve, but as an invitation to rule. As Edmund Burke said of them: “Their liberty is not liberal. Their science is presumptuous ignorance. Their humanity is savage and brutal.”
And as such,
He does not deserve reelection. Indeed, to reward such an attempt at the chaotic establishment of personal rule would be to set our Republic, so dearly won and kept from 1776 until the present day, firmly if not irretrievably on the dim, dusty road to despotism.
Should the people of the several States, in accordance with the method prescribed by the Constitution of the United States, nonetheless choose to reelect Mr. Trump to the Presidency, then so be it. It would be a foolish choice, and I venture to say that all Americans would come to realize that before many years have passed. But a choice it is, and lawful.
If, however, the incumbent President refuses to yield upon
defeat, or if he attempts to intervene in the conduct of the election, then his
challenger shall be, or of right ought to be, the lawful President of the
United States; and unlawful orders given by the incumbent ought rightly to be
ignored by all of the officers of government.
The preceding argument ought not to be taken as an
unqualified endorsement of the opposition party. Contained within its fold are
some whose embrace of illiberal democracy is as fulsome as Mr. Trump’s. In the
words of Burke:
“They have no respect for the wisdom of others; but they pay
it off by a very full measure of confidence in their own. With them it is a
sufficient motive to destroy an old scheme of things, because it is an old one.
As to the new, they are in no sort of fear with regard to the duration of a
building run up in haste; because duration is no object to those who think
little or nothing has been done before their time, and who place all their
hopes in discovery. They conceive, very systematically, that all things which
give perpetuity are mischievous, and therefore they are at inexpiable war with
all establishments. They think that government may vary like modes of dress,
and with as little ill effect. That there needs no principle of attachment,
except a sense of present conveniency, to any constitution of the state. …Their
attachment to their country itself, is only so far as it agrees with some of
their fleeting projects; it begins and ends with that scheme of polity which
falls in with their momentary opinion.”
In due course, as these self-proclaimed revolutionaries,
these purveyors of ‘cancel culture’ and ‘critical theory’ who seek to silence
all voices but their own, aspire to power, it shall become the duty of all who
wish to preserve our Republic to oppose them with the same steadfastness with
which we now oppose Mr. Trump.
Mr. Biden is no such menace. He is a decent man, moderate and conciliatory in his instincts, and committed to the perpetuation of our Union’s Constitutional order. Earlier this year, he took on the peddlers of illiberal democracy in his own party, and routed them. Should he go on to rout Mr. Trump in turn, as the best interest of the country demands, we as citizens may place our trust in him as President. He has shown his willingness to approach the task, as Abraham Lincoln once did, with malice toward none and charity for all; and he shall at least attempt, in good faith, to bind up our nation’s wounds.
I intend to vote for Mr. Biden, satisfied in my mind that
his accession to the Presidency, though it would likely result in policies which
I think are imprudent, is unequivocally the outcome most favorable to the
preservation of the Constitution of the United States; and it is my first duty,
and that of all citizens, to uphold that Constitution through the exercise of
our civic rights. Mr. Biden’s election shall not in itself be enough to ensure
our Republic’s future as a free and vigorous Union, but it makes such a bright future
Some will disagree. So, let us, as a nation, bring this contest to decision. It is time to vote; to accept the result once all votes have been counted; and then to turn our attention to whatever events next year brings.
“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.” —Second Amendment to the U.S. Constitution.
“The Congress shall have Power… To provide for organizing,
arming, and disciplining, the Militia, and for governing such Part of them as
may be employed in the Service of the United States, reserving to the States
respectively, the Appointment of the Officers, and the Authority of training
the Militia according to the discipline prescribed by Congress.” —Article 1,
Logically, there exist three legitimate purposes, broadly
defined, for ordinary citizens to keep and bear arms. These ends are, as
1. The use of arms for recreational pursuits, which include but are not limited to hunting, sport, outdoorsmanship, and collecting. These may be considered general liberties, which, like any other ordinary freedom, ought not to be prohibited except when their exercise would do harm to others, and which may be regulated so as to avert conditions that would cause such harm.
2. Self-defense and, under certain circumstances, defense of property. This is a natural right, which every person possesses inherently.
3. Providing for the security of a free state as part of a well-regulated militia. This is the purpose stated in and forming the basis for the Second Amendment. It is, under the laws of the United States, and in certainconditionsspecified therein, a duty.
From this third purpose, it follows that—
In order to provide for the security of a free state,
which is ruled by the consent of the governed and is respectful of individual
liberty, a militia must:
1. Be well regulated; i.e., be properly trained, disciplined, and equipped for the tasks it is to fulfill, and have clear standards defining what its members may and may not do.
2. Be accountable to the people.
Only an elected government can act on behalf of the people.
As John Locke, whose thought guided our Republic’s Founders, wrote in his
Second Treatise of Government:
“The constitution of the legislative is the first and
fundamental act of society, whereby provision is made for the continuance of
their union, under the direction of persons, and bonds of laws, made by persons
authorized thereunto, by the consent and appointment of the people, without
which no one man, or number of men, amongst them, can have authority of making
laws that shall be binding to the rest.”
In the United States, the legislative power is vested in Congress
and in state and local legislatures.
Furthermore, it does no good for a militia to be accountable
to the elected government of one city or State, if it goes to operate in a
different one without having been invited there by the elected government of that
community. To do so would be tantamount to invasion, unless—and only unless—it
is sent there by a higher government that is representative of the people of
Thus, according to the Constitution, Congress prescribes regulations for the militia, and the state governments implement those regulations by training the militia and appointing its officers. State governments may call forth the militia and control its operations within their State, unless the militia is called into the service of the United States (federal service), wherein it is temporarily directed by the federal government and may be ordered anywhere in the Union.
State legislatures, as they possess the general powers of government, may choose to delegate some authority to local governments to recruit, train, and direct a part of the militia. In the past, towns and cities would raise units which were then integrated into the state militia upon their acceptance by the state government.
The militia has evolved over time. The Militia
Act of 1903 divided it into two bodies, which remain in existence
today: the National Guard, known also as the organized militia and comprised of
volunteers, and the Reserve Militia, known also as the unorganized militia and
comprising all able-bodied male citizens between 17 and 45 years of age.
The National Guard fulfills most of the old militia’s former
roles: namely, to augment
the regular forces of the United States in times of war, to defend each State
against internal violence, and to assist the civil authorities in the case of
Moreover, regular state and local police forces—which did not exist as such in the early days of our Republic—now hold primary responsibility for protecting their localities from internal violence, in addition to their ordinary duties of law enforcement.
As a result, there are few circumstances that would warrant calling forth the unorganized militia today. It is therefore unlikely that ordinary citizens shall be called on to provide for the security of their State.
That fact does not imply that the right to keep and bear arms is obsolete, nor that the concept of a militia is entirely archaic; it only means that there is not presently a great need for it. The logic of the Second Amendment, that there is value to a free state in having an armed populace from which to draw a broad-based militia, has dormant force. Under exceptionally dire circumstances, such as a foreign invasion or a prolonged breakdown of central authority, it may indeed become necessary to raise a militia that is accountable to the elected government of a State, or even a municipality.
The preceding logic does mean, unequivocally, that Americans ought under no circumstances to form ‘militias’ that are not directly accountable to the elected legislature of a municipality, a State, or the Union. Self-proclaimed militias which answer only to themselves, even if they claim to represent some imagined idea of the popular will, are mere militant groups, not the militia defined by American tradition and the Constitution of the United States. Their multiplication today endangers the security of a free state. It is thus in direct violation of the Second Amendment.
This danger has been made clear by recent events. A young man crossed a state line to travel to Kenosha, Wisconsin, armed, at the behest of such a self-styled militia, and killed two people there. He may yet be acquitted of the narrow charge of murder, if reason can be given to show that his immediate act of killing was done in self-defense.
But his larger action, and that of the group
he associated himself with, brazenly defied the spirit of the Constitution.
He was not defending his own home, which as a private citizen he might claim a
right to do. Indeed, he could not claim to have been defending his own city, or
even his own state: for he was a resident of Illinois, not of Wisconsin. The
‘militia’ whose call he answered is in no way accountable to the elected
governments of Wisconsin or Kenosha; indeed, the city authorities had expressly
it away. Neither it nor he had any business pretending to provide
‘security’ there. In doing so, they defied the popular will.
The act that occurred soon thereafter in Portland, Oregon was
similar in nature. An individual traveled
from his home
in Washington state to Portland, where he fancied himself to be providing
‘security’ for protests, and there killed a man. He had no more business there
than his counterpart did in Kenosha; nor is the group he associated with, the
self-styled ‘antifa,’ any more accountable to the elected governments of Oregon
or Portland than the ‘Kenosha Guard’ is to the elected government of that city.
That ‘antifa’ is more diffuse than the self-proclaimed
militias of the extreme right does not make it fundamentally different in character.
It is a militant group, unaccountable to the people, whose affiliates seek to
ape the roles of a militia while assuming none of the obligations of one. Such
groups, whether they profess political alignment with the left or the right,
ought to be equally unwelcome in our Republic.
Furthermore, the argument that militants were justified in
coming to Kenosha and Portland because they had to protect the people there who
were, at that moment, in danger, is wholly unconvincing. That violent unrest was
occurring, or had occurred, in both cities is undeniable. But if the people of
those cities needed outside aid, their elected government—and only their
elected government—had the authority to request it on their behalf.
Indeed, in Kenosha, an accountable response to the rioting soon unfolded. The city government requested that the State of Wisconsin send in the National Guard. The state government responded: the Wisconsin National Guard deployed, followed by National Guard units from other States, which the government of Wisconsin had itself requested. Within a week, they restored the peace.
Responsibility for securing a free state begins and ends with a freely elected government, and a well-regulated militia is only the latent force of that government, mobilized at its call and no other’s. Those Americans who aspire to militia service as a civic calling ought thus to consider joining the National Guard. Others ought merely to be ready to answer their government’s call, should it come, and be content with the fact that it may not come in their lifetime. None ought to associate with unaccountable militants.
In regard to the present situation in these United States, it is with local and state governments that responsibility for dealing with domestic unrest primarily lies, and those authorities ought now to concentrate their minds on securing their citizens’ lives and property. Riotous behavior, and the militancy that it attracts, has gone on long enough. Although the task at hand may be made more difficult by federal intervention, which, though broadly lawful, is at present largely unconstructive, the time for excuses has passed. The outcome of the general election this November, and the faith of the people in elected government generally, may hinge in large part on whether the streets are soon calmed. Discipline and perseverance are needed; the future of the Republic is at stake.
 When hunting is done for subsistence, it assumes the station of a natural right and carries greater moral weight.
 Locke articulates it well in his Second Treatise of
“…it being reasonable and just, I should have right to
destroy that which threatens me with destruction: for, by the fundamental
law of nature, man being to be preserved as much as possible, when all
cannot be preserved, the safety of the innocent is to be preferred: and one may
destroy a man who makes war upon him, or has discovered an enmity to his being,
for the same reason that he may kill a wolf or a lion… that will
be sure to destroy him whenever he falls into their power.”
In regards to defense of property, lethal means may be
morally justified if the property concerned is necessary for the sustenance of
life, such as food in a time of famine, or a vital medicine; and also if the
attack on property is indistinguishable from an assault on one’s life, such as
a mugging, or a burglary if the homeowner or his/her family is inside.
In the words of Locke:
“This makes it lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life, any farther than, by the use of force, so to get him in his power, as to take away his money, or what he pleases, from him; because using force, where he has no right, to get me into his power, let his pretence be what it will, I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away everything else.”
It must be noted here that Locke, and I, speak only of moral right; the actual laws of the United States and the several States differ on the particular circumstances in which lethal self-defense is permissible.
 As occurred, for instance, when National Guard units
from several States were deployed to New Orleans in response to Hurricane
 For a more detailed accounting of this history, I
recommend the excellent short piece at the following link:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” —Fourth Amendment to the U.S. Constitution.
On May 31st, I closed
my observations with the hope that, in places where rioting persisted, lawful
authorities would stop it only with proportionate means, without
vindictiveness, and without harm to peaceable protesters. In cities throughout
our Union, most violence soon subsided, due largely to the discipline of the
many who came to demonstrate peacefully.
Yet in Portland, Oregon, hazards to liberty have arisen from
the federal response to the few who persist with violence. That response, in
the whole, has been marked by excess, vindictiveness, and harm to peaceable
protesters. Grave principles are in play; but a shallow show is also being made
of them, which works insidiously to erode all sense of principle. It ought not
to be followed blindly.
The details of the events in Portland are complex,
conflicted, and best understood by those who are well-acquainted with that
city; I shall not attempt to establish them all. A few, however, do not appear
to be seriously disputed by the parties involved:
1. That crowds have regularly formed around a federal courthouse, and at various times, some individuals have shot fireworks at it, set fires around it, and attempted to break into it.
2. That federal agents from U.S. Customs and Border Patrol, and perhaps other agencies, have been deployed to Portland and have been operating from the courthouse.
3. That those federal agents have not been readily identifiable from their uniforms or vehicles.
4. That those federal agents apprehended at least one person beyond the courthouse grounds by forcing him into an unmarked vehicle, and then held him at another location without charge.
5. That the State of Oregon and the City of Portland opposed the abovementioned actions of those federal agents, and the State of Oregon filed a federal lawsuit to restrain them. The Mayor of Portland urged the federal agents to depart the city.
6. That the President of the United States has encouraged the actions of those federal agents and threatened publicly to deploy them to other cities across the Union. He subsequently ordered such a deployment, over the objections of some of those city governments.
With these facts in mind, I have a few new observations to
The act of unidentifiable agents apprehending a man on a
street at some distance from the scene of unrest, taking him to another
location in an unmarked vehicle, and holding him without charge, appears in
every way to be violation of the right of the people to be secure in their
persons against unreasonable searches and seizures. Whether it is in violation
of current law, the court will decide; but if it is found not to be, then
Congress ought to consider whether that law is in keeping with the Constitution’s
spirit, and modify it. Abductions do not befit a free government.
In considering the rights of the federal government to
deploy agents in a State or city without the consent of its government, two
portions of the Constitution come to mind:
“The Congress shall have Power… To provide for calling forth
the Militia to execute the Laws of the Union, suppress Insurrections and repel
Invasions;” —Article 1, Section 8.
“The United States shall guarantee to every State in this
Union a Republican Form of Government, and shall protect each of them against
Invasion; and on Application of the Legislature, or of the Executive (when the
Legislature cannot be convened) against domestic Violence.” —Article 4,
Here the founding intent is less clear. My layman’s view is
that Article 1, Section 8 grants the federal government full rights to send its
forces, without state or local consent, to enforce federal law and to suppress
rebellion. This view was established in the Insurrection
Act, which was passed
in 1807, within living memory of our Republic’s founding. Article 4, Section 4 of
the Constitution describes the Union’s obligations to the States; it therefore
renders the federal government duty-bound to respond to unrest in a State if
the state government requests aid, but does not expressly prohibit the federal
government from doing so if the state government does not request such aid.
The legal questions in relation to the events in Portland
are more numerous
and complex. I desire only to make the point that federalism in these
United States does not entirely preclude the exercise of federal authority when
State and local governments do not wish it. Indeed, in the past, that authority
has been used for good: federal agents, including Border Patrol officers, were deployed
to suppress riots against James Meredith’s admission to the University of
Mississippi in 1962.
Today, that same power is being exercised with a more
capricious intent. Yet the misuse of it can be checked without challenging the
power itself. The Constitution may vest the federal government the power to
deploy forces into the States to execute the laws of the Union, but the States
may hold the Union to its laws: by bringing suit, as Oregon has done, against
the agencies involved, and so ensuring that their actions are scrutinized in
That federal agents have, and ought to have, the legal
authority to protect a federal courthouse from attempts at looting and arson is
beyond reasonable dispute. The Constitution, as is clear from the passages
quoted above, grants no indulgence to lawless violence. If the City of Portland
desires federal agents to depart, the best way it may now achieve that end is
to show that it will not allow the courthouse to be damaged by those
individuals who still reject the dignity of peaceful protest.
This conclusion may seem unfair. The deployment of federal
agents provoked more unrest, the city authorities might say, after a period
was seemingly declining; why, then, must the city once again take on the
unenviable task of defusing it?
Because caprice, like lawlessness and injustice, cannot be overcome
with more of the same. It must be countered by responsibility, steadfastness,
and duty. The government of Portland is faced with a new opportunity to show
that, unlike the present federal administration, it can calm its streets
without excess, vindictiveness, or harm to peaceable protesters. It ought to
seize that chance, and the city’s residents ought to support their elected
government in doing so — thereby showing that they, in demanding justice, are
determined to uphold principle.
All citizens of these United States ought to recognize that
these events, as with so much else today, are being used in an act of
showmanship, and it is in following that act that the greatest danger lies.
Though the would-be arsonists in Portland may fancy themselves revolutionaries,
they on their own present no formidable rebellion; though Mr. Trump may be a
despot at heart, he does not yet — even now — possess the unrestrained power to
be one in practice. Lacking the ability to impose their will alone, these
actors’ scripts are meant to push Americans to extremism, and thus to their
support. Mr. Trump, in particular, has a nervous eye on the coming election.
Their common wish is to make citizens lose faith in the very idea of free and dignified government, and that is where tyranny begins. We must stand firm.
“All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of the United States and of
the State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.” —Section 1 of the Fourteenth Amendment to the
With these words in mind, I have three points to make:
1. It is
evident that the 14th Amendment, and thus the Constitution of the United
States, is not being uniformly upheld. This is clear in two particular cases
and implied in the aggregate.
George Floyd and Ahmaud Arbery were deprived of their lives
without due process of law. Whether or not they actually committed the offenses
that their killers accused them of is irrelevant; they were never given the
chance to defend themselves in court. Mr. Arbery, after his death, seems
moreover to have been denied the equal protection of the laws, insofar as his
killing was not prosecuted for months. The argument that Mr. Arbery was killed
in self-defense because he attempted to seize a weapon does not have moral
weight. Mr. Arbery was cornered by armed strangers; he could not be sure of
their intention; he himself possessed an inherent right to self-defense. His
decision to fight may have been tactically ill-judged, but it was morally
In the aggregate, credible figures have accumulated over the
past several years that black men are far more likely than others to be the
subject of law enforcement action, and form a disproportionate share, relative
to their proportion of the country’s population, of those killed in the course
of such encounters. Likewise, they comprise a disproportionate share of prison
inmates. This suggests unequal enforcement of the laws, resulting in many
instances in the deprivation of life without due process of law, and perhaps
also the deprivation of liberty with inadequate due process.
That is not to say that all law enforcement action involving
black men, or any other subset of Americans, is unjust. Rather, it is the
persistent disproportionality that is suspect. To be comfortable with those
aggregate figures, one would have to assume that one type of American is
substantially more inclined to criminality than the rest of his countrymen.
That assumption is contrary to the principle, fundamental to republican thought,
that human nature is universal and constant; and thus the failings of human
nature ought naturally to be found in similar proportion across ethnic or
Or, as Frederick Douglass put it more than a century ago:
“I want to be understood at the outset. I do not pretend that
negroes are saints or angels. I do not deny that they are capable of committing
the crime imputed to them, but I utterly deny that they are any more addicted
to the commission of that crime than is true of any other variety of the human
family.” (“Lessons of the Hour” Speech, January 9, 1894).
This problem, as the date of Mr. Douglass’ speech reveals, is
not new. But the fact that it lingers today ought to trouble all patriotic
Americans, whose loyalty is due to the Constitution of the United States and
the principles it contains.
Republic is not backward or malevolent. It has reformed itself again and again
over the years, gradually making moral progress. It has done so because its
citizens are free and willing to protest its failings, and to cast their votes
in pursuit of its improvement. That fact must not be taken for granted;
citizens of many other countries cannot or do not speak out, protest, or vote.
It is also why the Constitution must be taken as a whole. Its different parts
reinforce each other: upholding the 1st Amendment shall aid the fulfillment of
the 14th, and vice versa. The converse is also true: discarding the entire
“system” because one part is not working as it should shall only render the
deficiency more difficult to solve.
Put differently, a country at any given time is the sum of its
people and the principles it is founded upon. Our country’s principles – many
expressed in the 14th Amendment – are good. That leaves us citizens, the imperfect
implementers of those principles, at fault for its failings. Yet self-hate
rarely accomplishes anything. Hard work does. So do not despise your country;
expect better of it.
destruction impedes the betterment of our Union. Sympathy with the grievance is
not a reason to condone riots. Yes, murder is a more severe crime than
destruction of property; but in no way does the murder of some permit or excuse
burning the livelihoods of others, especially those who are entirely unconnected
to the crime. Rather, rioting is directly contrary to the 14th Amendment: it
deprives citizens of life, liberty, or property without due process of law. It
is unjust; it must stop.
If it will not stop, but instead must be stopped by lawful
authorities, that ought to be done only with proportionate means, without
vindictiveness, and without harm to the peaceable protestors who are exercising
one of their most fundamental liberties.
This is merely my appraisal of the principles. As this issue
plays out on the streets, in the courts, and in the halls of government, it is
more complex, more emotional, and more dangerous. But the principles ought
nonetheless to guide us.
There have been a pair of difficult issues in the news this week
that relate to some of the principles in this essay series. I’ll start with the
easier one, speech and social media. Three points to make:
1. There is a
principled case for limiting the ability of social media firms to interfere with
users’ posts. This executive order (second link below) partially makes that
case before it reveals a more likely intent to flood Twitter with libel
lawsuits – which does not encourage free speech.
Put simply, however, the principled argument is this: large
social media firms, when facing anti-trust complaints, have argued –
persuasively – that they need to function as monopolies, because the network
effects produced by virtually everyone using their platform are necessary to
provide their services as forums in which people can connect and exchange
views. Facebook, in other words, would be less valuable to the public were it
instead two separate firms, each of which had a smaller number of users. (After
all, in such a world, the New Model Federalist would have even fewer readers
than the handful I’m grateful to have now.)
Fair enough. But if the value of the service – and the reason it
ought not to be subject to antitrust action – is that it functions as a public
forum, then it ought not to impose restrictions on speech exceeding those
established by law; and in the United States, the First Amendment ensures that
public restrictions on free expression are fewer and narrower than those
imposed by social media firms at present. Furthermore, the few restrictions
that must exist in law can justly be determined only by an elected legislature
that represents and is accountable to the public. The managers of social media
firms, however noble they profess their intent to be, neither represent nor are
accountable to the public.
2. This order,
and the manner in which it came about, is marred by petty vindictiveness and
malevolence. This can be seen plainly in its seventh full paragraph, beginning
with “Twitter.” No republican government, elected to serve the whole country
and all within it, ought to wield its power spitefully against specific
individuals or firms. Such conduct, at best, debases the dignity of government;
at worst, it becomes a means of repression. It is undoubtedly poor leadership.
decisions involving the extent and limitations of free speech ought not to be
made by the bureaucracy, as this executive order would have it. For the same
reason abovementioned – that the legislature, and only the legislature,
represents the people and is vested by them with the power of making laws –
this matter ought to be resolved by Congress.
These points are simplified for brevity – the reality is complicated, and there is plenty of scope for disagreement.